Full opinion text
Opinion BROUSSARD, J. From June through October of 1979, defendant and Roy Norris kidnapped and murdered five teenage girls in the Los Angeles area. Most of the killings involved the rape and torture of the victims. Defendant now stands convicted of 26 felony counts, as follows: Date of Crime Victim Crimes June 24, 1979 Lucinda Schaefer first degree murder kidnapping 3 counts of rape July 8, 1979 Andrea Hall first degree murder kidnapping 2 counts of rape forcible oral copulation Sept. 2, 1979 Jacqueline Gilliam first degree murder kidnapping 3 counts of rape Sept. 2, 1979 Leah Lamp first degree murder kidnapping Oct. 31, 1979 Shirley Ledford first degree murder kidnapping rape forcible oral copulation forcible sodomy Various 3 counts of possession of firearm by ex-felon June-Oct. 1979 conspiracy to commit kidnapping and murder The jury found 38 special circumstances: 20 multiple-murder special circumstances (the arithmetic combinations of 5 murders), 5 felony-murder special circumstances based on kidnapping and 5 based on rape. It found felony-murder special circumstances based on forcible oral copulation as to victims Hall and Ledford, and forcible sodomy as to Ledford. The jury found intentional murder by means of torture as to all victims except Lamp; with respect to Lamp, it found as a special circumstance that she was killed to prevent her from testifying as a witness. Defendant was sentenced to death. His appeal is automatic. We affirm the conviction and sentence. I. Summary of Facts Defendant met Roy Norris while they were inmates in state prison. Defendant had been convicted of assault with a deadly weapon, arising from an incident in 1974 in which he stabbed a store clerk who accused him of shoplifting. Norris had been convicted of rape. The two men became friends, and frequently discussed their mutual interest in rape, and analyzed methods of abducting and raping women without getting caught. Defendant was paroled in November of 1978 and rented a room at the Scott Motel in Burbank; Norris was paroled in January of 1979. After raping a woman in Colorado, Norris returned to California and called defendant. They would get together on weekends, and go to the beach where defendant would photograph teenage girls. They continued their discussion of rape, and explored various fire roads in the Southern California mountains, looking for places with adequate privacy. Defendant bought a van, choosing one with sliding doors to make it easier to seize a victim and drag her into the van. In June of 1979 Norris attempted to rape a woman, but she escaped. He told defendant, and they agreed that thereafter they would act together in all their criminal activities. 1. The testimony of Roy Norris. Norris testified for the prosecution pursuant to a plea bargain under which he pled guilty to five murders and received a sentence of forty-five years to life. (a) The murder of Lucinda Schaefer. On June 24, 1979, defendant was driving the van, with Norris as passenger, on the Pacific Coast Highway in Redondo Beach. They saw Lucinda (Cindy) Schaefer, age 16, walking along the highway. She turned onto a residential street. Defendant drove by and offered her a ride, but she refused. Defendant then parked the van a short distance down the street. Norris got out and pretended to be repairing it. When Schaefer walked by, he grabbed her and dragged her into the van. While defendant drove away, Norris bound and gagged the victim. When they arrived at the fire road in the mountains, Norris raped Schaefer while defendant stood lookout. Defendant raped her, then Norris a second time. She asked Norris if the men intended to kill her, and asked for time to pray before they did; Norris, however, assured her that she would not be killed. Defendant then returned to the van, and Norris stood watch outside. After about 45 minutes defendant emerged, and the 2 men argued whether to kill Schaefer. Norris said he had told Schaefer that she would not be killed, but defendant insisted on killing her so she could not identify them. Defendant said that kidnapping with bodily harm carried a sentence of life imprisonment without possibility of parole. Norris was unwilling to risk such a sentence, and finally agreed to the killing. Defendant held Schaefer while Norris tried to strangle her, but when he changed his grip Schaefer and defendant fell over backwards. Defendant dropped his cigarette, which burnt a hole in his shirt and scarred his chest. Defendant then attempted to strangle Schaefer, but was unable to squeeze tightly enough. He took a clothes hanger, and looped it around her neck. Norris could not get the hanger tight enough, but defendant used pliers to tighten it and kill Schaefer. They then threw the body into the bushes. (b) The murder of Andrea Hall. On July 4, 1979, defendant and Norris set out to find another victim. While driving in Manhattan Beach they saw Andrea Hall, age 18, who was hitchhiking to visit her boyfriend in Wilmington. Before they could offer her a ride, a man in another car picked up Hall. Defendant and Norris followed that car to Redondo Beach, where Hall got out and resumed hitchhiking. Defendant offered her a ride. After she entered the van Norris, who had been hiding in the back, attacked her and after a fight managed to bind and gag her. They drove into the mountains, passing the place where Schaefer was killed. Norris got out and stood guard while defendant raped Hall. The men then traded activities. When it was Norris’s turn to wait outside again, he thought he saw headlights coming up the fire road. Defendant took Hall into some bushes by the road while Norris drove the van, searching unsuccessfully for the intruder. When Norris returned, they drove to a new location. Defendant took Hall up a small hill, maintaining communication with Norris by walkie-talkie. Upon returning two hours later defendant showed Norris eight photographs he had taken. One of these photographs, which shows Hall about to perform oral copulation on defendant, is in evidence. Norris described the other photographs, which showed Hall nude in various poses. Defendant drove to another place, said he wanted to rape Hall again, and again took her to a hill near the road. Norris drove to a store, keeping in communication by radio. When he returned, defendant was alone. He told Norris he had taken more pictures. He showed Norris two pictures in which Hall appeared frightened, and told Norris that he took them after telling Hall that he was going to kill her, and challenging her to come up with as many reasons as she could why he should not kill her. Defendant then killed Hall by thrusting an ice pick through her ear into her brain. When she did not die instantly, he turned her over and pushed the pick through the other ear, and stepped on it until the handle broke. He then strangled Hall until she died and threw the body over an embankment into some bushes. (c) The murders of Jacqueline Gilliam and Leah Lamp. On September 2, 1979, Jacqueline Gilliam, age 15, and Leah Lamp, 13, were hitchhiking in Redondo Beach. Defendant and Norris picked them up in defendant’s van. After the girls entered the van, Norris hit Lamp with a sap (a plastic bag filled with lead weights), then subdued and tied Gilliam. Lamp recovered consciousness and attempted to escape, but defendant caught her and forced her back into the van. Defendant then drove into the mountains, driving