Full opinion text
Opinion MOSK, J. Defendant Scott Lynn Pinholster was convicted by a jury of first degree murder (Pen. Code, § 187) of Thomas Johnson and Robert Beckett. The jury found true two multiple-murder special-circumstance allegations (§ 190.2, subd. (a)(3)) and allegations that each murder was committed during the perpetration of a robbery and a burglary. (§ 190.2, subds. (a) (17)(i) & (vii).) The jury also found as to each count that defendant personally used a knife. (§ 12022, subd. (b).) The jury returned the same verdicts and findings against codefendant Paul David Brown. In addition, the jury convicted defendant of burglary of the residence of Michael Kumar (§ 459), robbery of Johnson and Beckett (§ 211), with intentional infliction of great bodily injury and personal use of a knife (§§ 12022.7, 12022, subd. (b) ). Defendant was convicted separately of the robbery of Todd Croutch (§ 211), and the jury found true an allegation that he was armed with a firearm (§ 12022, subd. (a)). The jury fixed the penalty at death. This appeal is automatic. We conclude that one multiple-murder special circumstance should be set aside, and the judgment otherwise is affirmed. I. Facts A. Guilt Phase 1. Prosecution Case In May 1981, defendant and another man robbed the Encino home of drug dealer Todd Croutch at gunpoint. Todd’s parents and brothers were forced to lie on the living room floor while defendant demanded Todd’s drugs and money, holding a cocked pistol to his head. Defendant threatened to kill Mrs. Croutch. During an ensuing search of defendant’s residence, credit cards belonging to the Croutches were seized. Todd Croutch received a threatening phone call a month after the robbery. Todd believed the caller was defendant, and reported that defendant said he would kill Todd and his family if he testified. Defendant admitted committing the robbery. In mid-December 1981, according to the testimony of Charles Kempf, defendant suggested to Kempf and three others that they rob Michael Kumar, a drug dealer who lived in Tarzana, and someone defendant considered “an easy mark.” Once at the Kumar home, Kempf walked to the rear and formed the impression that no one was home. The would-be robbers waited, preferring to accost Kumar and force him to admit them rather than break in. Defendant said, holding a buck knife in his hand, that he would get the drugs out of Kumar “one way or the other.” Kempf also reported that defendant bragged that he had stabbed someone in the rectum during another robbery. Kempf and another cohort, Richard Crane, backed out of the plan and the men drove off. Kempf had previously been convicted of receiving stolen property and was under arrest when he first told the authorities of these events. He asserted that he had received no promise of leniency or other benefits in return for his testimony. In the early morning hours of January 9, 1982, Thomas Johnson and Robert Beckett were stabbed to death as they returned to the home of Michael Kumar in Tarzana, where they were housesitting. Defendant’s accomplice, Art Corona, testified that defendant, with whom he was acquainted, and he were at a social gathering in defendant’s Van Nuys apartment complex on the evening of January 8, 1982. Defendant solicited his participation in what was to be a robbery of Kumar. Defendant anticipated forcing entry into Kumar’s home and taking marijuana, cocaine and money. Corona agreed and, using his own car, drove defendant and codefendant Brown toward Kumar’s home. Defendant directed Corona to stop at the home of a woman who would help them gain entry to Kumar’s home. At the woman’s home, defendant went to the door but was refused entry twice. Defendant, who wore a buck knife in a leather sheath on his belt, as did the two other men, then stuck his knife through the door and scratched the hood of a nearby car with his knife. Corona’s testimony regarding this incident was corroborated by Lisa Tapar, her father, and another witness. Ms. Tapar was acquainted with both defendant and Kumar, and had the impression defendant planned to steal from Kumar. She reported that defendant arrived at her home between 12:30 and 2 a.m. on January 9, 1982, that she refused him entry, that he stabbed the front door with a knife, and then apparently inscribed her car with a swastika and lightning bolts. Corona testified that on their arrival at the Kumar home, defendant knocked on the front door, then forcibly opened a side gate and broke a window at the rear of the home. Finding the back door could not be opened without a key, codefendant Brown found an open sliding glass door and they entered. They ransacked the house. Corona helped to stack stereo equipment in the living room. Defendant took a small amount of marijuana from a bedroom, and spilled a green substance in the kitchen. They heard a car arrive and saw two people approach. One opened the door and exclaimed that the police should be called. The burglars decided to leave, and Corona led the way to the sliding glass doors. The two victims, Johnson and Beckett, then came around the back. When Johnson tried to enter the house, defendant came around Corona and struck Johnson in the chest three or four times. Defendant backed him out of the house and onto the patio, demanding drugs and money and repeatedly striking him. Johnson dropped his wallet on the ground and obeyed defendant’s order to sit. Then Beckett approached, and defendant attacked him. Corona saw that defendant was stabbing Beckett, striking him in the chest as Corona had seen defendant strike Johnson. Defendant repeatedly stabbed Beckett, again demanding money and drugs. Defendant picked up Johnson’s wallet and took a wallet from Beckett’s pocket. Defendant repeatedly kicked Beckett in the head. Corona then saw codefendant Brown stabbing Johnson in the chest. The three men withdrew, and Corona drove them back to defendant’s apartment. Brown and defendant commented that they had “gotten them good,” and Brown said he had “buried his knife to the hilt” in Johnson. On their arrival at defendant’s apartment, defendant washed his knife. Corona’s wife Casey was present. A woman named Debbie arrived and cleaned Brown’s knife. Defendant split the proceeds of the robbery: $23 and a quarter-ounce of marijuana. Corona and his wife took Brown to a motel on Sepulveda Boulevard. The next day defendant called Corona and directed him to “lie low.” Two weeks later, Casey told Corona that the police were looking for him. Having talked to his brother Caesar, and Casey’s mother and sister, Corona turned himself in. At the station, he waived his rights and gave a statement basically consistent with his trial testimony, except that he did not mention that he had seen Brown stab Johnson, and he did not mention taking his share of the loot when it was divided. Casey Corona corroborated her husband’s testimony about embarking on the robbery, and his testimony regarding returning to defendant’s apartment and washing the knives and splitting the proceeds. She observed what appeared to be blood washing off defendant’s knife. She heard defendant say: “It had to be done the way it was done. We had to do what we had to do.” Art Corona later commented in Casey Corona’s hearing that defendant had “gone crazy.” Casey Corona had recently been arrested on a drug charge and had received some assistance from the prosecutor in entering a