Full opinion text
Opinion KAUFMAN, J. Defendant Calvin Coleman, Jr., was sentenced to death, after a jury trial under the 1978 death penalty law, for murdering Patricia Neidig on May 13, 1980, under three special circumstances, i.e., that he committed the murder (1) for the purpose of avoiding or preventing lawful arrest (§ 190.2, subd. (a)(5)), (2) in the commission of a robbery (§ 190.2, subd. (a)(17)(i)), and (3) in the commission of a burglary (§ 190.2, subd. (a)(17)(vii)). He also was found to have used a shotgun in committing the murder. (§§ 12022, subd. (a), 12022.5.) This appeal is automatic. (§ 1239, subd. (b).) Defendant was additionally convicted on seven other counts. Two were crimes against Jean Prendergast: assault with intent to commit murder (former § 217; count two) and assault with a deadly weapon and by means likely to produce great bodily injury (§ 245, subd. (a); count three). Four were offenses committed against Karen H. (hereafter Karen): rape by force and threats (former § 261, subds. 2, 3; count four), assault with intent to murder (former § 217; count five), assault with a deadly weapon and by means likely to produce great bodily injury (§ 245, subd. (a); count six), and robbery (§211; count seven). Count eight was burglary of the Neidig-Prendergast residence (§ 459). As to counts two, five, and seven, defendant was found to have used deadly weapons (§ 12022, subd. (b)) and to have inflicted great bodily injury (§ 12022.7), and as to count eight (burglary), he was additionally found to have used a shotgun (§§ 12022, subd. (a), 12022.5). He was found to have inflicted great bodily injury in connection with counts three and six (§ 12022.7), and to have used a deadly weapon in connection with count four (§ 12022.3). The court stayed sentence on counts three, six, and eight and part of the sentence on counts five and seven. The total unstayed prison sentence is 25 years and 4 months. We shall conclude that the finding of the special circumstance that defendant committed the murder in order to avoid or prevent lawful arrest (§ 190.2, subd. (a)(5)) must be set aside as unsupported by substantial evidence, but that otherwise the judgment convicting defendant of murder and sentencing him to death must be affirmed. We shall further conclude that the convictions on counts two through eight, charging crimes other than murder, must be affirmed, but that the cause must be remanded for resentencing on those counts because of the trial court’s failure to explain its decision to impose a full consecutive term on count four, pursuant to section 667.6, subdivision (c), and because of the court’s reliance on duplicative factors to justify consecutive terms, upper terms, and enhancements. I. Guilt Phase Evidence The crimes were committed at the rural home of Patricia Neidig and Jean Prendergast near Windsor in Sonoma County. The two women had moved there in 1973 to retire and to raise pug dogs for show. In addition to the pugs, they had a white German shepherd. Their closest neighbors were the Morse family, who lived across a lake, and, after 1974, the Giannavola family. The Morses operated the Wagon Valley Ranch as a home for boys. In June 1973, while defendant was one of 16 boys living at the ranch, Ms. Prendergast and Ms. Neidig hired him and other boys to come help build fences and plant trees. Later in 1973 defendant completed his stay at the ranch, and neither Mrs. Morse nor Ms. Prendergast saw or heard from him again until 1980. On Sunday, May 11, 1980, at 6:30 p.m., defendant walked into the Healdsburg police station, where people often waited for the bus on weekends when the lobby of the bus depot across the street was closed. Defendant asked the police dispatcher for directions to the Wagon Valley Ranch, where he said he wanted to visit Mrs. Morse on Tuesday. He said he had a job in San Francisco and wanted to tell her how well he had been doing since leaving the ranch. The dispatcher gave him directions to the ranch and explained that the schedule for departures from Windsor to San Francisco was about 15 minutes later than the Healdsburg schedule posted on the wall. Defendant left and returned to the police station intermittently throughout the night even though there were several scheduled bus departures in that period. He told the dispatcher who came on at midnight that he was looking for work in the area. On Tuesday, May 13, Ms. Neidig and Ms. Prendergast left home at 8:15 a.m. for a day in San Francisco, planning to return at 6 p.m. They had hired Karen, who lived five miles away, to care for the show dogs during their absence. About 2:15 p.m., defendant rang the doorbell at the nearby Giannavola home. He asked Ms. Giannavola if the ladies with the dogs still lived next door. He said he was interested in working for them but had been deterred by a barking dog when he approached their house. Ms. Giannavola offered to telephone them on his behalf. The call was answered by Karen, who said the ladies were not home and that she had no authority to hire anyone. Ms. Giannavola then told defendant she would pass his name along to Ms. Neidig and Ms. Prendergast, and tell them that if they were interested in hiring defendant, they should call him at the Morse ranch, where he had said he could be reached. About 3:15 p.m., defendant came to the Morse home and was let into the kitchen. After some conversation, Mrs. Morse recalled him as one who had stayed at the Morse ranch as a 13-year-old boy, 7 years earlier. He said he had been in the Coast Guard and was looking for work. He had been to see some people across the lake, and their housekeeper had told him to return at 5 o’clock. He departed about 4:40 p.m., explaining he was going to see if the people were home yet. Karen was outdoors at the Neidig-Prendergast residence when she saw defendant walking up the driveway. He said he was looking for work, explaining how he had worked there in the past. After further conversation, he asked her to check bus departures. She stepped inside the “office,” telephoned, and brought him a slip on which she had written two departure times. He next asked for a drink of water, which she brought from the kitchen and handed to him just outside the door. As she turned away, he grabbed her and ordered her to lie face down on the floor. He picked up a pointed letter opener from a table, ordered her to her feet, put his arm around her waist, aimed the letter opener at her throat, and walked her down the hallway past the bedrooms, saying that there better not be anyone else around, and she better not be lying. He had her show him the master bedroom, which was at the far end of the house. There, he ordered her to lie on the bed. He found a shotgun, which he pointed at her. She got up and tried to grab the gun, but he restrained her and said the gun was not loaded. He started looking for valuables, saying that he had come from San Francisco to do this and knew who the ladies were, having seen them at the Cow Palace with their dogs. He located one or two paper bags of money, labeled as kennel club dues, and a large quantity of jewelry. He asked her to count the money and to help sort out the jewelry. She told him there was $700 though she was in fact unable to concentrate on counting it. He also selected some clothing, and she helped him pack the gathered items into