beyond the site of the other two murders. Neither defendant nor Norris was sexually interested in Lamp. Defendant set out to rape Gilliam. Learning that she was a virgin, he set up a tape recorder to record her cries during the rape. After Norris also raped Gilliam, they retied the girls, and all remained in the van over night. The next morning defendant took Lamp up a hill, took some photographs, and left her there. Upon returning, he arranged for Norris to take a series of photographs of him with Gilliam, beginning with them clothed, then nude, then during intercourse and oral copulation. Defendant brought Lamp back to the van, and they drove into town for food and supplies. Upon their return, defendant took additional nude photographs of Gilliam. Some of these photographs came into possession of defense counsel, who turned them over to the police, and they were admitted into evidence. (At this point, according to Douglas, defendant tortured Gilliam. Norris does not mention torture.) Norris suggested that they kill Gilliam quickly because she had been so helpful, but defendant replied that “they only die once, anyway.” Defendant then took Gilliam out of the van and killed her, first thrusting an ice pick through her ear into her brain, then choking her. Defendant returned to the van, aroused Lamp (who had been forced to take tranquilizers to keep her quiet), and as she stepped out of the van, struck her with a sledgehammer. Defendant choked Lamp while Norris struck her with the hammer until she was dead. The men threw both bodies over an embankment into the chaparral. (d) The attempted abduction of Jan Malin. On September 27, 1979, defendant and Norris attempted to abduct an unidentified woman, but she dodged behind the van and escaped. On September 30, they saw Jan Malin park her car in an apartment garage, and return to the garage entrance to close the garage door. Defendant approached, sprayed her with Mace, and attempted to drag her into the van. Malin screamed, and people started to come out of the houses nearby. Norris then drove away without defendant, who fled on foot. Malin’s testimony corresponded to Norris’s account. (e) The murder of Shirley Ledford. Late in the evening on October 31, 1979, defendant and Norris picked up Shirley Ledford, age 18, who was hitchhiking home from her job. Defendant drove to a secluded area, stopped, and drew a knife. Norris then moved into the driver’s seat. Defendant turned on his tape recorder. As Norris drove, he could hear screams coming from the back of the van. After one to two hours, defendant turned off the recorder and changed places with Norris. Norris compelled Ledford to orally copulate him, then turned on the recorder and began hitting her on the elbow with a hammer. When Norris finished torturing Ledford, defendant told him to kill her. Norris strangled the victim with a coat hanger. Defendant suggested dumping the body in someone’s front yard so they could see the reaction in the newspaper. They put Ledford’s body in a bed of ivy in a suburban neighborhood, where it was discovered by an early morning jogger. 2. Other prosecution evidence. (a) The bodies. The bodies of Lucinda Schaefer and Andrea Hall were never found. Friends and family testified that they had never been seen after the date when Norris said they were killed. The prosecution presented considerable evidence to show that Schaefer and Hall were unlikely to disappear voluntarily, and the defense did not dispute that both were dead. With Norris’s assistance, the police discovered and identified the skulls of Jacqueline Gilliam and Leah Lamp. A portion of an ice pick was lodged in Gilliam’s skull. Lamp’s skull showed the effect of the hammer blows. Shirley Ledford’s body was discovered shortly after she was killed. The coat hanger was still wrapped around her neck. The body had extensive bruising and tearing on the breasts, bruises on the genitals, and bruises on one elbow. Laboratory examination showed sperm in her mouth, vagina and anus. (b) Tapes, photographs, and other physical evidence. As we have noted, one of defendant’s photographs of Andrea Hall and six of Jacqueline Gilliam were identified and introduced into evidence. The tape recording of the torture of Shirley Ledford was discovered in defendant’s van. The first portion of the tape contains a male voice, identified as defendant’s, and screaming from a female voice, stipulated to be Ledford’s. At one point defendant demands Ledford tell him what she is doing, and she describes an act of oral copulation. The second portion of the tape contains Norris’s voice, urging Ledford to scream, and more screaming by Ledford. Ledford’s bracelet was discovered in Norris’s apartment. Defendant’s van contained a small sledgehammer. In his room police discovered seven bottles of various acids, which Norris said defendant planned to test on his next victim. (c) Testimony of other motel residents. Richard Dryburgh, another resident of the Scott Motel, testified in return for dismissal of a charge of possession of an explosive. He said defendant showed him nude photographs of the victims, told him one was named “Cindy,” and that she had been killed. Shown a picture of Lucinda Schaefer, Dryburgh said she was one of the girls in the photographs he had seen. Dryburgh further testified that defendant told him of kidnapping and killing two girls on one occasion, but incorrectly identified Schaefer as one of the two. He correctly identified a photograph of Gilliam. Mike Horn, another resident, testified that defendant showed him photographs of Gilliam and Hall. Christina Dralle, a 17-year-old girl staying at the motel, said defendant showed her photographs of Gilliam and four other girls, and said, “The girls I get won’t talk any more.” On another occasion she heard a tape, apparently the recording of the rape of Gilliam, which defendant played for her. Steven Eastman, a visitor at the motel, also heard the tape. (d) Testimony of inmates. David Lambert shared a jail cell with defendant. At defendant’s request, Lambert drew a picture of a girl on the cell wall. Defendant said it looked like “Cindy,” and asked Lambert to add coat hangers and pliers to the picture. Defendant then signed it “Pliers Bittaker,” a jail nickname he had acquired from his stories of torturing women with pliers. Defendant signed autographs for other prisoners using that nickname. One said, “hitch-hikers welcome, females especially”; another said, “Norris did it.” Defendant also told Lambert of his abduction of two girls on one occasion, and of another girl on Halloween night (when Ledford was murdered). Lloyd Carlos Douglas testified that defendant told him in detail of the abduction of Gilliam and Lamp, the rape and torture of Gilliam, and the murder of both girls. (Norris did not describe any torture of Gilliam.) According to Douglas, defendant said he pinched Gilliam’s legs and breasts with a vise grip, finally tearing off part of the nipple, then thrust an ice pick through her breast and twisted it. He then pushed the ice pick through Gilliam’s ear; she screamed and fell dead. Defendant told Douglas that he tortured Ledford by pulling on her genitals and breasts with a vise grip. 3. Defendant’s case. The defense contended that Norris, not defendant, was responsible for the murders. Richard Shoopman, a convict friend of defendant and Norris, said Norris had told him many times of his desire to rape