Full opinion text
Opinion MOSK, J. This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.). On April 28, 1989, the District Attorney of Ventura County filed an amended information against defendant Larry David Davis in the superior court of that county. Count I charged that, on or about August 28, 1988, defendant murdered Dawn Michelle Holman. (Pen. Code, § 187.) It was alleged for death eligibility that he did so under the special circumstances of (1) felony-murder kidnapping (id., §§ 207 & 209 [kidnapping for ransom/robbery]); (2) felony-murder sodomy (id., § 286, subd. (c)); and (3) felony-murder rape (id., § 261). (Id., § 190.2, subd. (a)(17)(i), (ii), & (iv).) Count II charged that, on or about August 28, 1988, defendant committed forcible sodomy on Holman (Pen. Code, § 286, subd. (c).) Count III charged that, on or about August 28, 1988, defendant kidnapped Holman. (Pen. Code, § 207, subd. (a).) Count IV charged that, on or about August 28, 1988, defendant committed sexual battery on Suzanne H. (Pen. Code, § 243.4.) Count V charged that, on or about August 28, 1988, defendant assaulted Holman with intent to commit rape and/or sodomy. (Pen. Code, §§ 220, 261, subd. (2), & 286.) Count VI charged that, on or about August 28, 1988, defendant assaulted Suzanne H. with intent to commit rape and/or sodomy. (Pen. Code, §§ 220, 261, subd. (2), & 286.) Count VII charged that, on or about August 28, 1988, defendant attempted to rape Holman. (Pen. Code, §§ 664 & 261.) Defendant pleaded not guilty to the charges and denied the allegations. He subsequently moved to set aside the information under Penal Code section 995. The trial court dismissed the count charging the attempted rape of Holman; it struck the reference to rape in the count charging assault of Holman with attempt to commit rape and/or sodomy and the special circumstance of felony-murder rape. The trial court subsequently struck the reference to section 209 in special circumstance No. 2. Trial was by jury. The panel returned a verdict finding defendant guilty as charged of the murder of Holman and fixed the degree at the first. It found true the accompanying allegations of the felony-murder special circumstances of felony-murder sodomy and felony-murder kidnapping. It also returned verdicts and findings to the effect that he kidnapped her, assaulted her with intent to commit sodomy, and attempted to sodomize her. It returned verdicts and findings to the effect that he assaulted Suzanne H. with intent to commit rape and/or sodomy and sexually battered her. It fixed the punishment for the murder at death. The trial court denied defendant’s motions for a new trial and to reduce penalty (Pen. Code, § 190.4, subd. (e)). It proceeded to enter judgment as follows. For the murder of Holman, it imposed the sentence of death. It imposed a term of four years, consecutive to the sentence for murder, for assault with intent to rape or sodomize Suzanne H. For the sexual battery of Suzanne H., it imposed the middle term of three years. For attempted sodomy of Holman, it imposed the middle term of three years; for kidnapping of Holman, it imposed the upper term of six years; for assault with intent to sodomize Holman, it imposed the upper term of six years. It stayed sentence of imprisonment temporarily, pending execution of the sentence of death, and permanently thereafter. (Pen. Code, § 654.) As we shall explain, the judgment should be affirmed. I. Facts A. Guilt Phase The People introduced evidence to the following effect. On the night of August 26, 1988, Suzanne H. met defendant at a bar and grill in Ventura. She initiated a conversation when she warned him that he was about to be burned by a cigarette in the crowded bar. She told him where she worked and mentioned that her birthday was the next day. Defendant suggested they have dinner the following evening. She arranged for him to stop by after she got off work at a restaurant, about 11 p.m. She had previously made plans to visit a friend, Sandy Camp, the same evening. Defendant arrived at the restaurant at 7 p.m. the next night. Suzanne H. asked him to leave and return later, because the restaurant was busy. He returned at 9 p.m. and waited for her. At 11 p.m., they left in her car. She drove; defendant left his truck in the restaurant parking lot. Defendant and Suzanne H. picked up Camp and went to a bar and restaurant where they had drinks. They then went to another restaurant. Suzanne H. and Camp did most of the talking; defendant appeared “distant” and “nonsocial.” About 12:30 a.m., Suzanne H. said she wanted to leave because she had to make preparations for her relocation to New York in two days. She dropped Camp off at her apartment and defendant got into the front seat of the car. He told her she did not have to drive all the way to his truck in Ventura; she could drop him off at a friend’s house in Oxnard instead. Defendant gave Suzanne H. directions. At one point, when she asked where they were going, defendant said: “[I]t is just a little further.” She became uneasy because they were “out in the middle of nowhere.” Defendant asked to leave the car to urinate. She let him out and turned the car around; she wanted to drive off but felt she could not leave him “way out here.” She told him she could not take him any farther because she did not have enough gas and did not want to be stranded. He told her it was just a little further down the road. He said his friend lived on a farm and had plenty of gas. Suzanne H. saw a sign reading “Road ends quarter of a mile” and felt that something was “very, very wrong.” It was close to 1 a.m. She drove to the end of the road and attempted to turn the car around. Defendant pulled the keys from the ignition and shoved his arm under her blouse and brassiere. He kissed her and “slobber[ed] all over [her] neck and just insult[ed] her.” She opened her door and tried to leave, but defendant held onto her shoulder. She asked him why he was doing this to her; she was frightened and thought he was going to rape her and imagined herself dead, lying next to her car. He grabbed her crotch area and attempted to remove her pants. Suzanne H., who had worked as a volunteer at a rape crisis unit, attempted to “talk her way out of the situation.” First, she told him she was a lesbian; that seemed to excite him more. She then closed the car door, kissed him, and said she wanted to have intercourse with him, but not there. Defendant suggested a motel; she agreed. Defendant put the keys back into the ignition and she drove back towards the town. Suzanne H. drove over the speed limit and rolled through stop lights, hoping to attract the attention of a police officer. She then pulled into a gas station. She told defendant to pump the gas while she paid. At the cashier’s booth, she told the cashier that defendant had tried to rape her and asked him to call the police. She also told another customer, a “biker,” that defendant tried to rape her and asked him to call the police. The “biker” pushed her away. Defendant finished pumping