suitcases and take them to the first bedroom, the one closest to the entry area. Meanwhile, defendant had picked up a hunting knife with sheath and a shotgun shell from the bedroom bureau. He put the knife in his belt. She said the ladies would return soon, and suggested he tie her up and take her car. He asked her to drive him to San Francisco Airport, but she said her car had only one headlight and they’d be stopped after dark. He said he’d take the ladies’ car. He asked her to go with him and be his lady. Suddenly he turned and kissed her and ordered her to get on the bed and remove her clothes. She complied, and he then undressed, put the knife next to the pillow, and had intercourse with her. He washed himself and ordered her to shower; they then got dressed. Defendant appeared nervous as they completed packing things into one or two suitcases in the first bedroom. Finally, from the kitchen window they saw the ladies at the far end of the driveway, talking with Mr. Giannavola, who kept his horses on the ladies’ property. Defendant, who by then was carrying the shotgun, ordered Karen to lie down in the first bedroom. As the ladies drove into the carport, defendant told Karen to go into the office (the first room the ladies would enter) and act naturally, while he stood out of sight in the kitchen. Ms. Neidig entered, carrying a bag of Kentucky fried chicken, and asked Karen about the dogs. Almost immediately, defendant emerged from the kitchen, pointing the shotgun down. At first Ms. Neidig smiled and greeted him, but then he raised the gun and threatened her, whereupon she screamed, “No! no!” and rushed for the door. She managed to get the door part way open before defendant blocked it with his shoulder. She yelled to “Gino” (Mr. Giannavola) to call the police. Defendant pressed the gun up against her face and fired, killing her instantly. Giannavola, when asked if he heard anything “unusual” after the ladies drove up to the home, testified he heard the shot, but did not mention hearing any call or yell. Defendant then ordered Karen to lie face down on the floor. She felt two blows in her back, then something warm, which she soon realized was blood. After defendant stepped over her, she got up, pushed Ms. Neidig’s body out of the way, and rushed out the door, past Giannavola, crying, “A black man just killed Pat. He’s going to kill us. Run!” Giannavola took her into his jeep and to his home. She had been stabbed twice and lost considerable blood, but the wounds did not enter the muscle or bone or penetrate the chest cavity. When Ms. Prendergast heard a scream, she ran into the enclosed kennel-laundry area, from which there was another door into the office. There, she encountered defendant, who beckoned to her. She stood still, and he came up and stabbed her in the right side of the chest. She fell, then got up, went into the office and started to telephone when she saw defendant again. She dropped to the floor, pretending to be dead and waited a long time. Finally, she got up and called the Giannavolas, then a deputy sheriff arrived. Ms. Prendergast had suffered a stab wound which penetrated the liver (without severing any major arteries, veins, or ducts) and caused extensive abdominal bleeding. She required surgery and one year later was still suffering from abdominal pains and digestive problems. The first call to the sheriff’s department came shortly after 6 p.m. After a search of the Neidig-Prendergast home, the deputies noted that Karen’s car was parked, with engine idling, across the driveway 100 yards from the house. In a nearby grassy area they found a jacket, through which a sheriff’s dog was able to track defendant’s scent to an abandoned building at the Wagon Valley Ranch, where defendant was found and arrested. Defendant testified. His account corroborated most of the prosecution testimony but differed in certain crucial respects. He testified that Karen invited him into the Neidig-Prendergast house and that he did not intend to steal anything when he first went in. He said he wandered about the house, with Karen following behind, and picked up the letter opener (which he thought was made of gold), the sheathed knife, and the shotgun simply because he thought they were valuable and wanted to take them as well as the money and jewelry he had found. He admitted he told Karen to take off her clothes and had intercourse with her, and conceded she was frightened though he said the knife was on the floor at the time. He could not say why he loaded the shotgun. He said that while Ms. Neidig was screaming and trying to pull open the door, which he was blocking with his shoulder, Karen came over and grabbed the gun, hitting Ms. Neidig with the barrel, causing the gun to go off. When he saw what the blast had done to Ms. Neidig’s face, he “couldn’t believe it” and “blanked out.” His next recollection, he said, was of running away. He denied intending to shoot Ms. Neidig and denied any recollection of stabbing Karen or Ms. Prendergast. On rebuttal, a firearms expert testified that the murder weapon’s safety device was automatically activated upon loading, and had to be deliberately released before the gun could be fired. He said the gun was “crisp and moderate to heavy in terms of trigger pull.” On cross-examination, however, he seemed to concede the safety could be released inadvertently. A county mental health counselor testified to consultations with Karen. A physician testified that based on his examination of Karen’s records, her behavior and symptoms were consistent with rape trauma syndrome. II. Penalty Phase Evidence The prosecution introduced a record of defendant’s conviction, on January 25, 1977, of first degree robbery and rape by threats of great bodily harm. The victim of those crimes, Linda D., then testified as follows: In October 1976, she and her five-year-old daughter were moving out of a San Francisco housing project to rejoin her husband in Salinas. She was carrying some belongings from her apartment to her car, to which a small U-Haul was attached and in which her daughter was waiting. Defendant entered the elevator with her, pulled a knife, and ordered her to accompany him to one of the upper floors, where they left her things in a hallway. Taking her up to the roof and into an alcove where there was an old mattress, he ordered her to remove her clothes and raped her, commenting that “white broads” or “white bitches” were “really good.” He took her watch, and they returned to her apartment, where he went through her purse and found a welfare check. She oifered to sign it over to him, but he said she would have to cash it. She pleaded to him not to hurt her because her baby was waiting for her in the car. He told her to cash the check at a nearby grocery store and threatened to kill the child if she told anyone what had happened. The store manager refused to cash the check. Defendant then drove her in her car, with the child in the back seat, to a check-cashing place downtown, and let her out to cash the check. He said he would drive around the block and that if she said anything, he’d kill the child. She cashed the check, rejoined defendant in the car, and asked him again to let her go, now that he had the money. He said there were too many “pigs” in that area, and they would have to return to the apartment. At the