Full opinion text
Opinion WERDEGAR, J. A jury convicted Gerald Frank Stanley of the first degree murder of Cindy Rogers Stanley (Pen. Code, §§ 187, 189) (count I), arson of an inhabited dwelling (§ 451) (count II) and burglary of an inhabited trailer coach (§ 459) (count III). The jury also found that defendant personally used a firearm in the commission of the murder. (§ 12022.5.) The jury found true the special circumstance allegations that defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)) and for the purpose of preventing the victim’s testimony as a witness in a criminal proceeding (§ 190.2, subd. (a)(10)). In a separate proceeding the jury also found true the special circumstance allegation that defendant had previously been convicted of second degree murder. (§ 190.2, subd. (a)(2).) Pursuant to the parties’ waiver of jury trial, the court found true the allegation that defendant had served a prior prison term and had not remained free of prison custody for five years without commission of another felony offense resulting in a conviction. (§667.5, subd. (b).) Following a competency trial (§ 1369) at which the jury found defendant mentally competent, the jury returned a verdict of death; the court entered judgment accordingly. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Guilt Phase Defendant met the victim, Cindy Rogers, on July 3, 1980, at the fairgrounds in Hayfork, Trinity County. He was introduced to Cindy by Gary Wells, a friend of defendant’s brother John. Defendant was a professional hunting guide. At the time, he was on parole and trying to gain custody of his two children by his second wife, whom he had murdered in 1975. On July 7, 1980, he and Cindy were married in Reno. On their return to California the next day, the pair went to Lake County where Cindy’s parents, the Spatigs, owned and operated the Spatig motel-resort in Nice, near Clear Lake. On July 16 defendant allegedly committed three felony offenses against Cindy, the nature of which were kept from the jury. On July 18 defendant burned down Cindy’s house in Lucerne, Lake County. On July 20 he burned her car. On July 20 Cindy filed felony charges against defendant for the July 16 offenses; based on the charges, a parole violation warrant issued for defendant’s arrest. From July 20 to August 11, the day of her death, Cindy stayed away from defendant. On July 20 she and her entire family spent the night in a motel in Ukiah. Thereafter Cindy stayed variously with a longtime friend and coworker, Stan Simpson, a new friend, Patrick Pounden, and her parents at their resort. On the evening of August 11, 1980, defendant, armed with a high-powered scope rifle, positioned himself behind a tree across the road from the Spatig resort. Just before 10 p.m., Cindy, her father Frank Spatig, and Simpson moved their lawn chairs from a patio area where they had been seated to a more open location near the resort swimming pool facing Highway 20. Cindy’s son was playing in the pool. Shortly after the three seated themselves by the pool, Frank Spatig got up and turned on the pool area lights. As Spatig sat down again, defendant shot Cindy through the heart; she died almost instantly. Defendant then fled. On August 12, defendant burglarized a mobilehome. On August 13 he was arrested at the house he shared with his mother in Anderson, Shasta County. The evidence against defendant was circumstantial. Briefly stated, the prosecution evidence showed defendant was concerned he would not obtain custody of his children if Cindy pressed the criminal charges against him. Sometime in the latter part of July, defendant’s mother, Mrs. Stanley, called Cindy’s mother, Bobbie Spatig, to ask her to convince Cindy to drop the charges against defendant. On July 20 defendant made an anonymous telephone call to Sergeant Adkins of the Shasta County Sheriff’s office in which he reported he had met Gary Wells at the Harbor Bar in Clear Lake a few days earlier, they had been drinking heavily, and Wells had told him he was going to kill Jerry Stanley and Cindy Stanley, because Cindy had been his girlfriend and Jerry Stanley had married her after knowing her only a few days. On August 4 defendant’s mother, Mrs. Stanley, rented a silver-gray Camara for defendant at his request, because the other vehicles to which he had access were known to law enforcement and he was unwilling to turn himself in on the parole violation at that time. On the day of the shooting defendant was seen at the Island Park Cafe in Lake County and, about 4 p.m. the same day, in nearby Williams in Colusa County. After the shooting, witnesses near the