the gas. He came up behind her, held her under her arms, and dragged her back to the car. She struggled and screamed loudly. Crying, she ran back over to the “biker.” She told defendant she was not going anywhere with him. He went over to her car and disabled her engine by removing a coil. He ran across the street and disappeared. About 2 a.m., two City of Port Hueneme police officers interviewed Suzanne H. at the gas station. She reported the incident and identified her attacker as a Black male. She refused to give further details and said she did not wish to “press charges,” explaining that she wanted to go back to New York. She was unable to start her car; the officers looked in the engine and discovered the coil wire was missing. She called Camp and cried during the conversation. Camp picked her up at the gas station. Suzanne H. returned to New York a few days later. About 2:30 a.m., the police officers stopped defendant about half a mile from the gas station, as he walked toward the back of a residence. They asked him for identification. He produced a license and said he was looking for a friend at the residence. One of the officers knocked at the door and asked if the occupants knew defendant. They did not. Defendant then said that he had been going to the back of the residence to urinate. He was checked for warrants, advised not to urinate in public, and released. About 3 a.m., defendant approached Emanuel Manson in the front of a Safeway store. Defendant offered Manson $10 for a ride to Ventura. Manson said he would think about it; he entered the supermarket and purchased some items. Manson observed Holman approach in a car and heard defendant ask her if she would give him a ride to Ventura. Holman had left her home to buy cigarettes, telling her boyfriend and a guest that she would be right back. Holman went into the supermarket and purchased cigarettes. She told Moses Vargas, a clerk at the supermarket, that a man had asked her for a ride to Ventura and asked Vargas if she should give him one. He asked which man, and she pointed to defendant outside. Vargas told her she should not give him a ride. She said she did not think that she would and that she would go home. Vargas saw defendant walk to the passenger door of Holman’s car. She opened the car door for him. They drove away. A greenskeeper at the Buenaventura Golf Course discovered Holman’s body at approximately 5 a.m. and called the police. The body was lying approximately 265 feet from the car. Her skirt was pulled up and her brassiere pulled down below her breasts. She had on only her left shoe; her right shoe was found in a ditch to the rear of the car. Police officers and investigators conducted an examination of the area. Holman’s car was found on the berm of a ditch. Neither her car keys nor her purse were found at the scene. The right door of the car was damaged, and had apparently swung open on impact with a telephone pole. A knife belonging to Holman was found in plain view on the dashboard of the car. An autopsy indicated that the cause of Holman’s death was manual strangulation. There were multiple deep bruises of the strap muscles of the neck and a fracture below the tongue. There were extensive external injuries, including bruises and abrasions, tears on the bottom of the right foot, and scrapes on the knees and the front of the legs. There were also severe internal injuries, including fractures of the ribs and tears in the lungs and liver. A large number of sperm were found in the anal canal; a smaller number were found in the vagina. There were stains on the clothing containing semen and fecal matter. There was physical evidence linking defendant to the incident. A shoe-print discovered above the handle on the passenger-side front door of Holman’s car was consistent with the pattern on defendant’s shoes. A shard of glass found in the shirt defendant wore on the night of the murder had the same physical and chemical properties as glass from Holman’s car. The shirt also had multiple bloodstains. Serological tests indicated that defendant was a possible donor of semen stains found on Holman’s skirt. Hairs found on Holman’s chest were also consistent with hair samples obtained from defendant. Holman’s purse was later found on the roof of a building outside the golf course. The purse contained Holman’s driver’s license. It also contained razor blades, a straw, a spoon, an empty brown vial, and a film canister. The film canister contained powder, possibly baking soda. Residue scraped from the small vial contained cocaine base. On September 3, 1988, defendant was booked into Ventura County jail for the assault on Suzanne H. Michael Fisher, incarcerated for a parole violation, was assigned to receive new arrivals. In a conversation with Fisher, defendant said that he had “messed up” and that he thought he had broken someone’s neck. Approximately two days later, after reading about defendant’s case in the newspaper, Fisher reported the conversation to Deputy Sheriff Troy Roberts. Fisher did not request or receive favors or lenient treatment as a result of the information he disclosed. Deputy Sheriff Roberts had overheard the conversation. He recalled that Fisher asked defendant what was wrong. Defendant said, “I think I fucked up,” and something to the effect that he thought he killed someone. In November 1988, in a conversation with inmate Fernando Moreno, defendant asked if Moreno had “ever fucked a dead girl.” Moreno replied, “No, you’re crazy.” Defendant responded, “You got to get ’em before the body gets cold.” He told Moreno that he had been out with someone and somehow got stranded. He then met someone and talked her into giving him a ride; she was “dumb.” She opened the door for him and they drove off. He started making passes at her, but “she didn’t want to”; she was afraid, pulled over, pushed him, and told him to “get out.” He grabbed the steering wheel and said, “Just keep on going bitch.” He told Moreno that he engaged in vaginal and anal intercourse with the woman, saying he liked it better “through the ass.” Moreno subsequently reported the conversation to investigators in the district attorney’s office. He agreed to testify and was temporarily released from custody for seven days to attend the birth of his second child. On January 21, 1989, Deputy Adams and Deputy Roberts monitored defendant’s cell after hearing a loud shout from the unit in which he was housed. They overheard part of a conversation between defendant and his cellmate, Charles Hansen. Defendant said that he was not the one who opened the car door, that the girl was. His cellmate asked, “This girl?” and defendant said something to the effect: “No, the one I murdered.” Defendant said, “They say they have my fingerprints on the car door, but they don’t because she opened the car door. I didn’t.” He also said that Fisher was a witness for the prosecution and that he would kill Fisher or have his brother kill him. For his part, defendant introduced evidence as follows. He testified concerning the