diversion program. Before the preliminary hearing, according to Corona, defendant was on the county jail bus to court with Corona, and threatened to kill him if he, Corona, testified against defendant. Defendant advised Corona to assert his privilege against self-incrimination or face being blown up on his way to court. Defendant threatened Corona on several subsequent occasions. Corona’s credibility was impeached with his prior burglary conviction and his admission that he was a professional burglar who occasionally used heroin. He was to plead guilty to burglary and a violation of section 32 at the conclusion of the trial. Physical evidence confirmed that defendant had been present in the Kumar house after it was ransacked. His palm print, smudged with green plant food, was found in one of the bedrooms. The owner stated that to his knowledge, defendant had never been in his house. Corona testified that defendant was wearing jeans and boots during the crime. In a search of defendant’s apartment, police found boots that could have made a print in a pool of blood at the scene of the murders. The boots showed microscopic traces of human blood, as did a towel found in the apartment. A pair of jeans had a bloodstain on them as well, but having been washed, they were not tested to determine if the blood was human. Codefendant Brown was arrested in possession of a buck knife with dimensions that corresponded to one of the stab wounds inflicted on Thomas Johnson. Near the hilt of the knife criminalists discovered traces of human blood. There were no traces of blood on Art Corona’s buck knife, but there was human blood on the inside forearm of the sleeve of a shirt seized from Art Corona. Police witnesses testified that the ransacking at the scene looked like a “drug ripoff” in its thoroughness, and that it would have taken one man an hour to do it all. They said that a window pane in the kitchen door had been removed, but that the door was deadbolted. The sliding glass doors at the rear of the house were open. Johnson’s body was lying on the patio and Beckett’s body was lying face down outside in an area of grass and gravel, in a pool of blood in which there was a large boot print. A county medical examiner was of the opinion that the two men had died between midnight and 3 a.m. on January 9,1982. Beckett had received one fatal stab wound to the chest, while Johnson had received two fatal stab wounds, one 2.5 inches deep and one 4.5 inches deep. He had also been stabbed in the back. It appeared the fatal wounds were inflicted while Johnson was sitting or crouching. Beckett had also been stabbed in the right leg and hip, and suffered several abrasions including a large one in the back of the head, consistent with a kick. 2. Defense Case: Brown Codefendant Brown testified that he had attended a party on January 8, 1982, at defendant’s apartment building and got so drunk he could remember nothing, except that he was driven home around 10 or 11 p.m. and remained there with his girlfriend Wendy for the rest of the night. He knew nothing about the events at the Kumar home. His account of the evening was corroborated by his friend John Granara, who attended the party and testified that he drove Brown home about 10:30 or 10:45 p.m. Brown’s stepfather testified that he had cut himself on the knife found in Brown’s possession. County jail inmate Maxwell testified that Art Corona told him that Corona had done the double murder by himself, that he had stabbed one victim, and then ran to the other and stabbed him so that neither could escape. Pathologist John Ryan testified that in his opinion, Johnson was not supine when stabbed, but was erect, standing near the door of the patio. The doctor opined that Johnson walked several feet, and then collapsed onto his right side. 3. Defense Case: Defendant Defendant admitted the Croutch robbery. He asserted that he was a professional robber, but not a murderer. He said he had committed hundreds of robberies over the preceding six-year period. He used a gun, not a knife, and victimized drug dealers. He admitted a prior kidnapping conviction, but said that he had admitted the use of a knife only as a result of a plea bargain, not because it was true. He had planned to rob Kumar, but he denied the abortive robbery attempt recounted by prosecution witness Kempf. Defendant said it was Kempf who suggested the robbery, but as Kempf had testified against another associate, defendant wanted nothing to do with Kempf. On the evening of January 8,1981, defendant threw a party in honor of his best friend, “Shotgun,” whose funeral had been two days before. Around 8 p.m., defendant left to get drugs from Kumar’s house to liven up the party. He knocked on Kumar’s door and, hearing no response, went to the back and broke a pane in the kitchen door. It would not open, but another door swung open when he kicked it. He took a bag containing about half a pound of marijuana from a bedroom. He touched a bag containing a bluish substance in the bedroom, and spilled a bag containing green material in the kitchen. He did not ransack the house or stack the stereo equipment. He did not kill anyone. He returned to the party a little before 9 p.m., and shared the marijuana he had taken. He drank heavily and smoked considerable marijuana. Art Corona wanted to know where he had gotten the marijuana. Around 11:30 p.m., because Corona complained that he was short of cash, defendant gave him Kumar’s address in exchange for a third of whatever Corona could steal from him. Corona returned around 1 a.m., having been unable to find Kumar’s house. Defendant gave him directions again. About 1:30 a.m. defendant went out for food, then went to tell Lisa Tapar that “Shotgun” was dead. When she slammed the door in his face, he stabbed the door and scratched a swastika and lightning bolt on her car. He returned home a little after 2 a.m. Art Corona arrived around 4 a.m., reporting he had gotten nothing from Kumar’s home. The next morning, Corona called to ask defendant not to say anything about his trip the night before. Defendant told Corona about his own visit to Lisa Tapar. Defendant’s brother and several friends testified in defendant’s behalf, confirming in basic outline his testimony regarding the party in his apartment building, the timing of his various absences, and his distribution of marijuana he provided around 9 p.m. Defendant called Gian Norelli, who said he was present when Charles Kempf tried to get defendant to participate in a robbery of Kumar. He denied that the group of men actually went to Kumar’s home, and he said that Kempf had a reputation as a liar. He was impeached with his prior inconsistent statement to the police, relating the earlier abortive attempt on the Kumar home in terms substantially the same as Kempf’s testimony. One Gary Mallory said Casey Corona had approached him near her home, asking what would happen if she were caught lying for her husband on the witness stand. Terry Pinholster testified that the bloodstained boots found in defendant’s apartment were his. Defendant testified that the boots were too small for him. 4. Rebuttal Lisa Tapar denied that defendant had come to her home on January 9, 1982, in his own car, with which she was familiar. Rather, she saw Art Corona’s station wagon nearby when defendant visited her. She was not acquainted with “Shotgun.” Michael Kumar denied