young women. Norris said the look of shock and fear on the victim’s face particularly aroused him. Defendant, on the other hand, seldom talked to Shoopman about sex. Defendant testified on his own behalf, and said that he was not involved in the abduction and murder of Lucinda Schaefer, but that Norris told him that Norris and another man had committed those crimes. He testified that he and Norris picked up Andrea Hall when she was hitchhiking, and offered her $200 for sex and photographs, to which she agreed. They drove into the mountains, engaged in various sexual acts, and took pictures. Defendant then returned to the van. A while later Norris returned alone, and told defendant that Hall could find her own way home. Defendant testified that after he and Norris picked up Gilliam and Lamp, he offered Gilliam money if she would pose for photographs. She agreed. They drove to the mountains where he and Norris took the photographs and made a tape recording. The next day Norris dropped defendant at Norris’s residence and left to drive the girls home in the van. Defendant testified that he never saw them again. Defendant admitted the assault on Jan Malin, and his description of the incident corresponds to that of Norris and Malin. He claimed, however, that his purpose was not to kidnap Malin, but to test the effectiveness of Mace as a defensive weapon. Finally, defendant testified that Shirley Ledford agreed to sexual acts for money, and to making of a tape. She screamed on cue for the tape, but was not tortured in his presence. Defendant said that after making the tape he returned to his motel, leaving Ledford with Norris. On cross-examination, defendant acknowledged that he had begun writing a book, and had shown drafts to a newspaper reporter and a guard. The book, entitled “The Last Ride,” contained a detailed account of the murder of Lucinda Schaefer by Norris and the author. It also described the abduction and rape of Andrea Hall (but not her murder), and the abduction of Gilliam and Lamp. In explanation, defendant said that the book was part fact, based on what he had been told by Norris, and part fiction. 4. Penalty phase evidence. Gary Louie, the victim of defendant’s 1974 assault, testified at the penalty trial. He saw defendant leave a grocery store with a package of meat hidden in his clothes. Louie followed defendant outside and asked if defendant had forgotten to pay for anything. Instantly, without saying a word, defendant stabbed Louie. Defendant was caught by two other employees. The defense presented psychiatric evidence that defendant may have been in an altered state of consciousness at the time of the assault; the prosecution presented contrary expert evidence in rebuttal. Psychologist Michael Maloney testified for the defense. He described defendant’s lengthy criminal career dating from adolescence, but noted that except for the 1974 incident the crimes were nonviolent, primarily shoplifting and auto theft. On one occasion defendant committed a crime and was returned to custody the day of his release. Dr. Maloney said defendant was quite intelligent (I.Q. over 130). He has no mental illness except an inability to empathize with others. He classified defendant as an “antisocial personality,” a diagnostic category that replaces the former designations of psychopath and sociopath. II. Search and Seizure Issues Defendant contends that both his arrest and the subsequent searches and seizures were illegal. Defendant’s motion to suppress the seized evidence under Penal Code section 1538.5 was denied by the trial court. 1. Validity of arrest warrant. Defendant argues that the warrant for his arrest and, hence, his arrest, the searches and seizures incident thereto, and statements obtained from defendant while under arrest were improperly obtained because no complaint was on file at the time the arrest warrant was issued. Defendant was arrested pursuant to a “Ramey” arrest warrant based upon an affidavit filed by a Sergeant Bynum of the Hermosa Beach police department. The affidavit, which said that defendant had been positively identified in a photographic lineup by rape victim Robin R. and contained a lengthy police report implicating defendant and his van, contained sufficient probable cause to arrest defendant. Thus, defendant does not allege insufficient probable cause; rather, he contends that the procedure and form used for the issuance of the warrant were illegal. A “Ramey” arrest warrant is issued by a magistrate upon the filing of an affidavit form entitled “Probable Cause Complaint in Support of Felony Arrest Warrant.” At the bottom of the form is the phrase “The complaint underlying this warrant of arrest does not initiate a criminal proceeding.” Defendant contends that an arrest warrant can issue only upon a complaint, that a complaint is a document which institutes a criminal proceeding, and thus that a document which says it does not institute criminal proceedings cannot be the basis for an arrest warrant. Neither constitutional nor statutory directives concerning warrants require that criminal proceedings must be instituted before an arrest warrant may be issued. As the Court of Appeal correctly found in People v. Case (1980) 105 Cal.App.3d 826, 834 [164 Cal.Rptr. 662]: “Reported decisions in cases interpreting Penal Code section 872 [order holding defendant to answer] have uniformly held that the ‘complaint’ filed with the magistrate under Penal Code sections 813 and 806 serves only the purpose of providing a basis for the issuance of a warrant of arrest. Once an individual is arrested and is before the magistrate, the ‘complaint’ is functus officio . . . .” (Fn. omitted.) It is apparent that the “complaint,” as the term is used in the Penal Code, serves two different purposes. One is to initiate criminal proceedings; the other to demonstrate probable cause for an arrest warrant. A complaint can be used to institute criminal proceedings without serving as a basis for an arrest warrant, and we see no reason why the converse may not also serve— that a complaint can furnish probable cause for arrest even though a different document is used to institute proceedings. The important point, and one defendant concedes, is that probable cause was shown to support the issuance of the arrest warrant; it is immaterial whether that same document initiated criminal proceedings against him. 2. Arresting officers' compliance with section 844. Defendant argues that during his arrest the police failed to comply with sections 844 and 1531 because they failed to identify themselves as police officers or to explain the purpose of their demand for admittance. After Norris was arrested by the Hermosa Beach police, Sergeant Bynum directed the police dispatcher to request the Burbank police to arrest defendant on the warrant which Sergeant Bynum held. Six or seven uniformed police officers participated in defendant’s arrest. After the officers were stationed at all of defendant’s windows, Officer Valento knocked on the door of defendant’s motel room. Although the evidence on this point is conflicting, Officer Valento may have announced that it was the Burbank police. After receiving no response from within the motel room, Officer Valento knocked two more times. After the third knock, the bathroom window to the immediate right of the door was opened by the defendant, who asked, “Who is it?” Officer Valento, who recognized defendant, stated