Full opinion text
Opinion ARABIAN, J. In this case, arising out of the 1978 death penalty law, defendant was convicted of the first degree murder of Vanessa Iberri (Vanessa) and the attempted first degree murder of Kelly Cartier (Kelly). (Pen. Code §§ 187, 664.) The jury found that defendant personally used a firearm during the commission of both offenses (§ 12022.5), and intentionally inflicted great bodily injury on Kelly. (§ 12022.7.) As to the murder count, the jury found true the special circumstance that defendant intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) The first penalty trial ended in a mistrial, as the jury was unable to reach a verdict. After the second penalty trial, the jury imposed the death penalty. The trial court then granted a new penalty trial because of error under People v. Boyd (1985) 38 Cal.3d 762 [215 Cal.Rptr. 1, 700 P.2d 782], a case decided the same day as the penalty verdict. A third penalty trial ended with the jury again imposing the death penalty. This time, the court denied defendant’s motion for a new trial. It also denied the automatic motion to modify the verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal is automatic. (§ 1239.) We affirm. I. Facts A. Guilt Phase On Saturday, September 19, 1981, defendant, an excellent marksman, tragically shot 12-year-old Vanessa between the eyes and her 12-year-old friend, Kelly, in the head with a .22-caliber pistol while the girls were walking to a picnic lunch from a campsite in the Blue Jay campground in Orange County. Vanessa died of her wound; Kelly survived. 1; Prosecution Evidence Defendant was an employee of the South Coast Gun Club in Santa Ana. He visited the Blue Jay campground “quite often, usually every weekend.” He was seen at the gun club the morning of September 19. Around 11 a.m. that same morning, a truck that looked like defendant’s red Datsun pickup entered the campground, which was about half full. Kelly and Vanessa were spending the weekend camping at the same campground with Vanessa’s mother and stepfather. Around 2 p.m., the girls left their campsite to have a picnic lunch at a site they had selected earlier that morning. As they were walking by a restroom near the entrance, Kelly saw defendant’s truck drive slowly towards them. Defendant looked in their direction, and then drove past. The girls then walked out of the campground towards the picnic site. Two other campers observed the girls leave the area. Two to three minutes later, one of the campers saw defendant drive his truck out of the campground. Shortly thereafter, while Kelly and Vanessa were walking down the road, with Vanessa in front, Kelly heard a car coming, and told Vanessa to “get on the side of the road.” They both moved over. Defendant drove alongside the girls, stopped, and said, “Girls.” He then fired two shots from a pistol, the first at Vanessa, the second at Kelly. Defendant hit Vanessa in the forehead, a quarter of an inch to the right of center, just above the eyebrows. He hit Kelly in the right side of the head. Kelly fell to the ground, but saw defendant get out of the truck and run to the back. She heard something slam in the back of the truck, then saw defendant return to the truck cab and drive away. In the meantime, other campers, including the two who had seen the girls walk out of the campground, were driving in two trucks to get some firewood. As the front truck, driven by Larry Ellis, was going over a speed bump just outside their campsite, one of the passengers, Charles Vaughn, looked to his left across a meadow. Vaughn saw the top portion of defendant’s parked truck. He saw defendant run from the front of the van to the back, and then back towards the front. Vaughn then lost sight of defendant, as some trees blocked his view. None of the group heard any gunshots. Thinking defendant might have been a poacher, Vaughn told Ellis to drive in that direction. The second truck followed. When they came around a bend in the road, Vaughn and Ellis saw defendant standing near the front of his truck. Defendant looked towards the girls on the side of the road, then over his shoulder towards the Ellis truck. Defendant then jumped into his truck and drove away at high speed. Ellis gave chase while the driver of the second truck stopped to aid the stricken girls. Defendant got away after a high-speed chase, but not before Ellis and Vaughn got the license number of the truck. It was registered to defendant. An extensive manhunt over the next few days failed to find defendant. He was eventually arrested in the State of Maryland on September 28, 1981. Bus tickets dated from September 24 to 27 with destinations from Los Angeles to Washington, D.C., were found in his motel room. Defendant’s truck was later found near a bus station in Los Angeles. The camper portion of the truck contained several firearms and quantities of ammunition. Additional firearms belonging to defendant were found in a storage area of the South Coast Gun Club. Vanessa died of a single gunshot wound to the forehead. Kelly received a grazing wound in the scalp. She required surgery to remove an accumulation of blood underneath the skull (an “epidural hematoma”), but eventually recovered. Two .22-caliber casings were found at the scene of the shooting. Ballistics analysis established that none of the firearms found in defendant’s truck or among his property at the gun club fired the fatal bullet. A week or two before the shooting, Bobby Pamplin sold a .22-caliber Ruger handgun to defendant. It could have been the murder weapon, but was not found after the shooting. Pamplin testified that defendant was an “excellent shot.” He observed defendant fire the Ruger at the firing range. Defendant “repeatedly” hit a target the size and shape of a chicken at a distance of 50 yards. In January 1983, shortly before the guilt phase trial began, defendant told a deputy sheriff in the county jail that he was “guilty as sin.” During the guilt phase trial, the jury viewed the crime scene. The scene of the shooting was relatively isolated. It was approximately halfway between the Blue Jay campground and a neighboring campground. More than a quarter of a mile separated the spot where defendant passed the girls the first time and the spot where he shot them. 2. Defense Evidence The defense did not dispute that defendant shot the two girls. It presented evidence suggesting that the shooting was not premeditated, but was a sudden act of violence caused by depression over defendant’s recent divorce. Defendant did not testify. B. Penalty Phase At the third penalty trial, the one currently under review, the prosecution presented essentially the same evidence concerning the crimes as at the guilt phase. It introduced no additional evidence. The defense presented evidence concerning defendant’s marital problems and their effects on him, his good character traits, his good behavior in jail, and his apparent remorse for the crimes. Defendant did not testify. II. Discussion A. Guilt Phase Issues 1. Denial of Change of Venue Defendant contends the trial court erred in denying his motion to change venue from Orange County. The applicable