apartment, defendant was joined by one of his friends, who accompanied defendant, Linda D., and her daughter up the elevator. Defendant again sifted through the belongings in the apartment and finally departed. The only other prosecution witness at the penalty phase was Dr. Melvin Macomber, who was a correctional psychologist at Deuel Vocational Institution (DVI), where defendant was incarcerated after entering the prison system in February 1977. In March 1978, he interviewed defendant as part of an evaluation of defendant’s suitability for release. His impression of defendant was of a “passive-aggressive personality with antisocial personality features.” He described defendant’s intelligence as “borderline mentally defective,” though defendant showed no brain damage. He also said defendant was “criminally oriented,” an “immature intellectually and culturally limited individual who responded to things in very defensive and immature and hostile manners.” Macomber noted defendant’s numerous disciplinary infractions at DVI, usually involving shouting and verbal threats. The record showed only one instance of physical violence; it involved another inmate, and no aggressor was identified. There was no indication that defendant belonged to a gang. His mother was a heroin addict, and his father had spent a great deal of time in prison. Macomber considered defendant a pitiful young man, the product of parental neglect and irresponsibility. Macomber recommended in 1978 that defendant be retained in prison, and that if he were released, it be only under strict supervision. He explained that defendant lacked family or community support, had no job skills, and used poor judgment. Defendant was nonetheless released on May 9, 1980. Macomber had reviewed defendant’s record up to that time and found nothing to alter his conclusions formed two years earlier. The defense called a psychologist, Dr. John Podboy, and a psychiatrist, Dr. Robert Aaron. Dr. Podboy concluded from somewhat extensive interviews and tests that defendant suffered from borderline mental retardation (with I.Q. test scores from 64 to 76) and had difficulties dealing with his environment, whether socially, academically, or occupationally. On cross-examination, Dr. Podboy stated as his impression that defendant was not only dull but also impulsive and criminally oriented, that he could be very dangerous under some circumstances, and that he came from a pathological family background, being the second of eight children, all of whom were removed from the parental home. He also said he essentially agreed with a report in December 1973 by a Dr. Dean that in the context of defendant’s mental retardation and disproportionately severe reading handicap, defendant attached positive values to aggressiveness and violence and to dominating other persons to enhance his self-esteem. Dr. Aaron testified that he had been retained as a psychiatrist to explore the possibility of an insanity or diminished capacity defense at the guilt phase and had concluded that no such defense existed. He had then made an extensive study of defendant’s background for the penalty phase, interviewing defendant seven more times, studying records of psychological tests and of the proceedings to remove defendant and his siblings from their mother’s custody, and interviewing defendant’s sister and half-brother. Dr. Aaron diagnosed defendant as suffering from borderline mental retardation and a severe personality disorder, i.e., antisocial personality, which is characterized emotionally by inability to plan ahead or profit by experience. Dr. Aaron graphically described defendant’s childhood deprivations. Defendant was born in January 1958, when his mother was 17 or 18. He was the second of his mother’s eight children, who had four different fathers. His own father, an alcoholic multiple felon, left home when defendant was two. Defendant lived with various friends and relatives in extreme filth and poverty, and suffered multiple beatings, often severe, regularly inflicted upon him by adults. He was a failure in school, where his outbursts led to suspensions and truancy. The mother failed to provide regular food and apparently used the welfare money for drugs or alcohol. At age six or seven, defendant began to shoplift and purse-snatch to obtain food for the family. At ages 11, 12, and 13, he was taking drug pills stolen from his mother and engaging in more burglaries. His father reappeared briefly and helped him learn how to steal. After a while he took pride in skillful burglaries, which became his one successful accomplishment. At age 13 he became a ward of the juvenile court, from which he underwent multiple placements, “a revolving door situation.” There were only two areas of positive experience in his childhood. One was when his great-great grandmother, a cleaning woman and a warm, caring, religious person, periodically took care of him. The other was when some adults at an amusement park, Playland at the Beach, befriended him and gave him a job and a place to stay. During that time, he stopped the burglarizing and purse snatching, but after four months he was sent back to juvenile hall as a truant. With the assistance of Raymond Procunier, former director of the California Department of Corrections, Dr. Aaron reviewed defendant’s record at DVI. It contained good reports on defendant’s work assignments, one of which was in the dairy outside the prison walls. The negative notations, and most of the infractions, were based on yelling and cursing, but none indicated violence against a fellow inmate or a guard. Defendant told Dr. Aaron he avoided joining a gang because he did not want to be asked to hurt or kill someone. Dr. Aaron concluded that defendant could make a good adjustment in prison because his basic needs would be cared for and he would be subject to clear external controls. Over objections which we discuss later, Dr. Aaron was cross-examined about defendant’s statements to him concerning the present crimes. Defendant’s account was generally consistent with his testimony except as to the actual shooting. He told Dr. Aaron he was trying to get away, holding the shotgun aimed at the victim’s head, and then “I just shot her.” He said this in a low, hesitating manner with eyes downcast, but Dr. Aaron was not sure whether defendant was expressing remorse or mere regret. Lieutenant Larry Hunter, a correctional lieutenant at DVI, described defendant as a better than average inmate who generally got along well with others. He had relatively few problems and avoided involvement with the prison gangs. He was placed in protective custody because of danger from a gang. Rev. Edward Block, pastor of a Stockton church, testified that upon defendant’s release from prison, Rev. Block and a church member brought defendant to Stockton, where defendant hoped to get a job in a dairy. A parole officer, however, told defendant he would have to go to San Francisco. Frank Walker, a San Francisco parole agent, testified that he interviewed defendant on the latter’s arrival in San Francisco on Friday, May 9, 1980, and explained the conditions of parole. Defendant said he would stay with his grandmother and eventually wanted to go to his sister’s residence in Stockton and get a job with a dairy. He was arrested for the present crimes four days later, on