incident involving Suzanne H. to this effect. He was not having a good time at the bars with her and Camp; she seemed to be “checking out the chicks.” After they dropped off Camp, he told her about a party on Arnold Road. She insisted she knew the way, but took the wrong roads despite his initial attempts to direct her. She stopped at the end of an isolated road. She told him he could give her a birthday kiss. As they kissed, she moved his hand to her breast. She told him she was a lesbian but wanted to see men again. He was disgusted; he spit on her and told her to take him back to his truck. She asked to go to a motel with him; he told her he did not go out with lesbians. They drove to a gas station. After he pumped the gasoline, he told her he wanted to go. When she did not respond, he grabbed her wrist and said “Let’s go.” She began screaming “rape.” He asked what was going on, and she called him a “dick.” He walked over to her car, pulled the coil wire, and walked away. Defendant testified concerning the Holman incident to this effect. After leaving the gas station, he attempted to call a friend or a cab to pick him up; he also asked several people for a ride. As he stood in front of a supermarket, he smoked a marijuana cigarette. A “big fat man,” whom he identified as Emanuel Manson, approached and accepted a “hit” of marijuana. He asked Manson for a ride, offering him money. Manson told him that the driver of a car that was pulling up would probably give him a ride. Manson went into the supermarket. A “girl,” later identified as Holman, got out of the car Manson referred to. Defendant told her “that guy” had said she would probably give him a ride to Ventura. She said “wait a minute” and went into the supermarket. Manson came out of the supermarket and stood by his car. Holman came out of the supermarket and said, “Okay, let’s go.” She opened the door for defendant. Manson also got into his car and drove off first. Holman drove to a bank on the comer and parked next to Manson. She spoke to him, asking, “Where’s Ashley?” Manson told her that Ashley had gone to the shop and would meet her at the comer of Wooley Road and Victoria. Defendant and Holman smoked another “joint” and then drove away at the same time as Manson. Holman parked at the appointed comer for approximately 30 to 40 minutes. She told him she was “scoring blow.” They smoked another “joint.” He told her he had been out with a lesbian and had spit on her. She told him she was not a lesbian and said she wanted to have sex. He said no, and she replied, “I know you are not a goody-good.” She orally copulated him and they had sexual intercourse. As far as he knew they had “normal,” i.e., vaginal, intercourse. After sexual intercourse Holman asked if defendant had cocaine. He told her that he did not use cocaine. At that point, there was pounding on the window. Defendant looked out and recognized Myron Ashley Reid. He had seen Reid previously doing business with a drug dealer named “Marietta,” for whom defendant had worked as a “muscle man,” i.e., guard. Reid was wearing a blue jogging suit. He was accompanied by a man with shoulder-length dirty-blond hair. Defendant did not recognize the “white guy,” but Holman said he was her “boyfriend’s friend.” Reid shouted, “You fucking bitch. You couldn’t wait, could you? You knew I was coming.” Holman and defendant got out of the car. Reid told defendant to get into the car that had just pulled up and that he would be taken where he wanted to go. Manson was driving the car. Defendant smoked marijuana with Manson, as Holman, Reid, and the “white man” got into Holman’s car, with Reid driving. Reid was yelling at Holman, calling her “fucking bitch” and asking “what the fuck do you think you’re doing.” He then drove off. Manson followed. Reid and Holman were arguing in the car; the “white man” also argued. Manson was surprised by the direction Reid drove, commenting that they were supposed to go to “Pit’s house.” He followed Reid to a golf course. He saw the door open and Holman hanging out from the waist down. The car hit a telephone pole. Manson stopped and defendant jumped out of the car. Manson and the “white man” left Holman’s car. Defendant ran to Holman, who was lying on the ground. He heard Reid say, “She pulled a fucking knife on me.” Holman was conscious; she told defendant she was all broken up inside and urged, “Run, run, he has a gun.” He saw that Manson had a stick like a baseball bat in his hand. He picked Holman up, slung her across his shoulder and ran across the golf course, followed by the “white man.” Defendant slipped and fell. When he got up, the “white man” was “right there,” and told him that “Ashley” wanted to talk to him. He left Holman with the “white man” and walked back to the car, where Reid stood with a revolver in his hand. Defendant kicked the gun from Reid’s hand, kicked him in the chest, and ran off toward some railway tracks. He saw bright lights like the headlights of a car; after that, he “got hit.” The next thing he knew, he was lying across the railway tracks and an old man with a beard, long hair, and “scraggly” clothes was slapping him in the face. He pushed the man away and “took off.” He returned to his truck and drove off. He did not contact the police because “I figured they all knew each other. It wasn’t my business.” He did not know Holman was dead. The next day, a man approached defendant at work with a message from Reid: “If anything happens, anybody come to you, you wasn’t there, you didn’t see nothing, and you’re not saying nothing, and we got you covered.” Defendant was interviewed by police concerning the incident involving Suzanne H. He told them that after he was stopped by the Port Hueneme police for urinating, he was picked up by someone in a tan Comet and taken to his truck in Ventura, where he sat in his truck and drank. At trial, he testified that he lied to the police because of threats to himself and his family. Defendant testified that he had followed warnings not to talk to possible informants. He admitted telling Fisher that he “fucked up” but denied saying anything about killing anyone. He testified that Moreno asked him, “Didn’t you fuck her after she was dead?” He replied, “Get the fuck out of here, you fucking rat.” Defendant also presented expert testimony concerning the ways in which in-custody informants can obtain information and use it against other inmates in exchange for privileges. Defendant presented evidence to show that Fisher and Moreno had motives to testify falsely as “snitches.” He also presented evidence to cast doubt on the credibility of Deputies Adams and Roberts, including expert testimony that police deputies in jail were usually on their first assignments and eager to distinguish themselves by helping in important cases. Defendant introduced evidence that Holman had a cocaine habit. A witness who had known Holman since high school testified that, on one occasion at Holman’s house, a drug dealer named “Audie” threatened Holman and her boyfriend that he would kill