Full opinion text
Opinion PANELLI, J. This is an automatic appeal from a judgment of death (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b)) imposed under the 1977 death penalty law (former Pen. Code, §§ 190-190.6, Stats. 1977, ch. 316, §§ 4-14, pp. 1256-1262, repealed by Prop. 7, Gen. Elec. (Nov. 7, 1978)) following retrial of the issue of penalty after an initial judgment of death was reversed in People v. Robertson (1982) 33 Cal.3d 21 [188 Cal.Rptr. 77, 655 P.2d 279] (hereinafter Robertson I). After trial a jury found defendant Andrew Edward Robertson guilty of two first degree murders and found true nine charged special circumstances. The jury fixed the penalty at death; the court entered judgment in accordance with the jury’s verdicts and findings. On appeal we affirmed the judgment of guilt and the special circumstance findings, but reversed the judgment as to penalty. (Robertson I, supra, 33 Cal.3d at p. 60.) After retrial to the bench, the court fixed the penalty at death and entered judgment accordingly. This appeal followed. As will appear, we affirm the judgment. I. Facts Pursuant to a waiver of jury trial by the prosecution and the defense, retrial of the penalty phase was before the court as trier of fact. The judge on retrial was not the judge who had presided over the initial trial. Before the court by stipulation of the parties were transcripts of prior testimony in this action. In the words we used in Robertson I, supra, 33 Cal.3d 21, the prior testimony told the following tale. “This case arises out of the deaths of two women, Karen Ann Litzau and Kimberly Gloe, in October 1977. Shortly after his arrest, defendant gave a detailed, tape-recorded confession to both homicides, and then reenacted the killings on film at the scenes of the crimes. The tape-recorded and filmed confessions were admitted at trial. Complemented by additional evidence presented by the prosecution, the record discloses the following facts. “In the early morning hours—2 or 3 a.m.—of October 20, 1977, defendant stopped and picked up Karen Litzau as she was hitchhiking on a freeway on-ramp in San Bernardino. At first defendant only intended to give Litzau a ride but then, as the two were driving, decided to have sexual relations with her. When she refused, he put his right arm around her neck, pressed a knife to her throat and told her they were going to have intercourse. “After leaving the freeway and driving to a secluded area on a dirt road, defendant stopped the car. When Litzau began to call him names—‘crazy, a son of a bitch, an asshole, everything in the book’—defendant began ripping off her clothes. Litzau asked defendant if he was going to kill her and he said ‘no.’ “Defendant then placed Litzau on the hood of his car, intending to have intercourse. When she started calling him names again, however, he ‘yanked her off the car and started stabbing her.’ “At one point in his confessions, defendant stated that he only remembered stabbing Litzau twice and that ‘[m]y mind went blank. The next thing I knew I was on the freeway and I had blood on my hands.’ Immediately thereafter, however, defendant described the incident in considerable detail, recalling that he had cut Litzau’s throat and stomach and had stabbed her repeatedly in the heart, back and vagina. In the course of his confession, defendant also admitted that at one point during the stabbing he stopped momentarily, thinking Litzau was dead, but when he discovered that she was still alive, he cut her throat. “Before leaving the scene, defendant tried to cut off a breast of Litzau’s lifeless body but failed because his knife was too dull. He took several pairs of panties, a cosmetic case and an engraved cigarette lighter from her suitcase, urinated on the body and drove away. At different points in his confession defendant stated alternatively that he decided to kill Litzau when she ‘call[ed] [me] names’ and ‘when she started saying that she was going to tell on me.’ “Litzau’s body was found the next morning. An autopsy revealed more than 170 knife wounds over her entire body. “One night about a week and a half later, defendant picked up Kimberly Gloe as she was offering her services as a prostitute on a street in San Bernardino. After she entered the car, defendant pulled a knife and drove to a secluded area. He had brought his knife because he wanted sex. When Gloe told him that force was not necessary, he put the knife away. He stopped the car and they engaged in various sex acts. “Thereafter, Gloe told defendant that she ‘had a guy rape me before and I squealed on him, but they couldn’t find him, and I might squeal on you, too.’ When defendant said ‘You wouldn’t do that, would you?’ she responded, ‘Yeah, I would.’ Gloe then got out of the car to get her clothes and clean herself off. “Defendant grabbed his knife, followed her out of the car and started stabbing her in the stomach. He remembered stabbing all over her body, cutting her throat and stomach, removing her intestines, cutting off her breasts, [] and stabbing her in the vagina, leaving his knife embedded there. He stated that he stabbed her in the vagina because T wanted to do it the same way I did Karen.’ A subsequent autopsy revealed 120 separate stab and incisional wounds. “After Gloe was dead, defendant attempted to break her legs ‘[b]y standing and pulling on them and then again urinated on the body. He left with her address book and her bra and panties. Asked if he had intended to kill Gloe when he first picked her up, defendant stated that T didn’t have any intention of killing her until she started saying she was going to snitch on me. . . .’ “A few days after Gloe’s death, a woman who had seen Gloe get into defendant’s car spotted the car parked in a gas station and notified the police, who traced the car to defendant and arrested him. At the time of his arrest, Litzau’s cigarette lighter was found in his pocket. With defendant’s consent, the officers searched his apartment and found Gloe’s address book, Litzau’s cosmetic case and—-under his bed—numerous items of women’s underwear, including several belonging to each of the victims.” (Robertson I, supra, 33 Cal.3d at pp. 31-32.) In its case-in-chief, the prosecution set out to show the penalty of death was appropriate for defendant. At the penalty phase of the initial trial the defense had attempted to demonstrate that defendant’s culpability was reduced by mental disease or defect. In evident anticipation of the case it expected the defense to present here, the prosecution called several expert witnesses. The prosecution experts—four psychiatrists and two psychologists—testified in sum as follows: defendant had a character or personality disorder, variously described as passive-aggressive or mixed character disorder with antisocial features and poor impulse control; he was emotionally immature and was of borderline or low average intelligence; he lacked insight and was concerned only for himself; he was sexually aggressive, received gratification from inflicting pain and had feelings of inadequacy; and as a child he had developed slowly and suffered emotional trauma. The prosecution experts were in conflict as to whether defendant was a mentally disordered sex