keeping any marijuana in his bedroom. He said he kept it all in his safe. A large quantity of marijuana was seized from this safe. Eric Klemetti testified that he had arranged a marijuana transaction with victim Johnson by telephone around 8 p.m. on January 8, 1982. When he arrived at the Kumar house about 9 p.m., Johnson was there and everything was in order. He saw no broken windows or spills in the kitchen. A news article defendant claimed he saw on January 9,1982, was actually not published until January 10, 1982, though the investigating officer mistakenly marked it with the earlier date. This copy was furnished to defendant during discovery, and defendant had access to the file while he represented himself. Detective Quartararo reported that Gian Norelli had admitted going to Kumar’s home with defendant and Crane to commit a robbery that never “panned out.” The detective also said Norelli told him that Norelli had overheard defendant tell one of the Crane brothers that he, defendant, had stabbed two people in Tarzana. Quartararo said Norelli told him defendant had asked Norelli to lie for him while the two were in county jail. Norelli claimed he just wanted to get everything off his chest before he went to prison. Detective Stoughton cast doubt on the testimony of Brown’s girlfriend Wendy that Brown had returned to her on the night of January 8, 1982. When Stoughton interviewed her on January 26, 1982, she had said she waited for Brown on the night of January 8, 1982, that he finally came home between 3 and 4 a.m., that they argued heatedly, and that he left. She did not say at that time, as she did at trial, that Brown returned at 10 p.m. and fell into bed dead-drunk. B. Penalty Phase 1. Prosecution Case Defendant stipulated that he had suffered a prior conviction for kidnapping, with use of a knife. He conceded that there was no plea bargain with respect to the use allegation, and that he was identified as having held the knife to the victim’s throat. Defendant stipulated that he had committed numerous disciplinary infractions during his prison term, for such behavior as throwing liquids at guards, and threatening to stab guards and throw them off the tier. He was classified and housed as a disciplinary problem and was subjected to a low calorie diet, a measure reserved for the most recalcitrant inmates. Los Angeles County Probation Officer Taube testified that defendant, as a juvenile, had been in court for a hearing on a probation violation involving violation of curfew when he gave vent to a violent outburst, threatening everyone in court, and actually striking the bailiff. It took several officers to subdue him and escort him from the courtroom. Taube said defendant had been difficult to supervise because of gang activities. Defense counsel elected to pursue this on cross-examination, asking if defendant’s gang activities had not subsided, and Taube said that they had not, and that defendant had been quite well known in the juvenile gang community at the time. Los Angeles Police Officer Kaufman testified that when he was called to intervene in a fight involving a knife, defendant was combative with the police, faked an epileptic seizure, had to be restrained, threatened to kick the police officers from the back of the patrol car, and ultimately kicked him in the head. On cross-examination it appeared that there was little or no evidence of any knife fight, that the officer had little training regarding epilepsy, and that before the violent outburst, both officers had maced defendant in the face for trying to leave the scene. Los Angeles Police Officer Guzman testified that he had arrested defendant, who first resisted, then dropped to the ground in a spasmatic attack. During transport, defendant tried to kick him in the head and kicked his partner in the legs. They had to stop the car to restrain defendant, who issued continual threats to be revenged once he was released. Defendant complained that the restraint had injured his legs, and when he was taken to the hospital for X-rays, he spat on the police and kicked the X-ray machine. Deputy Sheriff Loper testified that during custody pending trial, defendant had started a racial fight in the jail law library, that defendant had kneed the officer in the groin while the officer tried to restrain him, that it ultimately required four deputies to restrain defendant, and that defendant had admitted threatening Black inmates. Deputy Sheriff Piggott testified that defendant was housed in the disciplinary module in the county jail because of assaults on other inmates and staff, and that his record showed 11 or 12 incidents of violence or threats of future violence. He had a fight with an inmate over a card game, on another occasion he struck an inmate in the head and ribs, he routinely threw urine at guards, he threatened to get a knife to kill a deputy and threatened to have friends on the outside kill another deputy, he was involved in a fight at the law library, and he assaulted an inmate in the lockup. In addition to the attack on Deputy Loper, he threw food and urine in the face of another deputy, attempted to kick a deputy who was transporting him, again threw urine in the face of a deputy, and struck two deputies in the ensuing melee. Defendant had said that he wanted to go to prison, and that if he were not sent to prison, he would do something to get there. On cross-examination, the officer said defendant was full of empty boasts and threats. On redirect, he testified that defendant’s record showed 27 incidents of violation of jail rules. Deputy Barrett testifed that defendant told him that he thought he would get out of jail soon, and that when he got out he would have to kill Art Corona because he was so mad at him. One Theodore Mesquita testified that he had gone looking for defendant to settle a matter of honor “man to man.” It seems that defendant returned Mesquita’s punches with a blow to the arm with a knife or razor, and that defendant pursued Mesquita on foot all the way to the hospital, where the wound was sewed up with 50 stitches. Finally, defendant’s wife Cathy Smith testified that defendant had once struck her and had broken her jaw. On cross-examination she said that the attack occurred during one of defendant’s epileptic seizures. On redirect she admitted telling the prosecutor that defendant faked seizures. 