law is settled. A change of venue must be granted when the defendant shows a reasonable likelihood that, in the absence of such relief, a fair trial cannot be had. The court considers such factors as the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and the nature and extent of the publicity. On appeal after a judgment following the denial of a change of venue, the defendant must show both that the court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it was reasonably likely that a fair trial was not in fact had. The trial court’s essentially factual determinations as to these factors will be sustained if supported by substantial evidence. We independently review the trial court’s ultimate determination of the reasonable likelihood of an unfair trial. (People v. Cooper (1991) 53 Cal.3d 771, 805-806 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Bonin (1988) 46 Cal.3d 659, 672-673, 676-677 [250 Cal.Rptr. 687, 758 P.2d 1217].) As the trial court recognized, the gravity of the offense is most serious and, if considered alone, would support a change of venue. Review of the other factors, however, compels the conclusion that a change of venue was properly denied. At the time of the guilt trial in early 1983, Orange County was California’s second largest county in population. (People v. Cooper, supra, 53 Cal.3d at p. 806, fn. 4.) Defendant claims Orange County is too “White,” too “Republican,” and too prosperous to afford a fair trial, but presents no credible supporting evidence. The size of the county weighed heavily against a change of venue. (People v. Bonin, supra, 46 Cal.3d at p. 677; People v. Harris (1981) 28 Cal.3d 935, 949 [171 Cal.Rptr. 679, 623 P.2d 240].) Defendant was a resident of Orange County at the time of the crime. The media generally identified him as a resident of Costa Mesa employed at a gun club in Irvine. In contrast to People v. Williams (1989) 48 Cal.3d 1112, 1131 [259 Cal.Rptr. 473, 774 P.2d 146], where a change of venue was found necessary, defendant was not an outsider in either a “geographic or racial sense.” Although there was an understandable outpouring of sympathy for the victims immediately after the crime, they had no particular celebrity status in the community. Indeed, they were not residents of Orange County at all, but residents of neighboring Riverside County who happened to be camping in Orange County. In contending that the victims’ prominence supported a change of venue, defendant stresses “their particular status as children.” This status, however, will not change with a change of venue. Prospective jurors would sympathize with the girls’ fate whether trial were held in Santo Domingo in the Dominican Republic, Orange County, or any other county in California. The horrendous crime, not the locale of trial, evokes the sympathy. Defendant stresses the substantial publicity of the crime. After reviewing the voluminous defense exhibits, the trial court found “that the news coverage was extensive, that there was some aspects of sensationalism, but that it was not overly sensational in the coverage and that the coverage appeared to be reasonably fair.” Substantial evidence supports this finding. Media coverage of the crime was intense, especially soon after its commission and defendant’s arrest. But such coverage was generally fair, and not inflammatory. It pales in comparison with the publicity we found insufficient to compel a change of venue in a serial murder case tried in Orange County. (People v. Bonin, supra, 46 Cal.3d at p. 677 [reports that the defendant was the “Freeway Killer,” had a history of mental illness, had prior convictions, had been linked to as many as 44 killings, had admitted 21 killings, and had already been convicted of 10 murders in Los Angeles and sentenced to death].) In addition, the court found that “time has diminished greatly the events that were before the public.” The record also supports this finding. The motion to change venue was denied about 10 months after the crime. Trial began another six months later. Passage of time weighs heavily against a change of venue. (People v. Bonin, supra, 46 Cal.3d at pp. 677-678.) As Marcus Aurelius said some two millennia ago, “All is ephemeral—fame and the famous as well.” (Meditations, IV, 35.) Citing Maine v. Superior Court, supra, 68 Cal.2d at pages 386-387, defendant also contends that political factors supported a change of venue. There is some evidence in the record that the sheriff criticized the initial appearance of the public defender’s office in this case. The sheriff later ran for reelection. But defendant’s showing, consisting mainly of media reports, does not compel a change of venue. Indeed, defendant’s own poll showed that most of the populace remembered nothing about any political controversy . After completion of the individual jury voir dire, defendant renewed his motion for a change of venue. The court denied the motion, finding “that we will be able to find twelve [jurors] that will have no influence whatsoever from anything they ever read about or heard about this case. It just wasn’t a major problem in talking with them.” Defendant does not specifically challenge this ruling. Our review of the record convinces us it was correct. Trial was properly held in Orange County. 2. Jury Selection Issues a. Waiver of Defendant’s Presence At the outset of the guilt trial, defendant expressed the desire to be absent during jury selection. After being fully admonished of his right to be present, and with his attorney’s approval, defendant personally waived the right both in writing and orally. The court accepted the waiver after finding defendant “knowingly and willingly” waived his rights. It informed defendant that if he changed his mind, he could come back into court at any time. Defendant then absented himself during jury selection. A week after the waiver, another hearing was held to determine whether defendant still wanted to be absent. He did. Defendant was present during the evidence portion of trial. Defendant contends the right to be present during jury selection cannot be waived. In essence, he argues that a defendant who does not want to be present during jury selection can achieve his wish only if he engages in “disruptive behavior.” A defendant who behaves himself but “merely desires to be absent” cannot, he claims, be accommodated. We disagree. This right, like other more fundamental rights (e.g., against self-incrimination, to testify, to have an attorney, to confront witnesses, and to have a jury trial at all), may be waived. A defendant need not be disruptive before a court may grant his request and excuse him from attending jury selection. People v. Robertson (1989) 48 Cal.3d 18 [255 Cal.Rptr. 631, 767 P.2d 1109] is closely on point. In Robertson, the defendant filed a written waiver adapted from the form set out in section 977, subdivision (b) waiving his right to be present at the sentence-modification hearing and imposition of sentence. As in this case, defendant argued that his presence at any “critical phase” of a capital trial may not be waived. Based in part on the “solicitude shown by modern jurisprudence