Full opinion text
Opinion LUCAS, C. J. Defendant was charged in Shasta Superior Court with four counts of first degree murder, three counts of kidnapping, three counts of rape by force, three counts of rape by use of threats, one count of assault with intent to commit rape, two counts of oral copulation by force, one count of oral copulation of the victim by force, one count of oral copulation by a person over 21 on a person under 16, one count of attempted oral copulation, one count of sodomy by a person over 21 on a person under 16, and one count of assault with a deadly weapon by means likely to produce great bodily harm. Each murder count further alleged as special circumstances that defendant had murdered the victims named in the other three counts. (Former Pen. Code, § 190.2, subd. (c)(5) (all further statutory references are to this code unless otherwise indicated).) One of the murder counts additionally alleged that defendant had murdered his victim, a child under 14, during the commission of a lewd and lascivious act. (Former § 190.2, subd. (c)(3)(iv).j The cause was eventually transferred to Yolo County. During trial by jury, the indictment was amended to include an additional count of sodomy by force. The jury found defendant guilty as charged of three of the murders, and found the special circumstances of “felony murder lewd and lascivious act on a child under 14” and “multiple murder” to be true; on the other murder charge the jury found defendant guilty of second degree murder and found the multiple-murder special circumstance to be not true. As to the other 18 counts, the jury found defendant guilty as charged of all but three crimes. Immediately after the jury returned its guilt verdicts, the sanity trial commenced. The matter was submitted to the jury on the evidence presented during the guilt phase. The jury found defendant was sane when he committed the crimes. At the penalty trial, the matter was again submitted to the jury on the evidence presented during the guilt phase. The following day the jury fixed defendant’s sentence at life without possibility of parole for one of the first degree murders and imposed death for each of the other two first degree murders. This appeal under the 1977 death penalty law is automatic. (§ 1239, subd. (b).) I. Facts A. The People’s Case. The People introduced evidence establishing the following: 1. Count I—The murder of Annette Edwards In early July 1978, Annette Edwards disappeared from her home in Redding. Her body was found three days later two miles from her apartment, about 75 feet down an embankment off a county road. She was lying on her back with her legs spread; her panties had been pulled below her knees and her tank top had been pulled above her breasts. A bloodstained trash can lid was near her, and additional evidence was also discovered at the scene. The autopsy revealed severe injuries to her face and head. Her upper jaw had suffered two fractures: one began at the left midline and went through her left eye socket and into the lower portion of her skull to the base of her brain; the other followed a similar pattern but began on the right side of her face. The body had other injuries and bruises. The autopsy surgeon testified that a substantial amount of force was required to inflict the injuries on the jaw. The cause of death was described as basal skull fractures inflicted by blunt force. 2. Count II—The murder of Patricia Moore In early August, Patricia Moore disappeared from a motel in Redding. Her nude body was found over two weeks later at the Igo dump. The autopsy revealed severe injuries to her face and head. Several of her teeth had been fractured or broken. Her head had sustained several blows, the most severe of which crushed the right side of the front of her skull. The wound measured about five inches in diameter and was probably inflicted by a heavy rock. There was evidence of manual strangulation. The cause of death was shock and hemorrhage from head wounds inflicted by blunt force. 3. Count III—The murder of Linda Slavik Also in early August, Linda Slavik went to a bar in Chico with a friend. Slavik’s friend left the bar about 1 a.m.; she returned approximately 45 minutes later and found Slavick gone. Slavik’s nude body was found at the Igo dump, about 20 feet from Patricia’s body. Slavick had been shot twice: one bullet entered the front of her neck and struck her spine, the other bullet was fired into her open mouth and severed the spinal column, causing instant death. 4. Count IV—The murder of Annette Selix On an evening in mid-August, 11-year-old Annette Selix left her home in Cottonwood and walked to a nearby market to buy groceries. Her body was found the following day underneath a bridge in Shasta County. She had been stripped naked except for her panties. The autopsy revealed that she was still alive at the time she had been thrown off the bridge, and that she had been forcibly raped and had performed oral copulation. She suffered several broken bones as well as substantial internal bleeding. Bite marks were found on the victim’s thigh and it was positively determined that defendant had inflicted the wound. 5. Counts V and VI—The assault and attempted forcible oral copulation on Donna W On an evening in mid-June 1978, Donna W. left her home in Redding and began walking to a nearby market. Defendant attacked her from behind, pushed her off the road and threw her down a hill. He grabbed her hair and blouse, threatened to kill her, and asked if she wanted to give him “a blow job.” When Donna said no, defendant hurled her to the ground and began hitting her on the head with a blunt instrument. He struck her at least 10 times. Donna’s head injuries prevented her from climbing up the hill to the main road; she remained at the foot of the hill for more than 12 hours before a passerby saw her and called for help. 6. Counts VII - XI—The kidnap, rape and oral copulation of Robin H. In mid-June 1978, Robin H. went to the Anderson fair with a friend. She left the fair alone around 11 p.m., and walked past defendant, who was in his car parked on the side of the road. When defendant called for her to come to him, Robin declined, and defendant drove off. Robin took off her shoes and started running to a bus depot. Suddenly, defendant grabbed her from behind and carried her to his car. Defendant placed Robin in the front seat, grabbed her hair, and pushed her head between her legs. Defendant then drove off. Soon thereafter, defendant ordered Robin to take off her clothes. He parked the car and commanded Robin to lie down and cover her eyes with his shirt so she could not see him. Defendant then proceeded to rape and orally copulate her. He also forced Robin to orally copulate him. Robin was finally released; defendant told Robin he knew where she lived and threatened to kill her if she told anyone what he had done. 7. Counts XII - XV-—The kidnap, oral copulation, sodomy and assault with intent to commit rape of Lisa S. On an evening in late June 1978, 14-year-old Lisa S. was walking with a boyfriend in Redding when defendant drove up next to them. He asked if they would like a ride, and they accepted. Lisa’s boyfriend opened the door and Lisa began to climb in; as she did so, defendant grabbed her, pulled her into the car, and sped off. Defendant ordered Lisa to take off her clothes. He then