site from which the shot was fired saw a man running past their home, carrying a gun and wearing what appeared to be a jacket. He disappeared into the darkness. Shortly after, they saw a car start to move, its lights and engine off. After the headlights were turned on and the engine started, the car turned left onto Highway 20 east toward Lucerne and the Harbor Bar. The murder weapon, a Browning rifle with a Redfield scope, subsequently was found about 18 to 20 feet out in the lake off the Harbor Bar. The rifle had been purchased by Edna Stanley. About 10:50 or 10:55 p.m., a car traveling east on Highway 20 approached a police roadblock. The car pulled to the side of the road for a second or two and then made a U-turn and proceeded westbound in the direction from which it had come. Police officers gave chase. They noticed a cloud of dust floating across the highway from a private driveway, indicating someone had turned up the driveway at a high speed. Following the trail, the officers found the Camaro abandoned behind a residence where it had come to a skidding stop due to a log blocking the driveway. During the early morning hours of August 12, defendant broke into a mobilehome on the Spartan Ranch, nine to ten miles from where the Camaro was abandoned. Later that day he walked to Highway 20, where he hitched a ride with the Pauls, a couple returning from a camping trip in Fort Bragg. The Pauls dropped defendant off in Anderson. The next day, after the Stanley house was surrounded by police, defendant surrendered. A search of the Camaro yielded, among other things, a loaded rifle, an empty rifle case, binoculars out of their case, a corduroy jacket, a knit cap, a ski mask, and a spiral notebook containing a letter in defendant’s handwriting to his parole agent, John Ransom. Defendant’s fingerprints were found on the car trunk and the notebook. The dome light, intact and working when the car was rented, had been removed from the ceiling of the car, thus preventing a light from going on when the car door was opened. An excerpt from the letter to Ransom read in part as follows: “John, when you read this I will be dead! Better this way as my life and everything I fought for has been destroyed. My fight for my kids I can never win now.” A search of defendant’s room in the Stanley residence in Anderson yielded Winchester 30.06 150-grain ammunition consistent with the spent cartridge in the chamber of the Browning rifle and with the lead taken from Cindy’s body, as well as a photograph of defendant holding the Browning rifle. A spent 30.06 cartridge was found in the living room. The evidence also showed that the Browning had been carried in the empty rifle case found in the Camaro. While in custody, defendant, at his request, spoke with Sergeant Coulter. Defendant told Coulter that the evening of the murder he was with two people named Gary and Linda, who were involved in drug deals in Lake County. He went with them to the Harbor Bar, where he waited in the car while they made some phone calls. He then drove them east on Highway 20. When they approached the roadblock, Gary told defendant to turn around. As they got to the dirt driveway, Gary told him to stop, whereupon Gary and Linda jumped out into the brush while defendant continued up the driveway. At trial defendant admitted the entire story was a lie. Defendant testified in his own defense. He denied killing Cindy. He stated he was on the telephone talking to his mother at the time of the murder. Mrs. Stanley corroborated his testimony. Defendant’s theory was that Cindy had been killed either by his brother, John Stanley, or by Gary Wells or Mike Saylor, but most likely by Wells. Wells had introduced Cindy to defendant and allegedly was jealous that Cindy had married him. Wells also supposedly was concerned about a conversation overheard by Cindy that implicated John Stanley, Saylor and himself in a robbery they had committed. Neither Wells nor Saylor had a verifiable alibi for the evening of the murder. B. Penalty Phase In the penalty phase the prosecution presented evidence of the circumstances surrounding defendant’s 1975 murder of his second wife, Kathleen (Kathy) Rhiley Stanley. The prosecution also presented evidence of uncharged offenses committed by defendant involving violence or threats of violence. Finally, the prosecution presented evidence that, one day before he killed his wife Cindy, defendant murdered Cheryl Renee Wright. In mitigation, defendant presented, inter alia, testimony of his mother and other family members and certain mental evidence. 