offender; they were unanimous that defendant did not suffer from any mental disease or defect and was not affected by posttraumatic stress disorder. As further evidence in aggravation of penalty, the prosecution introduced evidence of defendant’s prior crimes. Ernest F. testified that one night in 1973, when he was a 19-year-old enlisted man in the Marine Corps, he went out drinking in Yuma, Arizona; at a bar he met a man who introduced himself as “Tex”; he and “Tex” went bar hopping; in the desert outside of Yuma, “Tex” attacked him, placing a knife to his neck and jabbing him with the weapon; “Tex” forced him to submit to oral copulation as he held the knife at his testicles and groin and jabbed; “Tex” repeatedly threatened to mutilate him and leave him in the desert and also threatened to kill him; he offered no resistance to the attack and soon managed to escape; he reported the incident to the police, but charges were never filed. At trial he stated defendant was the man he had known as “Tex.” Kim P. testified that one night in 1976 she was standing in a parking lot at a truck stop in Ontario, California; a man approached her from behind, put a knife to her throat and forced her into his automobile; a citizen’s band radio was on; he drove her to a remote area where he compelled her to disrobe and then cut off her underpants with his knife; he told her he hated women and repeatedly said he was going to kill her; he beat her about the face, head, and breasts; he violated her with a Coca-Cola bottle until her vagina bled; he put lit cigarettes into her vagina and called her a “cry baby” when she complained of pain; he forced her to orally copulate him; he took a pair of underpants from her bag, saying they were for a collection he kept; when the citizen’s band radio crackled, he became distracted and she fled; he cruised around the area for five or ten minutes shouting threats that he would kill her, but she made good her escape and reported the incident to the police. She identified defendant as her assailant. Finally, Catherine A. testified that one night in 1977 a man driving a station wagon approached her as she was walking along a street in San Bernardino; he offered to pay her for sexual services; she accepted and entered the vehicle; the man pulled a gun and said, “All right, you fucking whore bitch. I’ve got you now,” and drove on; when they arrived at a remote area, the man told her to get in the back of the station wagon and remove her clothing; he repeatedly said he had to kill her; when she asked why, he responded otherwise she would go to the police; she replied she would not and generally attempted to mollify him; he sodomized her until she bled, forced her to orally copulate him and masturbated in her face; he beat her breasts and regarded them with obsession; he took her underpants, saying he wanted them for a collection he kept; eventually, he told her to get out of the car; when she did so, he began to drive off, but then turned the car back; as she hid in a nearby cemetery, he drove up and down for about 20 minutes and eventually left; she did not report the incident at that time and charges were never filed. At trial, she identified defendant as her assailant. In its case-in-chief, the defense endeavored to show death was not the appropriate penalty: defendant had a traumatic childhood, was mildly mentally retarded, had low intelligence and poor judgment, and was in essence a 12-year-old boy in the body of a man; at the time of the crimes he was affected by posttraumatic stress disorder as a result of military service in Vietnam and by brief reactive psychosis; he had made an excellent adjustment to incarceration, had become sincerely religious, and would behave well in prison and pose no danger to others. To support its position, the defense introduced evidence, through defendant’s mother and sister and expert witnesses, concerning defendant’s life before commission of the crimes in question. The evidence shows a traumatic birth preceded by a difficult and prolonged labor; slow development of speech and walking; parental divorce, followed by kidnap by his father, ultimate return to his mother, and thereafter care alternating between a disturbed mother and a strict grandmother; domination by a cruel and overbearing sister; and social and academic difficulty in school. At nine years of age, defendant was examined by a neurologist, who diagnosed him as mildly mentally retarded with possible brain damage. Defendant served two years in the Job Corps and then enlisted in the Army. During his eight years military service he did two tours of duty in Vietnam, totaling almost three years. On his return to the United States, defendant had difficulty adjusting to the less structured environment of the peacetime military; he experienced nightmares and suffered from depression. In 1973 he married a woman 12 years his senior who had 4 children by a previous marriage. The union quickly ended in divorce, as defendant was unable to shoulder responsibility and was closer in mental and emotional level to the children than to his wife. In 1975 defendant attempted to reenlist in the Army, but was refused. Thirty years old, he returned to his mother’s home. He was unable to learn a usable skill or to hold a job. In 1976 he attacked Kim P. and was sent to jail. In 1977 he was released. Later that year he killed Karen Ann Litzau and Kimberly Gloe. Dr. Hunt, the neurologist who had examined defendant at age nine, testified defendant had suffered organic brain damage and was mildly mentally retarded and not amenable to treatment; he appeared to suffer from no specific mental disease, nor was there any plain psychiatric explanation for his behavior, although he may have been psychotic during commission of the crimes in question. Dr. Hunt believed defendant had suffered definite impairment of his mental functions and therefore should not be sentenced to death. Dr. Robert Postman, a psychologist, testified defendant was of below average intelligence, was probably mildly mentally retarded and perhaps had an antisocial personality disorder; at the time of the crimes in question he was suffering from brief reactive psychosis rooted in part in a deep hatred of women. Dr. Postman believed defendant would pose no danger to others in the structured setting of prison and would be productive there. Thomas S. Wulbrecht, director of the Vietnam Veterans Outreach Center in Riverside, testified about defendant’s experiences in Vietnam and their effects on his psyche. Wulbrecht stated defendant exhibited chronic post-traumatic stress disorder overlaid with an antisocial personality disorder; posttraumatic stress disorder could lead to a dissociative state wherein the subject would revert to the “survivor mode” of combat in an “altered state of consciousness”; the commission of the crimes in question was consistent with behavior in such a state; it was also consistent with behavior under brief reactive psychosis. As evidence defendant would not pose a danger to others if he were sentenced to life imprisonment without possibility of parole, the defense presented the testimony of three correctional officers and two fellow inmates of defendant. Deputy Sheriff Roger Coyle