parked the car and attempted to rape Lisa, but could not achieve penetration. He ordered Lisa out of the car and sodomized her. He also forced Lisa to orally copulate him, and eventually released her. 8. Counts XVI and XVII—The rape of Marla Y On an evening in early July 1978, Marla Y. was walking in Redding when defendant grabbed her. She fought until he knocked her unconscious. When she regained consciousness, she realized defendant was rolling her toward a body of water. She again began to struggle. Defendant ripped off her shirt and ordered Marla to remove her pants. Defendant covered Marla’s face with her pants so she could not see him and then raped her. He ordered her not to look up and then he left. 9. Counts XVIII - XXII—The kidnap, rape, oral copulation and sodomy of Kelly M. On an evening in mid-July 1978, 15-year-old Kelly M. left her home in Red Bluff and bicycled to her cousin’s house to visit. As she returned home, defendant passed her and asked for the time, then grabbed her by the hair and pulled her off her bike. He hit her in the eye, forced her into his car, and drove off. While driving, defendant held Kelly by the hair and forced her head between her legs. He ordered her to take off her clothes. Defendant parked the car and forced Kelly to orally copulate him. He then started the car and drove to another location. En route, defendant threatened to hit her on the head with a flashlight if she did not do as he asked. He also told her that he had a gun under his seat and a dead body in his trunk. When defendant stopped the car again, he sodomized, raped, and orally copulated Kelly. He eventually let her go. 10. The arrest and investigation The circumstances surrounding defendant’s arrest and the police investigation are as follows: In mid-August 1978, defendant, who was riding a “street bike,” asked a friend if he wished to go “dirt bike” riding. His friend declined. About 20 to 30 minutes later, defendant returned and told his friend that he had found a human body. Defendant led him to the Igo dump, and showed him a body. There were no tire marks where defendant claimed to have driven, and defendant could not have traveled the distance from his friend’s house to the Igo dump and back in the time he had been gone. They went and called the police from the nearest telephone. The police arrived, saw two bodies, and began an investigation. Meanwhile, in the course of their investigation into the murder of Annette Selix, Shasta County officers interviewed defendant. He was at that time not a suspect; he was interviewed because the police knew that defendant had worked for Selix’s mother. The discussion lasted approximately one hour. When it was over, one of the officers, Detective Brewer, asked defendant if he would submit to a polygraph examination on the Selix murder, and defendant agreed. Defendant arrived at the Shasta County Sheriff’s Department at 4 p.m. the following day. Detective Brewer learned that defendant had reported finding bodies at the Igo dump, and he asked defendant about those bodies. Defendant replied that he had seen only one body, not two, at the dump. Detective Brewer concluded that because there was as yet no evidence connecting defendant to the Selix murder, but there was evidence that defendant found the bodies at the Igo dump, it would be “more relevant” or “more reasonable” to question defendant about the Slavik and Moore murders during the polygraph examination. Defendant was taken to the room where the polygraph examination would be administered. He was read his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) and waived them. He also signed a written waiver of his Miranda rights on a document entitled, “Waiver, Shasta County Sheriff’s Department, for Polygraph Test.” After explaining the procedure and putting defendant at ease, the examiner administered the polygraph examination. The examination lasted about 15 minutes. One of the questions asked of defendant was whether he had murdered the girl whose body he claimed to have found at the Igo dump. When the examination was over, the examiner spoke with Detective Brewer outside of defendant’s presence and informed him that he believed defendant was lying when he denied involvement in the murders. Brewer then met with defendant and questioned him further about the murders. Detective Brewer testified that at this point defendant was a suspect only to the extent that he had apparently failed the polygraph test. Brewer informed defendant that it appeared he had been lying during the polygraph examination. Defendant replied that he thought the test was fairly administered, and he could not explain why he failed it. Brewer then discussed with defendant “what I thought to be unusual behavior or unaccounted for activity, [or] an accounting that was not satisfactory.” Defendant became nervous; he lost eye contact with Brewer and paused for long periods before responding to questions. Defendant twice said he was going to leave. Brewer asked him to stay and talk about the case. Finally, defendant stood up, said he was going to leave, and told Brewer, “I’ve got something to tell you, but not now.” Defendant said he would call Brewer in a few days, and left. On his way out, defendant asked Brewer for his business card, and Brewer complied. Brewer asked defendant when he could expect a call and defendant said within three days. Defendant then left. Early that evening, defendant met with his friend Gale Croxell and Croxell’s girlfriend. Defendant told them that he had taken and failed a polygraph examination about finding the bodies at the Igo dump; he said the only question he got right was his name. The three went to defendant’s house where they discussed the matter further. Croxell asked defendant why he rode his street bike on a dirt road; defendant said “he wanted to see if they [were] still there.” Croxell then asked defendant whether he had committed the murder; defendant said yes. He said the Hell’s Angels paid him $7,000 to kill the girl. Croxell also asked about the second body; again, defendant said, “yes.” He said he had met her at the Madison Bear Gardens in Chico, and had killed her because “she was in the wrong place at the wrong time.” He then acted out the kidnap and murder of Linda Slavik and told his friends “he shot her in the head and the neck with a .22 [-caliber pistol].” Defendant said he had thrown the pistol in a river and the police would never find it. He also said that the .22 rifle, which he had used to kill the other woman, was at his mother’s house. Later, Croxell’s girlfriend contacted the sheriff’s department and gave them a written statement which included the information that one of the murder weapons was at defendant’s mother’s house. Around 9 that evening, defendant saw two of his friends near a liquor store. He approached them and told them he had failed the lie detector test. He said “he had until 7 o’clock the next day to come up with an alibi or [the police] were going to pick him up.” Before leaving, defendant said, “Hey guys, I’ll level with you. I snuffed her for $7,000.” Defendant’s friends telephoned the police. When Detective Brewer received this additional information he decided to arrest defendant immediately. He learned that defendant’s motorcycle was outside the Oarlock Bar in Redding. Brewer, accompanied by other officers, arrived at