Full opinion text
Opinion EAGLESON, J. Defendant was convicted by a jury in the Los Angeles County Superior Court of the rape of his former wife, in violation of Penal Code section 261, subdivision (2) (count I); the first degree murder of David Gawronski (§§ 187/189) (count II); the attempted second degree murder of Ava Gawronski and Sara Gawronski (§§ 664/187) (counts III & IV); and arson (§451, subd. (a)) (count V). The jury also found true allegations that the murder had been committed under special circumstances as a murder by means of explosives (§ 190.2, subd. (a)(6)) and in the commission of arson (§ 190.2, subd. (a)(17)(viii)), and an allegation that defendant inflicted great bodily injury on Ava Gawronski (§§ 12022.7 & 1203.075) in the attempted murder. The jury was excused when it deadlocked on the appropriate penalty and was unable to return a verdict. A second jury was empaneled (§ 190.4, subd. (b)), which returned a verdict of death. The court denied defendant’s application for modification of the verdict and imposed the penalty of death for the murder; a consecutive upper term of eight years (§ 667.6, subd. (c)) for the rape of his former wife; the upper term of nine years with a three-year enhancement for the attempted murder of Ava Gawronski and the great-bodily-injury finding; two years, representing one-third of the middle term, for the attempted murder of Sara Gawronski; and two years and four months, one-third of the middle term, for the arson. The terms were to be consecutive, the rape term was designated a subordinate term, and the determinate terms were stayed pending imposition of the death penalty and permanently thereafter. This appeal is automatic. (§ 1239, subd. (b).) Having considered defendant’s many claims of error, we find merit only in his assertions that the delivery-of-explosives special circumstance may not be applied to his conduct, and that one determinate term must be stayed. We shall strike the special circumstance found under section 190.2, subdivision (a)(6), and modify the judgment insofar as it fails to stay the arson term pursuant to section 654. In all other respects the judgment will be affirmed. Summary The rape of defendant’s former wife occurred on the evening of November 19, 1981. She admitted defendant to her apartment when he told her that his mother was very ill. He then forced her to submit to sexual intercourse. The other offenses were committed on January 6, 1982, when defendant threw gasoline into the home occupied by David and Ava Gawronski and their infant daughter Sara, and ignited the gasoline vapors with highway flares. David, who suffered second- and third-degree burns over 90 percent of his body, died on January 14, 1982. Ava was so seriously burned that she was hospitalized for 10 months, lost her fingers and nose, and suffered additional permanent injuries. The child was rescued unharmed by a neighbor’s heroic action. The evidence, which was more than sufficient to support conviction of defendant of each of the substantive offenses, will be discussed in greater detail below in addressing his specific contentions. Although disputing details regarding the manner in which the arson was committed, defendant did not and does not deny the commission of rape, arson, and murder. He denies any intent to kill the attempted murder victims, however. Defendant surrendered to authorities and confessed shortly after the offenses occurred. He claimed that his purpose in committing the arson was to drive the family out of the home so that he could kill David Gawronski, shooting him with a shotgun, as Ava watched. His avowed purpose was to cause her to suffer the same emotional pain that he claimed to have suffered when she abruptly discontinued counseling that she had been giving him. The People sought to prove that, at the time defendant actually ignited the gasoline vapor in the Gawronski home, his intent was to kill the entire Gawronski family. Defendant was represented by appointed counsel throughout the guilt and special circumstance phases of the trial and the first penalty trial. When the jury was unable to reach a penalty verdict and was discharged, however, he elected to represent himself in future proceedings, accepting the assistance of his former attorneys as standby counsel. Between the two penalty trials, defendant wrote letters to Ava Gawronski and others in which he threatened that if he were allowed to live he would continue to cause Ava to suffer by harming her relatives. He testified that his purpose was not to upset the recipients, but to provoke the prosecutor, whose competence he had belittled in the letters, into seeking the second penalty trial because he felt that final determination of the penalty by a jury was “appropriate.” Defendant presented substantially the same mitigating evidence that had been presented at the first penalty trial. He chose, however, to withhold evidence heard by the first penalty jury which suggested that the quality of counseling and the manner in which it was terminated by Ms. Gawronski did not meet professional standards of competence and may have contributed to an emotional and mental turmoil that precipitated defendant’s conduct. Instead, defendant stipulated that she had given him the highest possible quality of treatment, and urged the jury to consider only what he did and not whether any emotional or mental state may have affected his actions. Jury Selection—Second Penalty Trial 1. Restriction on Voir Dire. Defendant’s claim that the trial court improperly restricted the scope of voir dire during the initial examination of prospective penalty phase jurors lacks merit. After considering requests for hardship exemptions by the prospective jurors, the court conducted a sequestered voir dire of those remaining (see Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301]), limiting that initial examination to “death qualification”—i.e., to determination of whether any prospective juror had such conscientious or religious scruples about capital punishment that his views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Adams v. Texas (1980) 448 U.S. 38, 45 [65 L.Ed.2d 581, 589, 100 S.Ct. 2521]. See also Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]; People v. Coleman (1988) 46 Cal.3d 749, 765 [251 Cal.Rptr. 83, 759 P.2d 1260].) In an effort to determine whether the evidence of serious burn injuries suffered by the victims would cause a jury to automatically vote for the death penalty, defendant sought to inquire about the prospective jurors’ attitudes toward such injuries. The People objected and, at that stage of the examination, the court ruled that the jury would not be told of the injuries suffered by Ava Gawronski, and defendant would not be permitted to ask the prospective jurors if knowledge of the extent of those injuries would affect their ability to perform their duties. It is true that counsel must be permitted to ask questions of prospective jurors that might lead to challenges for cause. (People v. Williams (1981) 29 Cal.3d 392, 407 [174 Cal.Rptr. 317, 628 P.2d 869].) The inquiry that defendant sought to make was not relevant to the death qualification process, however. The Witherspoon-Witt (Wainwright v. Witt, supra, 469 U.S. 412; Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]) voir dire seeks to determine only the views of the prospective jurors