that defendant was under arrest, and grabbed his arm through the open window. After defendant responded in the negative to Officer Valento’s inquiry whether anyone else was present in defendant’s room, the officer directed another officer to kick in the locked door so that the officers could enter the room and take defendant completely into their custody. The notice requirements of section 844 provide that before breaking into a home to effect an arrest, a police officer must identify himself, announce his purpose and demand entry. (People v. Hill (1974) 12 Cal.3d 731, 758 [117 Cal.Rptr. 393, 528 P.2d 1].) It is undisputed that Officer Valento technically complied with the knock requirement. Whether the identification/notice of authority requirement was fulfilled is less clear. We may presume, however, that the trial court resolved the conflicting testimony in favor of the testimony of Sergeant Farrand that an announcement was made. All that is lacking by way of full compliance with section 844 is an announcement of the officer’s purpose. But when defendant appeared at the window, an announcement of purpose before arresting him would have been hazardous. Defendant was known to carry weapons. Any delay would have allowed him to duck back inside the room and resist entry. Thus the police seizure of defendant, whether preceded or followed by an announcement of purpose, was justified by the circumstances. (See Parsely v. Superior Court (1973) 9 Cal.3d 934, 938 [109 Cal.Rptr. 563, 513 P.2d 611].) Defendant unpersuasively argues that the second entry by the officers, when the door was kicked in, violated section 844 because the officers failed to give defendant an opportunity to admit them. But the officers, having seized defendant at the window, could not release him without giving him a chance to grab a weapon and resist entry. 3. Legality of search of motel room. Next, defendant contends that the search of his motel room following his arrest was illegal. Defendant claims his purported consent to the search was vitiated by the allegedly illegal arrest (a contention we have already rejected), that the trial court failed to rule on the voluntariness of his consent, that if defendant did in fact consent to the search, he did not consent to the seizure of evidence, and that the items seized by the police officers failed to meet the “nexus” requirement of Warden v. Hayden (1967) 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642], and People v. Hill, supra, 12 Cal.3d 731, 763 (overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872]). Following defendant’s arrest, Officer Valento informed defendant that he was under arrest for robbery, rape, and “288.” (Section 288 is lewd or lascivious acts involving children. The arrest warrant in fact specified forcible oral copulation, which is section 288a.) After the arresting officers had notified the Hermosa Beach police department that they had defendant in custody, the officers were informed that defendant may have been involved in “some 187’s [murders] of females, that there was Mace or some other type of chemical agent used in one of the attacks,” and that some of the victims may have been photographed. Officer Valento explained this to defendant, and asked if defendant had any objections to the police searching his room for evidence concerning those crimes. Defendant indicated that he had no objection to a search. In fact defendant helped throughout the search, pointing out photographs in a box, and opening his combination safe for the officers. The officers ultimately seized numerous photographs, several police scanners, a replica .45 caliber gun, several bottles and jars of chemicals, pornographic film, and various other items. Defendant’s contention that the trial court failed to rule on the voluntariness of his consent, and thus failed to adjudicate a fundamental issue, is meritless. Defendant’s case is distinguishable from the cases upon which he relies (People v. Rios (1976) 16 Cal.3d 351 [128 Cal.Rptr. 5, 546 P.2d 293]; People v. Kanos (1969) 70 Cal.2d 381 [74 Cal.Rptr. 902, 450 P.2d 278]; People v. Henry (1967) 65 Cal.2d 842 [56 Cal.Rptr. 485, 423 P.2d 557]; People v. Sesslin (1968) 68 Cal.2d 418 [67 Cal.Rptr. 409, 439 P.2d 321]; People v. Blair (1975) 51 Cal.App.3d 480 [124 Cal.Rptr. 123]) because here the sole ground asserted by the People to justify the warrantless search of defendant’s motel room was consent. Therefore, when the trial court denied defendant’s suppression motion, it necessarily ruled on the voluntariness of defendant’s consent. Finally, defendant argues that even if his consent to the search was voluntary, he did not consent to the seizure of evidence. This argument, however, depends upon defendant’s further claim that there was no “nexus” between the items seized and criminal activities, for given a suitable “nexus,” the police may seize any item discovered during a consensual search. In People v. Hill, supra, 12 Cal.3d 731, we noted that in Warden v. Hayden, supra, 387 U.S. 294, the United States Supreme Court held that police may not indiscriminately seize items discovered during the course of a lawful police search. Rather, “ ‘[T]here must . . . be a nexus—automatically provided in the case of fruits, instrumentalities or contraband—between the item to be seized and criminal behavior. Thus, in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. [Citation omitted.]’ ” (Hill, supra, 12 Cal.3d at p. 762.) In light of the content of defendant’s arrest warrant (robbery, rape, and forcible oral copulation) and the communications received over the telephone from the Hermosa Beach police department (possible photographs taken of victims, and possible involvement in murders), there appears to be sufficient nexus for the police to seize at least the photographs, camera, pistol, and chemicals. Most of the other items seized were not offered into evidence, and their seizure did not prejudice defendant. 4. Legality of seizure of van. Defendant contends that the warrantless seizure of his van following his arrest was illegal because the officers did not come upon the van “inadvertently” (Coolidge v. New Hampshire (1971) 403 U.S. 443 [29 L.Ed.2d 564, 91 S.Ct. 2022]), and lacked probable cause for its seizure. However, the trial court properly relied on People v. Teale (1969) 70 Cal.2d 497 [75 Cal.Rptr. 172, 450 P.2d 564] and its progeny to uphold the seizure of the van as an instrumentality of the crime. The officers lawfully seized defendant’s van when “incidental to a lawful arrest, [they seized it] in the reasonable belief that such object is itself evidence [fn. omitted] of the commission of the crime for which such arrest is made. . . .” (People v. Teale, supra, 70 Cal.2d 497, 511, italics in original.) In Teale, Federal Bureau of Investigation officers arrested defendant in his car and thereupon seized, locked and stored the car until California authorities were able to examine it 10 days later. A subsequent examination of the car, performed without the authority of a search warrant, indicated that the victim had been in the car at the time he was shot. In upholding the car’s seizure, this court drew a distinction between seizure of a car which is itself evidence of a crime, and a car which is a mere container of incriminating articles. North v. Superior Court (1972) 8 Cal.3d 301 [104 Cal.Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155], relied on Teale, supra, 70 Cal.2d 497, to uphold a seizure of the defendant’s car, parked outside his apartment, although the defendant had been arrested inside his apartment. We held that Teale did not intend to limit the seizure of evidence in plain view only to those objects within the immediate reach of the person arrested. (North, at p. 306.) Rather, seizure of any object in plain view which is itself evidence of a crime is legal (ibid.) provided the arresting officer views it from a position in which he has a legal right to be. The majority in North, supra, 8 Cal.3d 301, rejected the defendant’s contention that the police must come across the evidence inadvertently, the requirement urged by a minority of the United States Supreme Court in Coolidge v. New Hampshire, supra, 403 U.S. 443. Although the plurality opinion of Justice Stewart concluded that a seizure could not be justified on the theory that the vehicle was itself the “instrumentality” of the crime because the plain-view doctrine applied only to inadvertent discovery of incriminating evidence (id., at pp. 464-473), only four members of the court signed that portion of the opinion. North therefore declined to view Coolidge as controlling. The facts in North, supra, 8 Cal.3d 301, parallel those of the present case. In North a young girl was abducted at knifepoint by the defendant and forced into his car. The victim identified defendant and described the car. Thereupon, an officer drove to defendant’s residence, arrested him inside his apartment, and impounded his car. The car was later searched at the police station and incriminating evidence was discovered. In the case at bar, the police were furnished a description of defendant’s van by Robin R., who was allegedly kidnapped and raped by defendant and Norris in the van. Ms. R. also selected defendant’s photograph out of a photographic lineup of potential suspects. Although Ms. R. did not describe the van with the same specificity as North’s victim’s description of the car, the critical similarity is that in both cases the police had probable cause to believe the vehicle was not merely a container of evidence, but an instrumentality of the crime. Thus, the trial court correctly upheld the van’s seizure based upon People v. Teale, supra, 70 Cal.2d 497, and North v. Superior Court, supra, 8 Cal.3d 301. Defendant, however, contests probable cause because of Ms. R.’s “inaccurate” description of the van’s color. (She described the van in which she was abducted as light blue, when defendant’s van in fact is silver.) Despite this inconsistency, the fact that Ms. R. positively identified defendant in a photographic lineup, in addition to the fact that her description of the van closely approximated its actual appearance, create sufficient probable cause for the arresting officers to seize the van as an instrumentality of a crime. 5. Lawfulness of search of impounded van. Three days after the police seized defendant’s van, Sergeant Bynum and another officer entered it to search for bloodstains, semen stains, and other evidence of Ms. R.’s rape. Upon entering the van, they realized that its interior did not match Ms. R.’s description. They saw, however, a number of items in plain view which, they realized, might be evidence of other crimes they were investigating. They eventually seized a number of items, including two pieces of jewelry (crosses with chains), a douche package, a “sap,” a book on locating police broadcasting frequencies, a container of Vaseline, and several cassette tapes, including the tape recording the torture of Ledford. All of these items were admitted into evidence except for the tapes other than the Ledford tape. Defendant argues that the postimpoundment search of the van and seizure of the items inside exceeded the scope of a permissible examination to determine the van’s “evidentiary value” as is permitted by the Teale (supra, 70 Cal.2d 497) line of cases. He claims that when the officers began seizing items contained in the van, rather than merely “examining” the van for its “evidentiary value,” the officers went beyond the permitted examination. Their actions turned into a “search,” and thus a warrant was necessary. Teale, supra, 70 Cal.2d 497, did not address the propriety of the seizure of independent items of evidence during the examination of the instrumentality. However, in North v. Superior Court, supra, 8 Cal.3d 301, the court refers to tests conducted on defendant’s car (e.g., tire impression, wheel span, etc.), and it also stated that “examination of the vehicle turned up additional evidence linking [defendant] with the crime.” (Id., at p. 305, italics added.) It is unclear exactly what the “additional evidence” was, but the implication is that it was evidence other than that resulting from the various scientific tests conducted on the car itself. Further, in People v. Rogers (1978) 21 Cal.3d 542 [146 Cal.Rptr. 732, 579 P.2d 1048], we relied on Teale, supra, 70 Cal.2d 497, to uphold the seizure of magazines and paraphernalia and a loaded revolver from a van belonging to the defendant, who was accused of molesting children and photographing them in his van. (Rogers, at p. 546.) Both North and Rogers appear to suggest that the permissible examination following a warrantless seizure of an instrumentality of a crime includes the search and seizure of independent items of evidence contained within the instrumentality itself. In People v. Minjares (1979) 24 Cal.3d 410 [153 Cal.Rptr. 224, 591 P.2d 514], however, the court criticized the use of the “instrumentality of the crime” theory to justify the search of an automobile. Holding that the doctrine did not permit the search of a closed container within a vehicle (p.423)—a holding that does not affect the present case—the court remarked that “[i]f there were any vitality to the ‘instrumentality’ exception as it applies to automobiles . . ., it would be applicable only to a scientific examination of the object itself, for example for fingerprints, bloodstains, or the taking of tire impressions or paint scrapings.” (P. 422.) Thus while the instrumentality doctrine justifies the officer’s entry into the van to search for bloodstains and other evidence of Ms. R.’s rape, it may not in itself justify the search of the van for other objects not attached to or part of the van itself. But that argument does not help defendant, for once the officers were lawfully in the van, they were entitled to seize, without a warrant, those objects then in plain view which evidenced defendant’s criminal acts. (See Warden v. Hayden, supra, 387 U.S. 294.) Thus, the search of the van and the seizure of items therein were properly held to be lawful by the trial court. 6. The “search” (listening) of the Ledford tape. Defendant argues that assuming the seizure of the cassette tapes from his van was lawful, it was unlawful for the police to “search” (i.e., listen to) the Ledford tape without a warrant. (See Walter v. United States (1980) 447 U.S. 649 [65 L.Ed.2d 410, 100 S.Ct. 2395] [warrant required to view films lawfully in possession of Federal Bureau of Investigation].) Defendant, however, is barred from raising this objection on appeal because he failed to object to the playing of the tape in the trial court. (People v. Rogers, supra, 21 Cal.3d 542, 547-548.) Because defendant failed to object, the prosecution did not attempt to justify the search, with the result that the record on appeal is insufficient to resolve the issue of its validity. For the same reason, we cannot determine whether it is reasonably probable that a result more favorable to defendant would have resulted from a timely objection. (See People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144].) 