the bar about 11 p.m. and placed defendant under arrest. Defendant was not told he was under arrest; he was handcuffed and told he was going back to the sheriff’s department. Officers then drove defendant back to the station. Once at the station, defendant was placed in an interrogation room; a tape-recording system was turned on- without defendant’s knowledge and Detective Brewer questioned defendant for almost two hours. A transcript of the interview, in which defendant confessed to various of the charged murders, spans 45 pages. At the conclusion of the interview, Brewer and defendant returned to the Oarlock Bar. They arrived about 2 a.m. and retrieved without a warrant some of defendant’s personal property from a car located in the bar’s parking lot; both defendant and the owner of the car consented to the search. Brewer then drove with defendant around the area, and defendant pointed out where evidence could be discovered. He also told Brewer that they should retrieve the .22 rifle from defendant’s mother’s house. Defendant’s mother was out of town, and defendant consented to a search of her house; he led Brewer to a bedroom closet, picked up the rifle, and handed it to him. They returned to the station about 3:30 a.m. Defendant was booked and transported to the sheriff’s substation in Burney, approximately 50 miles from Redding. He was transported to Burney instead of being housed in the Shasta County jail because jail trustees had previously informed the sheriff’s department that the person responsible for the Selix murder “would be taken care of when he was placed in our jail.” Before leaving, defendant agreed to submit to a second polygraph examination at Burney. Later in the early morning of August 24, Russell Swartz, a public defender, visited defendant at the Burney substation. Defendant had not requested to see an attorney and by the time Detective Brewer arrived to arrange for the second polygraph test, Swartz had left. Brewer was informed of Swartz’s visit by Lieutenant Eoff, the deputy sheriff in charge of the Burney substation. Brewer telephoned District Attorney Robert Baker for legal advice. Baker told Brewer that he could proceed with the polygraph examination if defendant wished to take it. Baker explained that Swartz had not been appointed to represent defendant, and that what was involved “was [defendant’s] right to counsel, not counsel’s right to seek a client.” He counseled Brewer to “leave the [question] to [defendant] entirely.” Detective Brewer contacted defendant, who agreed to take another polygraph examination. The interrogation was interrupted when Swartz returned to the substation and advised Brewer that defendant was “his client.” Swartz also told defendant to stop talking. Brewer informed Swartz of the legal advice he had received and the two then telephoned District Attorney Baker. Baker again advised Brewer “[t]hat it was to be left to [defendant] entirely. [I was] to advise him that it was his choice whether to retain [Swartz] as counsel or not, and that choice was to be made by [defendant]. If he chose to retain [Swartz] or to be represented by [him], then we were naturally to stop; if not, we could proceed with our polygraph examination.” Detective Brewer informed defendant that the choice was his. Swartz told defendant at least twice that he could be facing the death penalty. Defendant was then asked whether he wished Swartz to represent him and defendant said “he guessed that he’d better.” All interrogation ceased and Swartz left. That afternoon, a consent search was conducted of defendant’s residence. The refrigerator was searched and found to contain the grocery items Annette Selix had purchased moments before she was kidnapped. The following day, August 25th, Detective Brewer obtained the services of a technician from a local hospital, who retrieved hair and blood samples from defendant pursuant to a search warrant. On August 26, Lieutenant Eoff visited defendant in jail. Defendant began speaking about his parents and his childhood. He then told Eoff “he didn’t understand how he could have done what he did.” On August 28, after defendant’s arraignment, he told Eoff that he had been embarrassed by everyone looking at him in court. He also asked Eoff why the investigation was continuing when he had admitted committing the crimes. Eoff explained that an investigation does not end when a person is taken into custody. Defendant said, “I’ll admit to anything I have done but I won’t admit to anything I haven’t done.” He added that he “should have stopped a long time ago but couldn’t.” The following day, about 9 a.m., defendant told Eoff he wished to speak to him but that he wanted to talk with his attorney first. Eoff allowed defendant to telephone Swartz; they spoke for about five minutes. On the way back to his cell, defendant told Eoff that he still wished to speak with him. Eoff told defendant “to think about it, and if he still wanted to talk to me at a later time I would listen to whatever he had to say.” Thereafter, Eoff received word around 4 p.m. that defendant wished to speak with him. Eoff met with defendant and told him “that he shouldn’t talk to me” because “he had an attorney at that point.” Defendant insisted he wished to talk. Eoff said he would not ask any questions but that he would listen to what defendant wished to say. Eoff informed defendant that he would tape-record the conversation; he obtained a tape recorder and brought it into defendant’s cell. The tape recorder was placed in plain view and turned on; defendant then admitted that he had killed Annette. The only question Eoff asked defendant was whether he was referring to the 11-year-old girl; defendant clarified that he was referring to Annette Selix. Later, defendant signaled Eoff to turn off the tape recorder; Eoff complied. Defendant then told Eoff he had “made a list of everything that he was responsible for and that he hadn’t done anything else other than what was on the list.” Defendant asked Eoff if he wanted to see the list and Eoff said yes. Defendant handed him a piece of paper and reiterated that “everything he had done was on that list.” Eoff asked defendant if the list was for him; defendant said, “[i]f you would like to have a copy I can make you a copy of it.” Defendant then told Eoff that he could also use a copy machine if he had one available. Eoff replied, “Fine. We have a copy machine here and I can make a copy of it.” When Eoff returned the original to defendant, defendant asked Eoff if he wished him to sign it, and Eoff said, “No.” On August 31, Detectives Lambert and Brewer transported defendant from Burney to Redding for a court appearance. While waiting, Brewer asked Lambert what one of the officers had learned from defendant’s girlfriend, Darlene Munsinger. Lambert responded that it appeared that Mun-singer had “figured . . . out . . . what was going on.” According to Lambert, defendant then volunteered that he “knew this was true because he had told his girlfriend that he had killed a girl.” Lambert informed defendant that he “preferred” not to discuss the case and that he could not question him. Defendant responded that “the only murders or rapes that he had committed were the ones that he had written down on the list and given to Lieutenant Eoff.” On September 6, defendant took another polygraph examination with Swartz’s