to the defendant’s prerogative to waive the most crucial of rights” (48 Cal.3d at p. 61), we disagreed, and held that a capital defendant may waive his right to be present even at critical stages of the proceeding. (Id. at pp. 59-62.) This holding applies equally to jury selection. It would be anomalous to force a defendant to misbehave before he could fulfill his wish to be absent from the proceedings. Defendant argues that such a waiver should not be allowed in capital cases. However, as noted in Robertson, “Our statutes governing waiver make no distinction between capital and other felony defendants . . . .” (48 Cal.3d at pp. 61-62.) In Robertson, we cited sections 977 and 1193. The applicable statutes here are sections 977 and 1043. The latter generally provides that “the defendant in a felony case shall be personally present at the trial.” (§ 1043, subd. (a).) Exceptions include when the defendant is disruptive (§ 1043, subd. (b)(1)) and “Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.” (§ 1043, subd. (b)(2).) Section 1043, subdivision (d), also states, “Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977.” In combination, sections 977 and 1043 provide that although mere voluntary absence is not sufficient in a capital case to hold the trial without the defendant’s personal presence, such presence may be waived (at least as to those proceedings not specifically listed in section 977, subdivision (b)). Defendant argues that the legislative history of these sections discloses no intent to allow such waiver in capital cases. Nothing in that history, however, suffices to overcome the plain language of the statutes. When statutory language is clear and unambiguous, there is no need for construction, and courts should not indulge in it. (People v. Belleci (1979) 24 Cal.3d 879, 884 [157 Cal.Rptr. 503, 598 P.2d 473].) We thus adhere to Robertson, supra, 48 Cal.3d 18. A capital defendant may waive his right to be present even at critical stages of trial. (We do not here decide whether a defendant may waive his presence as to those proceedings specifically listed in section 977, subdivision (b); see People v. Sully (1991) 53 Cal.3d 1195, 1237-1240 [283 Cal.Rptr. 144, 812 P.2d 163].) Defendant also argues the “public and state” have an independent interest in compelling him to be present during jury selection. The Legislature, however, has deemed otherwise. (Cf. People v. Chadd (1981) 28 Cal.3d 739, 745-755 [170 Cal.Rptr. 798, 621 P.2d 837] [upholding § 1018, which prohibits a capital defendant from pleading guilty without the consent of counsel]; and People v. Stanworth (1969) 71 Cal.2d 820, 833-834 [80 Cal.Rptr. 49, 457 P.2d 889] [applying the automatic appeal provisions of § 1239, subd. (b)].) Defendant cites People v. Deere (1985) 41 Cal.3d 353, 362-368 [222 Cal.Rptr. 13, 710 P.2d 925] (Deere I), where we held that a defendant may not bar his attorney from presenting mitigating evidence at the penalty phase. Subsequent decisions, however, have “largely undermined” this holding. (People v. Deere (1991) 53 Cal.3d 705, 716 [280 Cal.Rptr. 424, 808 P.2d 1181] (Deere II); see People v. Lang (1989) 49 Cal.3d 991, 1030 [264 Cal.Rptr. 386, 782 P.2d 627]; People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9 [259 Cal.Rptr. 669, 774 P.2d 698].) In any event, even Deere I allowed the defendant to completely waive a penalty phase jury. (41 Cal.3d at pp. 359-360.) A capital defendant who has “stated an intention to seek a death verdict" may waive his right to counsel. (People v. Bloom, supra, 48 Cal.3d at p. 1223.) Waiver of presence during jury selection “by no means ensure[s] the return of a death verdict.” (Ibid.) Indeed, defendant, through counsel, vigorously defended himself at both the guilt and penalty phases. Defendant also argues that even if he may legally waive his right to be present, he did not validly do so. Although the written waiver was substantially in the prescribed form, defendant argues it was not “execute[d] in open court” as required by section 977, subdivision (b). The form was apparently executed between two court sessions held the same day. It was filed at the latter session accompanied by a full oral waiver. This was sufficient compliance with the statute. (People v. Robertson, supra, 48 Cal.3d at p. 62.) Defendant finally asserts he was “suicidally depressed.” Nothing in the record, however, suggests defendant was unable to understand and waive his right to be present. Counsel concurred in the waiver. The court found it was knowing and voluntary. It is not irrational for a defendant represented by experienced counsel to not want to physically endure the lengthy jury selection process. Defendant validly waived his right to be present during jury selection. b. Public Trial To “minimize” potential prejudice to criminal defendants in capital cases, we held in Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301], “that portion of the voir dire of each prospective juror which deals with issues which involve death-qualifying the jury should be done individually and in sequestration.” (Fn. omitted.) In compliance with this mandate each prospective juror at the first trial was questioned individually in one of the jury rooms, a room selected “so that everyone would be able to spread out and so that the prospective jurors would feel more comfortable.” It was “tacitly understood that the sequestered voir dire that would occur in the jury room . . . was not to be an open proceeding during which members of the press or public could simply wander in. . . . [Members of the press or public could not walk into the jury room any more than they would have been able to walk into chambers were the voir dire being held there.” Prior to the commencement of this individual questioning, a local television station requested permission to conduct “extended media coverage” of the duration of the trial with a “Standard portable videotape minicamera & recorder.” Defendant objected. The court denied the request at least as to jury selection. The record reflects no other media request to be present during voir dire, and no specific request to report or observe the sequestered questioning in any fashion. After the trial, the United States Supreme Court held in a “free press” case that jury voir dire should presumptively be conducted in open court, which presumption may be overcome only upon specified express findings by the court. (Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501 [78 L.Ed.2d 629, 104 S.Ct. 819] (hereafter Press-Enterprise), discussed in People v. Thompson (1990) 50 Cal.3d 134, 156 [266 Cal.Rptr. 309, 785 P.2d 857]; see also Ukiah Daily Journal v. Superior Court (1985) 165 Cal.App.3d 788 [211 Cal.Rptr. 673] (hereafter Ukiah Daily Journal).) Defendant contends the Press-Enterprise rule was violated in this case. Although he objected to the request for extended media coverage, and never asserted any public trial right of his own, he further contends the violation requires his conviction be reversed. (Cf. Waller v. Georgia (1984) 467 U.S. 39 [81 L.Ed.2d 31, 104 S.Ct. 2210] [closing a suppression hearing to the public over defense