about capital punishment in the abstract, to determine if any, because of opposition to the death penalty, would “vote against the death penalty without regard to the evidence produced at trial.” (People v. Adcox (1988) 47 Cal.3d 207, 250 [253 Cal.Rptr. 55, 763 P.2d 906]; Wainwright v. Witt, supra, 469 U.S. 412, 416 [83 L.Ed.2d 841, 853].) Such a juror may be excused because he or she would be unable to faithfully and impartially apply the law. The inquiry is directed to whether, without knowing the specifics of the case, the juror has an “open mind” on the penalty determination. There was no error in ruling that questions related to the jurors’ attitudes toward evidence that was to be introduced in this trial could not be asked during the sequestered Witherspoon-Witt voir dire. The power of the judge to control the proceedings includes the exercise of discretion over the manner in which the voir dire will be conducted. (People v. Keenan (1988) 46 Cal.3d 478, 542-544 [250 Cal.Rptr. 550, 758 P.2d 1081].) No abuse of that discretion occurred here. Defendant was not precluded from attempting to show in the subsequent general voir dire that a juror harbored any specific bias that would cause him to vote for the death penalty without regard to mitigating evidence, and thus should be excused for cause. Since defendant did not do so, and did not exhaust his peremptory challenges, he is precluded from arguing on appeal that the jury was not properly constituted. (People v. Coleman, supra, 46 Cal.3d 749, 770.) 2. Death Qualification. We also reject, as we have in past cases, the suggestion that the death qualification process is impermissible because it results in a death-oriented jury. (See Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758]; People v. Bloom (1989) 48 Cal.3d 1194, 1212-1213 [259 Cal.Rptr. 669, 774 P.2d 698]; People v. Miranda (1987) 44 Cal.3d 57, 78-79 [241 Cal.Rptr. 594, 744 P.2d 1127].) We reject for the same reasons the argument that questions properly asked of prospective jurors during that process predispose those jurors who are selected to vote for imposition of the death penalty. Although some of the questions asked during voir dire in this case would not on their face elicit answers that would be the basis for a challenge for cause, they were clearly directed to uncovering attitudes that would warrant further inquiry. (People v. Balderas (1985) 41 Cal.3d 144, 187-190 [222 Cal.Rptr. 184, 711 P.2d 480].) Guilt Phase Issues Defendant asserts as error the failure of the court to give instructions on lesser offenses included within the attempted murder counts, and challenges the sufficiency of the evidence to support the verdict finding him guilty of the attempted murder of Sara Gawronski. These claims, which we conclude lack merit, will be discussed in another part of this opinion. Defendant’s principal challenges to the guilt phase proceedings are to the application of the explosives special circumstance and the court’s refusal to give defendant’s proffered instruction that before the arson special-circumstance allegation could be found true the jury must find that defendant had an independent felonious purpose for the arson, i.e., that the arson was not committed for the purpose of killing David Gawronski. (People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468].) In affirming the judgment, we shall conclude that the delivery-of-explosives special circumstance does not apply to murders in which death is caused by a gasoline generated fire. We shall also conclude, however, that because defendant had concurrent purposes in starting the fires in the victims’ home, the special circumstance of murder in the commission of arson was properly charged and found, and that defendant suffered no prejudice as a result of either the erroneous explosives special-circumstance finding or omission of the “Green ” instruction. Special Circumstances 3. Murder by Delivery of an Explosive. a. The statute. Section 190.2, subdivision (a)(6) (hereafter subdivision (a)(6)) creates as a special circumstance that renders a person convicted of first degree murder eligible for the death penalty: “The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or cause to be mailed or delivered and the defendant knew or reasonably should have known that his act or acts would create a great risk of death to a human being or human beings.” Defendant contends that gasoline is not an explosive within the meaning of this subdivision, but, if it is, the subdivision applies only if a defendant intends to use gasoline as an explosive. The People concede that gasoline is not an explosive, but argue that defendant did “deliver” gasoline vapor which, the People also argue, is an explosive within the meaning of subdivision (a)(6). The evidence, however, refutes the suggestion that gasoline vapor is an explosive as defined in the relevant statutes and contemplated by subdivision (a)(6). Neither the statutory history nor the statutory scheme in which subdivision (a)(6) and its companion, subdivision (a)(4) of section 190.2 (hereafter subdivision (a)(4)) operate supports the construction urged by the People. And, even were we to assume arguendo that gasoline vapor is an explosive under the statutory definition, defendant did not “deliver” or mail explosive gasoline vapor. b. The evidence relevant to application of subdivision (a)(6). (i) The fire and explosion. Defendant carried gasoline in two 5-gallon, plastic buckets to the Gawronski home. He threw one bucket through the window of the bedroom occupied by David and Ava Gawronski, where it landed on the bed and overturned. The other bucket was either carried into the home and the gasoline distributed in the hallway, kitchen, and dining area (as the People theorized), or that bucket was thrown through a sliding glass door from the patio into the dining area, where it landed upright under the table (as defendant testified). The vapor rising from the gasoline mixed with the air in these rooms and the mixture was ignited by lighted highway flares that defendant threw in after the gasoline. The vapor-air combination in the rooms expanded instantaneously as it was heated by the “flash burn.” In the bedroom, where the vapor was confined, the expanding gases created an overpressure effect or explosion that blew out the window. The flash burn caused the burn injuries that led to the death of David Gawronski. It is undisputed, therefore, that defendant caused a lethal “explosion.” (ii) Gasoline as an “explosive.” The expert witnesses agreed, however, that explosions are not all caused by “explosives” as that term is understood in the scientific community and used in the relevant statutes. Not every substance or object that is capable of exploding is an “explosive.” The expert testimony in this case established that neither gasoline nor gasoline vapor is an explosive. The People’s arson experts testified that gasoline does not burn below a temperature of 495° Fahrenheit. It vaporizes at —45°, however, and the vapor will burn when it is within the flammable range of 1.4 to 7.6 percent of the air. When the combination of air and vapor ignites, a relatively instantaneous “flash burn occurs,” a sudden oxidation or burning of the flammable gasoline vapor. That flash burn stops as soon as the flammable mixture is consumed, and does not cause any further fire unless other