May 13, and held in the Sonoma County Jail. Steven Torringo, a jail correctional officer, testified that defendant got along well with the other inmates and represented his tank on the inmate council. Lea Kibbe, a private investigator, testified that he located defendant’s mother in a San Francisco park. She was drunk, incoherent, and unkempt, and provided little information. She had seen something about defendant’s case on television. III. Motion for Change of Venue Defendant unsuccessfully moved for a change of venue, and his petition for a writ of mandate to require the granting of the motion was summarily denied by the Court of Appeal. He now claims prejudice from the trial court’s refusal to transfer the case to another county for trial. A motion for change of venue must be granted when the defendant shows a reasonable likelihood that a fair trial cannot be had in the original county. (People v. Welch (1972) 8 Cal.3d 106, 113 [104 Cal.Rptr. 217, 501 P.2d 225].) On appeal from a conviction after denial of the motion, the reviewing court must determine independently whether a fair trial was obtainable. (People v. Harris (1981) 28 Cal.3d 935, 948 [171 Cal.Rptr. 679, 623 P.2d 240], cert. den. 454 U.S. 882 [70 L.Ed.2d 192, 102 S.Ct. 365].) The controlling factors are the gravity and nature of the crime or crimes, the extent and nature of the pretrial publicity, the size and nature of the community, the status of the victim, the status of the accused, and any indication from the voir dire of prospective and actual jurors that the publicity did in fact have a prejudicial effect. (People v. Balderas (1985) 41 Cal.3d 144, 177 [222 Cal.Rptr. 184, 711 P.2d 480].) Here, the gravity and nature of the crimes weighed in favor of changing venue because they subjected defendant to the death penalty and had sensational aspects bound to draw public attention. (See Martinez v. Superior Court (1981) 29 Cal.3d 574, 582 [174 Cal.Rptr. 701, 629 P.2d 502].) These aspects were reflected in the initial extensive reports on television and radio and in the locally circulated newspapers. Besides depicting in detail the circumstances of the crimes and of defendant’s arrest, they repeatedly emphasized that defendant was an ex-convict who had been released from prison only four days earlier. The publicity quickly subsided, however. In the newspaper with the greatest coverage, the Santa Rosa Press-Democrat, there were illustrated front-page stories on May 14, 15, and 16, 1980. On May 22, there was a front-page story headlined, “Murder plea delay for mental testing,” and on May 23, a story on an inside page, “Coleman claims he’s being victimized by hostile media.” The subsequent stories were occasioned by defendant’s plea in municipal court (June 10), the preliminary hearing (July 8), the plea in superior court (July 24), a continuance of the trial date (Nov. 10), and the motion for change of venue (Jan. 20, 1981). Thus, the publicity, though initially graphic, was not “persistent and pervasive” (Martinez v. Superior Court, supra, 29 Cal.3d 574, 585). The size of the community is important because in a small rural community, a major crime is likely to be embedded in the public consciousness more deeply and for a longer time than in a populous urban area. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 581; People v. Harris, supra, 28 Cal.3d at p. 949.) According to the Bureau of the Census, Sonoma County’s population on April 1, 1980, was 299,681. (U.S. Dept. of Commerce, County and City Data Book (1983) p. 60.) The county’s three cities having more than 10,000 inhabitants were Santa Rosa (83,320), Petaluma (33,834), and Rohnert Park (22,965). (Id. at pp. 820-821; cf. Cal. Dept. Finance, Cal. Statistical Abstract (1984) table B-4, p. 20; id. (1980) table B-6, p. 15.) Though not one of the state’s major population centers, the county is substantially larger than most of the counties from which this court has ordered venue changes. (See People v. Balderas, supra, 41 Cal.3d 144, 178-179.) Thus, the county’s size does not weigh in favor of a venue change. Neither defendant nor any of the three victims was publicly prominent before the crimes. Defendant is Black, but the publicity did not particularly dwell on his race. He was from San Francisco, had just been released from prison, and, except for distant recollections of his presence as a juvenile ward in the early ’70’s, was virtually unknown. The lack of county residents personally acquainted with defendant, however, seems of little weight since the county is of such size that most of its inhabitants would probably not expect to be acquainted with more than a small proportion of their fellow citizens. Predispositions based on a stereotype of defendant or of the victims, rather than on personal acquaintance, might well be present in other counties to which venue could be changed. In support of his pretrial motion for change of venue, defendant called a legally trained psychologist, Craig Haney, who specialized in jury selection in capital cases. He extensively analyzed the publicity surrounding the crimes and the results of a field survey of potential Sonoma County jurors, taken in October-November 1980, and testified that in his opinion there was a substantial likelihood that defendant could not receive a fair trial in the county. The survey reported interviews with 121 county residents selected randomly from lists of voters and licensed drivers. Dr. Haney testified it was accurate within a 9 percent margin of error, plus or minus. When asked, “Have you heard or read anything about an incident that occurred last spring in which three women were attacked in a farmhouse near Healdsburg, and one of them was killed?” 46 of the 121 (38 percent) answered “yes.” The others were then told: “The other two women victims were both stabbed and the youngest one was also raped. Do you remember the case now?” Ten more said “yes.” Of the 56 (46.3 percent) who answered affirmatively to one or the other of those inquiries, 13 thought defendant “definitely guilty,” and 25 thought him “probably guilty.” Of the 38 who thought defendant definitely or probably guilty (31.4 percent of the sample), 19 (15.7 percent) thought he should receive the death penalty. When asked for narrative accounts of their recollections of the incident and of their feelings about it, most of those who recalled the case mentioned defendant’s prior imprisonment, and practically all expressed shock and outrage. This forecast of the effect of pretrial publicity on the fairness of defendant’s trial must now be considered in conjunction with the actual selection of the jury. Though the fact that all the jurors selected said they could be impartial does not automatically establish the possibility of a fair trial (People v. Tidwell (1970) 3 Cal.3d 62, 73 [89 Cal.Rptr. 44, 473 P.2d 748]; People v. McKay (1951) 37 Cal.2d 792, 798 [236 P.2d 145]), “voir dire may demonstrate that pretrial publicity had no prejudicial effect” (People v. Harris, supra, 28 Cal.3d 935, 949). Twelve jurors and four alternates were selected from forty-one persons examined on voir dire. Each side was entitled to 26 peremptory challenges (former § 1070, subd. (a)), but the prosecution exercised only 10 such challenges and the defense, 11. Of the 41 persons examined, only 15 disclosed any knowledge