consent. Eoff drove defendant from Burney to Redding for the test. En route, they drove down a road near the location where Annette Edwards’s body was found. Defendant said it bothered him to drive through the area “because of what happened here.” Eoff said he could not discuss the case. After the polygraph examination, defendant asked Detective Lambert whether he knew the results of the test questions concerning the murder of one Georgia ¡Ruel. He told Lambert that one of the questions was whether he had thrown a girl off a bridge; he explained that he had thrown a girl off a bridge, but she was not Ruel. On the way back to Burney, defendant asked Eoff if he knew the results of the polygraph test. He told Eoff that “he felt much better, that he had taken the polygraph and felt he passed it.” He further stated that “what he had admitted to was all that he had done.” On September 8, Detective Lambert secured a search warrant authorizing him to obtain a bite sample from defendant. Defendant inquired which victim possessed bite marks; Lambert answered that it was Annette Selix. Defendant said he did not remember biting her. Pursuant to a second search warrant, Lambert obtained additional teeth impressions the following day; defendant told Lambert that “he was sure he had not bitten Annette Selix.” On November 28, defendant sent for Detective Lambert and asked Lambert why he did not like him. Lambert denied disliking defendant. He explained that, having seen the bodies of the murder victims, he could understand why someone with less experience would hate defendant, but that he did not feel that way. According to Lambert, “[defendant] replied that he knew the feeling because he had seen the bodies, and that the only reason he got caught was because he wanted to be caught.” On December 11, Detective Lambert was informed that defendant might attempt suicide. He went to the jail to speak with defendant, who told Lambert that he was very depressed, and had tried to hang himself but was unable to go through with it. He also said that he had left a letter for Lambert in a shoe box and that Lambert could have the letter. Lambert retrieved the shoe box and brought it to defendant, who gave the letter to Lambert. It stated in part, “I didn’t kill anyone that I hadn’t said I did. I’m telling you the truth, whatever. I hate myself. God help me.” B. Defense Evidence As noted above, the defense presented no additional evidence at the sanity and penalty trials, but instead relied on the evidence introduced at the guilt trial. That evidence was as follows: Defendant’s complete family, medical and social history were presented through numerous lay witnesses (defendant’s mother, sister, two uncles, ex-wife, and three ex-girlfriends, his family doctor, two of his grammar school teachers, his grammar school principal, his school psychologist, his eighth-grade teacher, both his high school assistant principal and principal, two of his high school teachers, four coworkers, a psychiatric social worker, three probation officers, a California Youth Authority parole agent, a police officer, and others) as well as six expert witnesses. Defendant was adopted, and had a difficult childhood. His mother was domineering. She took care of other people’s children for a living, and defendant resented the attention those other children received. Nevertheless, he was helpful with the other children, and once rescued another child from a canal. Defendant performed poorly in grammar school, and was kept back in the first grade. His parents fought constantly, and he had few friends. He was referred to the school psychologist, who reported that defendant might become violent, but defendant received no treatment. He exhibited suicidal tendencies after his parents divorced when he was about 15 years old. Initially he lived with his mother in Southern California, but returned to live with his father and new stepmother in Northern California. His academic performance deteriorated in his sophomore year of high school. He transferred to a continuation school, where his grades improved. He was suspended for fighting, and was sometimes truant. At age 17, after one of numerous disagreements with a girlfriend, he went hunting and shot himself in the chest, in what was possibly an attempted suicide. Later, he fired a shot over a police car, and claimed he hoped the officer would return the fire and kill him. A subsequent psychiatric evaluation disclosed defendant was suicidal and urged treatment, but defendant terminated the therapy. When he was 18 he became drunk and repeatedly rammed another automobile with his mother’s car. Thereafter he was sentenced to a county jail camp, where he received counseling. His probation officer noted defendant had a short temper, especially when he was drinking; otherwise, defendant was friendly and responsible. The officer recommended defendant seek psychiatric help, but defendant maintained that after his counseling in jail he was “in control” and had learned to deal with his temper. At 19 defendant, acting in a crazed manner after drinking, attacked a person with a tire iron. When he heard the police approaching he smashed his fist through the windshield of the victim’s car and drove off. He was arrested, and went berserk while being treated for his injury. He was sentenced to the California Youth Authority. There he was diagnosed as not having psychological problems, but it was recognized that he exhibited bizarre behavior. Defendant learned that his girlfriend was pregnant by him, and they married. When released, he lived with his wife and child, and secured a job at a lumber mill. Initially, his parole agent felt defendant’s progress was good. Thereafter, however, defendant hit his wife on two occasions. For the next five months, he managed to control himself. Then, in April 1976 he was injured in a car accident and required numerous stitches on his face, resulting in a severe scar across his nose. This made him very depressed. In late 1976 he once again hit his wife, and in August 1977 he told her to leave, which she did. They divided their property, and defendant voluntarily paid child support. At work, defendant became less cheerful and more hot-tempered, and his attendance deteriorated. He met Darlene Munsinger, who was visiting from out-of-state, and she moved in with him. They had problems, and she left, only to return and leave again after a fight. At defendant’s request, Munsinger returned once more to stay with him in April and again in June of 1978. In late July 1978 she left him for the last time because she had become afraid of him; she thought he provoked fights to give him an excuse to leave the house. When he learned she was leaving he said he was glad she would not be around “when all the stuff came up.” Munsinger asked, “what stuff,” and defendant replied, “I’ll tell you sometime but not now,” and that if he had met her earlier “none of this would have happened.” Each of the women with whom defendant had become romantically involved testified defendant had engaged in sexual intercourse with them by mutual consent, and that he had not engaged in unusual acts, such as sodomy. As noted above, defendant presented six expert witnesses. He first called the two court-appointed psychiatrists, Drs. French and Kaldor, both of whom testified that although defendant had an antisocial