Full opinion text
Opinion WERDEGAR, J. Defendant Tracy Dearl Cain was convicted following a jury trial of the first degree murders of William and Modena Galloway (Pen. Code, §§ 187, subd. (a), 189). The jury found true robbery-murder, burglary-murder, attempted-rape-murder and multiple-murder special-circumstance allegations. (§ 190.2, subds. (a)(3) & (17).) Defendant was also convicted of two counts of burglary (§ 459) and one count of robbery (§ 211), but was acquitted on a charge of rape (§ 261). The jury fixed the penalty for each murder at death. After denying the motion for modification of the penalty verdict, the court entered judgment accordingly. The present appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) Guilt Phase Facts Prosecution’s Case 1. The Victims Prior to the weekend of October 17, 1986, Modena Shores Galloway and William Jefferson Galloway lived in Oxnard. Their next-door neighbor was Persey Cain, the father of defendant. Mr. Galloway, 63 years of age, had injured his back and was in poor health. Since Mr. Galloway was unable to work on his own car, his son, William, and Persey Cain had sometimes repaired the car in the Galloway driveway with the garage door open. Defendant observed some of these repairs. Mr. Galloway had a habit of keeping large amounts of cash in his house. When he received his monthly disability check, which ranged from $1,500-$2,000 per month, he placed $200-$300 in a savings account and retained the remainder in cash. He paid all of his bills in cash and did not have a checking account. Mr. Galloway had shown his son-in-law, Kenneth Mehaffie, a brown wallet containing approximately $1,000, which he kept in the desk next to the bed. He also kept a black wallet containing less cash on his person. Mrs. Galloway stored her jewelry in a small wooden box with a sliding top. The Galloways also owned a Sanyo beta videocasette recorder (VCR), which was kept in Mr. Galloway’s room. The Galloways kept a child-sized rocker in the living room of their home for their grandchild. Their home was equipped with several night lights that turned on automatically and remained on when the Galloways retired. These night lights provided sufficient light by which to recognize someone they knew. On Monday, October 20, 1986, the Galloways’ son, William, found them dead in their home. William entered the house through the garage. The door between the garage and the kitchen was broken off its hinges. William found his father’s body lying in the hallway to the living room. Dried blood was on the wall. William found his mother’s body in her bedroom. Again, dried blood was splattered on the wall. 2. Chronology From Witness Testimony Defendant lived with his father, Persey Cain, next door to the Galloways. On Tuesday, October 14, 1986, Persey Cain went on a week-long trip, leaving defendant and defendant’s younger brother Val in charge of the house, with food in the refrigerator and approximately $50. Prior to his departure, Persey Cain took parts from defendant’s Pinto to Barber Auto Parts for a valve job. On Sunday, October 12, 1986, defendant had received a paycheck in the amount of $111.75 from Manpower Temporary Services. a. Friday, October 17, 1986 The auto parts store records show $57.18 was paid in cash for defendant’s valve job on October 17. Beginning in the late afternoon on that day, defendant and Val held a party at their house. Acquaintances attending the party included David Cerda, Floyd Clements, Rick Albis, Kevin Walker, Ulysses Anthony Mendoza, and two unidentified girls. At the party, everyone consumed beer and everyone, except Albis, consumed marijuana. Later in the evening, defendant “rock[ed] up” some cocaine and smoked it out of a pipe. Around 8:30 p.m., defendant complained he was missing $10. He threatened “to beat all of their asses” if someone did not find the money. Mendoza told defendant his money was in his top dresser drawer, where defendant had placed it after returning from purchasing beer. Defendant found the money. According to Mendoza, defendant remained angry, because his brother Val and Walker were in the bedroom with the two girls. Defendant complained Val should have included him instead of Walker. Defendant was so angry he kicked the door and put a hole in it. A few minutes later, Walker and the girls left and did not return. Clements testified this incident occurred on Saturday night, not Friday night, while Albis testified it occurred on Friday but he, not Walker, was in the bedroom with Val and the girls. Mendoza testified that around 11 p.m. he and defendant walked to a nearby 7-Eleven to buy more beer. On the way to the store defendant asked Mendoza to help burglarize the Galloways’ house so “he could get thousands.” Mendoza declined, saying he didn’t have the nerve. At the 7-Eleven, Mendoza and defendant encountered Richard Willis and Sean Sampson. Defendant told them he wanted to buy drugs. According to Mendoza, he and defendant climbed in the backseat of Sampson’s car and drove off to obtain drugs. While they were in the car, defendant tapped Mendoza on his knee and made a strangling gesture with his hands; Mendoza told Sampson and Willis that, if they were smart, they would turn around and drop him off or something foolish would happen. They complied and Mendoza returned to the party. About 20 to 30 minutes later, defendant returned home and called Mendoza a “pussy,” because he would not help him. Willis’s account of his encounter with defendant differed somewhat. Willis testified that, as he was leaving the 7-Eleven store at approximately 6:30 or 7 p.m., he met defendant, who asked if Willis knew where he could get some marijuana. They drove to defendant’s house, because defendant said he needed to get some money, then to Willis’s house. When Willis asked to see the money, defendant claimed he forgot to bring it, so they returned to defendant’s house. When defendant returned to the car, he brought Mendoza with him. They returned to Willis’s house, but when Willis again asked to see the money defendant still didn’t have any. They returned to the car. As they started to drive, defendant asked if Willis knew where he could sell a home entertainment system so he could purchase the marijuana. Willis directed him to Aleric Street. Mendoza then said, “If you know what is good for you, you’ll take me back.” Willis “got the hint” and dropped them back at the Cain house. Sampson testified he did not see either Mendoza or defendant on Friday night. Mark Pina lived across the street from the Cain residence. At approximately 12:30 a.m., on Saturday, October 18, defendant and Mendoza visited Pina. Defendant asked Pina if he owned a freebase pipe and offered him $10 for it. Pina gave the pipe to defendant and declined payment. During the brief visit, Pina thought defendant looked “sprung,” as though he had already used cocaine; he talked fast, repeated things, and did not seem to hear when Pina spoke to him. Mendoza testified that, sometime after he returned from his ride with Willis and Sampson, he was seated on the couch. (The record is not clear whether he and defendant had yet visited Pina.) Mendoza heard defendant call to Cerda. Cerda walked outside the front door and talked with defendant. He came back inside, grabbed