1. Conviction for 1975 Murder of Kathy Stanley Jackie Foster, an eyewitness to Kathy Stanley’s murder, testified that on January 14, 1975, she saw defendant waiting near the office at his daughter Kristie’s school. As Kathy Stanley drove up the school driveway to let Kristie out, defendant jumped into the car on the passenger side. Foster heard Kathy and defendant’s two children scream and saw Kathy try to get out of the car. With the two children between them, defendant grabbed Kathy underneath the neck and twice shot her. Kathy fell out of the car, and defendant ran away with Kristie while his son J.J. tried to follow them. Defendant’s first wife, Linda Faith, testified he called her the day after Kathy’s murder. He told her he was going to pretend he was mentally ill, knew how to get away with that with the psychiatrist, and would be out in two or three years. He also threatened to “take care of her” like he did Kathy. Kathy’s mother, Crystal Rhiley, testified Kathy and defendant had separated in October 1974 after seven and a half years of marriage. At that time Kathy moved to Oakland for a few weeks, then stayed with a friend in a trailer park in Vacaville, and finally moved to her mother’s house. In October 1974 defendant came to Crystal Rhiley’s house looking for Kathy, and threatened to put Kathy in a condition in which her mother would not recognize her unless Kathy returned a pickup truck to him. The transcript of defendant’s testimony at his prior murder trial was read to the jury. Defendant in that case testified as to his efforts to locate Kathy and their children. Kathy wrote to him, indicating a possibility of getting back together. He testified if Kathy told him there was no chance of their reconciling, he planned to kill himself in front of her. On the morning of the killing he drank a tall can of beer and took three or four codeine pills. He went to his daughter’s school with a loaded gun in his pocket. He remembered getting in the car and Kathy screaming, but did not remember shooting her. The next thing he recalled was being down the driveway with his daughter and hearing his son calling to him. 2. Murder of Cheryl Renee Wright The prosecution presented evidence showing defendant murdered Cheryl Renee Wright on August 10, 1980. Beverly Johnston, Wright’s mother, testified she spoke with Wright at 6:30 p.m. that day. Wright was then at her sister Rhonda’s house in Sacramento. Rhonda testified Wright left to return to her apartment in Redding around 7:15 or 7:30 p.m., dressed in a wine-colored strapless jumpsuit in a flowered pattern. She had no more than $50 with her. Johnston attempted to reach Wright in Redding at 10 p.m. Wright’s boyfriend, Randy Orum, was waiting there for her. Wright had called him at the apartment around 8 p.m. and again within the hour. Johnston called Wright’s apartment again around midnight and still later, at 2 a.m., and then called the highway patrol. Around 9 p.m. two employees of a service station in Williams saw defendant drive into the station in a light-colored Camaro. He was with a girl identified as Wright. She made several phone calls and changed her clothes. Defendant discussed with the service station employees how to fix the tire on her Vega. Defendant had previously been seen at the station driving a brown and tan pickup truck with an Oakland Raiders sticker. Defendant and Wright discussed towing her car. He claimed he had a friend about six miles out in the country who had a Vega, and that he could get two tires and wheels so she could get her car fixed. The tow service operator had been in the area for 22 years and knew almost everyone; according to him, no one in the area owned a Vega. When defendant left the station, he drove toward the northbound 1-5 ramp, which also led to Highway 20. Wright’s Vega, with a badly damaged rear tire and low left tire, was found north of Williams at 2:40 a.m. on August 11, 1980. On August 17, 1980, Wright’s body was found buried under gravel at an abandoned oil well on Bear Valley Road off Highway 20. She had died as a result of a head wound inflicted by a .25-caliber bullet fired from a semiautomatic pistol. Death had occurred between two days and two weeks earlier; the exact time of death could not be determined due to deterioration of the body. Police collected samples of the gravel that covered the body and of the gravel that covered the floorboards on the driver’s side of the Camaro defendant was driving on August 10. John Rapp, a geologist for the California Division of Mines and Geology and a specialist in rock identification, examined the samples and concluded the gravel from the well site and the gravel from the Camaro were virtually identical. He testified that kind of gravel was not indigenous to Colusa County, being native only to Southern California. The gravel at the well site and in defendant’s car matched a kind of gravel dug in Bakersfield and delivered to the mine by Coastal Engineering Company of Bakersfield in May 1979. Coastal Engineering Company had never delivered gravel from that source anywhere else north of Sacramento. During the search of Mrs. Stanley’s house police found .25-caliber ammunition in the bedroom defendant had used, as well as in the garage and master bedroom. 