combustible material is ignited during this process. A flash burn does, however, rapidly heat the ambient air. The heated air expands, and that expansion of existing gases causes a sudden increase in air pressure. This increased pressure normally dissipates into the surrounding air space, but if the heated and expanding air is confined in a container, the pressure continues to increase. If that pressure exceeds the structural strength of the container, the resulting “overpressure” will cause the container to explode. Whether a flash burn, such as that occurring when a combination of gasoline vapor and air is ignited, will cause this type of explosion depends primarily on (1) the amount of flammable vapor-air mixture present at the moment of ignition, and (2) the size of the container. One expert explained: “The quantity of the fuel-air mixture [necessary to cause an explosion] is directly related to the cubic feet of the container.” If the quantity of flammable mixture is too small or the container is too large, the resulting pressure will be insufficient to cause the container to explode. Moreover, the effect of an explosion caused by the overpressure effect of a flash burn differs greatly from that of an explosion caused by what were described by the experts as “true” or “high” explosives. The source of a “concentrated” explosion, one caused by a true explosive, is typically a small quantity of an explosive solid material such as a stick of dynamite. A concentrated explosion is self-contained—independent of ambient conditions, and not dependent on a supply of oxygen. When detonated the explosive material undergoes a chemical reaction that abruptly generates a large quantity of gas, mainly nitrogen, that was not present before the detonation. The volume of gas rapidly becomes thousands of times larger than that of the original solid, and the resulting shock wave creates a compressive force of approximately 25,000 pounds per square inch. By contrast, an explosion caused by a flash burn of gasoline vapor and air is “diffuse.” Its source is not a single piece of explosive solid material, but the entire flammable mixture of gases in the air. Such an explosion is entirely dependent on the ambient conditions. If any is lacking, e.g., insufficient time for the gasoline to vaporize or for the vapor to mix with the air, a vapor-air mixture that is too rich or too lean, or a container that is too large at the time of ignition, there will be no flash burn or, if one occurs, no overpressure and no explosion. c. Construction of subdivision (a)(6). Notwithstanding this evidence, the People contend that by causing the flash burn and diffuse gasoline vapor-air explosion that caused the death of David Gawronski, defendant delivered an “explosive” within the meaning of subdivision (a)(6). The People argue, and we agree, that Health and Safety Code section 12000 defines “explosive” for purposes of subdivision (a)(6), as it does for the first degree murder category of murder by explosives. (§ 189.) We do not agree, however, that a gasoline vapor is an explosive under that definition. “(a) Dynamite, nitroglycerine, picric acid, lead azide, fulminate of mercury, black powder, smokeless powder, propellant explosives, detonating primers, blasting caps, or commercial boosters. “(b) Substances determined to be class A and class B explosives as classified by the United States Department of Transportation. “(c) Nitro carbo nitrate substances (blasting agent) as classified by the United States Department of Transportation. “(d) Any material designated as an explosive by the State Fire Marshal. . . . “(e) Certain class C explosives as designated by the United States Department of Transportation when listed in regulations adopted by the State Fire Marshal. “For the purpose of this part, the term ‘explosives’ shall not include any destructive device, as defined in Section 12301 of the Penal Code, nor shall it include ammunition or small arms primers manufactured for use in shotguns, rifles, and pistols.” In the absence of any definition specific to section 190.2 and its predecessor, of necessity Health and Safety Code section 12000 must supply the meaning of the term “explosive” as used in subdivisions (a)(4) and (a)(6). The term “explosive” had been used in the former section 190.2, subdivision (b), enacted in 1977. At that time the definition of explosive contained in Health and Safety Code section 12000, had already been incorporated into section 189 which defined, inter alia, first degree murder by explosive. We presume that the Legislature, and later the electorate, were aware that section 189 incorporated the Health and Safety Code definition of “explosive” and were cognizant of the statutory framework within which the explosives special circumstance was to operate when former section 190.2 and the current subdivisions (a)(4) and (a)(6) were adopted. (People v. Woodhead (1987) 43 Cal.3d 1002, 1012 [239 Cal.Rptr. 656, 741 P.2d 154]; People v. Weidert (1985) 39 Cal.3d 836, 844 [218 Cal.Rptr. 57, 705 P.2d 380]; Bailey v. Superior Court (1977) 19 Cal.3d 970, 977, fn. 10 [140 Cal.Rptr. 669, 568 P.2d 394]; In re Phyle (1947) 30 Cal.2d 838, 845 [186 P.2d 134].) No reason appears in the history, language, or context of these special circumstances for believing that the term “explosive” means anything different in section 189, and nothing in the history of either statute suggests that the electorate intended a different meaning when former section 190.2 was enacted, or any change when the present section 190.2 was adopted. The only reference to the explosives special circumstance in the 1978 election materials was the statement of the Legislative Analyst that: “The proposition would . . . expand and modify the list of special circumstances which require either the death penalty or life without the possibility of parole. As revised by the measure, the list of special circumstances would, generally speaking, include the following: ... (2) murder involving concealed explosives or explosives that are mailed or delivered; . . (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) p. 32.) The ballot argument thus recognized that subdivision (a)(4) was to apply only to murder by means of concealed explosives, and that subdivision (a)(6) was to apply to deaths caused by mailing or delivering explosives. It is clear from this history that subdivisions (a)(4) and (a)(6) were intended to do no more than modify and/or expand the special circumstance category of murder by explosives, not change the nature of the substances that had been considered “explosives” in section 189 and former section 190.2. Health and Safety Code section 12000 therefore provides the definition of explosive for purposes of subdivisions (a)(4) and (a)(6), just as it did for former section 190.2, and continues to do for purposes of section 189. No prior case, however, has considered whether a substance other than a “true” explosive, one that does not cause a concentrated explosion by converting a solid into gases, but is capable of causing a diffuse vapor explosion, is an explosive within the meaning of either section 189, or subdivisions (a)(4) and (a)(6). The People argue that defendant’s use of the combination of gasoline vapor and air within the confines of the victims’ bedroom meets the criteria of Health and Safety Code section 12000 and is