or recognition of the case. Of these fifteen, only three were excused for cause, and only one of the three (Tunzi) for prejudice stemming solely from media publicity. Another of them (Taylor) was prejudiced because one of the victims was the niece of her next door neighbor, and the other (Lewis), because he lived near the crime scene and had repeatedly discussed the case with local residents. The prosecution peremptorily challenged three persons who recalled learning about the case from newspapers or TV, and one more who simply recognized defendant’s surname. The defense exercised two peremptory challenges against persons who had read about the case and one (Dunn) who had learned about it not from the media but from discussions with a friend who had acquired knowledge of the case as a reserve deputy sheriff. Of the jurors actually chosen, one (Davis) said that defendant’s given name and the surname of a victim sounded familiar, and another (Sparks) had read just enough about the case to make sure a victim was not the juror’s friend of the same name. Another juror (Waters) had not learned about the case when the crimes occurred but had seen a recent newspaper article about the upcoming trial. Still another juror (Dufford) had read about the case in the newspaper but said he could set that aside “because it’s only a newspaper and they tend to report the spectacular.” Finally, one of the jurors (Cavalini) volunteered to the court that after her voir dire was completed, her husband told her he heard that defendant had been released from prison and that the crimes occurred when defendant went to see his former employer. She replied that she did not want to hear any more about it. This record of the voir dire shows that the pretrial publicity was not a barrier to defendant’s receiving a fair trial. The publicity did not pervade the proceedings so as to give rise to any inference or presumption of prejudice. (See Murphy v. Florida (1975) 421 U.S. 794 [44 L.Ed.2d 589, 95 S.Ct. 2031].) It is also significant that defendant used less than half of his peremptory challenges. (Compare People v. Sommerhalder (1973) 9 Cal.3d 290, 303 [107 Cal.Rptr. 289, 508 P.2d 289] [peremptory challenges left unexercised] with People v. Tidwell, supra, 3 Cal.3d 62, 67 [peremptory challenges exhausted], and People v. McKay, supra, 37 Cal.2d 792, 798 [same].) Accordingly, the denial of defendant’s motion for change of venue was not prejudicial error. IV. Denial of Representative Jury A prospective juror, Mrs. Blaisdell, was excused for cause because of her professed opposition to the death penalty. Defendant contends he was thereby deprived of his right to a jury drawn from a representative cross-section of the community. The contention must be rejected. (People v. Ghent (1987) 43 Cal.3d 739, 753-754 [239 Cal.Rptr. 82, 739 P.2d 1250]; see Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758].) V. Propriety of Excluding Juror for Opposition to Death Penalty Defendant contends that the exclusion for cause of prospective juror Blaisdell was prejudicially erroneous because her opposition to the death penalty was not made sufficiently clear. Under the applicable standard, such exclusion may be based on the “juror’s views [which] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,’ ” and it is not necessary that the “juror’s bias be proved with ‘unmistakable clarity.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 852, 105 S.Ct. 844] [quoting from Adams v. Texas (1980) 448 U.S. 38, 45 (65 L.Ed.2d 581, 589, 100 S.Ct. 2521)]; accord: People v. Ghent, supra, 43 Cal.3d 739, 767.) The trial judge asked Mrs. Blaisdell whether, because of conscientious opposition to the death penalty, she would automatically vote for something other than first degree murder at the guilt phase in order to end the death penalty question once and for all. She first answered, “I’m afraid I would vote against the death penalty.” The judge then reworded the question twice. Her answers were, respectively, “I’m afraid I would” and “Yes. I am, in my mind, would vote against murder in the first degree.” In answer to defense counsel’s questions, Mrs. Blaisdell stated that as to guilt, she “would have to vote however I felt about the witnesses and the proof shown.” But when the judge then rephrased his earlier question, whether she would vote against guilt of first degree murder regardless of the evidence in order to avoid the death penalty question, she replied: “I’m afraid I would avoid the death penalty. I would vote so that I wouldn’t have the death penalty on my mind.” She continued to repeat this affirmative response in various forms. Finally, defense counsel asked whether at the penalty phase, she “could set aside your own personal feelings and apply the law and consider the death penalty.” She replied: “ . . . If I voted for the death penalty, I would be voting for that, for death, and this would be something I—I just wouldn’t want to vote anyone—regardless, I guess, of the evidence, I just wouldn’t want to—‘Thou shall not kill,’ one of the Ten Commandments, comes to mind . . . .” Although this voir dire arguably left open a possibility that Mrs. Blaisdell could set aside her feelings against the death penalty in determining guilt, it made clear that in any event she could not vote to impose the death penalty. She was properly disqualified because her views would have prevented or substantially impaired the performance of her duties as a juror. (Wainwright v. Witt, supra, 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852]; People v. Ghent, supra, 43 Cal.3d 739, 767.) VI. Jury Instructions’ Omission of Intent to “Kill” as Requirement for Assault With Intent to Murder Defendant contends that in instructing the jury on the two charges of assault with intent to commit murder (former § 217), allegedly perpetrated against Jean Prendergast and Karen, the trial court prejudicially erred by omitting the requirement of an intent to kill. The repeal of section 217 as of January 1, 1981 (shortly after the present crimes occurred), abolished the crime of assault with intent to commit murder, leaving acts formerly prosecuted under the repealed section punishable as attempted murder under section 664. It is well settled that both the former crime of assault with intent to commit murder (of which defendant was convicted) and the crime of attempted murder require a specific intent to kill and cannot be based on mere implied malice even though implied malice would sustain a charge of murder itself. (People v. Lee (1987) 43 Cal.3d 666, 670 [238 Cal.Rptr. 406, 738 P.2d 752]; People v. Ramos (1982) 30 Cal.3d 553, 583-584 [180 Cal.Rptr. 266, 639 P.2d 908]; People v. Murtishaw (1981) 29 Cal.3d 733, 762-765 [175 Cal.Rptr. 738, 631 P.2d 446].) In Lee the jury instructions were inconsistent. The trial court correctly instructed that the crime of attempted murder requires a specific intent to kill a human being (CALJIC No. 3.31) but also instructed that the crime is an unlawful attempted killing with malice aforethought. It further instructed that malice may be implied when the attempted killing results from an intentional act involving a high degree of probability that it will result in death, and that under that circumstance, it is not necessary to establish that the defendant intended to kill. (CALJIC Nos. 8.11, 8.31.) We