his jacket, and left again. Cerda returned three or four minutes later without defendant. A bit later, Val asked Cerda to go check where defendant was. Cerda left and returned again in a couple of minutes without defendant. Rick Albis, who had left the party with Floyd Clements sometime between 10 and 11 p.m., returned less than one hour later. He stayed for 10 to 20 minutes. Cerda, Mendoza and Val were present, but Albis did not see or hear defendant. Approximately 20 to 30 minutes after Albis left for the second time, defendant returned. Mendoza, Val and Cerda were present. According to Mendoza, defendant had blood on the inner part of the bill of his hat, on his right cheekbone, on his right foot, on his right leg by his pocket, and on his chest area. Defendant said he had gotten “thousands.” Mendoza saw defendant holding a lot of money in his left palm. The money was folded in half with a $100 bill on top. Defendant said he had “knocked them smooth out” or he had “blipped somebody.” Val had defendant remove his clothes to be washed. Mendoza and Cerda spent the remainder of the night at the Cain residence. b. Saturday, October 18, 1986 On Saturday defendant was scheduled to work at a temporary job, but did not report to work. When Mendoza awoke, he went into the living room. Defendant was asleep in a recliner. Mendoza picked up a wad of bills lying next to defendant and counted the money. The wad contained $500. Defendant woke up, grabbed the money and exclaimed: “Give me my fucking money.” Albis also testified defendant showed him a check and a wad of money when he returned to the Cain house on Saturday morning. During the encounter, Mendoza noticed what appeared to be fresh cut wounds on defendant’s right hand. Later on Saturday afternoon, Clements saw defendant hold his right hand in a fist in the palm of his left hand. He heard defendant ask Mendoza to get him a Band-Aid. That morning Mendoza heard Val ask defendant what he did with the people the previous night. Defendant responded: “That’s on them.” Sometime that day, defendant, Mendoza, Albis and Cerda went shopping. Defendant bought a pair of black leather hightop basketball shoes, a black Raiders hat, some cassettes and a car stereo. The stereo cost over $200. Defendant paid cash for all the items. Clements testified Mendoza came to his house around 5 or 6 p.m. to ask if he knew anyone who would buy a VCR for $25 or $30. Clements saw the VCR in the back of Mendoza’s truck. Clements noticed Mendoza was wearing a new jacket and cap. Mendoza testified he did not purchase any new clothes when he accompanied defendant on his shopping spree. Clements further testified Mendoza told him about seeing the Galloways’ bodies. Mendoza told Clements the lady was lying on the bed with a pillow over her face and there was blood everywhere. The old man was lying on the floor, all bloody with holes in his head. Mendoza, however, testified he never entered the Galloway home. Sometime between 11 p.m. and midnight, Willis and Sampson again encountered defendant and Mendoza at the 7-Eleven. Mendoza tried to sell Sampson a VCR, which he said was at the defendant’s house. Mendoza also had with him a wooden box containing jewelry he was trying to sell. Sampson and Willis gave Mendoza and defendant a ride back to defendant’s house. As he left the car, defendant warned Sampson and Willis to keep their mouths shut about the VCR. Mendoza testified these events did not occur. c. Sunday, October 19, 1986 Defendant and Val held a barbecue on Sunday afternoon. Just as the sun was going down, defendant asked Mendoza to take him to the store in Mendoza’s truck. Mendoza refused. According to Mendoza, defendant stated Mendoza would either take him or he would knock Mendoza out and take the truck himself. When Mendoza got to the truck, he saw a box containing cables, wires, rags and sticks in the back of the truck. Defendant directed him to drive to Perkins Road where defendant disposed of the box. While defendant was disposing of the box, Mendoza saw that it also contained a VCR. Kathy Lazoff, Mendoza’s girlfriend at the time, was also at the barbecue. Lazoff overheard a conversation between Mendoza and defendant. Defendant said: “Take it. I’ll give you a couple bucks for gas.” Mendoza responded: “Man, you’re crazy.” Defendant then replied: “You have no choice because I’ll kick your ass and take your truck.” Defendant appeared angry and upset during the conversation. 3. The Investigation The investigation of the Galloway murders began around 2:40 p.m. on October 20, 1986. The crime scene was photographed. Bloody footprints were found on the asphalt tile in Mr. Galloway’s bedroom between the bed and the television. Some prints appeared to have been made by a stocking-clad foot and at least one print appeared to have been made by some type of shoe. Some of the prints differed in size. The tiles were photographed. A broken child’s rocking chair, splattered with blood and missing a rocker and an armrest support, was found next to Mr. Galloway’s body in the hallway. The house was dusted for fingerprints and some latent prints were found. The results of comparisons of these prints were not part of the trial testimony. Despite the use of sophisticated tests to recover fingerprints from the rocking chair, no prints were found. Dr. Ronald O’Halloran, the assistant medical examiner for Ventura County, arrived at the Galloways’ house around 5 p.m. He found Mr. Galloway’s body in the hallway. Based upon the state of decomposition of the bodies, Dr. O’Halloran estimated the Galloways had been murdered two to three days before he examined them. Dr. O’Halloran found Mrs. Galloway’s body on a bed. She was lying on her back with her feet and legs extending over the side of the bed. Her legs were spread apart exposing her genitals. The body was nude from the waist down, except for two “bootie” socks. Her top was pulled up almost to her breasts. A pillow covered her head and blood was splattered on the wall. The police found Mrs. Galloway’s panties on the floor just inside her bedroom door and her pajama bottoms near her husband’s body. A VCR, a jewelry box containing jewelry, and the brown wallet in which Mr. Galloway habitually kept large amounts of cash were missing from the house. A black wallet containing $170 was found in Mr. Galloway’s bedroom and a small pouch containing $34 was found pinned in Mr. Galloway’s pajama bottoms. Between October 20 and 24, Detective Billy Tatum interviewed Rick Albis, Mendoza, Clements and Val. None had injuries on their hands. Cerda was arrested on October 22; the little finger of his right hand was injured. Defendant was also arrested October 22. He had cuts on his fingers and knuckles and a bruise on his shoulder. In a tape-recorded interview with detectives, defendant first gave an entirely exculpatory version of events. Defendant claimed he learned of the Galloway murders from some of his neighbors when he returned home from work on Monday afternoon and saw all of the police cars near the Gallo-ways’ home. Except for trips to the store to buy beer, defendant was home all night on Friday. He stayed home all day Saturday watching television and videotapes. On Sunday morning, he visited his ex-girlfriend. Later that afternoon, he held a