therefore use of an explosive. They rely in part on the provision in Health and Safety Code section 12000 that broadly defines an explosive as a substance or combination of substances “the primary or common purpose of which is detonation or rapid combustion and which is capable of a relatively instantaneous or rapid release of gas and heat. . . .” The People concede, however, that gasoline is intended principally for use as motor fuel; is not in and of itself an “explosive”; and, when uncontained, is designed to burn rather than explode. They argue, nonetheless, that the expert testimony establishes that gasoline, as used by defendant, meets the statutory definition of an explosive: As the gasoline vaporizes, the vapor mixes with air. When ignited in the proper proportion the combination of gasoline vapor and air is capable of producing heat rapidly, and gas is also produced in the form of carbon monoxide and carbon dioxide. This, the People contend, meets the literal definition of an explosive established in Health and Safety Code section 12000 as a substance “capable of a relatively instantaneous or rapid release of gas and heat.” The expert testimony refutes that claim. The expert testimony establishes instead that while carbon monoxide and carbon dioxide are by-products of a gasoline vapor initiated flash burn and explosion, gas is not produced or generated in that process. “Release” of a gas from a substance contemplates that a gas will be generated from that substance, not simply that one type of gas will be transformed into another type of gas. Thus, gas is not “released” during the flash burn as required by the Health and Safety Code section 12000 definition. This distinction between the generation of gas from another substance and the gases which are by-products of a flash burn distinguishes true explosives. True explosives cause concentrated explosions in which the concussive force is generated by the transformation of the solid into a rapidly expanding gas. The ignition of gasoline vapor may cause a diffuse explosion, like that which occurred here, when existing gases present in the air expand on ignition causing an overpressure effect. The carbon monoxide and carbon dioxide by-products that remain after a diffuse explosion are not the cause of the pressure or explosion. The People’s further argument that, as used by defendant, gasoline can be an explosive as defined in Health and Safety Code section 12000, also fails. The statute specifies that an explosive is a “substance or combination of substances, . . .” Gasoline may be a substance, but, as the People have now conceded, it is not an explosive. It does not become such based on the manner in which it is used. Under the statutory definition of explosive, the nature of the substance, not the manner in which a substance is used, is determinative. Therefore, even were we persuaded that in this context the electorate intended something other than the common meaning of “deliver”—“to take and hand over to or leave for another” which we address below, it is clear that the defendant did not deliver an “explosive.” The People also fail to propose a theory under which defendant’s use of gasoline vapor could be deemed to meet the further requirement of subdivision (a)(6) of section 190.2 that murder be committed by means of an explosive “that the defendant mailed or delivered, attempted to mail or deliver, or cause[d] to be mailed or delivered, ...” Assuming arguendo that throwing a substance through a window or door constitutes “delivery” within the meaning of subdivision (a)(6), the substance that defendant threw was not, as we have shown, an explosive. It was gasoline. The gasoline vapor was not “delivered.” It arose by an independent physical process after the gasoline was thrown into the home. And the vapor alone was not explosive until it combined with air in the required proportion. Manifestly, defendant did not deliver the air that was already present in the victims’ home. Thus, even if gasoline vapor were an explosive, or the manner in which gasoline is used were a basis for considering it an explosive, defendant could not be found to have killed by means of delivery of an explosive, and thus his conduct was not conduct described in subdivision (a)(6). As we have explained, therefore, in using gasoline in his attempt to start a fire in the Gawronski home defendant did not commit murder by means of an “explosive” as that term is defined in Health and Safety Code section 12000, or used in subdivision (a)(6). Moreover, acceptance of the People’s argument would make subdivision (a)(6) applicable whenever gasoline is used as an accelerant in an arson because an “explosion” accompanies any ignition of gasoline vapor, and would lead to arbitrary and absurd results. Any death in an arson fire started with gasoline would be murder by means of an explosive regardless of whether death was caused by a flash burn, an explosion or by an ensuing fire, but murderers who ignited lethal fires using papers or wood shavings would be deemed less culpable than those who started a fire of equal intensity with gasoline. In construing a statute we must avoid such arbitrary, unjust, and absurd results whenever the language of the statute is susceptible of a more reasonable meaning. (People v. Daniels (1969) 71 Cal.2d 1119, 1130 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677].) Finally, subdivision (a)(17)(viii) of section 190.2 creates a special circumstance of murder in the commission or attempted commission of arson. A construction of subdivision (a)(6) to encompass what is essentially a murder in the commission of arson would result in overlapping special circumstances. “[T]he court should construe special circumstance provisions to minimize those cases in which multiple circumstances will apply to the same conduct, thereby reducing the risk that multiple findings on special circumstances will prejudice the defendant.” (People v. Bigelow (1984) 37 Cal.3d 731, 751 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723]. See also, People v. Montiel (1985) 39 Cal.3d 910, 927 [218 Cal.Rptr. 572, 705 P.2d 1248].) 4. Murder in the Commission of Arson. a. The statute. The arson special circumstance of section 190.2 provides: “The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies: . . . [H] (viii) Arson in violation of Section 447.” (§ 190.2, subd. (a)(17)(viii) [hereafter subdivision (a)(17)(viii)].) Section 190.2, subdivision (a)(17) identifies eight felonies in addition to arson as predicates for the “felony murder” special circumstance: robbery (§ 211), kidnapping (§§ 207 and 209), rape (§ 261), sodomy (§ 286), lewd and lascivious conduct on a child under 14 years of age (§ 288), oral copulation (§ 288a), and first or second degree burglary (§ 460). Defendant, relying on People v. Green, supra, 27 Cal. 3d 1, contends that the trial court erred in refusing to instruct the jury that the arson special circumstance is applicable only when the defendant has an independent felonious purpose for the commission of arson. Defendant argues that omission was prejudicial because there was the evidence that his purpose in committing arson was either to kill the Gawronski family or to facilitate the killing of David Gawronski. The trial court refused the instruction. The People argue that no Green instruction was required, and that the evidence