3. Other Uncharged Offenses Involving Violence or Threat of Violence During the guilt phase the prosecution introduced evidence that on or about July 20, 1980, defendant committed arson of Cindy’s automobile. Defendant was not charged with arson, but during the penalty phase the prosecutor argued it as a circumstance in aggravation, and the jury was instructed on the elements of arson. P., Kathy’s sister, testified defendant raped P. at gunpoint in the house he shared with Kathy in spring 1974. He then watched P. while she bathed and told P. he would kill Kathy if she told anyone what he had done. Later, defendant attempted to rape P. in her car. She managed to escape, naked from the waist down. P. also testified regarding an earlier occasion when defendant had vandalized her family’s car. James Rhiley, Kathy’s father, testified that in the summer of 1969, after he ordered defendant off his property, defendant threatened him with violence. Linda Faith testified that in October or November of 1965 defendant fired a shotgun at a neighbor’s door in response to the neighbor’s refusal to turn down his stereo. Barbara Gwiazdon testified defendant called her in October 1969 and threatened bodily injury to her family if they evicted his parents from their rental house. He warned her not to leave her house alone or to leave her cars out. Claudia Ameral testified that in the summer of 1970 she heard defendant threaten to kill his sister-in-law. At that time Ms. Ameral and her husband owed defendant money. Defendant made a series of telephone calls threatening them with physical violence, death and destruction of their house, unless they paid the debt. Everett Downing, a neighbor of defendant, testified that in the fall of 1971 defendant asked him to come to his house to discuss some rubbish on defendant’s lawn. When Downing knocked at the door, defendant emerged, pulled off his shirt, and wanted to fight. He also threatened to bum Downing’s camper. 4. Mitigating Evidence Defendant’s mother testified about defendant’s childhood, including the surgeries performed on his deformed lip and nose and his commitment to the California Youth Authority. She also testified about his love for his children and her love for him. Judy Alleman, defendant’s sister, Phillip Alleman, defendant’s brother-in-law, and Todd, Kristie and J.J., defendant’s children, testified they loved defendant and he loved them. It was stipulated that, if called to testify, Bobby Martinez, defendant’s cellmate for 10 months in the Lake County jail, and Tom Landmm, defendant’s cellmate for several months, would testify defendant was a pleasant companion and they considered him a friend. It was further stipulated that testimony given at defendant’s 1975 trial by three psychiatrists and by four Stanley family members could be read to the jury. Pursuant to the stipulation, the testimony of Dr. Leoti Thompson, a psychiatrist who had interviewed defendant on four occasions, both before and after Kathy Stanley’s murder, was read to the jury. Dr. Thompson opined defendant might have been unable to premeditate or deliberate due to his mental state at the time of the murder. Dr. Thompson diagnosed defendant as a passive dependent individual suffering an anxiety reaction with considerable underlying anger and depression. The testimony of Dr. Martin Blinder was also read to the jury. Dr. Blinder testified to defendant’s dependency on his family. His longing for his family after he and Kathy separated probably caused internalized anger that deepened his depression and made him suicidal. Dr. Blinder did not believe that on the morning of the crime defendant had the power to reason in a normal fashion, although he acknowledged it was possible defendant had consciously intended to kill Kathy. Forensic psychiatrist Dr. Charles Morris testified he was retained by the district attorney to examine defendant only hours after the 1975 murder. He deliberately interviewed defendant without knowing any details of the offense. He concluded