personality, he was sane, and did not suffer from mental disabilities that would prevent his forming the intent to kill. Dr. Wilson testified he had difficulty diagnosing defendant, but he believed defendant might suffer from an “intermittent explosive disorder.” He admitted on cross-examination, however, that defendant did have the capacity to intend, premeditate, and deliberate a killing, as well as the non-homicidal offenses. Dr. Morrison also diagnosed defendant as suffering from intermittent explosive disorder, major depression, and a borderline personality disorder, but he stated that defendant did not fit the profile of one suffering from an antisocial personality, or sexual sadism. Morrison believed defendant could not form the mental states to rape and kill Edwards and Moore, or to kill and commit the sexual acts against Selix, but Morrison could not arrive at a conclusion as to the Slavik homicide and sexual acts. He felt defendant was insane at the time of the crimes against Edwards, Moore and Selix. Dr. Satten testified defendant suffered from an intermittent explosive disorder and a borderline personality, and had mild brain damage. He felt defendant did not meet the profile of one suffering from an antisocial personality disorder or sexual sadism. Like Dr. Morrison, Satten believed defendant could not form the mental states to rape and kill Edwards and Moore, or to kill and commit the sexual acts against Selix. Also, like Morrison, Satten believed defendant was insane at the time of the crimes against Edwards, Moore and Selix, but he could not arrive at a conclusion as to the Slavik sexual acts and homicide. Finally, Dr. Axelrad testified that he had subjected defendant to a lengthy hypnotic narcoanalysis session, and that the results showed defendant (i) suffered from borderline personality disorder, intermittent explosive disorder, and major depression, but (ii) did not suffer from antisocial personality disorder or sexual sadism. Unlike the previous experts, he felt defendant suffered from diminished capacity as to each of the homicides and each of the related crimes (except for the rape of Slavik, as to which he testified he could not make a judgment). He believed defendant was insane at the time of the homicides and related crimes, but like Dr. Morrison he stated he had insufficient information to make a judgment as to the non-homicidal offenses against Donna W., Robin H., Lisa S., Marla Y. and Kelly M. C. Rebuttal Experts The People offered four experts in rebuttal. Dr. Von Dedenroth testified that Dr. Axelrad’s hypnotic narcoanalysis interview had been improperly conducted, and that it did not provide a sufficient basis on which to form a valid psychiatric diagnosis. Dr. Kaldor resumed the stand, and also questioned the results of the narcoanalysis session. He stated his belief that such techniques are unreliable for factfinding, and he generally reaffirmed his earlier testimony that defendant did not suffer from diminished capacity at the time of the homicides. Likewise, Dr. French reaffirmed his previous testimony, questioned the validity of the narcoanalysis session conducted by Dr. Axelrad, and noted inconsistencies in Dr. Morrison’s report. Finally, Dr. Robinson testified that defendant’s asserted memory failure about various of the killings was not caused by organic brain dysfunction, or psychotic or schizophrenic functioning, and there was no evidence of current memory dysfunction. He testified that results of various tests given defendant by the other experts disclosed that defendant was simply (and “badly”) faking in order to gain sympathy and avoid responsibility for his actions. He admitted on cross-examination that a person in the midst of an explosive disorder might lose his memory during that time. II. Pretrial Issues A. Jurisdiction of the Shasta Superior Court As noted, the original indictment was filed in Shasta County. Thereafter, defendant notified the trial court that he would seek a change'of venue. The prosecution expressed its belief that if the motion were granted the court should, pursuant to rule 842 of the California Rules of Court, contact the Administrative Office of the Courts to seek out an appropriate transferee court, “[b]ut all legal motions would be held here in Shasta County.” The court agreed. Thereafter, the venue motion was continued to the following week. The court stated, however, “[w]e may as well confirm on the record the discussions we had in chambers concerning the convenience factors that would affect a motion for change of venue, in view of the court’s rules that require that all further proceedings be had prior to trial in the county to which transfer would take place. I feel that there are substantial reasons why it would be prejudicial to both sides to move the matter prematurely, which would require traveling back and forth by parties and their counsel, which would be time-consuming and probably not lend itself to better handling of the matter. I will check with the Administrative Office of the Courts between now and next Monday and verify what the possibilities are . . . .” Defendant thereafter filed his venue motion. At the hearing, the prosecution offered to stipulate that all pretrial motions would be heard in Shasta County. Defense counsel responded, “[tjhat stipulation is acceptable to us. I have some question in my mind as to whether, if the court actually makes an order transferring venue to another court, whether it has jurisdiction in spite of that stipulation to continue the law and motion matters in this county. I know we have discussed this matter, and it is my desire and [tdefendant’s] desire that law and motion, legal matters, be retained in this county.” (Italics added.) The court explained, “I believe, gentlemen, as I informed you in chambers, that this can be accomplished. I discussed it with representatives of the Administrative Office of the Courts, and apparently there is a good deal of flexibility. What I will do is take the motion under submission and technically grant it later if I have to in order to process law and motion matters. Otherwise we may be able to make the order subject to continuation of law and motion proceedings here. So the motion is taken under submission. I will notify the Judicial Council that I desire the transfer of the action, and see what other courts are available . . . .” A few days later (Sept. 29, 1978) another hearing was held. The court informed counsel of the various options and it was decided that Lake County would be the preferable alternative forum. The court stated, “I will notify the Administrative Office of the Courts that I propose to transfer the matter to Lake County. And we will determine then by subsequent exploration whether there are any factors which we do not know of which make that undesirable. At least at this stage we will open direct contact with Lake County Superior Court and determine any limitations that they might have in trying the case which would affect our decision. And of course it is possible to come back and still make another choice if that investigation reveals factors which would militate against going there.” Over seven months later, the prosecution asked when the matter would be transferred to Lake County. The court answered, “Well, it is primarily up to you gentlemen. I rely on you gentlemen as to when