supports the ruling and the verdict, because defendant had an independent intent to commit arson: By his own admission, his objective in committing the arson was not to kill David Gawronski, but to drive him and his wife out of the house. The murder was to follow and was to be independent of the arson. The arson was not simply incidental to, or committed to facilitate, the murder. b. The evidence relevant to defendant's purpose. David Gawronski awakened Ava early on January 6, 1982, screaming that the house was on fire. There was no fire in their bedroom at that time. When Ava tried to leave the room she was driven back by intense heat in the dining room. Based on this testimony, other evidence of the manner in which the separate fires in the home spread, and defendant’s admission that he knew that David and Ava Gawronski were in their bedroom when he ignited the gasoline vapor and that their daughter was an infant who could not care for herself, the People argued that defendant’s purpose in setting the fires was to kill all three members of the Gawronski household. Defendant testified, however, that his purpose in setting the fires was to drive the Gawronskis out of the house. Evidence of his extrajudicial statements made both before and after the crimes was consistent in expressing his intent when he went to the Gawronski home to set fires in the house for the purpose of driving the family outside. He planned to shoot David Gawronski as he fled from the front door as Ava Gawronski watched. To do so he would set one fire in the dining room to prevent the family from using the patio door as an exit. To drive the family members out of the front door another fire was to be set at the back of the house. Defendant assumed the master bedroom was in the front of the house. The plan was carried out methodically. One bucket of gasoline was left near a window at the rear of the house that defendant thought might be a bedroom, although he was not sure. Another bucket of gasoline was left on the patio with an unlit flare and a shotgun. Then defendant returned to the rear of the house where he threw the bucket of gasoline through the window, followed by the flare. Defendant threw the flare even though he had heard screams from David and Ava Gawronski and knew they might be in the room. After this he went to the patio where he threw the second bucket of gasoline through the sliding door or adjacent window. Defendant then picked up the shotgun, placed it in the trunk of a car he had rented, and left the scene. The shotgun and ammunition for it were found in the car during a search conducted two days after the fire. ■ Although defendant knew, when he heard the Gawronskis’ screams, that lie could not carry out the plan “specifically,” he intended “to carry out whatever other steps [he] had already preplanned.” c. Application of subdivision (a)(17)(viii). In People v. Green, supra, 27 Cal.3d 1, a case in which the “felony murder” special circumstance of the 1977 death penalty law was construed, this court held that the special circumstance was inapplicable to cases in which the defendant intended to commit murder and only incidentally committed one of the specified felonies while doing so. We explained in People v. Robertson (1982) 33 Cal.3d 21 [188 Cal.Rptr. 77, 655 P.2d 279], however, that when the defendant has an independent purpose for the commission of the felony, and it is not simply incidental to the intended murder, Green is inapplicable. Setting a fire to drive the occupants out of a home would establish an independent purpose since the fire is not intended to kill. Thus, if defendant’s testimony and statements are believed, the death of David Gawronski fell squarely within the purpose of the felony-murder-arson special circumstance. The victim died in an arson fire set by defendant for a purpose other than causing his death. As in People v. Robertson, supra, 33 Cal.3d 21, the underlying felony, here arson, was not simply incidental to the intended murder of David Gawronski, which was to be committed by another means independent of the arson. The relation between defendant’s intent to murder David Gawronski, and his intent to burn the Gawronski home, would not invoke the Green rule since defendant had independent, albeit concurrent, goals. There was also circumstantial evidence, however, to support a conclusion, and indeed the prosecutor argued and the jury apparently agreed, that when defendant actually set fire to the gasoline in the Gawronski home, regardless of the order in which the rooms were torched, defendant intended to kill the family members. The trial court erred, therefore, in refusing to give defendant’s requested instruction based on Green that the arson special circumstance could not be found true unless defendant had a purpose for commission of the arson independent of causing the death of David Gawronski. By any standard the error was harmless. We recognize that the jury verdicts finding defendant guilty of the attempted second degree murder of Ava Gawronski and Sara Gawronski confirm that the jury believed defendant ignited the gasoline vapor with the intent thereby to kill the family members in the ensuing fire. Nonetheless, defendant’s own testimony, his extrajudicial statements made before and after the offense, and the shotgun and ammunition found in the trunk of his rental car after the offense, afford overwhelming evidence that when he commenced the arson his intent was to start a fire that would drive the family out of the home. At that time his purpose was not to kill David Gawronski. His belated realization that the Gawronski bedroom was occupied, and his resolution to proceed with his plan nonetheless, does not negate the evidence that he had a purpose independent of causing the death of David Gawronski in his commission of arson. In light of that evidence, omission of the requested instruction was not prejudicial and the felony-murder-arson special-circumstance allegation was properly found true. Penalty Phase Issues Defendant’s numerous assertions of penalty phase error include claims of prejudicial error in granting him the right of self-representation; the voir dire of prospective jurors; admission of evidence; prosecutorial misconduct; instructions; ruling on his motion for reduction of sentence; disproportionality of the death sentence; and failure to properly instruct and sentence on the noncapital offenses. The resolution of some of these claims requires consideration of the evidence relevant to defendant’s background and mental state. We therefore describe below in greater detail this evidence, including evidence presented at the first penalty trial. Defendant was 42 years old at the time of these offenses. A summa cum laude graduate of Bradley University in January 1967, he had been in graduate school pursuing a master’s degree in English literature when he married, left school, and became an insurance underwriter. Since childhood he had been a “closed” person who did not discuss his thoughts with family or friends, and he had few close friends. Although he had not been a disciplinary problem in childhood, two incidents during his undergraduate college career led to brief hospitalizations for psychiatric treatment. The first incident occurred in 1966 when defendant twice shot at other drivers on a freeway in order to experience and report to a