them if they “didn’t quit messing around.” A drug dealer testified that she called him often, continuing even after he refused to sell her any more drugs. On the weekend of her death, he was not home but received a message from Holman. Holman’s aunt testified that a week before the murder she discovered Holman using cocaine. Defendant also presented evidence concerning Reid to corroborate third party culpability. Vargas testified that, before Holman entered the supermarket, a Black man in a dark blue jogging suit had been in the store; the man was 5 feet 10 or 11 inches tall, weighed 155 or 160 pounds, and was about 30 years old. Reid denied defendant’s testimony that he was involved in the Holman incident, testifying that he was at home with his girlfriend on the evening of August 27. His girlfriend confirmed his alibi. Both Reid and his girlfriend also testified that he does not own a blue jogging suit. Reid was 25 years old, 5 feet 11½ inches tall, and weighed 180 pounds. Reid admitted that he was involved in cocaine dealing. Defendant presented testimony concerning an incident in April 1990, in which Reid forcibly drove off with a woman and threatened her with a knife. Reid lost control of the car and she was able to jump out. Defendant also presented testimony concerning Holman’s former boyfriend, Steve Cramer, but could not positively identify him as “the white man” who accompanied Reid. A week before the murder, Cramer told Holman’s mother that someone should “kick Holman’s ass.” On the Friday before the murder, they argued over the telephone and he threatened to come over and “kick [the] ass” of a friend who was with her. Defendant also presented testimony concerning an incident in the summer of 1988, in which Cramer chased Holman on a beach, tripped, and landed with his hands pressing her throat. Cramer testified he was with his brother at home on the night of the murder; his brother corroborated the alibi. B. Penalty Phase The People presented a case in aggravation that focused on other instances of criminal activity involving force or violence. On several occasions, defendant used violence toward his first wife, Laura King. In May 1983, shortly after their first separation, he pushed her, slapped her several times, and forced her back into her apartment. He then drove off with their daughter, over King’s protests. In the summer of 1983, defendant put a telephone cord around King’s neck and tried to choke her. Another time, he held her up against a wooden fence and choked her with both hands until she experienced “tunnel vision.” She fell and he dragged her across the gravel, ripping her skin and clothes. A friend of King’s chased him off with a crowbar. Sometime after Christmas 1983, defendant pushed her down a flight of stairs. In February 1984, after they separated for the last time, defendant came to King’s home and accused her of sleeping with Brian Engblom, who rented a room from her. He insisted that he wanted to take their daughter, who was in his wife’s arms. As they argued and struggled, and while she was holding their daughter, King fell down the stairs. When Engblom returned, defendant pushed him and said he wanted to “settle” something. He pulled out a knife and slashed at Engblom, ripping his coat. In November 1987, defendant confronted Ricardo Brown in the presence of two other men, accusing him of making accusations about defendant’s second wife, Leticia Hernandez. Defendant was holding something about three feet long that was wrapped in a sheet or bag. Brown denied saying anything about Hernandez and told defendant to go away. Defendant kicked Brown hard in the buttocks and said he was going to kill him. Brown said he would go into his apartment and get a gun to defend himself. Defendant pulled a samurai sword from the bag or sheet and threatened to kill Brown. He chased Brown, lunging and swinging the sword at him several times. Brown grabbed a metal dolly and blocked the sword. The two men referred to above grabbed defendant. Police arrived and confiscated the samurai sword. Defendant was charged with misdemeanor battery (Pen. Code, § 242) and brandishing (id., § 417). He pleaded no contest to the former and was convicted of the latter offense. In mitigation, defendant introduced evidence relating to his background and character. He presented testimony of his family members, including his mother, father, and sisters. He was the third of six children. His father was in the Navy and his family moved around the country according to his father’s assignments. His parents divorced when he was six or seven. His mother remarried twice; his father also remarried. The children did not hear from their father after the divorce because the mother withheld letters from him to the children and forbade contact with him. The family was financially stable. Defendant’s mother worked as a government employee and was involved in civic activities. Although she attended and supported defendant’s sports activities, she “really turned her back on the family in the most important areas.” She was physically abusive to her daughters and admitted she was not close to defendant. Defendant was brought before the juvenile court for a theft offense while in his junior year of high school. At the same time, his sister was on juvenile probation. A psychologist who evaluated defendant during that time reported that he was of normal intelligence, but uncooperative and displayed a poor attitude toward authority. Testing at that time showed that he found his home rigid and cold. A psychologist concluded that his mother and stepfather were directly responsible for his delinquency and that of his sister. He recommended counseling, which did not take place. After a year in youth camp, defendant returned home for about a year. He moved out after an argument with his mother. He lived with a friend, Danny Williams, and with Williams’s family for three years. Jacqueline Williams testified that defendant was like a son to her; he was solicitous and helpful, called her “Mom,” and said he loved her. Once, when he was picked up on a traffic warrant, she called defendant’s mother; his mother wanted nothing to do with him. Defendant also studied Kenpo karate beginning at the age of 17. His instructor testified that he came to the studio daily. He had great physical abilities and became one of the best students, making good progress toward a blue belt. He was a fierce competitor, but played by the rules. His instructor also testified that Kenpo karate included training with a samurai sword, to develop coordination. A friend from high school testified that defendant was never belligerent and did not use karate to intimidate others. He did not believe defendant was a “cold-blooded, heartless person or killer.” While he was living with the Williams family, defendant resumed contact with his father and stepmother. He also met Laura King, whom he married. Before the breakup of their marriage, he worked steadily in the oil fields in a physically demanding job and was promoted. He