barbecue for friends and family. After being confronted by the detectives with some obvious lies in his initial story, defendant modified his story. He maintained he did not kill anyone. He admitted, however, going to the Galloway home on Friday night. On Saturday, he returned to the Galloway house with Rick Albis and Mendoza to wipe away fingerprints. Finally, defendant stated that he, Mendoza, Albis and Cerda went to the Galloway house on Friday night. Defendant continued to deny that he killed anyone. Defendant was looking for money and Rick Albis was looking for a gun. Rick Albis took his shoes off so he would not leave shoe prints. At some point, Mrs. Galloway came out of the bedroom. Rick Albis hit her; knocked her down; and continued hitting her. Defendant could not say who moved Mrs. Galloway back to her room or who raped her. Cerda placed the pillow over her face and hit and shook her. Cerda also killed Mr. Galloway. Mendoza hit Mr. Galloway with his hand and a rocking chair. Defendant stated that he moved the broken rocking chair. Defendant, Mendoza and Rick Albis returned to the Galloway house on Saturday morning to wipe away fingerprints. Defendant used a face towel from his house for this purpose. He then wrapped two broken sticks from the rocking chair in the towel. Later that day, Mendoza threw the sticks and the VCR into the water. 4. Physical Evidence Dr. Frederick Lovell, chief medical examiner for Ventura County, performed the autopsy on the body of William Galloway on October 22. He estimated Mr. Galloway died two to three days before his body was placed in the morgue refrigerator. The cause of Mr. Galloway’s death was trauma to the brain. Mr. Galloway sustained a minimum of 13 blows, which produced injuries to Mr. Galloway’s upper chest, right shoulder and head. One of the blows to the head was probably the lethal blow. The object used to administer the blows was hard and had an edge, but not a sharp cutting edge. Considerable force would have been necessary to produce the bruising found on the body. Evidence of defensive wounds was also found. Also on October 22, Dr. O’Halloran performed the autopsy on Mrs. Galloway’s body. Dr. O’Halloran opined the cause of Mrs. Galloway’s death was also traumatic head injury. He found evidence of eight external and five internal injuries. At a minimum, Mrs. Galloway received two to three blows. If an object was used to administer the blows, it was blunt. Because the crime scene suggested a sexual assault, Dr. O’Halloran examined the body’s vaginal area. Dr. O’Halloran prepared vaginal swabs and pubic and scalp hair samples. He surgically removed Mrs. Galloway’s vagina and attempted to invert it. During his examination of the vagina, he found an approximately one-half inch tear just inside the lower part of the vaginal opening. Dr. O’Halloran did not notice the tear when he first examined the body or when he removed the vagina. Since there was no hemorrhage related to the tear, Dr. O’Halloran believed he produced the tear when he attempted to turn the vagina inside out. Sometime after the autopsy, Dr. O’Halloran tested the vaginal swabs for the presence of sperm and seminal fluid. None was detected. In his opinion, these findings did not rule out a rape, but he was unable to opine Mrs. Galloway definitely had been raped. The prosecution also called Dr. Bruce Woodling, a medical doctor and expert in sexual assault examinations. In Dr. Woodling’s opinion, the tear in the vagina occurred as the result of penetration by a penis-like object and not Dr. O’Halloran’s attempts to invert the vagina. Criminalist Edwin Jones, Jr., compared foreign hairs found on Mrs. Galloway’s clothing to hair samples from defendant and other possible donors. Defendant’s pubic hair exhibited a “very unusual” cuticle structure, which was also found in the foreign hairs. Based upon microscopic and electrophoresis examination, Mr. Jones concluded all of the foreign hairs could have been deposited by defendant, and the characteristics exhibited in the foreign pubic hairs would be found in only a very few people in the general population. Three foreign hairs were found in Mrs. Galloways panties. One foreign hair was a long pubic hair, the other two were leg hairs. Mrs. Galloway, Mendoza, Cerda, and Clements were eliminated as the source of these hairs by microscopic examination. Electrophoresis testing in the PGM (phosphoglucomutase) subgroup on the pubic hair further eliminated Mr. Galloway and Albis as the source of the hair. Thus, of the people defendant’s statement placed in the Galloway house, only defendant’s hair possessed the same PGM subgrouping and microscopic characteristics as the foreign hairs found in the panties. According to Mr. Jones, all of the other foreign hairs found on Mrs. Galloway’s clothing also could have been deposited by defendant. A dark hair found in Mrs. Galloway’s pajama bottoms, hairs found in Mrs. Galloway’s pajama top, and three hairs found in Mrs. Galloway’s socks were all microscopically similar to defendant’s samples. In photographs of the crime scene, Jones observed blood splatters on the walls next to where the bodies were located. The multiple blood splatters in the vicinity of Mr. Galloway’s head suggested Mr. Galloway’s head was very close to or on the floor when most of the blood was released. Most of the blood splatters near Mrs. Galloway’s body were on the wall directly above the pillow that covered her face, from which Jones opined the blows took place while Mrs. Galloway was lying on the bed. Jones was also given a blue jacket soaked in blood that was found at the crime scene. The jacket was a size small and would not have fit defendant. On Wednesday, October 22, 1986, Officer Charles Hookstra recovered the Galloways’ VCR from a drainage ditch off Perkins Road. He was unable to find the missing rocking chair pieces among the driftwood and trash in the ditch. Defense Case Consistent with his final statement to the police, defendant contended he entered the Galloway home to steal money, was present when the Galloways were murdered, but did not kill them. Criminalist Gregory Laskowski, an expert in footprint examination, compared the photographs of the crime scene footprints to controlled samples of footprints made by defendant and Mendoza. Mr. Laskowski eliminated Mendoza as the source of the prints. According to Mr. Laskowski, defendant did not make the whole-foot impressions found at the crime scene. Mr. Laskowski was not able to eliminate defendant as the possible source of two heel prints, because the prints did not possess sufficient individual identifying characteristics. Laskowski also opined it was unlikely the footprints were deposited six to ten horns after the murder, a time consistent with when defendant, Albis and Mendoza wiped away the fingerprints on Saturday. Dr. Werner Spitz is the medical examiner for Wayne County, Michigan. Dr. Spitz agreed with Dr. O’Halloran that the absence of bleeding associated with Mrs. Galloway’s vaginal tear indicated the tear occurred after death. Furthermore, Dr. Spitz testified that, in the vast majority of sexual assault cases he has investigated, semen and/or seminal fluid were found. Dr. Spitz opined, in the absence of evidence of trauma to the genitals, or semen