testified that during defendant’s confinement in the county rehabilitation center he conducted himself well and never caused any disciplinary problems; on one occasion when Deputy Coyle was attacked by other inmates and lost control of his gun, at danger to himself defendant pushed the other inmates against a wall to prevent their obtaining the gun. Sergeant Gerald Riley, formerly a correctional officer on “Death Row” at San Quentin Prison, testified defendant adapted readily to incarceration and was “an outstanding prisoner” and had “never been any problem”; he gets along with everybody well; he follows the rules; he seems to have the intelligence of a fourth- or fifth-grader; he is a hard worker and eagerly does favors for the staff and other inmates; although when he arrived on Death Row, he had an obsessive interest in pornography, he has since started studying the Bible and become a born-again Christian; as a result, he has put away pornography and become an even better prisoner than he had previously been. Sergeant Riley believed defendant would pose no danger to others in prison. Norvell Greene, a correctional officer on Death Row, gave similar testimony. Mariney Joseph and William Payton, death row inmates with defendant, testified to their Bible study with defendant and the marked change it had produced in him. Following closing argument, the court announced its penalty decision. Thereafter, the court denied defendant’s automatic motion for modification of penalty (former § 190.4, subd. (e)) and imposed judgment of death. II. Contentions Defendant makes several claims attacking the judgment of death. As will appear, none requires reversal. A. The Court’s Jurisdiction to Decide Penalty. Defendant contends that under the 1977 death penalty law the court was without jurisdiction to decide the issue of penalty when, as here, a jury had decided the issue of guilt. Except as provided otherwise by statute, “Superior courts have original [subject matter] jurisdiction in all causes,” criminal as well as civil. (Cal. Const., art. VI, § 10.) “Inherent in subject matter jurisdiction is the power to inquire into the facts, to apply the law and to declare the punishment.” (Burris v. Superior Court (1974) 43 Cal.App.3d 530, 537 [117 Cal.Rptr. 898]; accord, People v. Brown (1970) 10 Cal.App.3d 169, 175 [88 Cal.Rptr. 801], citing authorities.) We find nothing in the 1977 death penalty law that denies the court power to decide the issue of penalty in a case in which a jury has decided the issue of guilt. In arguing to the contrary defendant relies on former section 190.4, which provided in relevant part as follows. “(b) If defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people. “(c) If the trier of fact which convicted the defendant of a crime for which he may be subjected to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to [Penal Code] Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.” (Stats. 1977, ch. 316, § 12, p. 1261.) We do not read the foregoing provisions to deny the court jurisdiction to decide the issue of penalty when a jury has decided the issue of guilt. Subdivision (b) was evidently intended to grant defendants who had waived jury trial on the issue of guilt the right to a penalty determination by a jury. Subdivision (c), in turn, was evidently intended to provide that when guilt had been determined by a jury, the same jury should decide the remaining issues unless discharged for good cause, i.e., to declare that defendants who had been convicted by a jury were not entitled to have a different jury determine the issues of special circumstance, sanity, or penalty. Whether read separately or together, these provisions patently do not affect the subject matter jurisdiction of the court. Consequently, the court had jurisdiction to determine the issue of penalty in defendant’s case. B. Waiver of Trial by Jury. Defendant contends his waiver of trial by jury on the issue of penalty was invalid. He maintains the court’s failure to inform him of the effect of jury deadlock under the 1977 death penalty law and its asserted misleading advice concerning the need for jury unanimity precluded him from making an intelligent and understanding waiver. (E.g., Carnley v. Cochran (1961) 369 U.S. 506, 516 [8 L.Ed.2d 70, 82 S.Ct. 884]; In re Tahl (1969) 1 Cal.3d 122, 131, 133 [81 Cal.Rptr. 577, 460 P.2d 449].) Concerning jury deadlock, former section 190.4, subdivision (b) provided: “If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and impose a punishment of confinement in state prison for life without possibility of parole.” In advising defendant of his right to a penalty jury and the implications of a waiver, the court made no reference to the effect of a jury deadlock, but stated: “You understand, also, that if you do waive jury and submit it to the Court, the Court will act solely. If you have a jury trial, before a verdict can be returned either way, it requires unanimous agreement of all 12 jurors-, do you understand that?” (Italics added.) Defendant concedes the court’s statement was technically correct, but argues that in omitting the consequences of a deadlock it was prejudicially misleading. It is settled a defendant does not have a constitutional right to jury trial on penalty. (Spaziano v. Florida (1984) 468 U.S. 447, 458-459 [82 L.Ed.2d 340, 104 S.Ct. 3154] [federal Constitution]; People v. Hough (1945) 26 Cal.2d 618, 620-621 [160 P.2d 549] [state Constitution].) In Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. 2227], however, the United States Supreme Court stated: “Where”—as in California—“a State has provided for the imposition of criminal punishment in the discretion of the trial jury, . . . [t]he defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.” (447 U.S. at p. 346 [65 L.Ed.2d at p. 180].) In the instant case, having reviewed the question closely, we are of the opinion there was no such arbitrary deprivation. Rather, the record reveals a knowing, intelligent and voluntary waiver by defendant of his statutory right to trial by jury on the issue of penalty. Defendant was represented by two apparently competent counsel who over the course of several days discussed with him “at length” the consequences and nature of his proposed waiver. Absent an assertion or evidence to the contrary, we presume that competent counsel would have informed defendant of the effect of a jury deadlock. (Cf. People v. Hendricks (1987) 43 Cal.3d 584, 592-593 [238 Cal.Rptr. 66, 737 P.2d 1350].) Counsel in defendant’s presence expressed on the record their sound tactical reasons for advising defendant to waive a jury and consenting to the waiver. The court, before accepting defendant’s waiver, engaged him in an extensive and thorough voir dire expressly directed to determining his waiver was knowing, intelligent and voluntary. Although the court would have done better to explain to defendant the effect of a jury deadlock, its omission does not invalidate defendant’s waiver. Defendant’s requirements for an effective waiver are too stringent for any situation; no waiver requires the court to explain every single conceivable benefit and burden of the choice being made. Nor, as defendant argues, does the court’s failure to inform him