was a good provider, loved his daughter, and shared in child care responsibilities. He testified that the marriage broke up because he wanted King to stay home with the child. At one point, defendant took his daughter, over King’s objections, to live at the home of his father and stepmother. He did not tell King where their daughter was. After about six months, defendant’s father told King where the daughter was living. King began weekend visits with the daughter and eventually took and failed to return the daughter. Defendant was unable to find his daughter and has had no contact with her since that time. King admitted that she sometimes deliberately provoked defendant and knew how to “push his buttons.” She also admitted that the incident in which defendant slashed at Engblom with a knife may have started because she had been late on an occasion when defendant was supposed to pick up their daughter. A probation officer who prepared a report on defendant after the May 1983 spousal battery incident noted that the controversy was over child custody. She reported that the actions of both defendant and King contributed to the situation. She did not recommend the case for diversion, but only because of defendant’s prior record, which included prior convictions for vandalism and receiving stolen property, failure to appear for traffic matters as a juvenile, and a misdemeanor battery adjudication. A psychiatrist, William Vicary, M.D., testified that there were five principal mitigating factors weighing against a penalty of death. First, defendant had a traumatic family background and unsuccessful relationships with his two wives. Second, he had serious psychological problems, including “antisocial personality disorder.” He also exhibited some of the characteristics of “mania,” such as being hot-headed. He had attempted suicide. He had a tendency to express his distress in somatic disorders. Since the guilt verdict, he suffered from a “hysterical conversion disorder,” believing that he was paralyzed. Third, he had a history of drug abuse, including marijuana, cocaine, amphetamines, and alcohol, which exacerbated his psychological condition. Fourth, he was generally a passive and subdued personality who tended to bottle up his problems. Incidents of violence tended to be explosions under pressure. Fifth, he was remorseful; tears came into his eyes when he spoke of Holman. He said, “[I]t shouldn’t have happened. She was an innocent person. Instead, it should have happened to someone like me.” Dr. Vicary also testified that defendant had positive attributes for adjusting to prison life. Although he had an antisocial personality disorder, he did well when provided with structure and sympathy. Dr. Vicary expressed the view that defendant would have problems in the Department of Corrections for the first several months but that he could be treated successfully for his psychiatric disorder. Eventually, he might serve as a trusty or teacher’s aide. Dr. Vicary testified that, in the period before the crime, defendant was “coming to the end of his rope, slowly but surely.” He fought with his second wife, Leticia, on the night of the murder; she threw him out and said she wished he was dead. On his date with Suzanne H., he smoke and drank; when he “came on” to her, she tricked and humiliated him. Dr. Vicary testified that he believed defendant attempted to rape Holman and exploded in anger when she fought back. Holman was dark in coloring like his two wives. On cross-examination, Dr. Vicary testified: “I accept and respect the verdict of the jurors and I have studied thousands of pages in this case and I am personally convinced that he’s responsible for the death of the victim.” He also testified that there were several aggravating factors in the case. First, the crime was senseless and cruel, including sexual assault just before or after Holman’s death. Second, there were two serious crimes within a few hours. Third, defendant’s in-custody statements to informants showed he was callous about the murder. Fourth, defendant had a prior criminal history of assaultive outbursts. Fifth, he had chances to turn his life around, including his relationship with the Williams family and his karate instructor, but did not take advantage of those opportunities. Dr. Vicary was shown a letter from an inmate named “Streeter” describing a conversation in which Streeter told defendant “everyone says you killed her because she looked like your wife. Did you thought [sic] it was your wife you were strangling? [Defendant] said[,] ‘Yeah, it should have been.’ ” The note indicated that defendant laughed. Dr. Vicary testified that the note was consistent with his conclusion that defendant felt deep hatred for his first wife and would have preferred to strangle her in place of Holman. When asked whether the information, if accurate, would be inconsistent with remorse, Dr. Vicary testified: “To some extent.” II. Guilt Issues Defendant raises a number of claims attacking the judgment as to guilt. As will appear, none is meritorious. A. Other-crimes Evidence Concerning Reid At trial, defendant sought to introduce evidence of other crimes committed by Myron Ashley Reid to corroborate a defense of third party culpability in the murder of Holman. His offer of proof, based on Evidence Code section 1101, included evidence that Reid previously engaged in an act of forcible group sex at a party where he was furnishing cocaine and had previously offered to trade sex for cocaine. The trial court concluded that the proffered evidence did not exhibit sufficient similarities to the events related by defendant to establish Reid’s motive, intent, or identity. Instead, it found that the evidence of prior acts constituted character evidence, showing Reid’s propensity to engage in the kind of activity alleged to have resulted in Holman’s death. Accordingly, it ruled that the evidence was inadmissible under Evidence Code section 1101. Defendant contends that the trial court erred by barring the proffered evidence. He urges that the evidence of Reid’s prior violence toward women and cocaine-related activity tended to corroborate his claim that Reid, not defendant, was responsible for the murder. He proposes that Evidence Code section 1101 should apply only to exclude inculpatory evidence of other crimes committed by a defendant, not evidence concerning a third party’s culpability. Thus, evidence showing a character trait or disposition to commit such acts should be admissible to prove a third party’s conduct on a specific occasion. The claim is meritless. Evidence Code section 1101 provides, in relevant part: “(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person’s character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .) other than his or her disposition to commit such act.” Nothing on the face of the statute limits its application to evidence concerning a defendant. A “person” under the provision is any person, whether or not a defendant. If the Legislature intended the statute to apply only to