or seminal fluid, no evidence substantiated a sexual assault. The presence of pubic hair would not be sufficient to alter his conclusion. On cross-examination, Dr. Spitz conceded a rape can occur without leaving evidence of vaginal injury. Defendant called Trisha Greene and Richard Gifford to provide testimony inconsistent with Mendoza’s testimony. Greene testified she had known Mendoza since grade school, approximately seven years. On Sunday morning, the day before the Galloways’ bodies were discovered, Mendoza spoke with her, Cerda and Bill Miller at her home. At that time Mendoza was wearing a new jacket, shirt and hat, which he said his father bought. Mendoza described going to the Galloway house with “Tracy” on Saturday after the Galloways were dead. He described Mrs. Galloway lying on the bed with her head covered by a pillow. Mendoza also said he took a VCR, which he dumped in the reservoir. Richard Gifford testified that in October of 1986, Mendoza tried to sell him jewelry from an antique wooden box with carvings on its sides. Mendoza told Gifford he had stolen the box from a house in the neighborhood. Mendoza also tried to sell Gifford a VCR, which resembled a picture he was shown of the Galloways’ VCR. During this time, defendant was down the street talking loudly with Cerda. Defendant kept glancing in the direction of Mendoza and Gifford. On cross-examination, Gifford testified he saw defendant on Saturday afternoon at the 7-Eleven with a large roll of bills. Gifford thought defendant must have had over $1,000. Defendant gave Gifford a $100 bill to buy some beer for him. Gifford went into the store and gave the bill to the cashier, Dean Geer. Later on Sunday afternoon, Gifford observed defendant still flashing money. Prosecution Rebuttal Dean Geer testified that on Saturday, October 18, he was employed at the 7-Eleven on Channel Islands Boulevard. In the late afternoon, Richard Gifford purchased some beer and cigarettes with a $100 bill. Dean knew Gifford, because he often helped Dean close the store in the evenings. Dean remembered the transaction, because it was unusual to receive such a large bill. Arturo Mendoza is Mendoza’s father. In October of 1986, Mr. Mendoza bought Anthony a new jacket and a baseball hat. Anthony also owned another jacket of a similar style that he was buying for himself at that time through Amway. Guilt Phase Issues I. Admission of Photographs into Evidence Defendant contends he was prejudiced during both the guilt and penalty phases by the admission into evidence during the guilt phase of 29 photographs: photographs of Modena Galloway’s body as discovered by the police at the crime scene, autopsy photographs of Modena Galloway’s excised and inverted vagina; an autopsy photograph of Modena Galloway’s face; photographs of William Galloway’s body as discovered by the police at the crime scene; and autopsy photographs of William Galloway’s body and face. Defendant claims these photographs were cumulative, gruesome, inflammatory and irrelevant. He contends the admission of these photographs into evidence violated his Fifth and Fourteenth Amendment rights to due process, his Eighth Amendment right to a reliable verdict in a capital case and his Sixth Amendment right to a fair jury trial. He also claims his trial counsel rendered ineffective assistance by failing to object to the admission of these photographs. Because trial counsel did not object to the admission of any of these photographs, defendant’s objections are waived. (E.g., People v. Turner (1990) 50 Cal.3d 668, 706 [268 Cal.Rptr. 706, 789 P.2d 887].) Contrary to defendant’s contention, no special exception to this rule of waiver exists for capital cases. (Ibid.; People v. Pinholster (1992) 1 Cal.4th 865, 935 [4 Cal.Rptr.2d 765, 824 P.2d 571].) Defendant further contends the trial court had a sua sponte duty to conduct an independent review of the photographs pursuant to Evidence Code section 352. As we have previously recognized, “[w]hile a court may exercise such authority under Evidence Code, section 352 [citations], the failure to so act cannot be urged on appeal as error.” (People v. Visciotti (1992) 2 Cal.4th 1, 53, fix. 19 [5 Cal.Rptr.2d 495, 825 P.2d 388].) Defendant also contends trial counsel’s failure to object to the admission of these photographs constituted ineffective assistance of counsel. In order to prevail on this claim defendant must prove (1) his attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) his attorney’s deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693, 104 S.Ct. 2052]; In re Wilson (1992) 3 Cal.4th 945, 950 [13 Cal.Rptr.2d 269, 838 P.2d 1222].) Prejudice for purposes of this analysis is demonstrated by showing a reasonable probability that, but for trial counsel’s failings, the result would have been more favorable for the defendant. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.) Defendant’s claim fails because he is unable to demonstrate prejudice from counsel’s failure to object. Contrary to defendant’s contentions, we conclude the bulk of the photographs would have been properly admitted even if trial counsel had proffered the objections now urged. Our conclusion is based upon our independent review of the photographs in question. Although several of the photographs are highly unpleasant to observe, none of the photographs are unduly gruesome or inherently inflammatory. Moreover, each photograph was relevant to the prosecution’s case. The photographs of the victims at the crime scene and the autopsy photographs of the wounds received by the victims were relevant to the prosecution contentions that defendant was the actual killer, intended to kill his victims, and did so during the commission of robbery and rape. (E.g., People v. Wash (1993) 6 Cal.4th 215, 245-246 [24 Cal.Rptr.2d 421, 861 P.2d 1107]; People v. Pride (1992) 3 Cal.4th 195, 243 [10 Cal.Rptr.2d 636, 833 P.2d 643].) The photographs of the excised vagina were relevant to the question of whether Modena Galloway was raped. The photographic evidence could assist the jury in evaluating the expert testimony on this subject. (Cf. People v. Price (1991) 1 Cal.4th 324, 441 [3 Cal.Rptr.2d 106, 821 P.2d 610].) Assuming certain photographs were cumulative of others, there is no reasonable probability trial counsel’s failure to object on this ground affected the verdicts. The overlap between photographs was not substantial. Given this fact and the strong, albeit circumstantial, evidence linking defendant to the murders and rape, confidence in either the guilt or penalty phase verdicts is not undermined by the admission of any redundant photographic evidence. We repeatedly have rejected the argument photographs of a murder victim should be excluded as cumulative if the photographs are offered to prove facts established by testimony. (E.g., People v. Price, supra, 1 Cal.4th at p. 441.) Defendant presents no persuasive reason for us to depart from our prior rulings. Defendant fails to establish ineffective assistance of counsel. Moreover, since the photographs in question were relevant, admissible evidence, defendant also fails to establish a violation of any other federal constitutional right by their admission into evidence. II. Partial Concession of Guilt Defendant next asserts his constitutional rights were violated by certain admissions made in defense counsel’s opening and closing guilt phase arguments. In particular, defendant argues defense counsel was ineffective, because he told the jury defendant was guilty of burglary and multiple felony murder. Defendant equates these statements with a guilty plea on those charges. He therefore also faults the trial court for not intervening to obtain a personal, on-the-record waiver consistent with Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709] and In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449]. We have held trial counsel’s decision not to contest, and even expressly to concede, guilt on one or more charges at the guilt phase of a capital trial is not tantamount to a guilty plea requiring a Boykin-Tahl waiver. (People v. Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103]; People v. Hendricks (1987) 43 Cal.3d 584, 592-594 [238 Cal.Rptr. 66, 737 P.2d 1350].) It is not the trial court’s duty to inquire whether the defendant agrees with his counsel’s decision to make a concession, at least where, as here, there is no explicit indication the defendant disagrees with his attorney’s tactical approach to presenting the defense. (See People v. Freeman (1994) 8 Cal.4th 450, 497 [34 Cal.Rptr.2d 558, 882 P.2d 249]; People v. Griffin, supra, 46 Cal.3d at p. 1029; People v. Hendricks, supra, 43 Cal.3d at 593-594.) Next we turn to defendant’s claim his counsel’s concessions constituted ineffective assistance of counsel. As we previously have recognized, “[t]o the extent defendant is arguing that it is necessarily incompetence for an attorney to concede his or her client’s guilt of murder [or burglary and murder as in this case], the law is otherwise.” (People v. Mayfield (1993) 5 Cal.4th 142, 177 [19 Cal.Rptr.2d 836, 852 P.2d 331].) Furthermore, as pointed out above, the record does not demonstrate counsel ignored “any express wish on defendant’s part to present an active defense” with regard to either the felony-murder or burglary counts. (Ibid.) Defendant also appears to argue his counsel’s concessions were an incompetent tactical choice. We disagree. Defendant admitted to the police on tape he was inside the victims’ residence when they were murdered and he entered the residence with the intent to steal money. His taped statement was played to the jury. Defendant’s admission that he entered the residence for the purpose of stealing money proved his specific intent to commit burglary. (Pen. Code, §§ 459, 460; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Property § 656, pp. 736-737.) Under the felony-murder rule, his commission of burglary, together with the killing of the victims in the commission of the burglary, made him liable for murder. (1 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 470, pp. 528-529.) Under these circumstances, we cannot conclude counsel was ineffective for candidly admitting defendant’s guilt on these counts (People v. Freeman, supra, 8 Cal.4th at p. 498; People v. Mayfield, supra, 5 Cal.4th at p. 177; People v. Jackson (1980) 28 Cal.3d 264, 292-293 [168 Cal.Rptr. 603, 618 P.2d 149]), while vigorously arguing against defendant’s guilt of the special circumstances. III. Admission of Videotaped Statement Into Evidence On October 21, 1986, the day following the discovery of the Galloways’ bodies, Larry Good, a local television news reporter, briefly interviewed defendant, in his capacity as a neighbor of the victims. During the course of this interview, Good asked defendant: “I guess there’s no, no idea who would do something like this, huh?” Defendant responded: “Uh-uh . . . not that I know of ... I don’t know nothing about that.” Over defendant’s objections and following a lengthy hearing, the trial court permitted the videotape to be shown to the jury and admitted into evidence. Defendant now contends the trial court erred and the improper admission of the videotape violated his due process rights under the Fifth and Fourteenth Amendments to the federal Constitution, as well as his right to a reliable and nonarbitrary sentencing determination under the Eighth Amendment. We reject defendant’s claims and conclude the trial court did not abuse its discretion in admitting the videotape. Defendant initially claims the videotaped statement should have been excluded as irrelevant. “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) As we have repeatedly observed, the trial court is “vested with wide discretion in determining relevance under this standard.” (E.g., People v. Kelly (1992) 1 Cal.4th 495, 523 [3 Cal.Rptr.2d 677, 822 P.2d 385].) The trial court concluded defendant’s statement to the reporter denying any knowledge of the crimes could be found by the jury to be a false statement inconsistent with both (1) his police interview statement proclaiming he was present during the crimes, but Albis and Cerda committed the murders, and (2) the prosecution’s strong, albeit circumstantial, evidence defendant committed the murders. The trial court reasoned defendant’s denial of knowledge of the crimes, taken together with his subsequent statements to the police, reasonably could be viewed as part of an evolving plan to evade responsibility and deflect blame for the crimes. Therefore, the trial court concluded defendant’s videotaped statement could tend to prove consciousness of guilt and, thus, the identity of the murderer. (E.g., People v. Green (1980) 27 Cal.3d 1, 41 [164 Cal.Rptr. 1, 609 P.2d 468].) We find no error in the trial court’s reasoning. Defendant further contends the prosecution failed to lay a foundation that defendant’s statement was willfully or deliberately false. (See People v. Albertson (1944) 23 Cal.2d 550, 581-582 [145 P.2d 7] (conc. opn. of Traynor, J.); People v. Mickey (1991) 54 Cal.3d 612, 671-672 [286 Cal.Rptr. 801, 818 P.2d 84].) Assuming, without deciding, this objection was not waived by failure to raise it at trial, we conclude the circumstances surrounding the videotaped statement, and the patent inconsistencies between the statement and defendant’s subsequent statement to the police, provided the necessary foundation. Defendant claims the reporter’s question regarding defendant’s knowledge of the crimes was so ambiguous as to render defendant’s response irrelevant or at least more prejudicial than probative. Again, assuming, without deciding, this objection was not waived by failure to raise it during trial, we reject defendant’s contention as meritless. The question as reasonably construed called for any knowledge defendant possessed regarding the perpetrator of the crimes. Defendant also contends that, even if the substance of his statement to the reporter was relevant and admissible, his demeanor as shown by the videotape was either irrelevant or more prejudicial than probative under Evidence Code section 352. For these reasons, defendant asserts the trial court erred by failing to compel the prosecution to accept defendant’s proposed stipulation to introduction of the contents of the statement, without introduction of the videotape itself, or by failing to exclude the videotape altogether. Again, we find no abuse of discretion by the trial court. The trial court did not abuse its discretion in deciding defendant’s demeanor was