defendant was sane, with no aberrations in his ability to formulate plans and to put them in action. Dr. Morris diagnosed defendant as having a dyssocial reaction and moderate reactive depression. In his opinion defendant was lying when he said he had no memory of the actual shooting. The testimony of defendant’s sister, brother-in-law, mother, and older son was read into the record. All described the extent of defendant’s beer drinking; his mother additionally testified to his use of prescription drugs (codeine, Percodan, and Valium). Captain Wood, Butte County jail commander, testified he had contact with defendant on a regular basis and considered him a model prisoner. On cross-examination he acknowledged defendant was housed not with the general population, but in a single cell with a separate recreation area. The last defense witness was Dr. David Axelrad, a psychiatrist. Dr. Axelrad interviewed defendant and his family; read police, defense, and prosecution investigation reports, prison records, prior psychiatric reports, and medical records; and reviewed the transcript of the 1975 murder trial. Dr. Axelrad’s testimony was illustrated by 12½ hours of videotaped interviews he conducted with defendant. During the course of the interviews Dr. Axelrad injected defendant with sodium amytal, a substance that enhances a subject’s willingness to talk (although not affecting the truthfulness of what he says). Dr. Axelrad believed if defendant had been able to provide any further information about Cindy’s death, he would have done so under the influence of sodium amytal; as he did not, Dr. Axelrad concluded defendant was not feigning mental illness. In Dr. Axelrad’s opinion, at the time of the capital crime defendant was suffering from five mental disorders that caused him not to appreciate the criminality of his act: paranoid disorder, intermittent explosive disorder, borderline personality disorder, alcohol intoxication, and abuse of barbiturates and sedatives. Neurological tests revealed no signs of organic brain damage. II. Discussion A. Guilt Phase 1. Suppression Issues Before trial defendant filed a motion to suppress evidence seized from the Camaro and the Stanley residence in Anderson, and from interception of his letters and conversations in the Shasta County jail, among other items. After a lengthy hearing filling 3,500 pages of transcribed oral proceedings, the trial court granted the motion in part and denied it in part. Defendant and the prosecution both petitioned for writs of mandate. (§ 1538.5, subds. (i), (o).) The Court of Appeal consolidated the proceedings for hearing and disposition. On August 14, 1981, the court, in an unpublished opinion, granted in part and denied in part each petition. (Nos. 53398 and 53463.) On July 22, 1982, this court denied defendant’s petition for hearing. a. Law of the Case On appeal defendant raises the same search issues he raised unsuccessfully in his pretrial petition for writ of mandate in the Court of Appeal. The issue before us is whether, as the Attorney General contends, further review of the search issues is foreclosed by the doctrine of “law of the case.” As reiterated in People v. Shuey (1975) 13 Cal.3d 835, 841 [120 Cal.Rptr. 83, 533 P.2d 211] (Shuey): “ ‘The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’” The principle applies to criminal as well as civil matters (ibid.: see also People v. Medina (1972) 6 Cal.3d 484, 492 [99 Cal.Rptr. 630, 492 P.2d 686]), and it applies to this court even though the previous appeal was before a Court of Appeal (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434 [212 Cal.Rptr. 466, 696 P.2d 1308] (Searle)). The principal reason for the doctrine is judicial economy. “Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.” (Searle, supra, 38 Cal.3d at p. 435.) Because the rule is merely one of procedure and does not go to the jurisdiction of the court (People v. Medina, supra, 6 Cal.3d at p. 492; see Clemente v. State of California (1985) 40 Cal.3d 202, 212 [219 Cal.Rptr. 445,707 P.2d 818]), the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a “manifest misapplication of existing principles resulting in substantial injustice” (Shuey, supra, 13 Cal.3d at p. 846), or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations (People v. Ramos (1984) 37 Cal.3d 136, 146 [207 Cal.Rptr. 800, 689 P.2d 430] (Ramos)). The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination. (Shuey, supra, 13 Cal.3d at p. 846.) Defendant argues that this court’s constitutional duty to review all judgments of death to ensure there has not been a miscarriage of justice (Cal. Const., art. VI, § 11; see § 1239, subd. (b)) precludes application of the law of the case doctrine to decisions of intermediate appellate courts. (People v. Stanworth (1969) 71 Cal.2d 820, 832-833 [80 Cal.Rptr. 49, 457 P.2d 889] [holding a defendant in a death penalty case cannot waive automatic appeal prescribed by § 1239, subd. (b)].) We have previously resolved this question adversely to defendant’s position. (People v. Keenan (1988) 46 Cal.3d 478, 505-507 [250 Cal.Rptr. 550, 758 P.2d 1081]; People v. Ghent (1987) 43 Cal.3d 739, 758-760 [239 Cal.Rptr. 82, 739 P.2d 1250].) People v. Stanworth, supra, 71 Cal.2d 820, on which defendant relies, is distinguishable in that our focus there was on a death penalty defendant’s automatic right of review, not on which appellate court should provide the review. (See Stanworth, supra, 71 Cal.2d at pp. 832-834.) Indeed, we have applied the doctrine of law of the case in two death penalty cases not readily distinguishable from this one. (People v. Keenan, supra, 46 Cal.3d at pp. 505-507 [according law of the case effect to Court of Appeal decision denying capital defendant’s petition for mandate to compel discovery]; People v. Ghent, supra, 43 Cal.3d at pp. 758-760 [according law of the case effect to Court of Appeal decision denying relief from trial court’s denial of motion to sever counts (§ 954)]; see also People v. Mattson (1990) 50 Cal.3d 826, 850, fh. 9 [268 Cal.Rptr. 802, 789 P.2d 983] [dictum].) Consequently, that this is a capital case does not bar application of the law of the case doctrine to the search issues. Absent a “manifest misapplication” of the law resulting in “substantial injustice”(Shuey, supra, 13 Cal.3d at p. 846) or an intervening change in the law (Ramos, supra, 37 Cal.3d at p. 146), the Court of Appeal decision should stand as the law of the case. b. Issues Decided The Court of Appeal upheld the search of the Camaro and the search of the Stanley home, including the parole search of Stanley’s room. The court also upheld the search of defendant’s mother’s pickup, the interception of defendant’s jailhouse mail and communications with visitors, and the search and seizure pursuant to warrant of evidentiary samples from defendant’s body, but no evidence from these latter searches was admitted at trial. Finally, the court held invalid the June 1974 warrant search of defendant’s home and pickup truck, during which police had seized (but later returned) the same Marlin .30-.30 rifle that was seized in the trunk of the Camaro and entered into evidence as People’s exhibit No. 28. Consequently, the jury was not permitted to know that the rifle had been in defendant’s possession six years earlier. Defendant makes the same challenges to the approved searches as were disposed of by the Court of Appeal. Therefore, unless the Court of Appeal opinion rests on a “manifest misapplication of existing principles resulting in substantial injustice” (Shuey, supra, 13 Cal.3d at p. 846), or there has been an intervening determination altering the controlling rules of law (Ramos, supra, 37 Cal.3d at p. 146), that court’s decision should be law of the case. As noted above, our mere disagreement, if any, with the Court of Appeal’s determination is not of itself a sufficient basis for finding the decision unjust. (Shuey, supra, 13 Cal.3d at p. 846.) The Court of Appeal opinion does not disclose a “manifest misapplication of existing principles resulting in substantial injustice” such as would justify reexamination of the issues decided. People v. Scott (1976) 16 Cal.3d 242, 247 [128 Cal.Rptr. 39, 546 P.2d 327], cited by defendant, is distinguishable. There the Court of Appeal purported to apply one of this court’s decisions, but in fact misunderstood and misapplied the case. Here the authorities relied on by the Court of Appeal fully support its conclusions. Indeed, although defendant argues the court erred, he does not attempt to bring any asserted error within the standard of “a manifest misapplication of existing principles” (Shuey, supra, 13 Cal.3d at p. 846). Defendant contends, however, that in upholding defendant’s arrest at the Stanley home, the Court of Appeal misread the record. In applying the doctrine of inevitable discovery, the Court of Appeal stated the trial court found that police would have looked for defendant at his mother’s house irrespective of the allegedly illegal prior search for him at his sister’s house. According to defendant, the trial court did not so find because the prosecution never asked it to. Defendant’s assertion is unsupported by the record. In upholding defendant’s arrest, the trial