evidence of “other crimes” by a defendant, it could have so provided. Nor does the case law support the argument that the statute is limited to evidence concerning a defendant. In People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99], we clarified the standard for admission of evidence that a third party is guilty of the charged offense. Hall disapproved the judicially created heightened standard of relevancy for third party culpability evidence, holding that it should be treated like any other evidence. (Id. at pp. 831-834.) Under Hall, evidence of third party culpability must be capable of raising a reasonable doubt of the defendant’s guilt; “there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Id. at p. 833.) Hall did not abrogate Evidence Code section 1101 as applied to such evidence. Subsequently, in People v. Farmer (1989) 47 Cal.3d 888 [254 Cal.Rptr. 508, 765 P.2d 940], we specifically addressed the application of Evidence Code section 1101 to proposed evidence regarding prior criminal conduct of a third party alleged to have committed the charged offense. The defendant in Farmer offered evidence of a third party’s history of violent crime, on the theory that it tended to identify him as the perpetrator. We noted that under Hall, evidence linking a third person to the actual perpetration of the crime should be treated like any other evidence. (Id. at p. 921.) We went on to hold, however, that the proffered evidence was properly excluded under Evidence Code section 1101, because it was offered not to show a fact other than the third party’s criminal disposition, such as motive or intent, but merely to show that the third party was the more likely perpetrator because he had a history of violence. (47 Cal.3d at p. 921) Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime. Here, as in Farmer, the proposed evidence did not relate to motive and intent but was essentially an attempt to show that Reid was more likely to have been the killer because he had a history of violence. Moreover, there was no evidence supporting defendant’s testimony that Holman knew Reid or that Reid was present when Holman was assaulted. It was therefore properly excluded. B. Impeachment of Manson and Reid At trial, defendant did not seek to impeach Reid with evidence of other crimes. He did, however, seek to impeach Manson with a misdemeanor conviction for knowingly giving false information to a police officer in connection with a traffic ticket. (Veh. Code, § 40000.5.) The trial court ruled that the evidence of the conviction was inadmissible. Defendant did not seek to impeach Manson with evidence of the underlying misdemeanor conduct. Defendant claims error, on the ground that he should have been permitted to introduce evidence of specific conduct to impeach the credibility of a witness. He argues that his failure to make an offer of proof at trial should be excused because the admissibility of the evidence became clear only under People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d 938], which he could not have anticipated. Alternatively, he claims ineffective assistance of counsel under the Sixth Amendment, on the basis that it was professionally unreasonable not to make an offer of proof of the evidence. Defendant cannot claim error in excluding evidence he did not seek to introduce. There was no exclusion and therefore no error by the trial court. Defendant asks us to posit that he would have attempted to introduce the evidence, that the prosecution would have objected to the evidence as irrelevant and/or inadmissible under Evidence Code section 352, and that the trial court erroneously would have sustained the objection. This chain of events is merely hypothetical. Even if there had been error, there would be no prejudice in light of the relatively minor probative value of the excluded evidence. The alternative claim of ineffective assistance of counsel also fails. “Under ... the Sixth Amendment to the United States Constitution ... a criminal defendant has the right to assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.] [¶] Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.” (People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839], italics in original.) A defendant claiming ineffective assistance of counsel must first establish that “counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693, 104 S.Ct. 2052].) He must then establish prejudice: “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [¶] . . . [¶] . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at pp. 693-694 [80 L.Ed.2d at pp. 697-698]; People v. Ledesma, supra, 43 Cal.3d at pp. 215-218.) As defendant concedes, his counsel could reasonably have believed, before our holding in Wheeler, that evidence of Manson’s underlying misdemeanor conduct and Reid’s unadjudicated other crimes was inadmissible for impeachment purposes. Accordingly, he fails to establish that his “counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694 [80 L.Ed.2d at pp. 693, 697-698]; People v. Ledesma, supra, 43 Cal.3d at pp. 215-218.) C. Cross-examination Regarding Informants Defendant cross-examined Deputy James Adams, Michael Fisher, and Fernando Moreno concerning his alleged in-custody admissions. He claims that the trial court erred in limiting his ability to impeach these witnesses. As shown below, the claims are unpersuasive. 1. Deputy Adams Deputy Adams testified on direct examination that, during a security check of defendant’s cell, he overheard defendant’s incriminating remarks to his cellmate, Charles Hansen. On cross-examination, defendant asked him whether “as a jailer, as a guard there, [he] would be aware of people who are known to be informants” and whether he had “information to believe that Mr. Hansen was a known informant to police.” The prosecutor objected to both questions on relevance and hearsay grounds; the trial court sustained the objections. Defendant made no contemporaneous offer of proof as to the relevance of the questions. He now speculates that Deputy Adams’s responses might have had some impeachment value. The claim lacks merit. On this record, the trial court’s ruling, even if erroneous, could not have prejudiced defendant because any favorable inference he sought to draw from the proposed impeachment was purely speculative. 2. Fisher Fisher testified that defendant made incriminating statements when he was first booked into jail. During cross-examination, defendant asked Fisher what significance, if any, the reputation of “having a snitch jacket”—being an informant—would have for other inmates. The trial court sustained the prosecution’s objection to the question on relevance grounds. After defendant’s offer of proof, the trial court informed defendant that questions concerning Fisher’s attempts to seek favorable treatment were relevant, but that defendant was attempting to elicit the information “by way of a very circular route.” The trial court specifically invited defendant to ask Fisher direct questions about fear of being returned to prison and whether he sought intervention from the district attorney in exchange for his testimony. Defendant did not do so. The claim of error fails. The trial court properly ruled that the question, as posed, did not seek relevant evidence. The record also establishes that defendant was not improperly restricted in his cross-examination of Fisher. 