7. Searches pursuant to a warrant of defendant’s van, storage boxes, and jail cell. Defendant contends that subsequent searches of his van, storage boxes, and jail cell, done pursuant to a warrant, were unlawful. In the trial court defendant objected to the admission of evidence seized in these searches on the ground that the warrant was based on an affidavit containing reference to the contents of the Ledford tape, which was allegedly illegally seized. Since we have determined that the tape was properly seized, and defendant failed to object to the playing of the tape, the issue does not warrant further discussion. On appeal, defendant alleges that he was denied effective assistance of counsel evidenced by his counsel’s failure to object to the searches at issue on the following additional grounds: (1) the seizure of items not specified in the warrant exceeded the scope of the warrant; (2) some of the items authorized for seizure by the warrant were not supported by probable cause; and (3) the warrant for seizure of “sexual literature” was impermissibly overbroad. As was the case with the listening to the Ledford tape, the record on appeal is insufficient for us to conclude these asserted grounds constitute ineffective assistance of counsel. 8. The search of Shoopman’s jail cell. After finding several letters from Richard Shoopman to Norris and defendant during the search of Norris’s residence, the police became interested in the extent of Shoopman’s knowledge of and possession of evidence of the alleged crimes. Therefore, on December 27, Judge Woolpert of the San Luis Obispo Superior Court executed a warrant authorizing the search of Shoopman’s cell in the California Men’s Colony for letters or photographs sent to Shoopman from defendant or Norris. The police ultimately recovered fourteen photographs and five letters, two of which were introduced as evidence. Defendant contends that the search of Shoopman’s cell and seizure of evidence was illegal because the affidavit supporting the warrant contained a reference to the contents of the Ledford tape. We have held, however, that the Ledford tape was properly seized, and that defendant’s failure to object bars him from attacking the police’s listening to the tape. Even if we were to assume that the search and seizure of the Ledford tape was unlawful, the affidavit supporting the warrant authorizing the search of Shoopman’s cell contains more than sufficient probable cause. Among other information, the affidavit contains the contents of letters seized from Norris’s residence in which Shoopman acknowledged receiving photographs of young girls from Norris and defendant. Further, the affidavit recounts a conversation between defendant and one of his fellow inmates, in which defendant admitted that he had sent Shoopman three photographs which show where defendant and Norris had dumped the bodies of the girls. III. Defendant’s Right to Be Present Defendant claims he was improperly deprived of his constitutional and statutory right to be present on seven occasions during trial. He argues he was prejudiced by his absence (1) from a continuance hearing on the Friday prior to trial; (2) from an in-chambers conference where the trial court advised the district attorney and defense counsel that it would limit the death-qualifying voir dire to four questions; (3) when the court advised a jury-selection expert, who arrived in the court’s chambers without prior notice, that it would not authorize payment of county funds for her fees; (4) from a hearing following the prosecution’s subpoena requiring defense counsel to produce photographs allegedly given him by defendant; (5) from an ex parte communication with the jury where the court advised the jurors on the “gruesome” nature of the evidence and reminded them of their obligation to evaluate it dispassionately; (6) and (7) from at least two in-chambers conferences on the scope of cross-examination. “[T]he accused is not entitled to be personally present either in chambers or at bench discussions which occur outside of the jury’s presence on questions of law or other matters in which defendant’s presence does not bear a ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” (People v. Jackson (1980) 28 Cal.3d 264, 309-310 [168 Cal.Rptr. 603, 618 P.2d 149]; People v. Bloyd (1987) 43 Cal.3d 333, 360 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Teitelbaum (1958) 163 Cal.App.2d 184 [329 P.2d 157].) With respect to six of the seven instances cited, we see no arguable basis for claiming that defendant’s absence “prejudiced his case or denied him a fair and impartial trial.” (Jackson, supra, at pp. 309-310; Bloyd, supra, at p. 360.) The only doubtful matter is defendant’s absence from a hearing on his counsel’s motion for a continuance the Friday immediately prior to the trial. Defendant’s attorney had just learned that Lloyd Douglas would be a witness against defendant, and asked for additional time in which to investigate Douglas. Defendant claims that if present he could have given the court or his attorney information that may have served as a basis for the court granting a continuance. This would have enabled his attorney to research Douglas’s background, prepare for his testimony and assess whether they should have modified the defense strategy in light of Douglas’s expected testimony. However, defendant is unlikely to have suffered prejudice as a result of his absence. The trial court continued the hearing until the following Monday when defendant could be present. Defendant presumably could have given the court or counsel any information he had at that time. Even if the court had already reached a tentative decision, it could have reconsidered on the basis of any new information presented. We note also that considerable time elapsed between the date of the motion and Douglas’s actual testimony, during which defendant could have investigated Douglas. IV. Jury-selection Issues 1. Dismissal of defendant’s jury-selection expert. Defense counsel hired Maureen McLaughlin, a psychologist, to advise him concerning the selection of the jury. He agreed to pay her $500 a day. During the first day of jury selection, jurors were questioned individually in chambers concerning their views of the death penalty. McLaughlin was present during this voir dire to assist defense counsel. At the start of the second day, the court called counsel and McLaughlin into chambers and told her that “I am not authorizing your services.” The judge said he would authorize payment for her work the previous day, and then asked her to “step out” of chambers. Defense counsel raised no objection, but instead apologized for not keeping the court informed about his arrangement with McLaughlin. If defendant had moved under section 987.9 for funds to hire a jury-selection expert, we could view the judge’s statement as a denial of that motion, and inquire whether it was an abuse of discretion. But defendant never made such a motion. Defendant claims that the judge acted precipitously in ordering McLaughlin to leave his chambers where the jury was being selected. If McLaughlin were willing to work pro bono, or counsel to pay her fees from some other source, she would be entitled to remain and continue to assist in the selection. But defendant did not allege then, and does not now claim, that such an arrangement was feasible. 