objection requires a new suppression hearing].) We considered a similar contention in People v. Thompson, supra, 50 Cal.3d 134. There, unlike both Press-Enterprise and Ukiah Daily Journal, “neither the media nor any representative of the public asked to witness the voir dire.” (50 Cal.3d at p. 157.) Because of this, we were “concerned solely with the right of a defendant to a public trial,” and found that defendant had waived that right by the failure to assert it in timely fashion. (Ibid., fn. omitted.) Defendant argues that here the press did request coverage of the voir dire proceedings. He relies on the television request for extended media coverage of the entire trial and on a newspaper request to cover the trial made after the sequestered voir dire was completed. The latter clearly was not a request to cover the earlier portions of trial. We need not decide whether the general request for extended coverage of the entire trial was a sufficient request for normal coverage of the sequestered jury selection, for defendant’s objection to the media request waived his right to complain of the court’s ruling on appeal. A defendant “may, by his own acts or acquiescence, waive his right [to a public trial] and thereby preclude any subsequent challenge by him of an order excluding the public. Unlike the jury trial right which requires an express personal waiver [citation], the constitutional guarantee of a public trial may be waived by acquiescence of the defendant in an order of exclusion.” (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2618, p. 3137, italics in original; see also People v. Williams (1988) 45 Cal.3d 1268, 1309 [248 Cal.Rptr. 834, 756 P.2d 221] [defense request for private Hovey voir dire waives right to public voir dire; no personal waiver necessary].) This result is consistent with Press-Enterprise, supra, 464 U.S. 501, where the press won the right to cover voir dire, but the criminal conviction of Albert Greenwood Brown, the defendant in the underlying case, was not affected. (See People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837].) Defendant is not entitled to the windfall of a reversal of his conviction because the court may have violated a public right to which he objected. 3. Sufficiency of the Evidence of Premeditation Defendant contends there was insufficient evidence of premeditation and deliberation to support the verdict of first degree murder. “In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Miranda (1987) 44 Cal.3d 57, 86 [241 Cal.Rptr. 594, 744 P.2d 1127].) The evidence of this case supports, even compels, a finding of premeditation. Defendant relies on the familiar tripartite test set forth in People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942], which requires us to focus upon evidence of (1) the defendant’s planning activity prior to the killing; (2) his motive to kill, derived from his prior relationship or conduct with the victim; and (3) the manner of killing, indicating some preconceived design to kill in a certain way. Evidence of all three elements is not essential, however, to sustain a conviction. A reviewing court will sustain a conviction where there exists evidence of all three elements, where there is “extremely strong” evidence of prior planning activity, or where there exists evidence of a motive to kill, coupled with evidence of either planning activity or a manner of killing which indicates a preconceived design to kill. (People v. Hovey (1988) 44 Cal.3d 543, 556 [244 Cal.Rptr. 121, 749 P.2d 776].) Viewing the evidence most favorably to the prosecution, there was extremely strong evidence of planning, the most important of the Anderson factors. (People v. Alcala (1984) 36 Cal.3d 604, 627 [205 Cal.Rptr. 775, 685 P.2d 1126].) Defendant carried a loaded handgun in the cab of the truck. Before the shooting, defendant drove past the two girls as they were leaving the campground, looked at them, and then turned around and followed them. He caught up to them in a remote spot, where he could most effectively kill and escape. He drove alongside his victims, stopped, said “Girls” to get their attention, and, while Vanessa was looking straight at him and was thus an excellent target, shot and killed her. The inference of cool, calculated premeditation is inescapable. Additionally, the manner of killing was exact—a single bullet between the eyes by an expert marksman. This strongly implies a preconceived design to kill in precisely that fashion. Defendant argues there is no evidence of motive. Motive here is, indeed, elusive. This was apparently a random killing for a reason known only to defendant, a reason he has elected not to disclose, as is his right. The Attorney General aptly notes, “The reason persons commit despicable crimes is often a mystery in a land where an accused has a Fifth Amendment privilege.” We have never required the prosecution to prove a specific motive before affirming a judgment, even one of first degree murder. A senseless, random, but premeditated, killing supports a verdict of first degree murder. 4. Admissibility of Prosecution Evidence a. Defendant’s Statement Defendant contends the court erred in admitting evidence of his statement in county jail. At an in camera hearing, Deputy Sheriff Gregory Allen testified that he was on duty in the county jail on January 12, 1983. Defendant asked the deputy to “call me out," i.e., to let him out of his cell. This was a “fairly common occurrence.” Deputy Allen let him out, and defendant entered a vestibule area. Defendant said, “ ‘I’m depressed, man. May I light a cigarette?’ ” The deputy responded, “ ‘Yes, go ahead.’ ” Defendant then made the statement now challenged, “ ‘Off the record, I’m guilty. I don’t know why I shot those two little girls. I’m guilty as sin. I’m depressed for what I put their families through.’ ” Deputy Allen did not ask defendant any questions. After the hearing, the court admitted the statement, finding it was “spontaneous” and “volunteered,” and that there “was no interrogation by the deputy.” Defendant contends that “Deputy Allen had an obligation to terminate the conversation immediately upon Mr. Edward’s uttering the qualifying words, ‘Off the record’; Allen’s failure to do so renders the statement inadmissible.” He relies primarily on our decision in People v. Braeseke (1979) 25 Cal.3d 691 [159 Cal.Rptr. 684, 602 P.2d 384], In Braeseke, the defendant was advised of and waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. After some questioning by two officers, he stated he wanted an attorney, and the questioning ceased. Later, during a booking procedure, the defendant asked if he could speak with one officer alone and “off the record.” The officer agreed, and eventually took a taped confession. (25 Cal.3d at pp. 695-696.) We reversed, reasoning that after a defendant asserts his right to counsel the interrogation must cease; it may not be resumed without counsel unless compelling evidence of a waiver of the suspect’s rights appears. “When, as here, the defendant has asserted his right to the presence of an attorney that burden [of proving a knowing and intelligent waiver of rights] is particularly onerous [citations] and usually is discharged only by a showing that the defendant initiated without reservation the renewed interrogation. [Citations.]” (25 Cal.3d at p. 702.) We held that a “request to speak ‘off the record’ cannot constitute a knowing and intelligent waiver of rights which include the advisement that ‘anything [a suspect] says can be used against him in a court of law.’ [Citations.]” (Ibid.) We also pointed out that the officer “contributed to defendant’s lack of understanding by agreeing to the request rather than informing defendant that there could be no such thing as an off the record discussion.” (Id. at p. 703.) Citing this last sentence, defendant argues that Deputy Allen was required to interrupt him as soon the words “off the record” were spoken. Braeseke, supra, 25 Cal.3d 691, however, holds only that an officer cannot affirmatively agree to take an “off the record” statement before recommencing a previously discontinued interrogation. It does not affect the settled rule that volunteered statements not the product of interrogation are admissible. As Miranda itself made clear, “There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (Miranda v. Arizona, supra, 384 U.S. at p. 478 [16 L.Ed.2d at p. 726], fn. omitted.) Deputy Allen asked no questions; he merely listened. He was under no obligation to try to prevent defendant from volunteering the statement. Defendant next contends the statement was irrelevant. He did not object on this ground at trial, and therefore has waived the point. (People v. Green (1980) 27 Cal.3d 1, 22 & fn. 8 [164 Cal.Rptr. 1, 609 P.2d 468].) In any event, defendant concedes that the admission that he was “guilty as sin” and the reference to shooting the girls was “an express statement of his culpability for the shootings.” This is obviously relevant to the murder charge. His real contention seems directed not so much to the admissibility of the statement itself as to the prosecution argument that it supported the lying-in-wait special circumstance. With one exception, he failed to object to such argument, thus waiving the issue. (Id. at p. 34.) Defendant objected as speculative to rebuttal argument that by using the phrase “guilty as sin,” defendant admitted the elements of the lying-in-wait special circumstance. The court overruled the objection, stating that the prosecutor was “entitled to try to convince the jury what he thinks it means.” The court was correct. The jury had heard evidence that defendant had been fully informed of the charges against him, and had been present in court when extensive argument was presented regarding the elements of the lying-in-wait special circumstance. This arguably supports the inference the prosecutor was urging. The prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom. (People v. Kelly (1990) 51 Cal.3d 931, 967 [275 Cal.Rptr. 160, 800 P.2d 516].) Defendant’s claim that the argument was illogical was for the jury to decide. As we have repeatedly explained, the adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury. (People v. Warren (1988) 45 Cal.3d 471, 485, fn. 1 [247 Cal.Rptr. 172, 754 P.2d 218], and cases cited therein.) Defendant next contends he was “precluded” from presenting rebuttal evidence because the court refused to admit certain hearsay statements he made shortly before and after his arrest on these charges. The correctness of the court’s rulings is discussed in part II. A. 5., post. Suffice it to say at this point that the admission of defendant’s statement did not somehow entitle him to present inadmissible hearsay. The court never “precluded” defendant from testifying himself or from presenting other testimony consistent with the rules of evidence to rebut this or any other item of prosecution evidence. Defendant finally claims he was improperly “penalized” for his presence at the court hearing at which issues regarding the lying-in-wait special circumstance were argued. He was not. His presence, coupled with his later statement that he was “guilty as sin,” gave rise to a possible relevant inference in the same way that a multitude of actions and events may give rise to relevant inferences. We find no impropriety. b. Other Prosecution Evidence Defendant contends that other items of prosecution evidence were improperly admitted because they were irrelevant or their prejudicial effect outweighed their probative value under Evidence Code section 352. In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal absent an abuse of that discretion. (People v. Green, supra, 27 Cal.3d at p. 19; People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91].) Defendant first objects to evidence regarding his firearms at the gun club where he worked. The court overruled defendant’s objection to testimony about storage of the guns, but disallowed as “prejudicial” admission of the weapons themselves. These rulings were within the court’s discretion. A number of weapons were found in defendant’s truck, and at least one was in the truck cab at the time of the shooting. The prosecution argued this showed preparation for the shooting. The defense established that defendant lived in his truck, and sought to show that he routinely kept his guns there. Evidence that he had an alternate site to store guns was relevant to show that he did not keep weapons in the truck merely out of necessity. Defendant also contends the record does not show the court weighed the probative value against any prejudicial effect. (People v. Green, supra, 27 Cal.3d at p. 25.) We have never required any particular formula for engaging in the weighing process so long as the record reflects in some fashion that the court has done so. (People v. Thompson (1988) 45 Cal.3d 86, 104 [246 Cal.Rptr. 245, 753 P.2d 37].) The fact the court disallowed admission of the weapons themselves as prejudicial indicates the court properly performed its function. Defendant next contends the court erroneously admitted evidence the two victims were friends. Over objection, the court allowed both Kelly and Vanessa’s mother to testify the girls were close friends, but sustained objections to other questions regarding the relationship. This brief testimony was neither particularly probative nor prejudicial. It provided the jury with background information to help it understand the circumstances surrounding the shooting. For example, it suggested that the girls were preoccupied with each other’s companionship, and thus were not concerned about the approach of defendant’s truck. Allowing this slight touch of humanity was well within the discretion of the trial court. (People v. Carrera (1989) 49 Cal.3d 291, 330-331 [261 Cal.Rptr. 348, 777 P.2d 121].) Finally, defendant contends the court erred in admitting over objection testimony that shortly after the shooting, Kelly said, “ T don’t want to die. Why me? Is Vanessa all right?’ ” This testimony was preliminary to other statements by Kelly that the prosecution sought to present as spontaneous statements under Evidence Code section 1240. Ultimately, the latter statements were never introduced. Because of this, the admitted words were of little relevance. They also were the kind of statements any juror would expect Kelly to make under the circumstances, and thus had little, if any, prejudicial effect. We discern no abuse of discretion, and certainly no prejudice. 