classmate the emotions of a person who kills. No one, to his knowledge, was injured. He reported his conduct to one of his professors who arranged for psychiatric treatment. The second incident occurred in 1967 when defendant burned an automobile. Assertedly, he did this because his therapist at the time objected to his dating another participant in group therapy sessions on “ethical” grounds. He was hospitalized briefly after the automobile arson, but left because he did not believe he was benefitting from hospitalization. Defendant discontinued therapy when he married in 1968. He had by this time concluded that his psychiatrist’s primary concern was not his well-being, but how his actions reflected on her professionally. Defendant committed no further illegal acts and received no counseling or psychotherapy until 1979, when he and his wife separated and subsequently divorced. At that time Ava Gawronski, a licensed social worker, and marriage and family counselor, counseled the couple about their marital problems. When defendant’s wife sought counseling from another therapist, Ms. Gawronski continued to treat defendant, first with regard to the marriage, but later, when the marriage could not be saved, for his individual emotional difficulties. She became the first person with whom defendant felt able to be open about his thoughts, and he became extremely dependent upon her. The record strongly suggests, and the People do not dispute, that the nature of defendant’s relationship with his therapist, and his “borderline personality,” having obsessive-compulsive characteristics, precipitated his homicidal conduct. Defendant’s counseling session with Ava Gawronski increased in frequency until he had thrice weekly appointments. The sessions assumed such importance to him that he even flew back to Los Angeles from out-of-town appointments to attend. He accepted a promotion that entailed a move to Atlanta, Georgia in 1980, but left almost immediately to return to Los Angeles to resume his therapy. In addition to the counseling sessions defendant made numerous telephone calls to his therapist, often on an “emergency” basis, to seek her advice. As his dependence on his therapist increased he also began to experience what she termed “rape fantasies,” but which defendant described as an extremely strong desire to commit an act of rape with his ex-wife or with the therapist. Ms. Gawronski encouraged him to discuss these thoughts, assuring him that she would not reject him regardless of what he told her about his thoughts or behavior. He was at that time “terrified” that she might end their relationship. The focus of defendant’s thoughts of rape gradually shifted to the therapist alone. She continued to encourage him to discuss his thoughts with her. In October 1981, defendant expressed an intent to actually commit the act of rape, stood, and started to cross the room toward Ms. Gawronski before responding to her remonstration and returning to his seat. She continued the session and elicited a promise from him that in the future he would call her to warn her if he felt that he might act out again. In a telephone conversation later that evening, however, she expressed concern that continuing the therapy might not be in the best interests of herself or defendant, and said she would need time to think about what would be best. She spoke with defendant on the following day and indicated that continuing the professional relationship would not be in their interest. Defendant subsequently received two letters from Ms. Gawronski. The first stated rather abruptly that she was terminating the relationship. The second explained in more detail the reasons for the decision, but nonetheless left defendant uncertain as to the reasons. Defendant made several attempts to contact Ms. Gawronski by telephone and in person to resolve his questions. When these efforts were unsuccessful he pursued her automobile and forced it to the side of a freeway, where he used an ice axe to break the glass in an attempt to pull her from the car to speak with her. He left when other motorists stopped, and he realized that he had so terrified her that he would not be able to have a rational discussion with her. Most significantly, in defendant’s mind, Ms. Gawronski, the first person whom he had trusted absolutely, had broken her commitment that she would never reject him. He became obsessed with a need to show her how much she had hurt him, and decided to do so by causing her to suffer similar emotional pain. Defendant rejected suicide, and ideas of killing several strangers whose severed heads he would mail to Ms. Gawronski with a note indicating that he had done so because she would no longer see him, and of killing the Gawronskis’ infant daughter. He reasoned that these acts would not likely have the desired effect, and also decided that it would not be “appropriate” to kill an infant or strangers. In mid-December 1981, defendant concluded that he should kill Ms. Gawronski’s husband before her eyes. In early January 1982, when Dr. Stein, from whom defendant was then receiving psychotherapy, told defendant that Ms. Gawronski would not talk with defendant, he decided to proceed with his plan to kill David Gawronski. At that time he had been charged with an attempted rape of Ms. Gawronski, with the ice axe attack, and with the rape of his former wife. Defendant initially planned to carry out the murder on January 4, 1982, and on the evening of January 3 made an audiotape explaining his feelings and accepting responsibility for what he was about to do. In this statement, defendant referred to Dr. Stein’s opinion that Ms. Gawronski was not a competent therapist, and seemingly accepted his view that her incompetence and the manner in which she terminated the relationship had contributed to his distraught emotional state. At the first penalty trial, evidence was admitted that tended to confirm Dr. Stein’s view that Ms. Gawronski had not rendered fully competent professional services to defendant. Kaushal Sharma, M.D., a forensic psychiatrist in private practice and an assistant professor of clinical psychiatry at the University of Southern California School of Medicine, testified as a defense witness. He stated that in his opinion there had been “many major problems in the treatment process.” He offered his opinion that under the acceptable treatment standard for social workers the patient should have been discouraged from talking about rape fantasies; the number of treatment sessions should have been decreased, rather than increased, in order to avoid intensifying the fantasies; that late evening appointments alone with the patient in a dimly lit office would not be considered appropriate; and that the preferred treatment would be to decrease the patient’s obsession and to dilute the relationship by making the patient less dependent on the therapist. Dr. Sharma testified also that the manner in which the therapy had been abruptly terminated for a very dependent patient was a “major problem,” and that the two letters to defendant from Ms. Gawronski gave a double message. Dr. Sharma believed that defendant’s mental impairment and psychological disturbance were major contributing factors to his actions. He testified, however, that while defendant was distraught he had not been legally insane, and did not suffer from diminished capacity