that it would automatically review any verdict of death returned by a jury, require a different conclusion. We have previously held that a failure to so advise a defendant under the 1978 death penalty law does not vitiate a jury waiver. (People v. Deere (1985) 41 Cal.3d 353, 359 [222 Cal.Rptr. 13, 710 P.2d 925].) The same is true under the 1977 statute. Finally, we reject defendant’s claim the court failed to conduct the hearing on his jury waiver with the “special attention and care” that he asserts his allegedly “borderline intelligence” merited. The record is otherwise. C. Boykin-Tahl Waiver. Following defendant’s waiver of jury trial, counsel stipulated the court could read and consider the former testimony of 21 specified witnesses, with the understanding either side could if it wished call any of the witnesses for additional testimony. Defendant assented to the stipulation. The prior testimony dealt with the circumstances of the crimes and the background to defendant’s statements to the police and was given at defendant’s preliminary hearing, the special hearing on the admissibility of his confession, and his first trial. The parties called 3 of the 21 witnesses whose prior testimony was submitted, as well as 20 additional witnesses. Citing Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], In re Tahl, supra, 1 Cal.3d 122 and their progeny, defendant claims the court erred in failing to advise him and obtain on-the-record waivers of his constitutional rights to a jury trial, to confrontation and cross-examination and against compulsory self-incrimination. Under the rule of Boykin v. Alabama, supra, 395 U.S. 238, and In re Tahl, supra, 1 Cal.3d 122, as extended in Bunnell v. Superior Court (1975) 13 Cal.3d 592 [119 Cal.Rptr. 302, 531 P.2d 1086] and other cases, “when the defendant agrees to a submission procedure, such as a guilty plea or a submission on the preliminary hearing transcript, by virtue of which he surrenders one or more of the three specified rights [jury trial, confrontation and privilege against self-incrimination]” (People v. Hendricks, supra, 43 Cal.3d at p. 592), the record must reflect that he was advised of and personally waived the applicable right or rights. (Bunnell, supra, at p. 605.) When the submission is a guilty plea or “tantamount to a plea of guilty” (In re Mosley (1970) 1 Cal.3d 913, 924 [83 Cal.Rptr. 809, 464 P.2d 473]) the Boykin-Tahl requirements are constitutionally compelled. (Id. at p. 926, fn. 10; see People v. Levey (1973) 8 Cal.3d 648, 652 [105 Cal.Rptr. 516, 504 P.2d 452].) When, however, the submission is in fact not tantamount to a guilty plea—when “it appears on the whole that the defendant advanced a substantial defense” (People v. Wright (1987) 43 Cal.3d 487, 497 [233 Cal.Rptr. 69, 729 P.2d 260])—the Boykin-Tahl advisements and waivers are not constitutionally compelled, but are required only as a matter of judicial policy. (Ibid.; see People v. Hendricks, supra, 43 Cal.3d at p. 592; cf. People v. Gray (1982) 135 Cal.App.3d 859, 869 [185 Cal.Rptr. 772] [hybrid proceeding].) We have not previously had occasion to determine whether the Boykin-Tahl rule applies at the penalty phase of a capital case, nor has the United States Supreme Court addressed the application of Boykin to penalty trials. Assuming, without deciding, that the requirements of Boykin-Tahl would in some circumstances apply to a submission of the issue of penalty on the transcript of prior proceedings, this is not such a case. A “submission” within the meaning of Tahl, supra, 1 Cal.3d 122 and Bunnell, supra, 13 Cal.3d 592 occurs when a defendant gives up his right to trial by jury and, unless otherwise specified, the right to present additional evidence in his own defense and agrees the court can decide his case on the basis of the transcript of prior proceedings. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604; see People v. Hendricks, supra, 43 Cal.3d at p. 593.) Although the parties may reserve the right to present additional evidence, the essential components of a submission are waiver of a jury trial and, with respect to the witnesses who testified in the prior proceedings, waiver of the right to confrontation in the present proceeding. (See People v. Wright, supra, 43 Cal.3d at p. 496; People v. Hendricks, supra, 43 Cal.3d at p. 593, and cases cited; cf. People v. Phillips (1985) 172 Cal.App.3d 670 [218 Cal.Rptr. 524].) When the submission is a “slow plea” or “tantamount to a plea of guilty,” the defendant also gives up his privilege against self-incrimination. (People v. Levey, supra, 8 Cal.3d at p. 652.) Thus, a “submission” is defined by the rights a defendant surrenders. Here, as indicated, defendant had no constitutional right at the penalty phase to a jury trial. His waiver of the statutory right, moreover, was not a consequence of his stipulation to admission of the witnesses’ former testimony, but preceded it. (Cf. People v. Phillips, supra, 172 Cal.App.3d at p. 673.) Further, by agreeing to the stipulation defendant did not incriminate himself by an “involuntary confession of guilt” (Wright, supra, 43 Cal.3d at p. 495) or, in terms applicable to the penalty phase, an involuntary concession that death was the appropriate penalty; to the contrary, he offered a complete and skillful defense. Nor did defendant surrender the right to confront and cross-examine the witnesses against him; rather, defendant expressly reserved the right to call the witnesses whose former testimony was admitted. As we recognized in People v. Hendricks, supra, 43 Cal.3d at pages 592-593, involving counsel’s failure in a jury trial to present a defense, there is no surrender of any one or more of the three specified constitutional rights “when the defendant undergoes—and thereby exercises his right to—-a jury trial and has the opportunity to cross-examine the witnesses against him and to refuse to incriminate himself.” (Italics added.) We perceive no reason for a different conclusion when the defendant undergoes a court trial. Here defendant had the opportunity in the prior proceedings to confront and cross-examine the witnesses whose former testimony was admitted and he exercised that right. He preserved the opportunity—by reserving the right to call the witnesses—in the penalty trial. In these circumstances, counsel’s choice ultimately to exercise defendant’s right of confrontation in only a limited manner was not a “submission,” but rather, was no more than a tactical decision within counsel’s discretion to make. (See People v. Hendricks, supra, 43 Cal.3d at pp. 592-594; People v. Ratliff (1986) 41 Cal.3d 675, 697 [224 Cal.Rptr. 705, 715 P.2d 665]; People v. Williams (1970) 2 Cal.3d 894, 905 [88 Cal.Rptr. 208, 471 P.2d 1008]; People v. Hall (1979) 95 Cal.App.3d 299, 314-316 [157 Cal.Rptr. 107]; see also People v. Chasco (1969) 276 Cal.App.2d 271, 274-276 [80 Cal.Rptr. 667] (opn. by Kaus, P. J.).) “Once a defendant has elected to proceed with a contested trial, rather than plead guilty or accept sentencing based upon a preliminary examination transcript, the manner of presenting evidence . . . becomes one of trial tactics properly vested in counsel, at least in the absence of a conflict between counsel and his client.” (People