relevant. The jury was permitted to decide whether defendant’s pretrial statements were false. Defendant’s demeanor when making one of these statements is highly probative on this issue. Because the videotape presentation thus contained relevant information not covered by the defendant’s proposed stipulation, the prosecutor was not required to accept the stipulation in lieu of showing the videotape. (People v. Edelbacher (1989) 47 Cal.3d 983, 1007 [254 Cal.Rptr. 586, 766 P.2d 1]; see also People v. Karis (1988) 46 Cal.3d 612, 640 [250 Cal.Rptr. 659, 758 P.2d 1189].) We also consider defendant’s claim the trial court should have excluded the videotape on the basis of undue prejudice. A trial court’s exercise of discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 “will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.” (People v. Milner (1988) 45 Cal.3d 227, 239 [246 Cal.Rptr. 713, 753 P.2d 669].) Here there was no such abuse. The trial court carefully balanced the probative value of the videotape against its potential for prejudice to defendant. On this record, we find no reason to disturb the trial court’s ruling. Furthermore, because the evidence was admissible, there was no violation of defendant’s federal constitutional rights. IV. Instructional Error A. CALJIC No. 2.03 Defendant contends the trial court erred in instructing the jury on the subject of consciousness of guilt with CALJIC No. 2.03. Specifically, defendant argues this instruction improperly permitted the jury to infer “since [defendant] made false statements ... at the time of the event he had a specific intent to steal and a specific intent to kill.” Defendant’s argument is belied by the text of the instruction itself. The instruction on its face did not address the specific intent issues, which were governed by other instructions. CALJIC No. 2.03 instructed the jury only to consider defendant’s false statement as a circumstance tending to prove consciousness of guilt; the instruction cautioned the jury the statement standing alone is “not sufficient by itself to prove guilt.” (See People v. Kelly, supra, 1 Cal.4th at p. 531.) We presume the jury followed the instruction as given. (E.g., People v. Frank (1990) 51 Cal.3d 718, 728 [274 Cal.Rptr. 372, 798 P.2d 1215].) Under these circumstances, the jury could not have been misled by CALJIC No. 2.03 into improper inferences regarding defendant’s specific intent at the time the crimes were committed. Accordingly, defendant fails to demonstrate instructing the jury with CALJIC No. 2.03 violated his constitutional rights. B. CALJIC No. 2.11.5 Defendant next contends the trial court erred by instructing the jury with an unmodified version of CALJIC No. 2.11.5, which told the jury to disregard, for purposes of determining defendant’s guilt, the nonprosecution of other persons allegedly involved in the crimes. Defendant contends this instruction undermined other instructions regarding accomplice testimony, thereby unfairly restricting the jury’s evaluation of the testimony of Mendoza and Albis. In particular, defendant contends this instruction barred the jury from considering any bias in these witnesses’ testimony resulting from grants of immunity. We previously rejected this specific claim under substantially similar circumstances. (People v. Price, supra, 1 Cal.4th at pp. 445-446.) In so doing, we explained: “The purpose of the challenged instruction is to discourage the jury from irrelevant speculation about the prosecution’s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators. (People v. Cox (1991) 53 Cal.3d 618, 668 [280 Cal.Rptr. 692, 809 P.2d 351].) When the instruction is given with the full panoply of witness credibility and accomplice instructions, as it was in this case, [jurors] will understand that although the separate prosecution or nonprosecution of coparticipants, and the reasons therefor, may not be considered on the issue of the charged defendant’s guilt, a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of prosecution witnesses. (People v. Sully [1991] 53 Cal.3d 1195, 1219 [283 Cal.Rptr. 144, 812 P.2d 163].) Although the instruction should have been clarified or omitted (see People v. Cox, supra, [53 Cal.3d] at p. 667; People v. Williams (1988) 45 Cal.3d 1268, 1313 [248 Cal.Rptr. 834, 756 P.2d 221]), we cannot agree that giving it amounted to error in this case.” (People v. Price, supra, 1 Cal.4th at p. 446.) Here, as in Price, standard instructions on accomplice testimony were given; the Price analysis is thus dispositive of defendant’s claim. C. CALJIC No. 8.11 The trial court instructed the jury on implied malice in terms of CALJIC No. 8.11 (1983 rev.). As the Attorney General concedes, the trial court erred by giving this instruction. The case against defendant was tried on a felony-murder theory; therefore, malice, whether express or implied, was irrelevant. (See People v. Dillon (1983) 34 Cal.3d 441, 475 [194 Cal.Rptr. 390, 668 P.2d 697].) Defendant contends the implied malice instruction misled the jury in two respects. First, defendant asserts the instruction injected confusion into the intent instructions properly given under the felony-murder theory. Second, defendant asserts the implied malice instruction prevented the jury from properly understanding that intent to kill was a necessary element of the special circumstance charges. We do not believe, however, there is “a reasonable likelihood” the jury understood the instructions as the defendant asserts. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 398-399, 112 S.Ct. 475].) In making this determination, we have considered the specific language challenged, the instructions as a whole and the jury’s findings. (People v. Mincey (1992) 2 Cal.4th 408, 451 [6 Cal.Rptr.2d 822, 827 P.2d 388]; People v. Kelly, supra, 1 Cal.4th at pp. 525-526.) The trial court, using modified versions of CALJIC Nos. 3.31 (1980 rev.) and 8.21, correctly instructed the jury that the intent necessary to find defendant guilty of first degree murder under the felony-murder theory was a specific intent to commit one or more of the felonies underlying the charge. The trial court also correctly instructed the jury on the elements of the underlying felonies. (See CALJIC Nos. 14.50 (1981 rev.), 9.10 (1982 rev.).) In light of these instructions, which clearly applied to the evidence presented and the arguments made during the trial, we do not find a reasonable likelihood the unnecessary definition of implied malice included in the instructions misled the jury about the intent necessary to convict defendant of murder under a felony-murder theory. When the instructions are viewed as a whole, it is clear the implied malice instruction related only to the general definition of murder given to the jury. The jurors would not have been misled by the inclusion of this surplus instruction. (See People v. Williams (1988) 45 Cal.3d 1268, 1310-1311 [248 Cal.Rptr. 834, 756 P.2d 221]; People v. Duncan (1991) 53 Cal.3d 955, 972-973 [281 Cal.Rptr. 273, 810 P.2d 131] [inclusion of malice in definition of murder, where case tried on felony-murder theory, not prejudicial].) Next, defendant asserts there is a reasonable likelihood the jury was misled by the implied malice instruction when assessing the intent necessary to