court first stated its belief the officers had properly come by the information that defendant was not at his sister’s house. Continuing, the court stated: “But even without that information, I would feel that the other circumstances are intervening and independent. And the People don’t have to rely upon the search [of defendant’s sister’s residence] as being a basis for proceeding to the [Stanley] residence.” (Italics added.) From this the Court of Appeal determined the trial court found “that regardless of the search of Stanley’s sister’s home, the police independently would soon have sought Stanley where he resided nearby with his mother and son.” The Court of Appeal’s reading of the record is manifestly reasonable; hence, defendant has failed to demonstrate any reason to justify excepting this part of the court’s decision from application of the law of the case doctrine. c. Intervening Change in Law: Parole Search At the time of the offense defendant was subject to a general parole search condition. Concurrent with the police search of the Stanley home, defendant’s parole agent, John Ransom, conducted a parole search of defendant’s bedroom. In upholding the police search, the Court of Appeal, in an alternative holding, relied on defendant’s parole condition. (See, e.g., People v. Icenogle (1977) 71 Cal.App.3d 576, 585 [139 Cal.Rptr. 637] (Icenogle).) Relying on this court’s subsequent decisions in People v. Burgener (1986) 41 Cal.3d 505, 528-529 [224 Cal.Rptr. 112, 714 P.2d 1251] (Burgener) and People v. Johnson (1988) 47 Cal.3d 576 [253 Cal.Rptr. 710, 764 P.2d 1087] (Johnson), defendant argues the Court of Appeal erred. Burgener, supra, and Johnson, supra, stand for the principle that a parole search is reasonable under the Fourth Amendment “if there is a reasonable nexus (a direct and close relationship) between the search and the parole process, and a reasonable suspicion, based on articulable facts, that the parolee has violated the terms of his parole or engaged in criminal activity.” (Johnson, supra, 47 Cal.3d at p. 594.) Neither police participation nor the fact the parolee is already under arrest invalidates an otherwise proper parole supervision purpose. (Ibid.) see Burgener, supra, 41 Cal.3d at p. 536.) Defendant maintains that because his parole agent was operating independently of the police and did not authorize their search, there was no requisite nexus between the police search and his parole condition. Significantly, he does not argue that if agent Ransom had authorized the police search, it would nevertheless have lacked a proper parole supervision purpose. Clearly, investigation of defendant’s involvement in a murder would have a parole supervision purpose. (Burgener, supra, 41 Cal.3d at p. 536; see also People v. Brown (1989) 213 Cal.App.3d 187, 192 [261 Cal.Rptr. 612].) The question, then, is whether Burgener, supra, and Johnson, supra, should be applied retroactively to invalidate the Court of Appeal’s alternative parole-search theory, based on then-valid law (Icenogle, supra, 71 Cal.App.3d at p. 585). Donaldson v. Superior Court (1983) 35 Cal.3d 24 [196 Cal.Rptr. 704, 672 P.2d 110] (Donaldson) dictates not. In Donaldson this court held that in search and seizure cases a decision that represents a clear break with the past generally should not be given retroactive effect. The reason is that exclusion is neither necessary to ensure the reliability of the factfinding process at trial, nor does it deter illegal police conduct; hence retroactivity serves no justiciable purpose. (Id. at p. 39.) Because the Court of Appeal correctly applied the law of parole searches as it then existed, we shall not overturn its alternative holding on that point. In summary, the Court of Appeal decision is the law of the case, and we decline to address defendant’s renewed Fourth Amendment arguments. 2. Failure to Hold Evidentiary Hearing on Transfer of Venue to Butte County Defendant contends his conviction and sentence must be reversed because the Lake County Superior Court, having granted the motion for change of venue, abused its discretion in not holding an evidentiary hearing to determine whether Butte County was an appropriate site for trial. Defendant bases his argument on McGown v. Superior Court (1977) 75 Cal.App.3d 648 [142 Cal.Rptr. 262] (McGown). There the Court of Appeal construed rule 842 of the California Rules of Court impliedly to require the court in which the action is pending to conduct an evidentiary hearing before deciding where the cause should be transferred, while noting parties might waive their right to present evidence on the