2. Defense Case Defendant called his mother, who said that while he had not suffered economic deprivation as a child, he had had a poor relationship with his stepfather, whose discipline of the boy bordered on abuse. Defendant had two head injuries as a child. When he was two, his mother ran over him with her car, injuring his head and tearing off an ear. When he was four or five, they were in a car accident in which defendant’s head went through the windshield. Defendant was disruptive in school, but did better in a class for the educationally handicapped. A psychologist recommended defendant be committed to a mental hospital when he was 10, but his mother refused. He was committed to Camarillo State Hospital at age 12 as an emotionally handicapped child. Defendant fancied himself a neighborhood Robin Hood, and stole things and distributed them to the neighborhood children. He spent much of his youth in boys’ homes, juvenile hall, and juvenile camps. When defendant was in the county jail at age 18, he was beaten severely and has had epilepsy ever since. Defendant was always well behaved at home, but commented that he could not bring his gang friends home because the comfortable home would ruin his image. Defendant lived with his mother after his release from state prison, and he would shut himself in his room for long periods of time. He said that after his time in prison, he did not know how to open doors very well. II. Discussion A. Jury Selection Issues 1. Joint Peremptory Challenges Defendant argues that 'the application to his trial of former sections 1070 and 1070.5 (see now Code Civ. Proc., § 231, subd. (a)) violated his state and federal constitutional rights to due process, equal protection, an impartial jury, and a reliable determination of penalty. These statutory provisions allotted to each defendant 5 separate peremptory challenges and 26 peremptory challenges to exercise jointly with his codefendant, but allotted to the prosecution 36 unrestricted challenges. Respondent claims that defendant’s motion raising this issue in the trial court was premature, and that in any case there was no possibility of prejudice because defendant did not exhaust his peremptory challenges or object to the jury as constituted. Even if the claim is properly before us, we reject it on the merits, as we have done before. (People v. Webster (1991) 54 Cal.3d 411, 439 [285 Cal.Rptr. 31, 814 P.2d 1273]; People v. Johnson (1989) 47 Cal.3d 1194, 1222-1223 [255 Cal.Rptr. 569, 767 P.2d 1047]; People v. Ainsworth (1988) 45 Cal.3d 984, 1004-1007 [248 Cal.Rptr. 568, 755 P.2d 1017].) We decline to reopen the question. 2. Peremptory Challenge of Jurors With Reservations About the Death Penalty Defendant argues that the prosecutor’s use of peremptory challenges to exclude prospective jurors with reservations about the death penalty deprived him of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution to a fundamentally fair and reliable determination of penalty by a jury that fairly represented the community. Respondent claims any error was waived by failure to object below, while defendant claims we must assume that the objection was made at unreported bench conferences. Even assuming that defendant is correct on the procedural point, we have rejected his argument consistently on the merits. (People v. Turner (1984) 37 Cal.3d 302, 315 [208 Cal.Rptr. 196, 690 P.2d 669], overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306]; see also People v. Gordon (1990) 50 Cal.3d 1223, 1263 [270 Cal.Rptr. 451, 792 P.2d 251]; People v. Adcox (1988) 47 Cal.3d 207, 249 [253 Cal.Rptr. 55, 763 P.2d 906].) Similarly, we have consistently rejected the argument defendant raises in a footnote “for preservation,” that excusal for cause of jurors whose opposition to the death penalty would interfere with their ability to follow the instructions at the penalty phase denied him a fair and representative jury on the issue of guilt, in violation of his Fifth, Sixth and Fourteenth Amendment rights. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1254 [278 Cal.Rptr. 640, 805 P.2d 899]; People v. Thompson (1990) 50 Cal.3d 134, 157 [266 Cal.Rptr. 309, 785 P.2d 857], relying on Lockhart v. McCree (1986) 476 U.S. 162, 174-176 [90 L.Ed.2d 137, 148-149, 106 S.Ct. 1758].) 3. Hypothetical Questions a. Peremptory Challenges Defendant argues that his state and federal constitutional rights to an impartial jury and a fair and reliable determination of penalty were violated by the prosecutor’s use in voir dire of hypothetical questions designed to aid her in exercising peremptory challenges. He claims these questions during the sequestered portion of voir dire impermissibly allowed her to exclude eight jurors who were not so opposed to the death penalty that they could not follow the instructions, but who might not have voted for the death penalty under the particular facts of this case. He maintains that by using these questions, the prosecutor obtained a “hanging jury” in violation of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon), People v. Fields (1983) 35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680], and People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler). The trial court permitted such questions over defense objection, relying on our then-recent decision in People v. Fields, supra, 35 Cal.3d 329. As we have seen, however, we have made it clear that those with scruples about imposing the death penalty are not a cognizable class, the exclusion of which violates defendant’s right to a representative jury under Wheeler, supra, 22 Cal.3d 258. (People v. Turner, supra, 37 Cal.3d at pp. 313-315.) In addition, we have rejected the claim that to permit peremptory challenge of prospective jurors with scruples about the death penalty is to produce a jury biased in favor of death under Witherspoon, supra, 391 U.S. at pages 520 to 521 [20 L.Ed.2d at pages 783-784], because both parties are allowed a limited number of challenges “ ‘against jurors harboring specific attitudes they reasonably believe unfavorable.’ ” (People v. Gordon, supra, 50 Cal.3d at p. 1263, quoting People v. Turner, supra, 37 Cal.3d at p. 315; see also People v. Carrera (1989) 49 Cal.3d 291, 331 [261 Cal.Rptr. 348, 777 P.2d 121], and cases cited.) Once it is established that the prosecutor’s aim was permissible, in that she was permitted to exercise peremptory challenges against those prospective jurors she suspected would be unfavorable to her case, the questions permitted to achieve that aim become a matter of the trial court’s “considerable discretion.” (People v. Williams (1981) 29 Cal.3d 392, 408 [174 Cal.Rptr. 317, 628 P.2d 869].) We did say in People v. Williams, supra, 29 Cal.3d at page 408, that “a question fairly phrased and legitimately directed at obtaining knowledge for the intelligent exercise of peremptory challenges may not be excluded merely because of its additional tendency to indoctrinate or educate the jury.” (Ibid.) Many of the questions asked by the prosecutor were designed to determine prospective jurors’ views regarding the legal doctrines involved in the case, including the felony-murder rule, a legitimate area of inquiry. We also note that in several instances, it was defense counsel who asked the hypothetical questions that allowed the prosecutor to exercise her peremptory challenge. While we have cautioned that such questions may improperly educate the jury on the facts and tend to compel jurors to commit themselves to a particular outcome (People v. Mason (1991) 52 Cal.3d 909, 940 [277 Cal.Rptr. 166, 802 P.2d 950]; see also People v. Wright (1990) 52 Cal.3d 367, 419, fn. 18 [276 Cal.Rptr. 731, 802 P.2d 221]), we see no prejudicial abuse of discretion in permitting the questions asked here. In his reply brief, defendant seems to abandon his earlier reliance upon Wheeler, supra, 22 Cal.3d 285, and Witherspoon, supra, 391 U.S. 510. Instead, he argues that the questioning violated his right to a fair and representative jury under the Sixth and Fourteenth Amendments to the United States Constitution “not because these eight jurors formed some cognizable group within the community—but instead because each had been improperly compelled to prejudge the merits of imposing the death penalty under the ‘hypothetical’ circumstances of this particular case and were then excluded by prosecution peremptory based on those prejudgments.” This is