the balance point is reached so it is more convenient for you and everybody else to be down there rather than up here . . . .” The pretrial appellate court proceedings in defendant’s case were not finalized for another 11 months—until March 1980. The court then asked counsel whether, in light of the delay, a new list of possible trial locations should be obtained from the Administrative Office of the Courts. Both defense counsel and the prosecution agreed that another location should be considered. In mid-March, it was decided that Yolo County would be the new trial location. In mid-April 1980, the court formally granted the motion and transferred the matter to Yolo County. Defendant argues his venue motion was granted on September 29, 1978. He insists the Shasta Superior Court lacked jurisdiction to rule on any matters after that date, and that “all matters, orders or rulings thereafter” in the Shasta or Yolo Superior Courts were “void.” Defendant’s premise is faulty: the Shasta Superior Court did not grant the venue motion until mid-April 1980. Accordingly, we find defendant’s claim meritless. Defendant maintains, however, that the trial court was required to rule on the venue motion immediately. He cites Moore v. Powell (1977) 70 Cal.App.3d 583, 587 [138 Cal.Rptr. 914], for the proposition that the trial court lacked power to rule on any other issue prior to deciding the venue motion. Moore, however, is distinguishable because it involved civil change of venue under the Code of Civil Procedure, not criminal venue change pursuant to the Rules of Court. Rule 840 of the California Rules of Court provides that “Rules 840 to 844, inclusive, shall govern the transfer of criminal actions or proceedings.” Motions for change of venue pursuant to section 1033 fall within this rule. (See Cal. Rules of Court, rule 841.) Rules 840 through 844 are silent as to when a trial court must rule on a criminal venue motion; they provide simply that once the transfer is ordered, “the clerk shall immediately make out and transmit to the court to which the action is transferred a certified copy of the order of transfer record, pleadings and proceedings in the action including the undertakings for the appearance of the defendant and of the witnesses.” (Id, rule 843.) We conclude the Rules of Court did not prohibit the trial court from taking the venue motion under submission and determining other pretrial motions. B. The Suppression Motion Defendant’s motion to suppress evidence of various statements he made to the police, and certain other evidence, was granted in part and denied in part. He now challenges the court’s failure to grant his suppression motion in its entirety. We conclude the court did not err in its partial denial of defendant’s motion. 1. The suppression hearing At the suppression hearing, the trial court excluded the statements made by defendant on August 24 following his arrest at the Oarlock Bar, including his tape-recorded confession to Detective Brewer and the 45-page transcript of that confession. It also suppressed the rifle seized from defendant’s mother’s house. Defendant complains that the trial court failed to suppress: “1. The statements made ... on August 23, 1978, at the police station (before and after the polygraph examination); 2. Items of property taken in the search of [defendant’s] residence on August 24, 1978; 3. Items of [defendant’s] property taken from a friend’s automobile without a warrant; 4. Items of [defendant’s] personal property obtained pursuant to a search warrant on August 25, 1978; and, 5. Items of property taken from [defendant’s] person on September 9, 1978, pursuant to a search warrant.” Defendant additionally challenges the trial court’s failure to suppress: “1. [Defendant’s] admissions/confessions made to Detective Lambert on August 31, 1978, September 6, 1978, September 9, 1978, November 28, 1978, November 29, 1978, and December 11, 1978; and, 2. [Defendant’s] admissions/confessions to Lieutenant Philip Eoff on August 26, 1978, August 28, 1978, August 29, 1978, and September 6, 1978. [fl] Nor did it order suppressed [defendant’s] statements to certain acquaintances and/or friends made by [defendant] on August 23, 1978, after he left the police station (having completed the polygraph test) and up to the moment of his arrest.” 2. Discussion The thrust of defendant’s argument appears to be that “all of the statements and confessions made by [defendant] were produced by the inherently coercive tactics of law enforcement officers.” We analyze each item separately, and conclude that the evidence was properly admitted. a. Statements of August 23. Defendant challenges the admission of statements made before and after the polygraph examination of August 23. Defendant neglects to provide record citations and our independent review of the record has failed to disclose any admissions made before the polygraph examination. Further, trial counsel did not seek to suppress any prepolygraph examination statements. Accordingly, we address only the postpolygraph examination interview. As noted, defendant was read (and he waived) his Miranda rights (Miranda, supra, 384 U.S. 436) before taking the polygraph examination. He also waived his Miranda rights regarding the polygraph examination itself. Defendant argues that once he failed the polygraph test he was entitled to new advisement of his rights. We disagree. We note at the outset that the postexamination interview was not tantamount to a custodial interrogation. On more than one occasion during the posttest interview, defendant stated he was going to leave but Detective Brewer asked him to stay and discuss the case. At no time did Brewer prevent defendant from leaving. Brewer simply asked defendant to “stay and explain what you’re talking about.” When defendant decided to terminate the discussion, he did not say he wanted to leave; rather, he physically stood up and left. But even assuming a custodial interrogation, defendant validly waived his Miranda rights and the police could constitutionally conduct postexamination questioning “unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a ‘knowing and intelligent relinquishment or abandonment’ of his rights.” (Wyrick v. Fields (1982) 459 U.S. 42, 47 [74 L.Ed.2d 214, 218, 103 S.Ct. 394].) Defendant emphasizes he “was confronted with the fact that his answers indicated deception” as the basis for requiring “fresh” warnings. The Fields court, in reversing a lower court ruling, rejected a similar argument stating, “[t]he Court of Appeals relied on two facts indicating the need for a new set of warnings: the polygraph examination had been discontinued, and [the defendant] was asked if he could explain the test's unfavorable results. To require new warnings because of these two facts is unreasonable. Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The [interviewing] agent could have informed [the defendant] during the examination that his answers indicated deceit; asking [the defendant], after the equipment was disconnected, why the answers were bothering him was not any more coercive. The Court of Appeals stated that there was no indication that [the defendant] or his lawyer anticipated that [the defendant] would be asked questions after the examination. But it would have been unreasonable for [the defendant] and his attorneys to assume that [the defendant] would not be informed of the polygraph readings and asked to explain any unfavorable result.” (Fields, supra, 459 U.S. at p. 47 [74 L.Ed.2d at pp. 218-219], italics added.) We note that the defendant in Fields received a slightly different set of warnings from those given to the present defendant; Fields was expressly informed that he had “a right to stop answering questions . . . even if [he] sign[ed] a waiver certificate.” This, however, does not affect the reasonableness of the assumption that defendant would be informed of the test results and questioned about his responses. Defendant voluntarily submitted to the polygraph examination; he was twice informed of his rights and waived them. Under these facts, we cannot fault the police for informing defendant of the results of the test and for requesting explanations. Nor do we agree that defendant was invoking his right to terminate the interview when he expressed the desire to leave. Defendant was aware of his rights; he was free to invoke his rights and terminate the interview at any time. Defendant was also free to leave at any time, and indeed ultimately did so. On these facts we conclude that defendant was disclosing merely the desire to postpone the interview, not to terminate it. Even if we were to assume error, we would find it clearly harmless. (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].) It appears that the only incriminating statement defendant made in the interview after the first polygraph examination was that he rode his street bike on dirt roads. Defendant provides record citations to no other incriminating statements, and our review of the record discloses none. In light of defendant’s subsequent admissions and confessions, the admission of defendant’s posttest statement could not have affected the verdict. b. Defendant's admissions to friends after the polygraph examination. After the polygraph test, defendant met with friends and admitted that he had murdered the two women whose bodies were found at the Igo dump. Defendant contends that his “persistent encounters with various police officials were ‘motivating’ factors for [his] later confessions to his acquaintances/friends. ” He relies on People v. Johnson (1969) 70 Cal.2d 541 [75 Cal.Rptr. 401, 450 P.2d 865, 43 A.L.R.3d 366], to support his claim. Johnson is distinguishable; it simply applied the well-established rule, “Where an accused makes one confession and then testifies or upon subsequent questioning again confesses, it is presumed that the testimony or second confession is the product of the first.” (Id., at p. 547.) Defendant in this case did not confess to anything during the postexamination interview; nor was his confession to his friends the product of subsequent police interrogation. Defendant voluntarily admitted to his friends that he murdered the two women found at the Igo dump. We agree with the trial court that the admissions were not the product of illegal police conduct. c. Search of the car (August 24). After obtaining the confession, Detective Brewer returned with defendant to the Oarlock Bar and, with the consent of defendant and the vehicle’s owner, entered the car and seized defendant’s personal property. Defendant challenges this search as tainted by his previous confession to Brewer found inadmissible by the trial court. On this record, we are uncertain of the precise timing of the consent. If, as the record suggests, defendant consented to the search before making the suppressed confession, there is no taint. If, however, defendant consented to the vehicle search after he confessed, the consent is tainted and the search invalid. Assuming the latter, the evidence was nonetheless properly admitted because it would inevitably have been discovered. (Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170 [89 Cal.Rptr. 731, 474 P.2d 683].) The police knew defendant had confessed to his friends that he had murdered two women; they found defendant in the Oarlock Bar parking lot and learned, before placing him under arrest, that he had personal property inside a certain vehicle. When defendant was placed under arrest, an officer remained behind to guard the vehicle. On these facts, the evidence in the car would have been discovered even without defendant’s consent. The trial court therefore did not err in ruling the evidence admissible. d. Search of defendant’s residence (August 24). Defendant gave written consent for a search of his residence. This search is also challenged on the basis that it was tainted by the suppressed confession to Detective Brewer. Again we are uncertain of the timing of the consent. Deputy Public Defender Swartz met with defendant in the early morning hours of August 24, before the police arrived. If defendant consented to the search of his residence after speaking with Swartz, the taint was arguably attenuated. (People v. Sesslin (1968) 68 Cal.2d 418, 428 [67 Cal.Rptr. 409, 439 P.2d 321] [“That degree of ‘attenuation’ which suffices to remove the taint from evidence obtained directly as a result of unlawful police conduct requires at least an intervening independent act by the defendant or a third party which breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained ‘by exploitation of that illegality.’ ”]„) On the other hand, if defendant consented to the search after the suppressed confession but before meeting with counsel, then the consent was tainted. Again, however, the evidence would inevitably have been discovered. Defendant was under arrest for murder. If he had not consented to a search of his residence, a warrant would have been sought and, on the basis of the information provided by defendant’s friends, would have been obtained. The evidence thus would have been discovered even without defendant’s consent. Accordingly, the trial court did not err in finding the evidence admissible. e. Blood and hair samples. On August 25, blood and hair samples were taken from defendant pursuant to a search warrant. Defendant challenges the warrant, claiming it was based entirely on statements made during the suppressed confession to Brewer. We agree that the affidavit relied on statements made during that interrogation. We conclude, however, that defendant has failed to establish prejudice because the evidence would inevitably have been discovered. It is undisputed that hair and blood samples could have been obtained pursuant to a valid warrant based on defendant’s admissions to his friends. In connection with the Selix murder, the affidavit could have detailed the incriminating evidence discovered during the consent search of defendant’s residence. At the very least, the samples could have been obtained following defendant’s subsequent admissions. Thus, the error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].) f. Defendant’s admissions to Eoff and Lambert. Defendant challenges several admissions made to Eoff and Lambert between August 26 and December 11. He insists that these statements were “the direct product and result” of illegal police interrogation. The record, however, shows that defendant freely spoke and confessed his crimes to anyone who listened to him. Before his arrest, defendant admitted to his friends that he had murdered the two women he claimed to have found at the Igo dump. The friends notified the police and defendant was arrested. He then admitted that