held it was error to give the instructions basing the crime of attempted murder on implied malice. (43 Cal. 3d at p. 671.) In the present jury instructions, the initial references to intent dealt with the sufficiency of circumstantial evidence to prove specific intent in the crimes of murder, assault with intent to commit murder, robbery, and burglary. (CALJIC No. 2.02.) Somewhat later, the jury was instructed that as to each of those crimes, “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator . . . . The specific intent required is included in the definitions of the crimes charged.” (CALJIC No. 3.31.) Very soon thereafter, the court announced that “the next series of instructions deal with the charge of murder . . . generally, with murder in the first degree, murder in the second degree, and then a lesser included offense of murder, which is involuntary manslaughter.” The ensuing murder instructions included the following statements pertaining to state of mind: “The crime of murder is the unlawful killing of a human being with malice aforethought. . . .” (CALJIC No. 8.10.) “Malice may be either express or implied. Malice is express when there is manifested an intent unlawfully to kill a human being. Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life ... or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life. Burglary, robbery and rape are such a felony.” (Former CALJIC No. 8.11, last sentence added by the court.) Although second degree murder may involve an intent to kill (CALJIC No. 8.30), it “is also the unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life .... When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.” (CALJIC No. 8.31.) Having completed the instructions on murder, manslaughter, and special circumstances, the court announced that the next series of instructions would deal with (1) assault with a deadly weapon or by means of force likely to produce great bodily injury and (2) assault with intent to commit murder. The court carefully explained that the former requires only a general intent, whereas the latter requires a specific intent, on which the jury was instructed as follows; “Every person who assaults another with the specific intent to commit murder is guilty of the crime of assault to commit murder, [fl] In order to prove the commission of the crime of assault to commit murder, each of the following elements must be proved: [fl] 1. That a person was assaulted, and [^] 2. That the assault was made with the specific intent to commit murder.” (CALJIC No. 9.01.) Defendant contends that because of the instructions (1) that the mental state requisite to the crime of assault with intent to commit murder was an “intent to commit murder” and (2) that murder could be committed either with express malice, which requires an intent to kill a human being, or with implied malice, which requires a mental state short of such intent, the instructions stated or implied to the jury that the crime of assault with intent to commit murder did not require an intent to kill. In our view, the instructions could not have been so understood. The jury was repeatedly told that the crime of assault with intent to commit murder requires a “specific intent to commit murder.” Murder by any commonsense definition is a form of killing; moreover, the jury had been instructed that “murder is the unlawful killing of a human being with malice aforethought” (CALJIC No. 8.10). Thus, it is impossible to intend to commit a murder without intending to kill. Indeed, the word “kill” no more implies intentionality than does the word “murder.” It is the combination of “intent to” with either “murder” or “kill” that conveys an intent to effect the death of another. The proper instruction that one can be guilty of murder on the basis of implied malice not involving an intent to kill, did not state or imply that one could be guilty of a crime which requires a specific intent to commit murder without intending to kill. Nothing in counsel’s final arguments at the guilt phase misled the jury to the contrary. The prosecutor introduced the issue of intent on counts II and V (assault with intent to commit murder) this way: “[Tjhere has to be the specific mental state, the specific intent to murder. We have already talked about murder, the unlawful killing of a human being with malice aforethought. Was this in the defendant’s mind when he assaulted Mrs. Prendergast? Was it in his mind to commit murder? Was it in his mind to commit murder on [Karen] when he assaulted her? That is your decision on those two charges.” He went on to argue that such intent could be inferred from defendant’s infliction on both victims of deep stab wounds in vital areas of their bodies and from the fact they both were potential witnesses to his shooting of Ms. Neidig. Defendant’s counsel argued that the two charges of assault with intent to commit murder “require a specific intent, that when you assault them you specifically intended to kill them.” He urged the jury to conclude there was no such intent in light of defendant’s testimony of the gun’s going off accidentally, his horror at seeing Ms. Neidig’s face, and his loss of memory of events from then until after he started to run away. Defendant relies on People v. Murtishaw, supra, 29 Cal.3d 733. There, as here, the defendant was charged with murder and with an assault with intent to commit murder (former § 217) on a surviving victim. The jury was told that (1) murder could be based on any of three theories: express malice requiring an intention to kill; implied malice arising out of certain kinds of dangerous, wanton acts; or implied malice consisting of felony murder; and (2) section 217 would be violated by an assault “with the specific intent to commit murder.” The Murtishaw court concluded that these instructions “defined [intent to murder] to include forms of murder not requiring an intent to kill” (29 Cal.3d at p. 763) and were therefore erroneous, since “[i]mplied malice, as defined in [the instructions given], cannot coexist with a specific intent to kill. To instruct on implied malice in that setting, therefore, may confuse the jury by suggesting that they can convict without finding a specific intent to kill” (id. at p. 765). We agree that implied malice is inconsistent with an intent to kill, but it does not follow that where a defendant is charged with both murder and assault with intent to commit murder, a reasonable jury will think that a “specific intent to commit murder,” specified as an element of the latter crime, does not require an intent to kill, simply because they have been instructed that murder itself can be committed with implied malice. Murtishaw, which like the present case involved assault with intent to commit murder (former § 217), was cited in later cases involving attempted murder. Thus, in People v. Ramos, supra, 30 Cal.3d 553, the jury was instructed that an attempt consists of a specific intent to commit the crime and a direct but ineffectual act towards its commission. Since the defendant was also charged with murder, the court also gave instructions on express malice, implied malice, and felony murder. The Ramos court held that the “instructions thus implied that the jury should find appellant guilty of attempted murder if it determined that appellant intentionally committed an