2. Limitation on death-qualifying voir dire. Concerned about the implications of our discussion in Hovey v. Superior Court (1980) 28 Cal.3d 1, 71-75 [168 Cal.Rptr. 128, 616 P.2d 1301], where we explained how the death-qualifying process can bias the jury, the trial court here decided to limit that process as much as possible. It formulated four specific questions, which were put to all jurors, and refused to permit further questions from counsel. The first two questions inquired about guilt and special circumstances. Question three asked: “Do you have such a conscientious opinion or religious conviction regarding the death penalty that if you found the defendant guilty of murder in the first degree and you found the special circumstances alleged to be true, that you would automatically find the penalty to be life imprisonment without the possibility of parole?” The fourth question asked: “Do you have such a conscientious opinion or religious conviction regarding the death penalty that if you found the defendant guilty of murder in the first degree and the special circumstances herein alleged to be true, that you would automatically find the penalty to be death?” When answers were ambiguous, the judge sometimes asked further questions, but did not permit counsel to ask questions on this subject. Defendant asserts this limitation constitutes reversible error. Problems stemming from the trial court’s ruling arose frequently during the voir dire. Juror Martin, asked whether she would automatically vote in favor of death, responded, “That’s hard to say.” The court asked no followup questions, but observed that the juror’s response was not sufficient to disqualify her. Defense counsel agreed, but again objected that vague answers to the court’s questions did not really reveal the views of the jurors, and the court’s ruling did not give attorneys latitude to explore the matter. Juror Porrazzo, asked whether she would automatically vote in favor of life imprisonment, replied, “Well, the death penalty, I believe in. If you take somebody’s life, willfully take somebody’s life, that you give up your own.” On further questioning from the judge, she agreed that she “would have to really think about it . . . according to what I felt had preceded.” In response to the fourth question, whether she would automatically vote for death if she found defendant guilty of first degree murder with special circumstances, she replied, “Well, if all the evidence pointed that way, yes.” The answer appears equivocal: it could mean she would automatically vote for death if the evidence pointed toward guilt with special circumstances, or it could mean she would automatically vote for death if the evidence pointed toward death as the appropriate penalty (although under the latter interpretation the word “automatically” has little meaning). Defense counsel interpreted that answer as an automatic vote for death; the court interpreted it differently. Expressing his frustration at being unable to question the juror, counsel challenged for cause, but the court denied the challenge. Juror Andry, asked if she would automatically vote for life imprisonment, answered, “Yes, I guess so.” The prosecutor challenged for cause. The court told defense counsel that under the rules he could not rehabilitate her, and granted the challenge. Similar exchanges occurred with respect to Jurors Davis, Rodriguez, and Eatherly. Finally, when Juror Staggs, on general voir dire, said that because of her bias against rapists she might go for a “stiffer sentence,” defense counsel was not permitted to ask if she would automatically vote for death. Even under the rule of People v. Edwards (1912) 163 Cal. 752 [127 P. 58] (overruled prospectively in People v. Williams (1981) 29 Cal.3d 392 [174 Cal.Rptr. 317, 628 P.2d 869], which broadened the scope of voir dire to permit examination for peremptory challenge), a party was entitled to put questions which might expose a basis for a challenge for cause. Although the trial court’s policy is understandable in light of what we said in Hovey, supra, 28 Cal.3d 1, it nonetheless appears erroneous in two respects. First, the judge cannot reserve voir dire for himself and exclude counsel. As we stated in People v. Hughes (1961) 57 Cal.2d 89, 94-95 [17 Cal.Rptr. 617, 367 P.2d 33]: “[C]ounsel for a defendant in a capital case has the right to question the prospective jurors on voir dire for the purpose of ascertaining whether any would vote to impose the death penalty without regard to the evidence in the event of a conviction. ... In order to intelligently exercise the right to challenge for cause defendant’s counsel must be accorded reasonable opportunity to lay a foundation for the challenge by questioning the prospective jurors on voir dire to learn whether any entertain a fixed opinion of this nature.” Second, and perhaps more important, the judge did not conduct an adequate voir dire himself. By failing to follow up on meaningless (Juror Martin) or ambiguous (Juror Porrazzo) answers, he placed counsel in an impossible position; counsel had reason to believe the jurors were disqualified, but could not prove it without further questions designed to elicit a clear and unambiguous response. The judge also excused several jurors whose responses suggested an automatic vote for a life sentence, without questions to probe whether the juror was really disqualified. In defense of the trial court’s ruling, the Attorney General relies on People v. Ketchel (1963) 59 Cal.2d 503 [30 Cal.Rptr. 538, 381 P.2d 394] and People v. Nye (1969) 71 Cal.2d 356 [78 Cal.Rptr. 467, 455 P.2d 395], Both cases appear distinguishable. In Ketchel (which was tried before Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]) the judge asked the jurors if they had any belief “that would prevent you from voting for the death penalty simply because of the fact that it is the death penalty?” He excused those jurors who raised their hand. We found no error, stating that “[t]he determination whether a juror has shown that he entertains ‘conscientious scruples against conviction where the penalty is death’ and to refuse further examination on the point [citation] reposes within the discretion of the court.” (59 Cal.2d at p. 529.) In Nye, supra, 71 Cal.2d 356, the judge also excused prospective jurors each of whom had “made it unmistakably clear that he would not vote in favor of the death penalty under any circumstances, no matter what evidence was presented.” (P. 363.) We upheld the court’s refusal to allow defense counsel to question those jurors for the purpose of rehabilitation, citing Ketchel. (Ibid.) Both cases permit the court to excuse a juror when that juror has given an unequivocally disqualifying answer. Neither permitted a court to prohibit voir dire of jurors who gave equivocal answers. Nye observed expressly that the trial judge had excused only those jurors whose answers made their disqualification unmistakably clear, and said there was no need for further examination of those particular jurors. (71 Cal.2d at p. 364.) We do not question a judge’s discretion to decide that a juror’s disqualification is so clear that further voir dire is pointless, and to excuse