at the time of the charged offenses. A dozen witnesses were called by defendant at the first penalty trial. They included persons with whom he had worked and with whom he had developed social relationships, members of a track club with whom he ran, a child for whom he had been a “Big Brother,” his father, and defendant himself. At the outset of the second penalty trial, defendant requested leave to represent himself, explaining that he had observed the legal process closely over the past two and one-half years, felt he could do a reasonable job defending himself, and wished to exercise his right to do so. The court described in detail the dangers of self-representation, and defendant expressed his understanding of the difficulties he would face. The court then noted defendant’s education, stated that he had demonstrated that he was articulate and in total command of the English language, and found that defendant was mentally competent to represent himself and to make a voluntary and intelligent waiver of counsel. The court did so after rejecting the prosecutor’s request for consideration of letters written by defendant after the first penalty trial threatening harm to relatives of Ms. Gawronski. The court concluded that the letters were irrelevant to defendant’s competence to represent himself, and refused to consider them as evidence that defendant might not comport himself properly if granted the right of self-representation. At the second penalty trial defendant did not call Dr. Sharma. Instead, he proffered a stipulation that Ms. Gawronski had provided the highest quality of care. He again testified, and while he did not call all of the witnesses who had testified at the first trial, several were called and testimony similar to that given earlier was elicited. The People’s evidence in aggravation included graphic descriptions by the physician who had attended the burn victims of the extent of their injuries, the death of David Gawronski, the excruciating physical and emotional suffering of Ava Gawronski, the extent of rehabilitation necessary to enable her to live independently, and the permanent disfiguring and disabling aftermath of her injuries. Defendant’s pre- and postoffense taped statements were played to the jury, his threatening letters were read, and experts who had examined him after the offense testified regarding his statements about the offenses and his statement that he would like to kill other persons whom he disliked. Evidence of the manner in which the offenses were committed was also offered, including evidence of defendant’s preplanning. As noted earlier, defendant claimed that his purpose in setting the two fires in the Gawronski home was to drive the couple outside where he would be waiting with a shotgun and would kill David Gawronski as his wife watched, but the People’s evidence suggested that when the fires were ignited defendant intended to kill all of the occupants of the home. The evidence, which defendant did not dispute, established that before defendant threw the lighted flare into the room in which David and Ava Gawronski had been sleeping, but after he had thrown the bucket of gasoline through the window, he heard their screams and was aware that they were in the room when he ignited the gasoline vapor. Defendant testified that he felt he had to go through with his plan. Evidence was presented through the testimony of Dr. John Hatcher, a psychologist affiliated with the University of California at San Francisco, who specialized in management and study of violent individuals. He had interviewed defendant at length, heard his taped confession, spoken with Ms. Gawronski, and interviewed defendant’s former wife. Defendant told Dr. Hatcher that he felt morally justified in what he had done under his own ethical code, which was all he was responsible for, and that “[i]n the sense of revenge, I couldn’t have asked for it to turn out any better than it did.” Dr. Hatcher believed that Ms. Gawronski’s diagnosis of defendant as having a narcissistic personality was consistent with the information available at the time it was made, although his own diagnosis would be “borderline personality”—a person somewhere between neurotic and psychotic, who, when he is able to form a close personal relationship, tends to idealize the person and must devalue the ideal if that person is unable to live up to the image, by somehow showing the person he or she is not perfect. Dr. Linda Weinberger, a psychologist employed by the County of Los Angeles and the University of California, had been appointed by the court to examine defendant at defense counsel’s request. In response to her question whether he had thoughts of killing anyone, defendant told her that if he were not in jail he would like to kill two individuals—his former wife’s employer, whom he believed had encouraged her to leave him, and the brother of Ms. Gawronski, whom defendant believed had encouraged Ms. Gawronski to stop seeing him. Defendant had stated that if sent to prison he would consider finding a prisoner who was about to be released to kill for him. 5. Self-representation. Defendant claims both that the trial court erred in permitting him to represent himself and that self-representation by a defendant during the penalty phase of a capital case is forbidden by section 686.1. We reject both arguments. Defendant’s first theory is that the letters he had written to Ms. Gawronski and her father were relevant to his competence to represent himself, and that these letters, his history of mental illness, and his self-destructive behavior were all indicative that a reliable penalty determination would not be possible if he were permitted to represent himself. The record does not support this claim, which rests in part on the faulty premise that self-representation may be denied at the penalty phase if necessary to ensure that mitigating evidence is presented. The trial court’s ruling that defendant was competent is fully supported by the record. None of the experts (who had already testified at the first trial) concluded that defendant was incompetent or mentally ill. He was well educated and of superior intelligence. He had testified at length at the guilt phase and presented his own request to be permitted to represent himself. The record refutes any suggestion that defendant elected to, or that the judge should have predicted that he intended to, represent himself as a means of state-aided suicide. There was no basis therefore for an inference that defendant might not have been competent to make an intelligent and voluntary decision. Nor does hindsight support defendant’s argument that he should not have been permitted to represent himself. He did present mitigating evidence. His decision to withhold evidence relevant to the quality of counseling he had received, and the possible effect on him of the manner in which that therapy was discontinued, was one that a defendant is entitled to make. To the extent that this defendant’s peculiar mental state contributed to his decision, it was reflected in his need to have a jury, rather than legal and mental health professionals, determine the punishment that was appropriate to his conduct in light of the circumstances in which he acted. The record suggests that defendant may have hoped to be vindicated, at least partially, in his perception that his conduct was