he murdered three women in the Shasta County area. After accepting Swartz as his attorney, and having been specifically and repeatedly instructed not to talk to the police, defendant initiated several conversations with Lieutenant Eoff and Detective Lambert. Both officers told defendant repeatedly that they were not at liberty to discuss his case; defendant nonetheless volunteered information. Indeed, even after speaking with his attorney, defendant voluntarily gave Eoff a tape-recorded statement, as well as a handwritten list of all the crimes he had committed. The fact that defendant, soon after consulting his attorney, told Eoff he still wished to talk to him clearly constitutes “an intervening independent act by the defendant” and purges any taint from the initial suppressed confession. (Sesslin, supra, 68 Cal.2d at p. 428.) We therefore find meritless defendant’s claim that his various oral and written admissions to Eoff and Lambert should have been excluded. g. Teeth impressions. On September 8 and 9, teeth impressions were obtained from defendant pursuant to a warrant. Defendant makes the same challenge to this warrant, claiming it was based entirely on statements made during the suppressed confession. We disagree. By September 8, defendant had already given the admissible confessions previously discussed. The information set forth in the affidavit had thus been established by a source independent of the initial, suppressed confession. (See Nix v. Williams (1984) 467 U.S. 431, 441-448 [81 L.Ed.2d 377, 385-390, 104 S.Ct. 2501], and cases cited.) The search was therefore lawful. III. Guilt Phase Issues A. Sufficiency of the Evidence Defendant alleges there is insufficient evidence of planning to support his first degree murder convictions. He claims that he murdered Edwards, Slavik and Selix “in a fit of anger or rage.” In reviewing the sufficiency of the evidence our inquiry is limited to whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 572-573, 99 S.Ct. 2781], italics in original.) We view the evidence in the light most favorable to the judgment below, and we “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Johnson, supra, 26 Cal.3d at p. 576, quoting People v. Mosher (1969) 1 Cal.3d 379, 395 [82 Cal.Rptr. 379, 461 P.2d 659].) Viewing the evidence in this light, we find it sufficient to support the convictions. First, defendant’s first degree murder conviction in count I was based on felony murder, not premeditated murder, and the evidence established that defendant raped and then killed Edwards. With respect to the murder of Slavik, the evidence showed that defendant lured her out of the bar and drove her to the Igo dump. There she was stripped, raped, and then shot at close range while she was sitting on the ground. With respect to the murder of Selix, the evidence tended to show that defendant picked her up in Cottonwood and drove her to his house, where he raped and sodomized her, and that he then drove her almost 35 miles and threw her off a 105-foot high bridge. We believe the evidence supports the jury’s finding of premeditation and deliberation in the murders of Slavik and Selix. B. Alleged Conflict of Interest When defendant was arrested, Robert Baker was the District Attorney of Shasta County. After Baker was defeated in the 1978 election, he was retained as a special prosecutor to complete this case. In mid-January 1979, Baker shared office space with Mr. Werner Ahrbeck, a criminal defense attorney. Ahrbeck later became cocounsel for defendant. Defendant now asserts that these circumstances constituted a conflict of interest and denied him a fair trial. During a discussion in chambers, both defense counsel (Swartz and Ahrbeck) informed Shasta Superior Court Judge Small of the office-sharing arrangement. Although Ahrbeck and Baker shared office space, they were not in business together and each kept his files in separate, secured areas. Defense counsel explained they had discussed the matter with defendant, and that he had no objection. Thereafter, in open court, defendant was informed that the only relationship between Baker and Ahrbeck would be that of landlord and tenant. Judge Small asked defendant if he had any objection to this arrangement, and defendant answered that he had none. Defendant claims his waiver was invalid because Ahrbeck was unable to give him neutral advice. This overlooks the fact that Swartz was defendant’s lead counsel, and Swartz’s advice on the waiver was in no way affected by the purported conflict of interest between Ahrbeck and Baker. We see no basis on which to conclude defendant’s waiver was invalid. In addition, Swartz was well aware of the office arrangement and found no basis for objecting to it. Ahrbeck kept none of his files on defendant’s case in the “shared” office. Indeed, the record shows the space he shared with Baker was simply a branch office, where he spent little time. Further, the trial took place in Yolo County, which provided the prosecutors and defense counsel separate offices in Woodland. We therefore fail to see how defendant could have been prejudiced by the fact that Ahrbeck and Baker shared office space. Although this practice is not to be encouraged, on these facts we perceive no basis for reversal. (See People v. Marshall (1987) 196 Cal.App.3d 1253, 1256-1259 [242 Cal.Rptr. 319].) C. Shackling Defendant complains that he was handcuffed and shackled throughout the trial, and that reversal is required under People v. Duran (1976) 16 Cal.3d 282 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1]. In Duran, we “reaffirmed] the rule that a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (Id. at pp. 290-291, fn. and citations omitted.) Before jury selection began, Judge Warren K. Taylor inquired of his bailiff whether, in light of defendant’s size and the seriousness of the charged offenses, special security measures should be employed during the trial. Thereafter, the court summoned counsel and announced its plan to seat defendant between his two defense attorneys at the counsel table and shackle defendant in ankle chains and with handcuffs attached to a “belly chain.” Defense counsel objected to both the described seating arrangement and the shackling of defendant: counsel wanted to sit next to each other in order to confer during trial, and counsel objected that defendant’s appearance in shackles would prejudice the jury. Defense counsel represented to the court, and the prosecution agreed, that defendant had not misbehaved, nor had he otherwise posed a security risk, during his pretrial incarceration or his many court appearances in Shasta County before transfer of the matter to Yolo County. Following additional discussion, the court approved a procedure permitting defendant to be seated at the end of the defense counsel table, next to Mr. Swartz. For the safety of the court clerk, a lectern was to be placed between the counsel table and the court clerk’s desk. The court also ordered that defendant would not be handcuffed, but that he would be shackled with ankle chains, and that the counsel table would be equipped with a “skirt” to prevent the jurors from observing the shackles. Furthermore, pursuant to an agreement among all counsel, the bailiffs were directed to transport defendant to court sufficiently in advance of the jury’s arrival in order to prevent jurors from observin