unpersuasive. If the excluded jurors had prejudged the case in favor of the prosecution on the basis of the voir dire questioning, defendant presumably would not want them either. If defendant is saying he is constitutionally entitled to retain on his jury prospective jurors who have prejudged against the death penalty, he again fails to persuade. As we have seen, the prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause, and this is considered not to impair defendant’s right to an impartial jury, because the defense has the same right. (People v. Turner, supra, 37 Cal.3d at p. 315.) Accordingly, defendant can hardly claim the constitutional right to retain jurors who might view the facts favorably to him at the penalty phase. b. Effect on Jury In a related argument, defendant argues that the prosecutor’s “pervasive” use of the facts of the case during death-qualifying voir dire permitted eight of the jurors actually selected to prejudge the facts, in violation of defendant’s constitutional rights to an unbiased jury, due process of law, and a reliable determination of penalty under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, 16 and 17 of the California Constitution. He claims this error requires reversal of both the guilt and penalty verdicts. Defendant complains that in her hypothetical questions, the prosecutor imputed specific intent to kill to defendant, and introduced as facts that defendant had no mental defect or diminished capacity, and that defendant had stabbed both victims. He quotes such questions as: “If you were to learn, or have a fact situation, this is purely a hypothetical, where two people set out to commit a burglary, and while they are inside a residence committing a burglary—by the way no one is at home so they do break into a residence —while they are inside the home, the owner of the residence and a friend return to the home, and burglars kill them to avoid detection or avoid the police being called, [f] Can you envision imposing the death penalty on either one of the burglars in that particular fact situation?” As we have seen, the scope of questions to be asked at voir dire is a matter for the trial court’s discretion. “Under Williams [supra, 29 Cal.3d 392] the court must permit questioning about legal doctrines that are material to the trial and controversial in the sense that they are likely to invoke strong feelings and resistance to their application.” (People v. Johnson, supra, 47 Cal.3d at pp. 1224-1225.) Certainly, we have cautioned that the trial court may limit voir dire couched in terms of the facts expected to be proved, in order to avoid the danger of indoctrinating the jury on a particular view of the facts. (People v. Mason, supra, 52 Cal.3d at p. 940.) We have also commented that the death-qualifying voir dire should focus on juror attitudes toward the death penalty in the abstract, and should not be used to seek a prejudgment of the facts to be presented at the trial. (People v. Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr 399, 789 P.2d 127].) Having examined the record, we think that for the most part, the prosecutor’s questions were aimed at exploring the jurors’ views regarding legal doctrines and the death penalty in the abstract. The question quoted above, and others like it, seem to us to be directed primarily at determining the jurors’ attitudes toward the felony-murder special circumstance. To the extent that the court allowed questions laden with too many examples of facts to be proved at trial, we find no reasonable possibility that any error in permitting these questions prejudiced defendant at the penalty phase of trial, nor do we see any reasonable probability that such questions prejudiced defendant at the guilt phase of trial. (See People v. Balderas (1985) 41 Cal.3d 144, 190 and fn. 19 [222 Cal.Rptr. 184, 711 P.2d 480].) First, in the face of hypothetical questions framed in terms of the general facts of this case, the jurors sturdily refused to be drawn into prejudging the case. They repeatedly said that they could not say how they would vote, and that they needed more facts or instruction in the law. Two who hazarded some response to the hypothetical were noncommittal: Jurors Docken and Mackey. Two remaining jurors were asked only a single question using facts expected to be proved at trial, in the context of ascertaining their views regarding imposing the death penalty for a felony murder: Jurors Goodnight and Mitchell. Much of the questioning came from defense counsel, who presumably could phrase the questions to avoid leading the jury to prejudge the case in favor of the prosecution. Second, because these questions occurred during the sequestered portion of voir dire, the jurors only heard the questions once, and were not “bombarded with the . . . questions and instructions directed at all the other panel members.” (People v. Balderas, supra, 41 Cal.3d at p. 190.) Further, the court instructed the jury before voir dire that the questions were merely hypothetical, and counsel and the court reiterated this during the course of voir dire. At the beginning of general voir dire, the court instructed the jurors that they were the sole judges of the facts and that they must consider only the evidence presented in court, and the court repeated these instructions at the conclusion of the guilt phase and again at the end of the penalty phase of trial. Finally, defendant did not indicate dissatisfaction with the jury before it was sworn, and in fact, defendant still had two individual peremptory challenges and ten peremptory challenges to be exercised jointly with his codefendant when he accepted the jury. Defendant’s unexplained failure to exhaust his peremptory challenges or express dissatisfaction with the jury as seated means that he cannot complain on appeal regarding the seating of these eight jurors. (People v. Morris (1991) 53 Cal.3d 152, 184 [279 Cal.Rptr. 720, 807 P.2d 949]; People v. Stankewitz (1990) 51 Cal.3d 72, 103 [270 Cal.Rptr. 817, 793 P.2d 23]; People v. Bittaker (1989) 48 Cal.3d 1046, 1086-1087 [259 Cal.Rptr. 630, 774 P.2d 659].) 4. Wvtherspoon-Witt Error Defendant contends that prospective jurors Barsugli and Rohletter were improperly excused for cause on the motion of the prosecutor, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Defendant argues that a juror may not be excused for cause if his or her unwillingness to vote for the death penalty in the particular case rests upon an evaluation of the evidence to be presented. We find no error in the trial court’s excusal of either juror. The record of their voir dire discloses that the trial court could properly find that they had views on capital punishment that would have prevented or substantially impaired the performance of their duties. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844] (Witt).) In this case, substantial evidence supports the trial court’s determination. (People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Daniels (1991) 52 Cal.3d 815, 875 [211 Cal.Rptr. 122, 802 P.2d 906]; People v. Gordon, supra, 50 Cal.3d at p. 1262.) Each juror’s reluctance to impose the death penalty was based not on an evaluation of the particular facts of the case, but on an abstract inability to impose the death penalty in a felony-murder case. Prospective juror Rohletter said that while he had no conscientious objection to the death penalty, he would have a “hard time” imposing it in a case involving a burglar who stabs an adult victim. He equivocated about his ability to follow the instructions and to impose the death penalty. At a lunch break, the juror reflected on his views, and came back with more sharply defined reluctance to impose the death penalty. He volunteered that: “I would find it very difficult to find a defendant guilty if the penalty would be death in a case such as this.” He said unequivocally, in response to the court’s question, that he could not return a guilt verdict or the death penalty in a case in which the defendant killed two victims in the course of a burglary “because I feel that the degree is not that severe. It’s severe, but it’s not, in my opinion, severe enough that I would be able to take, or say that I could take somebody else’s life.” He then affirmed unequivocally that he could not return a death penalty in a burglary-murder case regardless of the aggravating circumstances. While he said he could “consider” the death penalty in a burglary-murder case, he explained that by “consider” he meant “listen to,” “take into consideration what I’m being told.” He immediately thereafter unequivocally affirmed that he could not under any circumstance impose the death penalty in such a case. The people of the State of California have determined that burglary-murder is a category of crime for which a defendant may be subject to death, depending on the circumstances. (§ 190.2, subd. (a)(17)(vii).) This prospective juror unequivocally stated his inability to follow the law in this respect. His position was an abstract one regarding the felony-murder special circumstance, not a matter of evaluating the particular facts of this case. Substantial evidence supports the implied determination of the trial court that this prospective juror was not impartial with respect to the imposition of the death penalty. Prospective juror Barsugli, too, did not express a conscientious opposition to the death penalty in general, but did convey clearly that he could not vote for the death penalty in the case of a burglary-murder where there was no preexisting intent to kill or torture, regardless of the evidence in aggravation. He concluded that he would never vote for the death penalty in a burglary-murder case unless the killing were in fact premeditated. The trial court’s decision to excuse him for cause was supported by substantial evidence. (People v. Cooper, supra, 53 Cal.3d at p. 809.) Defendant objects that fact-based voir dire is impermissible under Witt, supra, 469 U.S. 412. As we have already noted, we have commented in the past that questions directed to jurors’ attitudes towards the particular facts of the case are not relevant to the death-qualification process, so that a trial court that refused to permit such questions did not err. (People v. Clark, supra, 50 Cal.3d at p. 597.) We have also said, however, that “a court may properly excuse a prospective juror who would automatically vote against the death penalty in the case before him, regardless of his willingness to consider the death penalty in other cases.” (People v. Fields, supra, 35 Cal.3d at pp. 357-358.) It was this language upon which the trial court in this case relied in permitting certain questions regarding the prospective jurors’ attitudes toward the facts of the case. Here, the questions provided a basis for deciding something about the juror’s views in the abstract; not only was each of these two jurors asked his attitude toward a case phrased in terms of the facts of this case, but the answer to these questions led to the ultimate and crucial question whether the juror could vote for the death penalty in any burglary-murder case. This was not a case like Clark, supra, 50 Cal.3d at page 597, where the questions about juror attitude toward evidence of the victims’ burns were more appropriate to general voir dire. Rather, the questions regarding the facts of the particular case led to crucial questions and answers about the jurors’ attitudes in the abstract. Trial courts have broad discretion in determining what questions to permit. (People v. Johnson, supra, 47 Cal.3d at p. 1224.) We see no prejudicial error in allowing questions regarding the particular facts of the case as long as more relevant questions and answers provide the basis for the court’s decision. Here, the trial court refused to excuse the prospective jurors for cause until there was a clear indication that their views about capital punishment in the abstract would substantially impair their ability to perform their duties, an appropriate exercise of discretion under Witt, supra, 469 U.S. 412. 5. Reference to Commutation Power Defendant argues that the penalty verdict must be reversed because during sequestered voir dire of three jurors who remained on the jury, questions relating to the Governor’s commutation power were asked, in violation of defendant’s state and federal constitutional right to a fair and impartial jury. Putting aside the fact that it was defendant’s counsel who introduced the subject in the case of two of the jurors, and putting aside defendant’s failure to object to the jury as constituted or exhaust his peremptory challenges, we find no possibility of prejudice. Although we discourage questions on this subject, as we have said before, when the commutation power is mentioned at voir dire, the jury’s attention is not narrowly focused on its duty to select a penalty, and the potential for prejudice is slight. (People v. Walker (1988) 47 Cal.3d 605, 627 [253 Cal.Rptr. 863, 765 P.2d 70]; People v. Ghent (1987) 43 Cal.3d 739, 769-770 [239 Cal.Rptr. 82, 739 P.2d 1250].) No “Briggs Instruction” regarding the Governor’s commutation power was given and the court properly instructed the jury that questions of counsel are not evidence, and that the jury should be bound by the evidence presented at trial and the instructions of the court. We presume absent contrary indications that the jury was able to follow the court’s instructions. B. Issues Affecting Both Guilt and Penalty Trials 1. Failure to Report Sidebar Conferences The trial court refused to order that every bench conference between the court and counsel be reported. Thus, 133 sidebar conferences were not reported. Defendant argues that the court’s action violated his right to due process, to effective assistance of counsel, and to a fair and reliable review of the guilt and penalty determinations as guaranteed by article I, sections 7, 15, 16 and 17 of the California Constitution and by the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. He also claims the court’s ruling violated Code of Civil Procedure section 269 and Penal Code section 190.9. Respondent counters that the law applicable to defendant’s 1984 trial did not require the reporting of sidebar conferences, and maintains that in any case, there was no material omission in the record. The record reflects that during the first day of testimony at the guilt phase of trial, counsel for codefendant Brown moved that all sidebar conferences be reported, complaining that he would forget any objection not recorded at sidebar. After several discussions of the point, the court ruled: “[I]t is the court’s ruling that I will accept legal objections from counsel. I urge counsel not to make speaking objections, make the objections in legal terms. And when the