not entirely unreasonable in light of his personal moral/ethical standards. None of this refutes the evidence that defendant was competent. We conclude, therefore, that the trial court did not err in ruling that defendant was competent to represent himself. We also conclude, as suggested in our recent decision in People v. Bloom, supra, 48 Cal.3d at pages 1222-1224, that the right to self-representation recognized in Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] is not limited to defense during the guilt phase of the trial, but extends to the penalty trial in a capital case. Notwithstanding the state’s significant interest in a reliable penalty determination, a determination best made by a fully informed sentencer, a defendant’s fundamental constitutional right to control his defense governs. (People v. Bloom, supra, 48 Cal.3d at pp. 1227-1228.) The defendant has the right to present no defense and to take the stand and both confess guilt and request imposition of the death penalty. (See People v. Guzman (1988) 45 Cal.3d 915, 961-963 [248 Cal.Rptr. 467, 755 P.2d 917]; People v. Grant (1988) 45 Cal.3d 829, 849-850 [248 Cal.Rptr. 444, 755 P.2d 894]; People v. Lucky (1988) 45 Cal.3d 259, 282 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v. McKenzie (1983) 34 Cal.3d 616, 628 [194 Cal.Rptr. 462, 668 P.2d 769]; People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7 [170 Cal.Rptr. 798, 621 P.2d 837] (per Mosk, J.); People v. Teron (1979) 23 Cal.3d 103, 108-115 [151 Cal.Rptr. 633, 588 P.2d 773].) It follows that the state’s interest in ensuring a reliable penalty determination may not be urged as a basis for denying a capital defendant his fundamental right to control his defense by representing himself at all stages of the trial. Because we reject defendant’s claim that permitting him to represent himself at the penalty trial was improper, he is foreclosed from complaining that his doing so resulted in the admission of evidence that may have been inadmissible, but to which he did not object. Failure to object waives any claim of error on appeal (People v. Harris (1989) 47 Cal.3d 1047, 1089 [255 Cal.Rptr. 352, 767 P.2d 619]) and, having elected to represent himself, defendant may not now claim that he received ineffective representation at trial because the possibly objectionable evidence came in. (People v. Bloom, supra, 48 Cal.3d at p. 1226.) 6. Psychotherapist-patient and Attorney-client Privileges. After an in camera hearing at the first penalty trial, the trial court ruled that an exception to the psychotherapist-patient privilege permitted disclosure of defendant’s threats to kill, or to have killed, Ms. Gawronski’s brother and the employer of defendant’s former wife. That ruling was reaffirmed and defendant’s objection, that the attorney-client privilege nonetheless applied, was overruled immediately before admission of the testimony of Dn Weinberger, to whom defendant had made those threats. The court applied the psychotherapist-patient privilege exception of Evidence Code section 1024: “There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” The judge did not explain the basis for overruling the attorney-client privilege claim, but did state that he was not ruling that defendant had waived either privilege. a. Psychotherapist-patient privilege. Defendant contends that the statements were confidential, and because they were made in a confidential relationship prior to the time Dr. Weinberger told him she might have to reveal them, he had not waived the confidential nature of the communication. We need not decide the waiver question to resolve this claim, however, because at the time of trial Dr. Weinberger had already revealed the communications that were, therefore, no longer confidential. Defendant’s argument that the privilege was not abrogated by Evidence Code section 1024, because the section applies “only if the patient is presently dangerous and the therapist’s testimony is necessary to prevent the danger,” misses the point. A psychotherapist has a professional duty to maintain the confidential character of communications made to him by his patient during the course of the relationship, but when it is necessary to disclose confidential information to avert danger to others the therapist must do so. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 441 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.3d 1166].) The purpose underlying Evidence Code section 1014 is not to prevent the use of a defendant’s statements against him in legal proceedings. It exists to prevent the unnecessary disclosure of statements made in confidence in the course of a privileged communication with a therapist and thereby to facilitate treatment. (17 Cal.3d at pp. 440-442.) If the statements have been revealed to third persons in a communication that is not itself privileged, however, they are no longer confidential. (Cf. Roberts v. Superior Court (1973) 9 Cal.3d 330, 341 [107 Cal.Rptr. 309, 508 P.2d 309] [psychotherapist exchanged patient’s records with other physicians after patient had actively asserted privilege; disclosure did not waive privilege].) The question is not whether the psychotherapist-patient privilege has been waived or the exception that would permit compelled disclosure in a legal proceeding applies, but whether the privilege may be claimed at all once the communication is no longer confidential. Whether the psychotherapist “reasonably believes” (Evid. Code, § 1024) that revelation of the communication is necessary also becomes irrelevant once the communication has lost its confidential status. The reason for the privilege—protecting the patient’s right to privacy and promoting the therapeutic relationship—and thus the privilege itself, disappear once the communication is no longer confidential. b. Attorney-client privilege/self-incrimination. The attorney-client privilege serves a different purpose, however. It exists to permit a client to freely and frankly reveal confidential information, including past criminal conduct, to the attorney or others whose purpose is to assist the attorney, and to thereby enable the attorney to adequately represent the client. (See United States v. Zolin (1989) 491 U.S._, _ [105 L.Ed.2d 469, 484, 109 S.Ct. 2619].) In a criminal case the privilege also serves to preserve the defendant’s privilege against self-incrimination that might otherwise be deemed to have been waived by his revelation of incriminating information. To make adequate representation possible, therefore, these privileges assure criminal defendants that confidential statements to their attorney will not be admissible in any proceeding. These purposes were unaffected by Dr. Weinberger’s revelation of defendant’s statements to his potential victims. The Legislature has recognized this distinction in purpose in Evidence Code section 1024, where it provides that there is no privilege under “this article,” i.e., article 7, which contains only the psychotherapist-patient privilege, if the therapist believes it is necessary to disclose the communication. This section confirms that the purpose of the psychotherapist-patient privilege is not to preclude use of the defendant’s statements in a legal proceeding, and reflects recognition that the purpose of promoting the therapeutic relationship can no longer be achieved once the therapist has revealed the conf