find him guilty of the special circumstances charged, because no instruction was given specifically differentiating the intent to kill required for the special circumstances findings from the mental state required for implied malice murder. Furthermore, defendant contends the jury confusion was compounded by the references to “mental state,” as opposed to “intent to kill,” found in the instruction addressing the sufficiency of circumstantial evidence necessary to support a special circumstances finding. We find no reasonable likelihood the erroneously given implied malice instruction would have misled the jury in assessing defendant’s culpability for the special circumstances charged. The trial court instructed the jury with a modified version of CALJIC No. 8.81.17 (1984 rev.), which specified the felony-murder special circumstances could not be found true unless the prosecution proved “[t]hat the defendant intended to kill a human being or intended to aid another in the killing of a human being.” The same information was also imparted with a modified CALJIC No. 8.80 (1984 rev.), which told the jury defendant’s intent to kill, or intent to aid in killing, had to be proven beyond a reasonable doubt. In light of these specific and clear instructions, we find no reasonable likelihood the surplus implied malice instruction would have misled a reasonable jury in reaching verdicts on the special circumstances. Our finding is buttressed by the prosecutor’s express acknowledgment, in his summation, that the special circumstances required intent to kill. (See People v. Kelly, supra, 1 Cal.4th at p. 526 [closing arguments correctly explaining relevant law considered in evaluating prejudice from erroneous jury instruction]; People v. Moore (1988) 47 Cal.3d 63, 87-89 [252 Cal.Rptr. 494, 762 P.2d 1218] [closing arguments demonstrate adequacy of instruction on issue of corroboration required for accomplice testimony].) D. CALJIC Nos. 4.21 and 4.22 Defendant next alleges the jury was not properly informed voluntary intoxication could negate the intent to kill required for the special circumstances. He faults the trial court for giving the version of CALJIC No. 4.21 (1981 rev.) requested by defense counsel and for giving CALJIC No. 4.22 (1981 rev.), which defines voluntary intoxication. Defendant’s jury was instructed on the interplay between intent and voluntary intoxication as follows: “[¶] In the crime of murder of which defendant is accused in Counts 1 and 2 of the information, a necessary element is the existence in the mind of the defendant of the specific intent to kill. [¶] If the evidence shows that defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such specific intent. [¶] If from all the evidence you have a reasonable doubt whether defendant formed such specific intent, you must give the defendant the benefit of the doubt and find that he did not have such specific intent." The standard definition of voluntary intoxication followed. Instructions on the special circumstances allegations preceded and followed the voluntary intoxication instructions. Defendant first contends that under these instructions the jury would not have understood voluntary intoxication could negate the intent required for the special circumstances. Rather, the jury, he asserts, would have incorrectly construed CALJIC No. 4.21 as adding an intent element to felony murder. We do not find a reasonable likelihood the jury understood the instructions as defendant contends. First, the voluntary intoxication instruction referred to “the crime of murder of which defendant is accused in Counts 1 and 2 of the information." The special circumstances were alleged under the murder counts charged in counts 1 and 2 of the information. Furthermore, the jury was instructed, through versions of CALJIC Nos. 8.80, 8.81.3 and 8.81.7, within close proximity of the voluntary intoxication instructions that intent to kill was a necessary element of the special circumstances. The jury was not instructed that intent to kill was an element of felony murder, and was indeed told an “unintentional or accidental” killing could be murder under that doctrine. (See CALJIC No. 8.21.) Finally, both attorneys discussed the intent to kill requirement of the special circumstances in their summations. Under these circumstances, we believe the instructions taken as a whole were understood as allowing voluntary intoxication to be considered in relation to the intent to kill requirement of the special circumstances. We also find no error in the court’s instructing the jury with CALJIC No. 4.22. We are not persuaded there is any likelihood the standard definition of voluntary intoxication found in this instruction negatively affected the jury’s deliberations. Defendant also complains of the court’s giving the standard pattern instructions on circumstantial evidence (CALJIC No. 2.01 (1979 rev.)), and circumstantial evidence relating to special circumstances (CALJIC Nos. 8.83 and 8.83.1). His claims of error in these instructions have been repeatedly rejected by this court. (People v. Freeman, supra, 8 Cal.4th at pp. 505-506; People v. Jennings (1991) 53 Cal.3d 334, 386 [279 Cal.Rptr. 780, 807 P.2d 1009].) Defendant advances no persuasive reason for us to reconsider our prior decisions. V. Insufficiency of Evidence of Intent to Kill Defendant next contends the jury’s implied findings of intent to kill in connection with the special circumstances are not supported by sufficient evidence. We disagree. The standard of review is well established. “ ‘In reviewing the sufficiency of evidence for a special circumstance’—as for a conviction— ‘the question we ask is whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 271 [14 Cal.Rptr.2d 377, 841 P.2d 897], quoting People v. Mickey, supra, 54 Cal.3d at p. 678, italics in original.) “In a case, such as the present one, [where the finding is] based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 528-529 [15 Cal.Rptr.2d 340, 842 P.2d 1100].) Our review of the record reveals substantial evidence from which a rational jury could find beyond a reasonable doubt defendant possessed the requisite intent to kill the Galloways. First, sufficient evidence was present from which a rational jury could find defendant personally killed the Gallo-ways. Defendant admitted he entered the Galloway house, albeit with others, on the evening of the murders in order to steal money. Defendant’s hand was injured the night of the murders. Expert testimony linked leg and pubic hair found on Mrs. Galloway’s clothes to defendant. Mendoza testified he observed defendant with blood on his clothing. Mendoza also testified defendant told his party guests he had “knocked them smooth out” or that he had “blipped somebody.” Second, sufficient evidence was presented from which a rational jury could conclude beyond a reasonable doubt the assailant, defendant, possessed the specific intent to kill the Galloways. While not determinative, the nature of the Galloways’ wounds, multiple blows to the head and body, supports an inference their assailant intended to kill them. (Cf. People v. Mincey, supra, 2 Cal.4th at pp. 433-434 [nature of wounds probative of intent to torture]; People v. Proctor, supra, 4 Cal.4th at pp. 529-530 [nature of killing