v. Ratliff, supra, p. 697, citing People v. Hill (1971) 19 Cal.App.3d 306, 315-316 [96 Cal.Rptr. 813]; see also People v. Frierson (1985) 39 Cal.3d 803, 818, fn. 8 [218 Cal.Rptr. 73, 705 P.2d 396].) Although defendant would have us reach a contrary conclusion based on the sheer number of witnesses whose testimony was admitted, we perceive no meaningful basis for the distinction. We recognize that trial counsel in the guise of a tactical choice cannot deprive a defendant of his basic constitutional rights (People v. Frierson, supra, 39 Cal.3d at pp. 812-817; Townsend v. Superior Court (1975) 15 Cal.3d 774, 781 [126 Cal.Rptr. 251, 543 P.2d 619]) and that the Boykin-Tahl rule applies to tactical decisions that implicate those rights (e.g., People v. Hall (1980) 28 Cal.3d 143, 157, fn. 9 [167 Cal.Rptr. 844, 616 P.2d 826]). In the instant case there was no deprivation. Rather, counsel reserved the right to call and cross-examine all the witnesses, but as a tactical matter determined it was to defendant’s advantage not to have the witnesses testify in person. Even assuming, arguendo, that the stipulation in this case constituted a “submission” within the meaning of Tahl, supra, 1 Cal.3d 122 and Bunnell, supra, 13 Cal.3d 592, clearly the submission was not tantamount to a concession that death was the appropriate penalty. In these circumstances the trial court was not constitutionally compelled to adhere to the requirements of Boykin-Tahl (Wright, supra, 43 Cal.3d at pp. 495, 497); hence, the reasonable possibility standard of review applies. (People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135].) Unless we indulge in mere speculation and conjecture, on this record we can come to no conclusion other than the following: Had defendant been advised of his right of confrontation and privilege against self-incrimination and then validly waived his rights, the submission procedure would have been the same with the same result. Had he instead chosen not to make the waivers, the result likewise would have been the same. The witnesses whose former testimony was admitted had been cross-examined at one of the prior proceedings and in some cases at more than one. Consequently, if defendant had chosen not to make a waiver, all or at least substantially all of the 18 witnesses whose prior testimony was admitted by stipulation and who did not testify would have given live testimony to the same or substantially the same effect. We thus conclude that the court’s error, if any, in failing to give the required advisements and take defendant’s waivers was nonprejudicial. D. Use of Unadjudicated Criminal Activity. 1. Due Process. Former section 190.3 permitted the presentation of penalty phase evidence of “other criminal activity by the defendant which involved the use or attempted use of force or violence,” and provided that “criminal activity does not require a conviction.” At defendant’s penalty trial Ernest F. and Catherine A. testified to defendant’s attacks upon them. In neither instance had charges been filed against defendant. Defendant contends that admission of prior unadjudicated incidents of criminal activity violates due process. We considered and rejected a similar claim in People v. Balderas (1985) 41 Cal.3d 144, 204-205 [222 Cal.Rptr. 184, 711 P.2d 480], decided under the 1978 death penalty law. (Accord, People v. Gates (1987) 43 Cal.3d 1168, 1202 [240 Cal.Rptr. 666, 743 P.2d 301].) As defendant acknowledges, the 1977 law is identical in relevant part. (See generally People v. Phillips (1985) 41 Cal.3d 29, 69-72 [222 Cal.Rptr. 127, 711 P.2d 423].) Because defendant advances no persuasive reason to reconsider Balderas, we adhere to that decision. 2. Statute of Limitations. Relying on Phillips, supra, 41 Cal.3d 29, and section 15, defining a crime in part by the punishments imposed after conviction, defendant asserts that because prosecution of the 1973 Ernest F. attack and the 1977 Catherine A. attack was barred by the statute of limitations, he could not be convicted of either incident; hence neither constituted a “crime” within the meaning of the death penalty statute. Although defendant failed to advance a statute of limitations objection below, we nevertheless consider the objection here. (Cf. People v. Chadd (1981) 28 Cal.3d 739, 756-757 [170 Cal.Rptr. 798, 621 P.2d 837].) In Phillips we held the term “criminal activity” in former section 190.3 includes more than prior felony convictions, but excludes offenses for which the defendant has been acquitted and “nonoffenses for which the defendant could not even be tried.” (41 Cal.3d at pp. 71-72.) As subsequent language in Phillips makes clear, our purpose was to define the kinds of behavior by the defendant the statute makes relevant to choice of sentence—to wit— “actual conduct” involving violence or threat of violence that demonstrates the violation of a penal statute. (Id. at p. 72 & fn. 24; cf. People v. Gates, supra, 43 Cal.3d 1168, 1203 [probative value of conduct, not conviction, in penalty phase].) To exclude violent criminal behavior simply because its prosecution is time-barred would be to ignore the plain terms of former section 190.3 as well as its underlying purpose—i.e., that the trier of fact, in determining penalty, make an individualized determination on the basis of the character of the offender as well as the circumstances of the offense. (See Zant v. Stephens (1983) 462 U.S. 862, 879 [77 L.Ed.2d 235, 103 S.Ct. 2733]; People v. Jennings (1988) 46 Cal.3d 963, 981-982 [251 Cal.Rptr. 278, 760 P.2d 475] [1978 law]; see generally People v. Phillips, supra, 41 Cal.3d at pp. 69-72.) The conduct underlying the Ernest F. and Catherine A. attacks clearly falls within one or more penal statutes (e.g., §§ 261 [rape], 207 [kidnapping], 288a, subd. (c) [forcible oral copulation], 286, subd. (c) [forcible sodomy]); hence it was properly considered as other “criminal activity.” (See generally People v. Jennings, supra, 46 Cal.3d at pp. 981-982.) Defendant argues additionally that because the statute of limitations had run on the incidents, evidence of the alleged offenses was inadmissible under the due process clauses of the federal and state Constitutions. In support, he argues the evidence related to attacks remote in time and thus difficult to defend against. We doubt whether either attack—that on Ernest F. in 1973 or on Catherine A. in 1977—can properly be characterized as “remote.” Nor does the statute of limitations of itself embody a due process limit on the time within which a defendant can be required to defend against a particular charge. Rather, as the United States Supreme Court recognized in United States v. Marion (1971) 404 U.S. 307, 322 [30 L.Ed.2d 468, 92 S.Ct. 455], statutes of limitation “represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; . . .” That these assessments are flexible and not immutable is demonstrated, inter alia, by the Legislature’s frequent amendment of section 800, proscribing the limitations period for serious felonies, including defendant’s criminal activity. (See Historical Note, West’s Ann. Pen. Code (1985 ed.) foll. § 800, p. 194.) In People v. Morris (1988) 46 Cal.3d 1, 14-15 [249 Cal.Rptr. 119, 756 P.2d 843] we rejected the claim that a time-barred felony may not form the predicate for a felony-murder special circumstance. “A fortiori, there is no bar to consideration of [time-barred] felonious conduct involving force or the threat of force as an aggravating factor.” (Jennings, supra, 46 Cal.3d at p. 982.) 