court believes that any side bar conferences are appropriate, we will have side bar conferences, [ft] In lieu of that, we will not have side bar conferences. I have said that before. I allow them at the convenience and to aid the attorneys, but we are not going to take the reporter around every five minutes to set up a side bar conference during this trial.” It is interesting to note that immediately thereafter, having reviewed the daily transcript from the day before, Brown’s attorney was permitted to clarify an objection he felt was not fully reflected in the transcript. The matter was raised for the last time in the motions for new trial. Defendant’s claim that the court abused its discretion rests on Code of Civil Procedure section 269 and on Penal Code section 190.9. Code of Civil Procedure section 269 provided at the time of defendant’s trial: “The official reporter . . . must . . . take down in shorthand all the testimony, the objections made, the rulings of the court, the exceptions taken, all arraignments, pleas, and sentences of defendants in criminal cases, the arguments of the prosecuting attorney to the jury, and all statements made and oral instructions given by the judge . . . .” Effective in 1985, the year after defendant’s trial, section 190.9 was added to the Penal Code, requiring that in a case in which a death sentence may be imposed “all proceedings conducted after the effective date of this section in the justice, municipal, and superior courts, including proceedings in chambers, shall be conducted on the record with a court reporter present.” (Italics added.) Defendant’s claim that the section merely restated existing law is meritless; the express language making the statute prospective only belies the suggestion. In reaching this conclusion we rely also on the explanation of the Legislative Counsel accompanying the bill (Stats. 1984, ch. 1422, § 2, p. 4994) that while existing law required the reporting of testimony and other specified statements, this section would require that all proceedings be conducted on the record, thereby imposing new costs on local government. Although sidebar and chambers discussions have long been a permissible part of the record on appeal (see Lipka v. Lipka (1963) 60 Cal.2d 472, 480-481 [35 Cal.Rptr. 71, 386 P.2d 671] [equivalent of settled statement of chambers discussion proper part of record on appeal]; see also People v. Holloway (1990) 50 Cal.3d 1098, 1115-1116 [269 Cal.Rptr. 530, 790 P.2d 1327]), we have found no case, nor has defendant cited any, requiring that in every instance they must be reported. Code of Civil Procedure section 269, whether in its current form or that applicable at the time of defendant’s trial, is not explicit on the point. However, we need not determine whether the trial court erred under Code of Civil Procedure section 269, since it is so patently clear that any abuse of discretion in refusing to order the sidebar conferences reported has not prejudiced defendant, and has not impeded his ability to seek meaningful appellate review. As we said in a recent capital case in which defendant complained that five hours of chambers argument over a suppression motion was not reported: “Section 1181, subdivision 9 [of the Penal Code] authorizes a reviewing court to order a new trial ‘because of the loss or destruction, in whole or in substantial part’ of the reporter’s notes. ‘The test is whether in light of all the circumstances it appears that the lost portion is “substantial” in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal.’ ” (People v. Holloway, supra, 50 Cal.3d at p. 1116, quoting People v. Morales (1979) 88 Cal.App.3d 259, 267 [151 Cal.Rptr. 610].) We concluded that a settled statement provided an adequate substitute for the missing transcript. (People v. Holloway, supra, 50 Cal.3d at p. 1116.) This is obviously not a case like those defendant cites in which the record of the trial as a whole is missing or unavailable. (See, e.g., People v. Jones (1981) 125 Cal.App.3d 298 [178 Cal.Rptr. 44] [notes of whole trial destroyed]; In re Ray O. (1979) 97 Cal.App.3d 136, 138-139 [158 Cal.Rptr. 550] revd. on other grounds 213 Cal.App.3d 701, 708 [no reporter’s transcript of juvenile disposition hearing].) This is not a case in which a large or crucial portion of the record is missing (see, e.g., In re Steven B. (1979) 25 Cal.3d 1 [157 Cal.Rptr. 510, 598 P.2d 480] [stenographic notes for half of juvenile jurisdictional hearing destroyed]; People v. Apalatequi (1978) 82 Cal.App.3d 970, 973 [147 Cal.Rptr. 473] [reporter’s notes of arguments of counsel lost; settled statement inadequate to raise prosecutorial misconduct argument]), or in which a crucial item of evidence is not available on appeal (compare In re Roderick S. (1981) 125 Cal.App.3d 48 [177 Cal.Rptr. 800] [loss of knife in possession of weapon case necessitates reversal] with People v. Curry (1985) 165 Cal.App.3d 349, 353-354 [211 Cal.Rptr. 590] [affirmance in face of loss of part of officer’s probable cause statement to magistrate]). Rather, it is one in which only an inconsequential portion of the proceedings was not transcribed and has not been reconstructed. (Compare, e.g., People v. Moore (1988) 201 Cal.App.3d 51, 56 [248 Cal.Rptr. 31] [omission of defense counsel’s closing arguments inconsequential].) We are convinced that no ‘substantial’ portion of the record is missing in this case. The record in this appeal consists of 56 volumes of reporter’s transcripts, covering 7,557 pages, 4 volumes of clerk’s transcripts, covering 1,208 pages, as well as augmented clerk’s and reporter’s transcripts of several volumes. We have before us the reporter’s transcript of the preliminary hearing, of hearings on all the pretrial motions, of voir dire, of the opening and closing arguments of the prosecutor and both defense counsel, of the testimony of every witness, and of the trial court’s every word to the jury, including, of course, jury instructions. We have all the parties’ pleadings and written motions, as well as the reporter’s transcript of the hearing on defendant’s motion for new trial, the application for modification of sentence, and the formal sentencing. For the purpose of appeal, a settled statement was prepared, supplying the recollection of the parties and the court of the content of the unreported sidebar discussions. The parties were able to fully settle the record as to 66 sidebar discussions; as to 40 more, they recalled at least part of the discussion, and as to 27 discussions, no settled statement is provided. Of the 133 unreported sidebar discussions, 58 took place during jury selection and before the taking of testimony. To put the matter in perspective, we note that the trial extended over 53 court days. Most importantly, the trial court told counsel it was appropriate to put their objections on the record; it was only their sidebar arguments the court refiised to order reported in every instance. Many sidebar conferences were in fact reported. Counsel followed the court’s advice; the record bristles with hundreds of evidentiary and other objections, and the court’s rulings thereon. With respect to every issue raised on appeal, we have found the record sufficient to permit review. It is in this context that we must find that any abuse of discretion, assuming it existed, was not prejudicial, because the record is clearly adequate for meaningful