5. Exclusion of Defense Evidence Defendant was arrested in Maryland on September 28, 1981, nine days after the murder. Some time before this, but apparently after the shooting, defendant recorded certain thoughts in a notebook. For example, he referred to having headaches and feeling sick, and often referred to “Tommy” in the third person. After the arrest, defendant was interviewed on tape at length. He cried at several points, claimed not to remember anything about the shooting and the immediately surrounding events, and complained of headaches. He mentioned the notebook. After the interview, the police, having obtained a search warrant, seized the notebook from defendant’s motel room. At trial, defendant sought to admit into evidence both the notebook and the taped interview without testifying himself. The prosecution objected on hearsay grounds. After a hearing, the court sustained the objection. Later, defendant renewed his motion, and asked the court to read a transcript of the interview. The court did so, and again sustained the hearsay objection. The court did not state reasons for sustaining the objection at the guilt phase, but did when it sustained a similar objection to the same evidence at the third penalty trial. It specifically found that the statements “were not given under circumstances which would make them trustworthy .... [Bjoth statements were given under circumstances where they were not indicating that they would be trustworthy.” It also found that seeking to admit the evidence without defendant testifying or presenting psychiatric testimony “really is an attempt to put on a whole defense without ever putting the defendant on the stand subject to cross-examination.” Defendant contends the court erred. He first argues the notebook and interview, though hearsay, were admissible as statements of mental or physical state under either Evidence Code sections 1250 or 1251. We quickly reject the contention under Evidence Code section 1251, which requires that the “declarant [be] unavailable as a witness . . . .” Defendant was certainly not unavailable to himself. Although he possessed, and exercised, a privilege not to testify, the choice was his. He could have testified had he so elected. As stated in the Comment of the Assembly Committee on the Judiciary to Evidence Code section 240, the section defining the phrase “unavailable as a witness,” “if the out-of-court statement is that of the party himself, he may not create ‘unavailability’ under this section by invoking a privilege not to testify.” Evidence Code section 1250 also does not aid defendant. Assuming, without deciding, that the statements otherwise qualify for admission, Evidence Code section 1250 (like Evidence Code section 1251) is subject to Evidence Code section 1252, which provides, “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.” “The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion.” (People v. Gordon (1990) 50 Cal.3d 1223, 1251 [270 Cal.Rptr. 451, 792 P.2d 251] [interpreting Evid. Code, § 1230].) A reviewing court may overturn the trial court’s finding regarding trustworthiness only if there is an abuse of discretion. (Id. at pp. 1250-1251; People v. Frierson (1991) 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 808 P.2d 1197].) The court did not abuse its discretion. “A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.” (People v. Harris (1984) 36 Cal.3d 36, 69 [171 Cal.Rptr. 679, 623 P.2d 240] (plur. opn. by Broussard, J.).) That rule applies here. To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are “ ‘made at a time when there was no motive to deceive.’ ” (People v. Howard (1988) 44 Cal.3d 375, 405 [243 Cal.Rptr. 842, 749 P.2d 279], quoting 6 Wigmore, Evidence (3d ed. 1940) § 1730, p. 94; see also People v. Milner (1988) 45 Cal.3d 227, 248-249 [246 Cal.Rptr. 713, 753 P.2d 669].) When defendant made the statements, nine days had elapsed since the shooting. He knew he had killed one 12-year-old girl and had wounded a second. He had a compelling motive to deceive and seek to exonerate himself from, or at least to minimize his responsibility for, the shootings. There was “ample ground to suspect defendant’s motives and sincerity” when he made the statements. (People v. Whitt (1990) 51 Cal.3d 620, 643 [274 Cal.Rptr. 252, 798 P.2d 849].) The need for cross-examination is especially strong in this situation, and fully warrants exclusion of the hearsay evidence. (See also People v. Kaurish (1990) 52 Cal.3d 648, 704-705 [276 Cal.Rptr. 788, 802 P.2d 278] [self-serving statement tape-recorded shortly after the defendant’s arrest properly excluded as inadmissible hearsay]; People v. Cruz (1968) 264 Cal.App.2d 350, 356-360 [70 Cal.Rptr. 603] [same].) Defendant next contends that admission of the statements, even if prohibited by the Evidence Code, is constitutionally compelled. We disagree. In limited circumstances, reliable hearsay evidence must be admitted at the penalty phase of a capital trial even if the state rules of evidence provide otherwise. (Green v. Georgia (1979) 442 U.S. 95 [60 L.Ed.2d 738, 99 S.Ct. 2150]; see post, pt. II. C. 3.) Assuming, without deciding, that this rule might also apply to the guilt phase, these statements were inherently untrustworthy. Defendant was fully allowed to present a defense. He could have testified had he so chosen. (Cf. Rock v. Arkansas (1987) 483 U.S. 44 [97 L.Ed.2d 37, 107 S.Ct. 2704].) Defendant has no right to effectively “address the jury without subjecting himself to cross-examination.” (People v. Whitt, supra, 51 Cal.3d at p. 644 [evidence of a prison interview with the defendant properly excluded].) Defendant finally complains that the court did not listen to the tape recordings themselves. The record in this regard is not entirely clear, but we need not decide whether there was error, for it was harmless under any standard. Defendant argues that the “emotional content conveyed” by the tapes was crucial to a ruling on their admissibililty. But the emotion portrayed on the tapes themselves does not obviate the compelling motive to deceive that existed during the interview, nor does it otherwise add sufficient reliability to warrant admission of the tapes. B. Special Circumstance Issues 1. Lying in Wait The jury found that defendant “intentionally killed the victim while lying in wait.” (§ 190.2, subd. (a)(15).) Defendant challenges the finding on several grounds. The contentions are generally answered by our recent decision of People v. Morales (1989) 48 Cal.3d 527, 553-559 [257 Cal.Rptr. 64, 770 P.2d 244], Defendant argues that Morales is distinguishable in certain respects, and should be reconsidered in others. We disagree. a. Instructional and Constitutional Contentions Before the jury could decide the special circumstance question, it had to find defendant guilty of first degree murder. The only theory of first degree murder on which the court instructed was a premeditated and deliberate