act which, were the victim to die, would constitute murder on an implied malice or felony-murder theory.” (Id. at p. 583.) In People v. Croy (1985) 41 Cal.3d 1 [221 Cal.Rptr. 592, 710 P.2d 392], this Ramos holding was followed and quoted even though the jury had been told that attempted murder “ ‘consists of two elements, namely, a specific intent to commit the crime of Murder and a direct but ineffectual act done toward its commission’ ” (id. at p. 20, italics added). In People v. Montiel (1985) 39 Cal.3d 910 [218 Cal.Rptr. 572, 705 P.2d 1248], this court held that compliance with the former rule that a felony-murder special circumstance necessarily requires proof of the actual killer’s intent to kill (Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], overruled by People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147 [240 Cal.Rptr. 585, 742 P.2d 1306]) was excused by the fact that the intent issue “was necessarily resolved adversely to the defendant under other, properly given instructions” (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913], quoted in People v. Garcia (1984) 36 Cal.3d 539, 555 [205 Cal.Rptr. 265, 684 P.2d 826]), in that the jury had found, as a special circumstance, that “the murder was intentional and carried out for financial gain” (§ 190.2, subd. (a)(1)). Citing Murtishaw, the defendant contended that “the finding that ‘the murder was intentional’ was insufficient; the jury still was not required to find an intent to kill." (39 Cal.3d at p. 926.) The contention was rejected: “Unlike the situation in Murtishaw, requiring the jury here to find that the murder was intentional directed it to determine whether the defendant intentionally sought the victim’s death, no other possible distinction can be drawn between intentional and unintentional murders in this context.” (Id. at p. 927.) A footnote added: “The analogous situation in Murtishaw would have arisen had the jury been instructed to find an intent to commit intentional murder, rather than an intent to commit murder.” (Id. at p. 927, fn. 5.) By that analysis, the mischief denounced by Murtishaw arose because the jury might have understood the instructions to encompass an intent to commit an unintentional murder. We find it inconceivable on this record that even the possibility of such an absurd, self-contradictory interpretation would have occurred to any reasonable juror. A murder based on implied malice involves an unintentional killing resulting from an illegal act of a nature sufficient to establish the implied malice. It is not logically possible to specifically intend to commit an unintentional murder. We adhere to the rule that the crimes of assault with intent to commit murder (former § 217) and of attempted murder require a specific intent to kill a human being—an intent which can never be replaced by implied malice. (People v. Lee, supra, 43 Cal.3d 666, 670-671.) Moreover, in view of the controversy surrounding instructions on an intent to “murder” in this context, the required intent should be described to the jury as an intent to “kill” another. (See, e.g., CALJIC No. 8.66 (1987).) Nonetheless, we do not believe the jury in the present case could have understood the instructional references to “a specific intent to commit murder” as meaning any state of mind less than an intent to kill, notwithstanding the instructions on implied malice given in connection with the murder charge. VII. Evidentiary Rulings on Claim of Apparent Consent as Defense to Rape Charge The jury was instructed that a defendant’s reasonable and good faith belief that a person voluntarily consented to sexual intercourse is a defense to a charge of forcibly raping her, and that if the jury had a reasonable doubt whether defendant had such a belief, they should acquit him of that charge. (CALJIC No. 10.23, based on People v. Mayberry (1975) 15 Cal.3d 143, 153-157 [125 Cal.Rptr. 745, 542 P.2d 1337].) Defendant attempted to prove such a defense through his testimony that Karen invited him into the house, volunteered that the ladies who lived there were pretty rich, started counting the money without being asked to do so, and said nothing when he told her to take off her clothes. He testified he did not use profane language or hit or choke her, but when asked whether she was frightened, replied that “under the circumstances, I would say yes.” Defendant also had the jury listen to a tape recording of an interview between Karen and a detective the day after the crimes occurred, to demonstrate composure in her speech and to impeach certain details of her testimony. In rebuttal on this issue, the prosecution called two witnesses, a counselor from a county mental health clinic, and a physician who specialized in the examination and treatment of sexual assault victims. Defendant claims prejudicial errors in the admission of their testimony. The counselor, Shirley Barnhart, testified that in February 1981, Karen consulted her with respect to feelings and psychological problems stemming from involvement in a murder, rape, and robbery. Defendant made a hearsay objection to any testimony by the counselor of Karen’s statements. The prosecutor said the testimony was being offered in rebuttal on the issue of Karen’s state of mind, whereupon the trial court ruled the testimony admissible except for statements about events on the day of the crimes. The counselor then recounted statements by Karen that she had had little feeling about the crimes immediately after they occurred, but that a few months later, she began experiencing nervousness and various great fears, which she described in detail. Defendant contends that although Karen’s statements to the counselor were indicative of her state of mind at the time the statements were made, they were not relevant to the issue whether at the time of the alleged rape, defendant reasonably and in good faith believed she was consenting to intercourse. The Attorney General argues that this contention of irrelevancy was waived because the only objection to the evidence was on the ground of hearsay. In response, defendant cites People v. Vindiola (1979) 96 Cal.App.3d 370, 378 [158 Cal.Rptr. 6], where the Court of Appeal, after declaring that certain evidence was “irrelevant to any issue before the court” and therefore “not admissible on any ground,” continued: “Since it was not admissible on any ground, the hearsay objection to its admissibility was sufficient to preserve the issue on appeal. (People v. Terry (1962) 57 Cal.2d 538, 567-568 [21 Cal.Rptr. 185, 370 P.2d 985]; Swan v. Thompson (1899) 124 Cal. 193, 195 [56 P. 878].)” (Italics added.) The two cited decisions, however, hold only that a general objection is sufficient to preserve for appeal a contention that the evidence was inadmissible for any purpose. Whether or not the relevancy objection to the counselor’s testimony was waived, it is without merit. Statements of a complaining witness to a counselor describing emotional and psychological trauma suffered by the witness following an alleged rape are admissible as circumstantial evidence on the question whether the defendant had a reasonable good faith belief that the witness had consented to his act. (People v. Bledsoe (1984) 36 Cal.3d 236, 246, 250, fn. 12, 251 [203 Cal.Rptr. 450, 681 P.2d 291].) Here, the counsel- or’s testimony was proper