3. Moreno Moreno testified that he acted as an informant in part to earn a release from custody to attend the birth of his second child. During cross-examination, defendant asked Moreno, “Where were you on the first one, when he was born?” The prosecution’s objection, on relevancy grounds, was sustained. Defendant made an offer of proof that Moreno may have missed the first birth for selfish motives and may have been “shooting up” or in jail. The trial court ruled such testimony was irrelevant. Defendant’s claim of error fails. He was not precluded from questioning Moreno about his furlough to attend the birth of his second child in exchange for testifying against him. The jury was fully informed concerning possible bias or motive to fabricate. The trial court properly ruled that the testimony sought by defendant concerning the birth of his first child was irrelevant. D. Prosecutorial Misconduct Regarding Plea Agreement At trial, the prosecutor read into the record a memorandum of the plea agreement with Moreno, stating, in substance, that Moreno would testify in exchange for benefits, including a furlough to attend the birth of his child. The memorandum recited that the plea agreement was “[biased on our interview with Fernando Moreno, careful consideration of his prospective testimony, and belief that the information he has provided is truthful and accurate.” It also stated, “Should there be any issue as to whether he testified truthfully to the best of his ability, it would be submitted to and resolved by the trial judge in the Larry Davis case . . . .” There was no contemporaneous objection. Later in the trial, defendant objected to the phrase referring to “belief’ that the information provided was “truthful and accurate.” The trial court struck that portion of the memorandum and admonished the jury that beliefs of the parties are not relevant and do not constitute evidence. Defendant concedes that he has waived any claim of prosecutorial misconduct by failing to make a timely objection. (See People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610].) “It is, of course, the general rale that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion”—and on the same ground—“he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Benson (1990) 52 Cal.3d 754, 794 [276 Cal.Rptr. 827, 802 P.2d 330].) “It is true that the rule does not apply when the harm could not have been cured.” (Ibid.) That is not the case here; any purported harm was certainly curable. In the alternative, defendant asserts ineffective assistance of counsel. The claim is meritless. The trial court’s admonition cured any potential harm or prejudice as to the portion of the memorandum referring to Moreno’s credibility. As to the portion of the memorandum referring to resolution of “any issue as to whether [Moreno] testified truthfully to the best of his ability,” defendant’s claim of ineffective assistance of counsel is unpersuasive. Even if he could establish that his counsel’s performance was deficient, he fails to establish prejudice. The jury could not reasonably have understood Moreno’s plea agreement to relieve it of the duty to decide, in the course of reaching its verdict, whether his testimony was truthful. (See People v. Fauber, supra, 2 Cal.4th at p. 823.) Additionally, the trial court instructed the jury that they were “the sole judges of the believability of a witness and the weight to be given the testimony of each witness.” Defendant thus fails to carry his burden of establishing a reasonable probability that but for his counsel’s alleged deficient performance, the result of the proceedings would have been different. E. Prosecutorial Misconduct Regarding Fisher Testimony During closing argument, the prosecutor referred to Fisher’s testimony that defendant said, “I think I might have broken someone’s neck and I’m looking at probably seven years.” He commented : “And you may wonder why he said ‘7 years,’ but you may recall that in prior time that was commonly known as the minimum time for which you could—.” At that point, the remark was cut off by defendant’s objection to introduction of evidence outside the record. The trial court sustained the objection and admonished the jury to disregard the comment. Defendant claims that the prosecutor’s partial statement had the effect of vouching for the credibility of Fisher’s testimony and violated his right to confront witnesses. The claim is meritless. As defendant concedes, the incomplete remark by the prosecution was merely inchoate; no reasonable juror would have understood it to bolster Fisher’s credibility or to refer in a meaningful way to any specific facts outside the record. In any event, any possible harm was cured by the trial court’s prompt instruction to the jury that there was no evidence to support the comment and they must disregard it. F. Denial of Motion to Sever Before trial, defendant moved to sever the trial for the offenses against Suzanne H. from those involving Holman. The trial court denied the motion. Defendant claims error, arguing that it was clear when he made the motion that the prosecution aimed to bolster two otherwise weak cases against defendant by presenting the charges and evidence in a single trial. Specifically, the prosecutor would be aided in establishing intent to sodomize Holman if he could present the charges and evidence concerning the sexual assault against Suzanne H. Defendant argues that, at the very least, the determination of the special circumstance of commission or attempted commission of sodomy against Holman must be reversed. Additionally, defendant claims that even if the trial court’s ruling was correct at the time it was made, he was denied his right to due process under the Fourteenth Amendment in the course of the trial because the joinder prejudiced his ability to raise a defense of third party culpability. On this separate ground he seeks reversal of the guilt determination. The claims are lacking in merit. Two or more different offenses can be tried together “provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .” (Pen. Code, § 954.) Refusal to sever on a defendant’s motion might be an abuse of discretion where “(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all; and (4) any one of the charges carries the death penalty.” (People v. Balderas (1985) 41 Cal.3d 144, 173 [222 Cal.Rptr. 184, 711 P.2d 480]; see also Frank v. Superior Court (1989) 48 Cal.3d 632, 639 [257 Cal.Rptr. 550, 770 P.2d 1119].) On appeal, we examine the ruling on the record in which it was made. (People v. Balderas, supra, 41 Cal.3d at p. 171.) “The burden of demonstrating that . . . denial of severance was a prejudicial abuse of discretion