appellate review. Defendant admits that he did settle the record regarding most of the 133 unreported bench conferences, but he claims that there remain disputes over several conferences involving his motion to sever his trial from that of the codefendants, voir dire, juror misconduct, admission of testimony and statements of codefendant Corona, certain hearsay objections, guilt phase instructions, prosecutorial misconduct, notice of evidence in aggravation at the penalty trial, and admission of improper evidence in aggravation. He claims that in some instances, an objection vital to preservation of an issue on appeal is not recorded because of the trial court’s decision not to order the transcription of bench conferences. As it appears in our discussion of each of these issues, however, we have found the record adequate to permit our review of each claim. Defendant asserts a constitutional basis for his claim, arguing that substantial defects or omissions in a trial record impair a defendant’s Sixth Amendment right to effective assistance of counsel on appeal. He also argues that an effective appeal is impossible without an adequate record, and that an inadequate record is fundamentally incompatible with the Eighth Amendment and its requirement that there be a reliable determination whether death is the appropriate penalty. Defendant argues that the burden is on the People to demonstrate that the unreported proceedings are immaterial, citing March v. Municipal Court (1972) 7 Cal.3d 422, 428 [102 Cal.Rptr. 597, 498 P.2d 437, 66 A.L.R.3d 945], and Draper v. Washington (1963) 372 U.S. 487, 499 [9 L.Ed.2d 899, 907, 83 S.Ct. 774]. However, those cases involved invidious discrimination in the preparation of transcripts on appeal. These cases were designed to vindicate the principle that indigents must be afforded “as adequate and effective appellate review as that given appellants with funds . . . .” (Draper v. Washington, supra, at p. 496 [9 L.Ed.2d at p. 906].) The high court as well as this court have said that when the grounds for appeal suggest a colorable need for a transcript of the proceedings, the burden is on the state to show that a partial transcript or some alternative method will provide as effective an appeal as is available to the wealthier defendant who can pay for the transcript. (See Mayer v. Chicago (1971) 404 U.S. 189, 195 [30 L.Ed.2d 372, 378-379, 92 S.Ct. 410]; March v. Municipal Court, supra, 7 Cal.3d at pp. 427-428.) Here there is no invidious discrimination, and the principles of these cases are inapplicable. To the extent they are instructive because they describe the importance of an adequate record on appeal, defendant misstates the burden on the prosecutor, which is not to show that any omission is “immaterial,” as defendant claims, but to show that the transcript is sufficient to assure adequate appellate review. Defendant’s constitutional claims founder on our rejection of his premise that the omissions in the record are substantial. They are not, even if we place the burden of proof on the People on this point as he would have us do. Rather, as we have explained, as to every issue raised on appeal, we have found the record perfectly adequate for the purpose of review; in an excess of caution, we have in one instance assumed that an objection was preserved in an unreported sidebar conference, but in every other instance we have been able to decide the issues raised without resorting to any such presumption. Finally, our review of the record convinces us that defendant’s claim that there might be issues he could have raised if he had seen all the sidebar conferences transcribed is pure speculation. Therefore we must reject his claim as a matter both of federal constitutional law and state law. 2. Juror Misconduct Defendant argues that prejudicial jury misconduct occurred when two prospective jurors who did not serve on his jury read a newspaper article about another capital trial. He claims the information they gleaned from this article may have infected the rest of the venire, in violation of his rights to due process, an unbiased jury, and a reliable determination of penalty. The record shows that during voir dire, it came to the court’s attention that prospective jurors may have read a newspaper article relating the ambivalence of capital defendant Robert Bloom toward his death sentence. The headline read: “Judge ponders sentencing of killer who says he’s had a change of heart.” The article reported that though Bloom had requested his jury to impose the death penalty, he actually hoped for a sentence of life imprisonment. The article noted Bloom’s antagonism to the jury and to his trial counsel, and noted that Judge Albracht, who also presided in defendant’s case, was considering appointing new counsel for Bloom. The article quoted Bloom: “ ‘Look,’ he said, ‘they’re not going to execute me. I’ll get an automatic appeal. When my case is reversed, I’ll do the whole thing differently.’ ” Defendant argues that the Bloom article prejudiced him by lessening the jury’s sense of responsibility, undermining the gravity of the proceedings, and planting the fear that defendant might some day emerge from prison. (See People v. Milner (1988) 45 Cal.3d 227, 257 [246 Cal.Rptr. 713, 753 P.2d 669]; People v. Ramos (1984) 37 Cal.3d 136, 157-159 [207 Cal.Rptr. 800, 689 P.2d 430].) The claim is that any juror who read the article would have learned that a death sentence could be reduced to a life sentence by the trial judge, and that there was a likelihood that any death sentence would be reversed on appeal. Defendant also argues that the court failed to perform an adequate inquiry to determine whether other prospective jurors had read the article, and failed to allow counsel to question jurors in private regarding the article, making it impossible to know whether other jurors were affected by it. (See People v. Adcox, supra, 47 Cal.3d at p. 253.) As we said recently, “[i]t is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he is sitting . . . .” (People v. Holloway, supra, 50 Cal.3d at p. 1108; see also People v. Hernandez (1988) 47 Cal.3d 315, 338 [253 Cal.Rptr. 199, 763 P.2d 1289].) In fact, we have warned against the reading of “ ‘any matter in connection with the subject-matter of the trial which would be at all likely to influence jurors in the performance of duty . . . .’” (People v. Holloway, supra, 50 Cal.3d at p. 1108, quoting People v. McCoy (1886) 71 Cal. 395, 397 [12 P 272].) As the trial court found, on its face the Bloom article had absolutely nothing to do with defendant’s case. However, to the extent that the article implied that a trial court could reduce a sentence of death to a life term, or that a conviction might be reversed on appeal, it could be considered extraneous legal information that would be misconduct for a juror to consider. (See People v. Marshall (1990) 50 Cal.3d 907, 950 [269 Cal.Rptr. 269, 790 P.2d 676]; In re Stankewitz (1985) 40 Cal.3d 391, 397 [220 Cal.Rptr. 382, 708 P.2d 1260]; see also People v. Anderson (1990) 52 Cal.3d 453, 468 [276 Cal.Rptr. 356, 801 P.2d 1107] [jury should generally not be advised regarding availability of appeal in capital cases].) Though a presumption of prejudice attaches to jury misconduct, we think that the presumption arising from any misconduct relating to the Bloom article is readily dispelled. (See People v. Ho