the juror, but this does not justify denying voir dire when the juror’s answers are equivocal and the juror is retained. We turn, therefore, to the question of prejudice. Defendant calls our attention to People v. Carmichael (1926) 198 Cal. 534, 547 [246 P. 62], which appeared to find improper limitation on voir dire reversible per se. Carmichael said that “[n]o authority has been called to our attention which can be construed as holding that section 41/2 of article VI [now art. VI, § 13] of the constitution can be relied upon to sustain the judgment herein. . . . The ruling of the court in thus limiting the appellant in his examination of the jurors was, in our opinion, the deprival of the appellant of a fundamental right,—a right to be tried by an impartial jury. It was never intended by this provision of the constitution to take from the defendant in a criminal action his fundamental right to a jury trial or in any substantial manner to abridge this right.” (Carmichael p. 547.) Subsequent cases, however, have steadily drawn back from the use of a per se standard. In People v. Estorga (1928) 206 Cal. 81 [273 P. 575], the court affirmed a judgment, despite erroneous restriction of voir dire, because defendant confessed from the stand, “the result was just, and . . . would have been reached if the error had not been committed.” (P. 85.) People v. Barrett (1929) 207 Cal. 47 [276 P. 1003], then confirmed the Estorga holding, but declined to apply it to a case in which the credibility of prosecution witnesses was open to question. After a 50-year gap in which we have found no reported cases, this court again addressed the subject in People v. Williams, supra, 29 Cal.3d 392, 412, and declared that “[ajlthough in many contexts a procedure depriving defendant of the right to secure an impartial jury necessarily dictates reversal (see, e.g., People v. Wheeler (1978) 22 Cal.3d 258, 283 [148 Cal.Rptr. 890, 583 P.2d 748]; People v. Carmichael, supra, 198 Cal. 534, 547), that standard should not apply if the potential for bias relates only to a particular doctrine of law.” In the most recent decision, People v. Kronemyer (1987) 189 Cal.App.3d 314 [234 Cal.Rptr. 442], defendant, an attorney, was accused of defrauding a senile client. The court restricted defense counsel’s voir dire on the jurors’ experience with senility. The Court of Appeal found error, but declined to reverse because the court permitted some inquiry into the area, the defense voir dire of jurors was extremely cursory, and the defense exercised only one peremptory challenge. This list of exceptions to the per se rule of Carmichael, supra, 198 Cal. 534, convinces us that the rule itself should be abandoned. To categorize any erroneous restriction as the denial of the right to jury trial implies reversal for the most trivial of errors, and invites the creation of more and more exceptions to the rule. Judicial limitations on voir dire vary in scope and severity, and in their impact on the jury selection and the ultimate outcome of trial. We see no reason why the courts should not recognize those differences, and limit reversals to those cases in which the erroneous ruling affected defendant’s right to a fair and impartial jury. In adopting this standard to measure reversible error, we follow our recent decision in People v. Coleman (1988) 46 Cal.3d 749 [251 Cal.Rptr. 83, 759 P.2d 1260]. In that decision we offered a number of reasons for rejecting the claim that an erroneous denial of a challenge for cause was reversible per se; the most important, we said, was that “the error here did not result in a jury particularly apt to impose the death penalty, and there is no indication that the jury before which defendant was tried was anything other than fair and impartial.” (46 Cal.3d at p. 768.) Coleman in turn relied on the decision of the United States Supreme Court in Ross v. Oklahoma (1988) 487 U.S. 81 [101 L.Ed.2d 80, 108 S.Ct. 2273], which also involved the erroneous denial of a challenge for cause, compelling defendant to remove the biased juror by peremptory challenge. The Supreme. Court reasoned that the right of peremptory challenge is not itself of constitutional dimension; it is a means to protect the constitutional right to an impartial jury. (See Ross, supra, 487 U.S. at p. 88 [101 L.Ed.2d at p. 90, 108 S.Ct. at p. 2278].) Since defendant did not claim that any of the 12 jurors who heard the case were subject to challenge for cause, or were not impartial, his right to an impartial jury was not abridged. The right to voir dire, like the right to peremptory challenge at issue in Coleman, supra, 46 Cal.3d 749, and Ross, supra, 487 U.S. 81, is not a constitutional right but a means to achieve the end of an impartial jury. Here certain prospective jurors gave insufficient or ambiguous answers to questions relating to their views on capital punishment, so the parties should have been permitted to ask follow-up questions. But every one of those jurors was removed by prosecution or defense challenge. When the jury was finally selected, defendant did not claim that any juror was incompetent, or was not impartial. We therefore find no prejudicial error. 3. Denial of defendant’s challenges for cause. The defense objected to the judge’s rulings denying its challenges for cause to five jurors, but used peremptory challenges to dismiss those jurors. When defendant had used all 26 peremptory challenges given him by statute (former § 1070), the judge observed that defense counsel had said he intended to exercise all his challenges to protect the record. The judge then announced that, although he was satisfied with his rulings on challenges for cause, “I have decided ... to give you two additional peremptories in addition to the 26 based on an abundance of caution.” The prosecution requested two additional challenges also, to which the court agreed. The defense exhausted its additional challenges. At that point the prosecution had used 21 challenges. It dismissed five additional jurors, bringing its total to twenty-six, but did not utilize the two extra challenges given it by the judge. Defendant now renews his claim that the court erred in denying the challenges for cause to five jurors. Defendant maintains that a single erroneous denial of a challenge for cause is prejudicial; the Attorney General argues that since defendant received two extra peremptory challenges, he must show that at least three challenges were improperly denied. The denial of a peremptory challenge to which defendant is entitled is reversible error when the record reflects his desire to excuse a juror before whom he was tried. (People v. Armendariz (1984) 37 Cal.3d 573, 584 [209 Cal.Rptr. 664, 693 P.2d 243].) Since the erroneous denial of a challenge for cause compels the defense to use a peremptory challenge, a similar analysis applies to denial of a challenge for cause. (People v. Coleman, supra, 46 Cal.3d 749, 770-771.) Defendant must show that the error affected his right to a fair and impartial jury. (P. 771.) Thus, defendant must show that he used a peremptory challenge to remove the juror in question, that he exhausted his peremptory challenges (see Coleman, supra, 46 Cal.3d 749, 770 and cases there cited) or can justify his failure to do so (People v. Box (1984) 152 Cal.App.3d 461 [199 Cal.Rptr. 532]), and that he was dissatisfied with the jury as selected. But if he can actually show that his right to an impar