3. Evidence Code Section 352. Defendant objected to admission of the Ernest F. and Catherine A. evidence on Evidence Code section 352 grounds. The court overruled the objection, but granted defendant leave to move to strike the evidence at a later time. Defendant failed to make a subsequent motion to strike and expressly withdrew his objection to the evidence. He now argues the court erred in failing to make an explicit on-the-record finding that the probative value of the evidence outweighed its prejudicial effect. (People v. Green (1980) 27 Cal.3d 1, 25 [164 Cal.Rptr. 1, 609 P.2d 468].) Defendant, having withdrawn his objection to the evidence, cannot now complain of its admission. Further, we reject the proposition that at the penalty phase of a capital trial the court has discretion under Evidence Code section 352 to exclude evidence of unadjudicated criminal activity involving violence. To the contrary, the evidence is expressly made admissible by former section 190.3. (See People v. Karis (1988) 46 Cal.3d 612, 641 [250 Cal.Rptr. 659, 758 P.2d 1189] [1978 law].) 4. Reliability and Sufficiency of the Evidence. Defendant complains evidence of the Ernest F. and Catherine A. offenses was unreliable, as each was established by only a single witness. Our law, however, expressly provides that the testimony of a single witness is sufficient to establish a fact. (Evid. Code, § 411.) Any contradictions, as defendant asserts, or other weakness in the witness’s testimony are matters to be explored on cross-examination and argued to the trier of fact. The reliability of the evidence is safeguarded by the requirement that the trier of fact may consider the evidence only if it determines the other crimes have been proved beyond a reasonable doubt. (Robertson I, supra, 33 Cal.3d at pp. 53-55.) Defendant maintains that in neither instance did the evidence establish “criminal activity” beyond a reasonable doubt. In reviewing the sufficiency of the evidence, our task is to determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781], italics in original; accord, People v. Guerra (1985) 40 Cal.3d 377, 385 [220 Cal. Rptr 374, 708 P.2d 1252].) Applying this test, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendant had used force or the threat of force to compel F. and A. to commit oral copulation (§ 288a, subd. (c)). 5. Lack of Notice. Before defendant’s first trial the prosecution gave notice that it would introduce evidence of the Kim P. attack in aggravation at the penalty phase, which it did. The prosecution did not give notice that it would introduce evidence of the Ernest F. and Catherine A. attacks, nor did it attempt to introduce such evidence. More than three months before commencement of the penalty phase retrial, however, the prosecution gave notice that it would introduce in aggravation evidence concerning the Ernest F. and Catherine A. attacks, as well as the Kim P. attack. Defendant claims the Ernest F. and Catherine A. evidence was inadmissible under the notice requirement of former section 190.3. The record is unclear that defendant raised the notice objection below. Assuming arguendo that he did so, he subsequently, for tactical reasons, expressly withdrew his objections to the Ernest F. and Catherine A. evidence; hence he may not raise the claim on appeal. (People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].) Defendant’s objection in any event lacks merit. The meaning of “trial” varies depending on the context of its use. (See generally People v. Overstreet (1986) 42 Cal.3d 891, 896 [lead opn. of Broussard, J.], 902-903 [dis. opn. of Grodin, J.; Lucas, J. and Panelli, J., conc.] [231 Cal.Rptr. 213, 726 P.2d 1288].) As it is commonly and ordinarily construed, the word “trial” refers broadly to the formal examination of the matter in issue in a judicial tribunal for the purpose of determining such issue. (See Webster’s Third New Internat. Dict. (1961) p. 2439, col. 3, definition 2.) Where the question of notice arises in the context of the initial trial in which the guilt and penalty phases occur in immediate sequence and thus are part of a unitary proceeding, we have construed “trial” as the whole proceeding; hence notice must be given in advance of the guilt phase. (People v. Miranda (1987) 44 Cal.3d 57, 96-97 [241 Cal.Rptr. 594, 744 P.2d 1127].) Where, however, as here, the notice issue arises in the context of a second trial—i.e., a “retrial”—following a successful appeal, “trial” must reasonably be construed to mean the judicial proceeding in which the matter in issue is again examined and resolved. Only this construction serves both the evident purpose of the notice provision—viz., “to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial” (Miranda, supra, at p. 96 [1978 law])—and the overriding purpose of section 190.3 that the jury “be made aware of all of the factors bearing on the penalty decision” (People v. Jennings, supra, 46 Cal.3d at p. 987 [1978 law]). We conclude, therefore, that the “trial” to which former section 190.3 refers embraces the original trial, as defined above, or the retrial, be it of the entire proceeding or the penalty phase only. Pursuant to the foregoing, former section 190.3 required the prosecution to give notice of aggravating evidence at a reasonable time prior to trial or retrial. By filing its notice more than three months prior to retrial of the penalty phase, the prosecution satisfied the notice requirement of the statute. 6. Double Jeopardy. By analogy to the constitutional prohibition against retrial after acquittal or increased charges or punishment following a successful appeal (e.g., Blackledge v. Perry (1974) 417 U.S. 21 [40 L.Ed.2d 628, 94 S.Ct. 2098]; North Carolina v. Pearce (1969) 395 U.S. 711 [23 L.Ed.2d 656, 89 S.Ct. 2072]), defendant argues that because the prosecution failed to introduce the F. and A. incidents at his first trial, double jeopardy principles preclude their use at retrial. (See Arizona v. Rumsey (1984) 467 U.S. 203, 210-211 [81 L.Ed.2d 164, 104 S.Ct. 2305].) Defendant’s argument is meritless. The prohibition against double jeopardy protects a defendant from being placed twice in jeopardy for the same offense. (U.S. Const. Amend. V; Cal. Const., art. I, § 15; see generally People v. Melton (1988) 44 Cal.3d 713, 756, fn. 17 [244 Cal.Rptr. 867, 750 P.2d 741].) The prohibition has no bearing on the kind or quantity of evidence that may be introduced in successive trials of an issue. Defendant was never once in jeopardy for any offense arising out of the attacks against Ernest F. and Catherine A. The prosecution was plainly entitled to introduce evidence of these incidents at the second time. E. Circumstances of the Kim P. Attack. As a consequence of the attack on Kim P., defendant was charged with four felony counts: kidnapping (§ 209); assault with a deadly weapon (§ 245, subd. (a)); assault by means of force likely to produce great bodily injury (ibid.); and “sex perversion” (§ 288a). Pursuant