is upon him who asserts it . . . .” (Ibid.) A party seeking severance must “clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (Frank v. Superior Court, supra, 48 Cal.3d at p. 640.) Defendant fails to carry his substantial burden. No abuse appears. As defendant concedes, the evidence in support of the offenses against Holman and Suzanne H. was cross-admissible on the issues of identity and intent. (Evid. Code, § 1101, subd. (b).) As the trial court properly concluded, the close proximity in time and place of the two incidents, and the similarities between them, strongly supported joinder. On that ground alone, there was no abuse of discretion. (See Frank v. Superior Court, supra, 48 Cal.3d at p. 639 [“the first criterion—cross-admissibility—can be dispositive when it is determined that the charged crimes would be cross-admissible at separate trials”].) The trial court also addressed the remaining factors under Balderas, properly ruling that, on balance, a joint trial was appropriate. Thus, it considered that while “factor number 4 [the presence of a death penalty charge] . . . weighs heavily in the defendant’s favor,” “these are not inflammatory offenses as defined or as set forth in the cases,” and “[a]s far as the relative strengths and weakness of the case, ... I don’t see here a strong case being supported by a weak case or being bootstrapped up by a weak case.” The alternative claim of due process violation also fails. A determination of guilt must be reversed despite a correct joinder ruling by the trial court only if “a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of the law.” (People v. Johnson (1988) 47 Cal.3d 576, 590 [253 Cal.Rptr. 710, 764 P.2d 1087].) The charge of assault on Suzanne H. with intent to commit sodomy and/or rape was supported by credible evidence, including the testimony of the victim, and the jury found it true. (See discussion below in pt. II.G.) There was also substantial evidence linking defendant with the murder and sexual assault of Holman. Although the extensive cross-admissible evidence on the issues of intent and identity doubtless undercut defendant’s theory of third party culpability in the Holman murder, no gross unfairness resulted from joinder to deprive him of a fair trial or due process of law. G. Sufficiency of Evidence of Intent to Commit Rape and/or Sodomy Defendant claims that the evidence was insufficient to support the conviction of assault with intent to commit rape and/or sodomy on Suzanne H. At most, he asserts, he engaged in “an overly forcible seduction that perhaps crossed the line of sexual battery but did not go farther.” The claim is meritless. In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781], italics in original.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Pensinger (1991) 52 Cal.3d 1210, 1237 [278 Cal.Rptr. 640, 805 P.2d 899].) “The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required.” (People v. Meichtry (1951) 37 Cal.2d 385, 388-389 [231 P.2d 847].) The same, we believe, is true of assault with intent to commit sodomy. “[I]f there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault.” (People v. Soto (1977) 74 Cal.App.3d 267, 278-279 [141 Cal.Rptr. 343].) Defendant argues unpersuasively that the incident with Suzanne H. had the “earmarks of a conventional date” and “at most showed an overly forcible seduction that perhaps crossed the line of sexual battery but did not go farther.” The record includes substantial evidence from which a rational trier of fact could infer intent to commit rape and/or sodomy. Thus, Suzanne H. testified that defendant directed her to drive to an unfamiliar and isolated area, pulled the keys from the ignition, and aggressively fondled her breasts and crotch in spite of her protests. When she opened the car door and attempted to leave, he forcibly prevented her from doing so. Only through the ruse of feigning acquiescence to have sexual intercourse with him in a motel room was she able to convince him to let her drive the car. She pulled into a gas station, asked him to pump gas, and immediately sought assistance from the cashier and another customer. When she did not return to the car, defendant grabbed her under the arms and dragged her back toward the car. After she screamed, resisted and eluded his grasp, he disabled her car and fled. H. Sufficiency of Evidence of Premeditation and Deliberation for First Degree Murder Defendant asserts that there was insufficient evidence to sustain a conviction for murder in the first degree of Holman. The claim is meritless. As discussed, in reviewing sufficiency of the evidence, we must determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (See Jackson v. Virginia, supra, 443 U.S. at p. 319 [61 L.Ed.2d at pp. 573-574].) The specific issue concerns the elements of premeditation and deliberation. Defendant argues that there was insufficient evidence of planning or an exacting manner of killing. He is unpersuasive. The evidence of the manner in which Holman was murdered was sufficient to support a finding of premeditation and deliberation. The evidence showed that Holman, gravely injured after her car struck a pole, fled from defendant. He pursued her and then strangled her over a period of up to five minutes, at a time when she was severely debilitated and in pain from internal injuries. A rational finder of fact could infer that defendant’s manner of killing Holman demonstrated a deliberate plan to kill her. Defendant argues that the evidence does not satisfy the test for sufficiency of the evidence under People v. Anderson (1968) 70 Cal.2d 15, 26 [73 Cal.Rptr. 550, 447 P.2d 942]. Even were that the case, in People v. Perez (1992) 2 Cal.4th 1117, 1125 [9 Cal.Rptr.2d 577, 831 P.2d 1159], we emphasized that the categories identified in Anderson are descriptive, not normative. “The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.” (Ibid.; but see id. at pp. 1134-1147 (dis. opn. of Mosk, J.); id. at p. 1147 (dis. opn. of Kennard, J.).) I. Use of Special Findings Over defendant’s objection, the jury was instructed as follows: “You have been instructed on deliberate and premeditated first degree murder and felony first degree murder. In order to reach a verdict of first degree murder it is not necessary that all jurors agree on which of the two theories applies so long as all jurors agree that at least one of them has been proved beyond a reasonable doubt; however, it is required that you make special findings should you return a verdict of first degree murder as to whether the jury unanimously did in fact agree on either or both theories.” The jury indicated that it unanimously found premeditation and deliberation but did not unanimously find felony-murder rape. Defendant claims that the use of special findings was prejudicial error, because it interfered with the jury’s deliberative process. The claim fails. “A general verdict on a plea of not guilty is either ‘guilty’ or ‘not guilty’ . . . .” (Pen. Code, § 1151.) “A special verdict is that by which the jury finds the facts o