to rebut arguable inferences from the taped interview or from defendant’s testimony that Karen’s words or conduct could reasonably have been understood as manifesting consent to his sexual act. (Id. at p. 248.) A more serious problem is presented by the testimony of the physician, Dr. Novotny, to which an objection of irrelevancy was overruled. He did not examine Karen personally, but reviewed her medical records, her taped interview with the detective, and her statements to the counselor, Ms. Barnhart, and testified that in his professional opinion, her conduct and statements were consistent with “rape trauma syndrome.” He did not, however, state expressly that she had been raped or assaulted. In People v. Bledsoe, supra, 36 Cal.3d 236, we held that “expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped.” (Id. at p. 251.) “Even when the expert stops short of expressing an opinion on the ultimate issue of whether the complaining witness was raped and, as here, states simply that the witness is suffering from ‘rape trauma syndrome,’ the use of this terminology is likely to mislead the jury into inferring that such a classification reflects a scientific judgment that the witness was, in fact, raped.” (Id. at p. 251, fn. 14.) We recognized the propriety of introducing evidence on rape trauma syndrome under some circumstances to “provid[e] the jury with recent findings of professional research on the subject of a victim’s reaction to sexual assault” (id. at p. 247), but such evidence “is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand” (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100 [215 Cal.Rptr. 45]). Here, though Dr. Novotny had not examined Karen in person, he testified in detail to the records of her conduct and responses and stated his opinion that they were consistent with rape trauma syndrome. Hence, admissibility of his testimony over the objection of irrelevancy was error under Bledsoe. The question remains whether the error was prejudicial. In Bledsoe, supra, 36 Cal. 3d at page 252, we concluded there was no prejudice because the case against the defendant was so strong that it was not reasonably probable that the erroneously admitted expert testimony affected the result (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]). The same is true here. Defendant admitted that he was a stranger to Karen, and that prior to the sexual encounter he had picked up the letter opener, put the knife in his belt, pointed the shotgun at her (telling her not to panic because it was not loaded), and “told” her to undress. He also conceded she was frightened when he had intercourse with her. Karen herself testified that defendant forced his way into the house and told her he “was the boss” and was going to rape her, and that she not only was frightened but was crying. Even in the absence of Dr. Novotny’s erroneously admitted testimony that Karen’s conduct was consistent with rape trauma syndrome, it is not reasonably probable that the jury would have concluded that defendant had a reasonable, good faith belief that Karen was consenting to his sexual act, or even that the jury would have entertained a reasonable doubt whether defendant had such a belief. Accordingly, the error was nonprejudicial. (People v. Watson, supra, 46 Cal.2d 818, 836.) VIII. Sufficiency of Evidence for Special Circumstance of Murder to Avoid Arrest Defendant claims there is not sufficient evidence to support the jury’s finding of the special circumstance that he killed Ms. Neidig for the purpose of avoiding or preventing a lawful arrest (§ 190.2, subd. (a)(5)). In People v. Bigelow (1984) 37 Cal.3d 731 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723], defendant and his companion, who had recently escaped from prison and were on a crime spree, decided to hitchhike so as to steal the driver’s car and money. They forced the driver who picked them up to drive a mile through farmland and get out of the car and into a cornfield, where they shot him. (Id. at pp. 738-739.) This court held: “We find no evidence in the record that Cherry was murdered to avoid or prevent a lawful arrest. At the time of the killing Bigelow and Ramandonovic were not under arrest and were not threatened with imminent arrest. Although the prosecutor surmised that Cherry was killed so that he would not report the robbery and kidnapping—a report which might eventually lead to the men’s arrest—this argument is totally speculative. It is also an unreasonably expansive reading of the special circumstance of avoiding arrest, a reading which would cause that circumstance to overlap extensively with felony murder. We believe the special circumstance of avoiding arrest should be limited to cases in which the arrest is imminent.” (Id. at p. 752.) In a footnote to the quoted passage, the Bigelow opinion pointed out that the practical effect of allowing the special circumstance to be found in that case would be to undermine the exception to the special circumstance of intentionally killing a witness to prevent his testimony, which applies only if “the killing was not committed during the commission, or attempted commission of the crime to which he was a witness” (§ 190.2, subd. (a)(10)). “[A] 11 the prosecutor would have to do is to claim that the victim was killed ... to prevent him from reporting the crime to the police, and the result would be to extend the avoiding arrest circumstance to virtually all felony murders.” (37 Cal.3d at p. 752, fn. 13.) Here, defendant had seen Ms. Neidig talking with her neighbor, Mr. Giannavola, at the far end of her driveway just before she entered her house. After she entered, he raised the shotgun, threatening her. She screamed and tried to escape, but defendant blocked the door with his shoulder. Through the partially opened door, she yelled to the neighbor to call the police but there was no evidence he could or did hear her. Defendant immediately killed her with a single blast of the gun. The Attorney General urges the present case is distinguishable from Bigelow, supra, 37 Cal.3d 731, because it is clear that Ms. Neidig was seeking to report the crime and had set the wheels in motion by yelling to her neighbor. However, there was no evidence that any imminent arrest was possible under the circumstances. It is suggested that Mr. Giannavola might have made a citizen’s arrest, but there is no evidence of facts apparent to defendant that Giannavola had the intention or capability of doing so. We conclude the finding of the special circumstance of a killing to avoid lawful arrest (§ 190.2, subd. (a)(5)) must be set aside as contrary to the holding in Bigelow. IX. Robbery and Burglary Special Circumstances: Claims of Overlap and of Requirement of Intent to Kill Defendant contends it was error to charge and instruct the jury on both the robbery special circumstance (§ 190.2, subd. (a)(17)(i)) and the burglary special circumstance (§ 190.2, subd. (a)(17)(vii)), since both depended on the same larcenous intent. He relies on the plurality opinion in People v. Harris (1984) 36 Cal.3d 36, 60-67 [201 Cal.Rptr. 782, 679 P.2d 433]. We have since held, however, that both of these special circumstances can be charged and considered in aggravation of the penalty since each invades a separate societal interest; a robbery invades personal integrity and a burglary invades t