probative of premeditation and deliberation].) Moreover, the prosecutor presented evidence that the victims knew defendant, and that lighting conditions in the victims’ home would have enabled them to identify defendant. Finally, the crime scene evidence, and defendant’s statement, suggested missing pieces of the child’s rocking chair had been used in one or both of the killings; the assailant, the jury could infer, had deliberately taken the chair from the living room to the hallway and tom it apart for use as a weapon, again indicating an intent to kill or seriously injure. In light of this evidence, a rational jury could conclude beyond a reasonable doubt defendant intended to kill the victims in order to prevent them from identifying him. Finally, a rational jury could conclude beyond a reasonable doubt defendant’s intoxication on the night of the murders did not negate his intent to kill. Little evidence was presented from which the jury could judge the effects of the defendant’s voluntary intoxication. Defendant smoked an unspecified quantity of cocaine and may have consumed an unspecified quantity of beer and marijuana. The only testimony relating to the effect of whatever substances defendant consumed the night of the murders was the testimony of defendant’s neighbor Mark Pina. Pina testified defendant looked “sprung” and exhibited the following symptoms of cocaine usage: “talks fast, repeats things, and you try and tell them something and it doesn’t—they don’t seem to hear it.” Contrary to defendant’s contention, this sparse evidence does not compel us to find that the only rational conclusion a jury could have reached was defendant was incapable of forming a specific intent to kill due to his voluntary intoxication. (Cf. People v. Williams, supra, 45 Cal.3d at pp. 1311-1312 [witness’s testimony defendant acted like he consumed LSD insufficient to support instruction on voluntary intoxication]; People v. Carr (1972) 8 Cal.3d 287, 294-295 [104 Cal.Rptr. 705, 502 P.2d 513] [evidence defendant consumed unspecified quantity of alcohol or drugs insufficient to support instruction on diminished capacity].) On this record, a rational jury could have concluded beyond a reasonable doubt defendant intentionally killed the Galloways. VI. Contentions Relating to Attempted Rape Defendant raises several objections relating to the attempted rape special circumstance. We address defendant’s contentions in turn. A. Inadequate Notice Defendant asserts he received inadequate notice the prosecution was relying upon attempted rape as an alternate basis to support the rape special circumstance. Defendant claims the failure specifically to charge attempted rape as a basis of the rape special circumstance violated his statutory rights under sections 190.1, 190.2 and 190.4 and his constitutional rights of due process, equal protection and notice of the charges against him. The original information, the first amended information and the second amended information charged defendant with rape and alleged a special circumstance of murder while engaged in the commission of rape. The second amended information pleaded the rape special circumstance as follows: “It is further alleged the murder of Modena Shores Galloway was committed by defendant, Tracy Cain, while the defendant was engaged in the commission of rape in violation of Penal Code Section 261, within the meaning of section 190.2(a)(17).” Section 190.2, subdivision (a)(17) states in relevant part: “The murder was committed while defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies: [¶] . . . [¶] Rape in violation of Section 261.” (Italics added.) Following the prosecutor’s rebuttal argument in which the prosecutor stressed a finding of attempted rape was sufficient to find defendant guilty of the rape special circumstance, the trial court raised the issue of whether the information had provided defendant with sufficient notice of the attempted rape basis of the special circumstance. The court stated its inquiry was triggered by the fact the information specifically enumerated attempted robbery in the robbery special circumstance allegation, but did not specifically enumerate attempted rape in the rape special-circumstance allegation. Under these circumstances, the court wished to ascertain whether defense counsel believed he had been misled. The prosecutor reminded the court he had argued attempted rape in his opening statement and attempted rape was included in the agreed jury instruction for the special circumstances. Defense counsel stated he was aware of the differences in the language used in the information, but he also was familiar with section 190.2. He was not surprised by the prosecutor’s argument, believed the prosecutor had the right to make the argument, and believed his client was not prejudiced by the prosecutor’s reliance upon attempted rape as a basis for the rape special circumstance. We find no statutory error in the language used to allege the rape special circumstance. Although consistency in the form of charging special circumstances is preferable, the rape special circumstance as alleged satisfactorily “charged” defendant and was not misleading. (§§ 190.1, subds. (a) & (c), 190.4, subd. (a).) Under the statute, the rape special circumstance specifically includes that the crime was committed during the “attempted commission of a rape.” (§ 190.2, subd. (a)(17).) The information specifically referred to the statute defining the special circumstance. Under these circumstances, the rape special-circumstance allegation provided the express notice of the charges against defendant required under state law in a capital case. (See People v. Morris (1988) 46 Cal.3d 1, 17 [249 Cal.Rptr. 119, 756 P.2d 843], disapproved on other grounds, In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5 [37 Cal.Rptr.2d 446, 887 P.2d 527] [purpose of charging requirement of section 190.4 in capital cases is to provide defendant with express notice of felony underlying special circumstance or felony-murder theory].) Furthermore, since the information was sufficient to provide the required notice, and defendant’s counsel stated defendant was neither surprised nor prejudiced by the argument and instructions relating to attempted rape as the basis of the rape special circumstance, defendant’s constitutional right to notice of the charges against him was not compromised. (Cf. People v. Crawford (1990) 224 Cal.App.3d 1, 7-9 [273 Cal.Rptr. 472] [defendant’s rights not compromised where circumstances of trial provided notice that prosecution was proceeding under felony-murder theory]; People v. Scott (1991) 229 Cal.App.3d 707, 712-718 [280 Cal.Rptr. 274] [same].) B. Instructing with Modified Version of CALJIC No. 8.81.17 Defendant contends the version of CALJIC No. 8.81.17 given to the jury was misleading. The jury was instructed: “To find the special circumstance referred to in these instructions as murder in the commission of a burglary, a robbery or a rape, is true, it must be proved: “1. That the murder was committed while the defendant was engaged in or was an accomplice in the commission or attempted commission of a burglary, a robbery, or a rape. “2. That the defendant intended to kill a human being or intended to aid another in the killin