killing with malice. The court instructed on lying in wait as follows: “The term ‘lying in wait’ is defined as a waiting and watching the victim for an opportune time to act, together with the concealment by ambush or some other secret design to take the victim by surprise. The lying in wait need not continue for any particular period of time, provided that its duration is sufficient to establish beyond a reasonable doubt, one, the elements of waiting, watching and concealment or other secret design to take the victim unawares and by surprise; and two, that during the period of lying in wait the defendant had the intention to kill the victim . . . . “If the murder is done suddenly, without a period of waiting, watching and concealment, the special circumstance of lying in wait is not present. H] The term ‘lying in wait’ does not require a showing that the defendant was in a position of lying down. He may be shown to be sitting or standing, and he may be stationary or in motion. The requirement of concealment does not require that the defendant be not visible to the victim, nor that the victim be totally unaware of the physical presence of the defendant. Concealment may be shown by either an ambush or by the defendant’s intentional creation of a situation where the victim is taken unawares and by surprise, even though the victim sees the defendant. “In order to find the special circumstance of lying in wait to be true, you must also find beyond a reasonable doubt that the lying in wait continued up to the moment of the killing, without interruption of time between lying in wait and the act of killing.” When the court reinstructed the jury during deliberations, it added at defense request: “Before you may find that a murder was committed while lying in wait, the prosecution is required to prove something more than just . . . first degree murder.” In People v. Morales, supra, 48 Cal.3d at page 557, we held that “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, presents a factual matrix sufficiently distinct from ‘ordinary’ premeditated murder to justify treating it as a special circumstance.” We upheld a lying-in-wait finding against a defendant who, in plain view, sat behind his intended victim in an automobile and waited until the car was in a more deserted location before attempting to strangle her and eventually bludgeoning her to death. Defendant asserts the instructions of this case were deficient under Morales, supra, 48 Cal.3d 527. As we explain, the actual instructions fulfill all of the legal requirements even though the words are not always precisely the same as we used in Morales (which is not surprising since the trial predated that opinion). Defendant first claims that the instructions erroneously require only a “mere concealment of purpose” to establish lying in wait. He focuses, however, on only one of the instructional requirements. The instructions also required waiting and watching for an opportune time to act, an intent to kill, and no interruption of time between lying in wait and the killing. Defendant next contends the instructions do not require, in the words of Morales, supra, 48 Cal.3d at page 557, a “position of advantage.” That precise phrase is not found in the instructions, but the meaning is. An ambush or a “situation where the victim is taken unawares and by surprise,” combined with an intent to kill, necessarily places the intended killer in a position of advantage. We did not require any particular phraseology in Morales, only the substance. Defendant next contends the instructions do not require a “substantial” period of waiting and watching. Again, the specific word “substantial” was not used. However, the jury was told that the lying in wait must be of sufficient duration to establish the elements of waiting, watching and concealment or other secret design to take the victim unawares and by surprise, and that a murder done suddenly without such waiting, watching and concealment is not murder by lying in wait. These requirements necessarily include a substantial temporal element. We have never required a certain minimum period of time, only a period not insubstantial. The instructions sufficiently convey this meaning. Defendant also reiterates some contentions rejected in Morales. As explained in that decision, concealment of physical presence is not a requirement of lying in wait. (48 Cal.3d at pp. 554-556.) We also held that the lying-in-wait special circumstance, as interpreted in that and prior decisions, is constitutional. (Id. at pp. 557-558; accord People v. Edelbacher (1989) 47 Cal.3d 983, 1023 [254 Cal.Rptr. 586, 766 P.2d 1].) We decline defendant’s invitation to reconsider these decisions. Defendant makes additional contentions not specifically addressed in Morales. He claims the lying-in-wait special circumstance impermissibly duplicates the special circumstances involving murder by explosive devices and by poison. (§ 190.2, subd. (a)(4), (6) & (19); see People v. Montiel (1985) 39 Cal.3d 910, 927 [218 Cal.Rptr. 572, 705 P.2d 1248].) However, under the instructions, a murder by explosive device or poison would also be by lying in wait only if the actual use of the explosive device or poison was contemporaneously with, or immediately following, the lying in wait. There is no substantial overlap among these special circumstances, and certainly not so much as to invalidate any of them. Defendant claims the special circumstance is unconstitutionally vague because it fails “to provide notice, guidance or any principled method to identify a class of murderers that are more deserving of death.” On the contrary, as interpreted in Morales and prior decisions, it has specific and clear requirements which sufficiently distinguish a lying-in-wait murder from other first degree murders to justify treating it as a special circumstance. (People v. Morales, supra, 48 Cal.3d at p. 557; People v. Edelbacher, supra, 47 Cal.3d at p. 1023.) Defendant also contends that Morales changed the law, and that applying it to this case would violate ex post facto principles. On the contrary, Morales merely applied established law. (People v. Webster (1991) 54 Cal.3d 411, 448, fn 21 [285 Cal.Rptr. 31, 814 P.2d 1273].) Defendant next argues that the court was required sua sponte to instruct the jury under CALJIC No. 17.01 that it had to agree unanimously which acts constituted the lying in wait. We disagree. “A requirement of jury Unanimity typically applies to acts that could have been charged as separate offenses.” (People v. Beardslee (1991) 53 Cal.3d 68, 92 [279 Cal.Rptr. 276, 806 P.2d 1311].) “A jury may convict a defendant of first degree murder, however, without making a unanimous choice of one or more of several theories proposed by the prosecution, e.g., that the murder was deliberate and premeditated or that it was committed in the course of a felony.” (Ibid.) “ ‘[I]t is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.’ ” (Ibid., quoting People v. Milan (1973) 9 Cal.3d 185, 195 [107 Cal.Rptr. 68, 507 P.2d 956].) This rule passes federal constitutional muster. (Schad v. Arizona (1991) 501 U.S._,_-_, [115 L.Ed.2d 555, 564-574 (plur. opn.), 576-578 (conc. opn. of Scalia, J.), 111 S.Ct. 2491, 2496-2504, 2505-2507].) The same rationale applies to the special circumstance of lying in wait. A unanimity instruction is not required. Defendant also claims that because there was no evidence that he physically concealed his presence, the court was required sua sponte to delete from the instructions all reference to concealment of presence. However, full and correct instructions on the elements of lying in wait were appropriate, and could not have misled the jury. No one suggested there was physical concealment, only that it was one way, but not the only way, to establish lying in wait. b. Sufficiency of the Evidence of Lying in Wait Defendant contends there is insufficient evidence to support the lying-in-wait special circumstance. We disagree. After drawing all reasonable inferences in support of the verdict (see ante, pt. II. A. 3.), we find sufficient evidence to support each of the elements of lying in wait. The trial court’s summary is apt. “There was watching and waiting from inside the campgrounds out to the road. There was a secret plan to take them by a surprise which was as effective as any ambush that he could have accomplished from hiding, and perhaps even more so because this way he didn’t have to wait behind a tree or a rock hoping that they would come his way. In this way he was able to move his point of ambush right directly in front of the girls.” Defendant first claims there is no evidence of concealment to gain a position of advantage. To be sure, he did not conceal his physical presence, but that is not required. (People v. Morales, supra, 48 Cal.3d at p. 555.) A concealment of purpose suffices if it is combined with a surprise attack on an unsuspecting victim from a position of advantage. (Id. at pp. 555, 557; People v. Webster, supra, 54 Cal.3d at p. 448.) Defendant drove alongside the victims where there were no witnesses and where they would be most vulnerable. While they were completely unsuspecting, he called to them so they would look his way and become ideal live targets. After gaining this position of advantage, he shot and killed. Defendant next claims there is no evidence of waiting and watching. Again, we disagree. Defendant was first seen entering the campground about three hours before the shooting. He then reentered it, and observed his victims going in the opposite direction. Rather than shoot them when he first saw them, he turned around, followed them, and, when they had reached the most isolated spot in the area, struck. He knew the area well from prior visits. The jury could reasonably infer defendant waited and watched until the girls reached the place of maximum vulnerability before shooting. This was sufficient. A killer need not view his intended victim during the entire period of watching and waiting. (See People v. Morales, supra, 48 Cal.3d at p. 555.) There was also evidence of a substantial period of watching and waiting. The jury could reasonably find that defendant first saw the victims as they were walking by a restroom near the entrance to the Blue Jay campground, and that he turned around and followed them. Since more than a quarter of a mile separated the spot where defendant first saw the girls and where he shot them, and they were on foot, the jury could reasonably infer that a matter of minutes elapsed from the time defendant first saw them until he shot them. This was substantial. Defendant claims he did not kill “while” lying in wait, i.e., the lying in wait did not “result in an opportune moment for attack, provide a position of advantage, or put the decedent in a particular state of vulnerability.” How.ever, it did all of these. The evidence suggests that the lying in wait might have been crucial to defendant’s murderous design; it certainly furthered it. Vanessa, the victim most taken by surprise, was shot between the eyes when she looked at defendant upon hearing his call. Kelly, the second target, had a brief moment to react, and turned her head, thus affecting defendant’s aim enough to survive. Moreover, the shooting occurred without any “cognizable interruption” following the lying in wait under any legal standard. (Cf. Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 1011 [181 Cal.Rptr. 486], with People v. Morales, supra, 48 Cal.3d at p. 558.) Defendant also challenges the prosecution reliance on the evidence that his truck was first seen entering the campground around 11 that morning. The witness testified he was “reasonably sure” it was defendant’s truck. This evidence, although alone far from dispositive, was relevant, and the prosecution properly relied on it as one bit of evidence supporting the special circumstance. Sufficient evidence supports each element of the lying-in-wait special circumstance. 2. Alleged Vindictive, Discriminatory and Capricious Prosecution On September 22, 1981, three days after the shooting, and before defendant’s arrest, a complaint was filed and a warrant for defendant’s arrest was obtained. The complaint charged first degree murder but no special circumstance. Defendant was arrested in Maryland on September 28. Twelve days later, on October 10, 1981, an amended complaint was filed charging the lying-in-wait special circumstance. Defendant claims the amendment was unlawful because it was discriminatory, capricious, and a vindictive retaliation for defendant’s assertion of the right to counsel, his temporary refusal to waive extradition, and his eventual refusal to talk to the police. The Attorney General argues that the issue is not properly before us because defendant neither moved to dismiss the amended complaint nor otherwise objected on this basis. We agree. “[Bjecause a claim of discriminatory prosecution generally rests upon evidence completely extraneous to the specific facts of the charged offense, we believe the issue should not be resolved upon evidence submitted at trial, but instead should be raised . . . through a pretrial motion to dismiss.” (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293-294, fn. 4 [124 Cal.Rptr. 204, 540 P.2d 44].) This rationale applies to claims of vindictive prosecution. (See also People v. Toro (1989) 47 Cal.3d 966, 976 [254 Cal.Rptr. 811, 766 P.2d 577] [defendant must object to amendment of information at trial to preserve a lack-of-notice objection]; People v. Sperl (1976) 54 Cal.App.3d 640, 656-657 [126 Cal.Rptr. 907].) Defendant argues he repeatedly objected to the lying-in-wait charge. True, but not on this basis. He also claims he raised the issue during jury selection on February 11, 1983. At that time, defendant requested a “proportionality hearing” under the then recent decision of Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189, 1196, reversed sub nomine Pulley v. Harris (1984) 465 U.S. 37 [79 L.Ed.2d 29, 104 S.Ct. 871]. (In Pulley v. Harris, supra, the United States Supreme Court ultimately reversed the Ninth Circuit’s decision, and held that proportionality review of capital cases is not necessary.) Portions of the defense argument would have been relevant to a claim of vindictive prosecution had that claim been made. The cl