to a negotiated disposition, defendant subsequently pled guilty to violation of section 288a— oral copulation by use of force or violence—in exchange for dismissal of the kidnapping and assault charges. At defendant’s penalty trial, the prosecution called Kim P. to testify regarding the underlying circumstances of defendant’s section 288a conviction as well as the other charges that were dismissed. Although he made no objection below, defendant now contends Kim P.’s testimony amounted to an impermissible relitigation of both the section 288a conviction and the collateral dismissed charges. In People v. Gates, supra, 43 Cal.3d at page 1203, we rejected a claim under the 1978 law that the prosecution should not be allowed to present testimony concerning a prior conviction involving violence to which the defendant offered to stipulate. We stated: “When dealing with violent conduct it is not the fact of conviction which is probative in the penalty phase, but rather the conduct of the defendant which gave rise to the offense.” (Italics in original.) Hence, the statute permits the introduction of all evidence of violent crimes whether or not they resulted in a conviction, except those of which the defendant has been acquitted. (Ibid.; accord, People v. Karis, supra, 46 Cal.3d 612, 640; People v. Melton, supra, 44 Cal.3d 713, 754; see also People v. Ghent (1987) 43 Cal.3d 739, 774 [239 Cal.Rptr. 82, 739 P.2d 1250] [evidence of dismissed charges].) This principle is equally applicable to the 1977 statute, which is identical in relevant part. (Stats. 1977, ch. 316, § 11, p. 1259.) Relying on People v. Harvey (1979) 25 Cal.3d 754, 758 [159 Cal.Rptr. 696, 602 P.2d 396], defendant urges that introduction of evidence of the charges dismissed pursuant to his plea bargain violated the understanding implicit in the bargain that he would suffer no adverse sentencing consequences by reason of the facts underlying the dismissed counts. In People v. Melton, supra, 44 Cal.3d at pages 755-756, we rejected the identical contention. For the reasons stated therein, defendant’s argument must fail. F. Admissibility of Defendant's Statements to Experts. Although he failed to object at trial, defendant asserts error in the admission in the prosecution’s case-in-chief of expert testimony relating several statements he made in the course of psychiatric and psychological interviews. He complains the evidence was irrelevant to the determination of penalty (e.g., People v. Boyd (1985) 38 Cal.3d 762, 775-776 [215 Cal.Rptr. 1, 700 P.2d 782]) and violative of the principles of reliability (People v. Murtishaw (1981) 29 Cal.3d 733, 771 [175 Cal.Rptr. 738, 631 P.2d 446]) and guided discretion (Woodson v. North Carolina (1976) 428 U.S. 280, 302-303 [49 L.Ed.2d 944, 96 S.Ct. 2978]) applicable to capital sentencing. In Murtishaw, supra, this court noted that under the 1977 death penalty law “evidence of defendant’s character and mental condition” may be admitted at the penalty phase even if not specifically linked to a statutory sentencing factor. (29 Cal.3d at p. 773; see People v. Boyd, supra, 38 Cal.3d at p. 772.) As factors to consider, moreover, the 1977 statute, like the 1978 law, specifically listed whether or not the defendant was under the influence of “extreme mental or emotional disturbance” and whether or not at the time of the offense he was suffering from diminished capacity “as a result of mental disease.” (See Murtishaw, supra, at p. 772, fn. 35.) Defendant’s statements to the prosecution psychiatrists and psychologists—in particular, given the nature of the offenses, those relating to his sexual behavior—were relevant to their evaluation of his mental state, which in turn was directly relevant to the ultimate issue of appropriate penalty. Consequently, under the 1977 law, introduction of the evidence in the prosecution’s case-in-chief was not error. (Cf. People v. Mosher (1969) 1 Cal.3d 379, 399 [82 Cal.Rptr. 379, 461 P.2d 659].) Citing Murtishaw, supra, 29 Cal.3d at page 771, defendant argues the statements were unreliable because contradicted by himself and other witnesses. Murtishaw, relating to the general unreliability of psychiatric predictions of future dangerousness, is inapposite. Defendant’s statements were offered not for their truth, but as part of the sum total of factors considered by the prosecution experts in evaluating defendant. Any contradiction in the statements goes not to their admissibility, but to the weight of the experts’ opinions insofar as they relied on the statements. G. Failure to Identify Applicable Law. Defendant contends the record is ambiguous as to the legal principles the trial court applied to its determination of penalty, thus rendering meaningful appellate review impossible. (See, e.g., Gregg v. Georgia (1976) 428 U.S. 153, 188-189, 204-207 [49 L.Ed.2d 859, 96 S.Ct. 2909]; People v. Rodriguez (1986) 42 Cal.3d 730, 778 [230 Cal.Rptr. 667, 726 P.2d 113]; cf. People v. Lanphear (1984) 36 Cal.3d 163, 169 [203 Cal.Rptr. 122, 680 P.2d 1081].) He urges trial judges should be required to designate the instructions they intend to use in reaching their penalty decisions. Contrary to defendant’s premise, the court expressly stated the law it would apply, i.e., former section 190.3, except as to the points on which current section 190.3 was more favorable to defendant. The applicable statutes sufficiently set forth the procedures to be followed, the factors to consider and the manner in which the sentencing decision is to be made. Designation of correlative instructions thus is not necessary to permit meaningful appellate review. In a related argument, defendant asserts the court erred at the time it rendered its sentence finding in failing to specify which, if any, of the more favorable provisions of the 1978 statute it had applied. He argues he may thus have been denied the benefit of the 1978 law’s apparent mandate of a life sentence when mitigation outweighs aggravation. The court, however, expressly stated it would be bound by the 1978 law if it found that mitigating circumstances outweighed aggravating circumstances. (See fn. 10, ante.) The record is clear the court determined such not to be the case. (Cf. People v. Rodriguez, supra, 42 Cal.3d at pp. 783-784.) H. Misinterpretation and Misapplication of the Law. 1. Davenport Error. In determining sentence, the trial court began by discussing each of the statutory factors listed in former section 190.3. As to factor (c), whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance, the court found defendant was not acting under such influence, stating in part: “Specifically, the Court finds that the defendant was not acting under a post-traumatic stress disorder or under the psychotic state defined as brief reactive psychosis.” As to factor (g), whether or not at the time of the offense the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or the effects of intoxication, the court found there was no such impairment. Thereafter, the court summarized its findings. At the conclusion of its statement of applicable aggravating factors and before reciting the applicable mitigating factors, the court repeated its finding of no evidence of mental or emotional disturbance to support factor (c) nor evidence of impaired capacity under factor (g). Relying on People v. Davenport (1985) 41 Cal.3d 247, 288-290 [221 Cal.Rptr. 794, 710 P.2d 861], defendant argues the trial court improperly considered the absence of mitigating factors as factors in aggravation. In Davenport this court held the prosecutor erred in arguing to the jury that the absence of certain mitigating factors, not relevant to the evidence in the case, rendered each of them an aggravating factor. (41 Cal.3d at pp. 289-290.) In People v. Rodriguez, supra, 42 Cal.3d at pages 789-790, we distinguished Davenport and held the prosecutor did not err in merely pointing out to the jury the inapplicability of a mitigating factor. (Accord, People v. Ghent, supra, 43 Cal.3d at p. 775.) In the present case factors (c) and (g) were relevant to the evidence; indeed, they were the crux of defendant’s case in mitigation. Viewed in context, the court’s reference to the absence of evidence supportive of factors (c) and (g) was no more than a statement that defendant had failed in his attempt to prove potentially significant mitigating circumstances. (Cf. Rodriguez, supra, 42 Cal.3d at p. 790.) 2. Boyd Error. In concluding its summary of the applicable aggravating factors, the court stated that it had “also considered the fact that at the time of the murders defendant was on probation from the crimes committed against Kim [P.] and was actually undergoing therapy at that time.” Relying on People v. Boyd, supra, 38 Cal.3d 762, defendant asserts the court erred in considering in aggravation the nonstatutory factors of defendant’s probation status and therapy participation. In Boyd we held that under the 1978 death penalty statute the prosecution’s case for aggravation is limited to evidence relevant to the listed factors exclusive of factor (k)—“since that factor encompasses only extenuating circumstances and circumstances offered as a basis for a sentence less than death . . . .” (38 Cal.3d at pp. 775-776.) We thus distinguished the 1978 statute from its 1977 predecessor, under which evidence of defendant’s character and mental condition was admissible if “relevant to aggravation, mitigation, and sentence” (former § 190.3, 1st par.), even if it did not relate to any specific aggravating or mitigating factor. (38 Cal.3d at p. 772.) Defendant argues his probation status and therapy participation are relevant under neither the 1977 death penalty law—which he concedes is generally applicable to this case, nor under the 1978 law—which he maintains is applicable on this point. Because defendant committed the offenses when the 1977 law was in effect, that statute’s provisions governed the penalty retrial. Although the trial court, as indicated, expressed its intent to apply any provisions of the 1978 law it deemed more favorable than the 1977 law—in effect, to give defendant the “best of both worlds”—in so doing, it gave defendant more than he was entitled to. A capital trial must be held under the death penalty law in effect at the time the capital offenses were committed; application of any other law is error. (People v. Easley (1983) 34 Cal.3d 858, 883 [196 Cal.Rptr. 309, 671 P.2d 813].) People v. Collins (1978) 21 Cal.3d 208 [145 Cal.Rptr. 686, 577 P.2d 1026] and People v. Rossi (1976) 18 Cal.3d 295 [134 Cal.Rptr. 64, 555 P.2d 1313], cited by defendant, are inapposite. Both cases deal with the legislative decriminalization of conduct, the effect of which is to put an end to all prosecutions and proceedings under the repealed statute not reduced to final judgment. (Rossi, supra, at p. 302; cf. In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] [legislative mitigation of punishment].) The replacement of the 1977 death penalty law with the 1978 law had no bearing on the criminality of defendant’s conduct or the severity of punishment therefor; hence the statute in effect at the time of the offenses governs. Under the 1977 statute, the sentencer was permitted to consider evidence of “ ‘any matter relevant to . . . the defendant’s character, background, history, mental condition and physical condition.’ ” (People v. Murtishaw, supra, 29 Cal.3d at p. 773.) Defendant’s therapy and probation status clearly were relevant to his character and background: they displayed a violation of the state’s trust and indicated defendant’s refusal or inability to learn from his prior misdeeds and to benefit from the help offered him. The trial court thus did not err in considering these facts. 3. Dual Use of Aggravating Facts. Defendant maintains the court made an impermissible dual use of his prior violent criminal acts against Kim P., Ernest F. and Catherine A. when it cited those offenses under both factor (b), the presence or absence of violent criminal activity, and factor (c), whether or not the offenses were committed while the defendant was under the influence of extreme mental or emotional disturbance. In People v. Melton, supra, 44 Cal.3d 713 we held that although an individual criminal act cannot be counted twice in aggravation for the same purpose, there is no constitutional obstacle to “separate consideration of properly distinct aspects of the penalty determination, even when those aspects happen to coexist in a single incident.” (Id. at pp. 764-765.) Here, after reciting the prior offenses as factor (b) criminal activity, the court discussed their circumstances at length in reaching its determination under factor (c). Based on its evaluation of the circumstances surrounding the two charged crimes and the defendant’s “criminal history,” as reflected in the prior violent criminal acts, the court concluded defendant was not in the instant case acting under the influence of extreme mental or emotional disturbance; rather his purpose was sexual gratification. Use of the prior criminal acts for the foregoing distinct purposes was not error. 4. Sympathy Factor. Defendant asserts that ambiguity in the record concerning the court’s consideration of sympathy requires reversal. Defendant acknowledges the court understood it could properly “consider” sympathy for defendant, but maintains it failed to understand that sympathy alone could form the basis for a life sentence. We disagree. In making its sentence determination the court expressly noted that it could “properly consider sympathy or pity for the defendant in determining whether or not to show mercy and spare the defendant from execution''' (italics added) and that defendant was “constitutionally entitled” to have it consider any “sympathy factor raised by the evidence.” As the basis for his claim of ambiguity, defendant points to the court’s subsequent statement in ruling on his penalty-reduction application that although it recognized and considered sympathy factors raised by the evidence, “the Court still feels that it is bound to review the evidence and consider and take into account and be guided by aggravating and mitigating circumstances” set forth in the statute. Read in context, however, with the court’s earlier express recognition that sympathy could form the basis for mercy, this statement was fully consistent with our subsequent decisions relied on by defendant. (E.g., People v. Easley, supra, 34 Cal.3d at pp. 875-879; People v. Lanphea