issue. (McGown, supra, 75 Cal.App.3d at p. 652.) Because the transferring court in McGown had ordered the case transferred to Stanislaus County without affording the defense an opportunity to show the existence of prejudicial publicity there, the Court of Appeal issued a writ of mandate to compel the transferring court to hold a hearing to determine whether the case should be transferred to Stanislaus County. (Id. at pp. 653-654.) Defendant’s contention fails at the threshold because the Lake County Superior Court did hold a hearing before determining the suitability of Butte County for trial of the case. Before and after granting the motion for change of venue, the court repeatedly indicated its awareness of the need for a hearing. Before holding the hearing, the court solicited counsel’s views as to the appropriate county of transfer, and both sides named Butte County as their first preference. Counsel and the court noted certain counties would be impracticable as sites for trial, e.g., Colusa, where the “1-5” murder, one of the other crimes to be presented during the penalty phase, occurred; Contra Costa, where defendant had previously been convicted of murder; and several other Northern California counties affected by defendant’s criminal activities. After submitting the proposal for Butte County to the Administrative Office of the Courts, as required by California Rules of Court, rule 842, the court held a hearing, during which it confirmed that all counsel continued to favor Butte County. The court offered counsel the opportunity to raise any other matter relevant to the venue determination. Only then did the court determine the action should be transferred to Butte County. Defendant contends these proceedings were insufficient and an evidentiary hearing was required. The contention is meritless. All parties agreed there were no factual issues to be resolved before determining the place to which the case would be transferred. Under these circumstances, it is difficult to grasp the point of an evidentiary hearing. Defendant reminds us of the importance of choosing a venue where a fair trial can be had and recites the factors courts must consider in determining venue—the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and the nature and extent of publicity. (See, e.g., People v. Proctor (1992) 4 Cal.4th 499, 523-528 [15 Cal.Rptr.2d 340, 842 P.2d 1100].) He fails, however, to show the parties in this case did not consider those factors. Accordingly, we conclude the court did not err in failing to hold an evidentiary hearing to determine the suitability of Butte County as the trial venue. People v. Cooper (1991) 53 Cal.3d 771, 804 [281 Cal.Rptr. 90, 809 P.2d 865], cited by defendant, does not assist him, for it merely holds (as relevant here) that the trial court, not the defendant, determines the trial venue. Defendant’s related claim—that his trial counsel was ineffective in not demanding an evidentiary hearing to determine the proper transferee court— consequently must fail as well. He has not shown that trial counsel’s performance fell below the standard of reasonable professional competence or that it is reasonably probable a determination more favorable to him would have resulted, in the absence of counsel’s asserted shortcomings. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693, 104 S.Ct. 2052]; People v. Fauber (1992) 2 Cal.4th 792, 831 [9 Cal.Rptr.2d 24, 831 P.2d 249].) Nothing in the record suggests, contrary to trial counsel’s expressed preference for Butte County, that counsel possessed information indicating a need for an evidentiary hearing. Our scrutiny of counsel’s performance is deferential; we will not indulge in speculation that trial counsel might have conducted further investigation that might have led to the discovery of such information. (See Strickland v. Washington, supra, 466 U.S. at pp. 688-689 [80 L.Ed.2d at pp. 693-694].) Furthermore, nothing in the record hints the choice of Butte County prejudiced defendant. Indeed, in denying a defense motion to sequester the jury at the end of the guilt phase, the trial court commented on the lack of media coverage of the trial in Butte County. Thus, we find neither impropriety in the transfer to Butte County, nor ineffective assistance of counsel in this connection. 3. Sufficiency of Evidence Defendant asserts the record contains insufficient evidence to support his conviction of murder and the jury’s findings on the special circumstance allegations. On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which 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, 16 A.L.R.4th 1255]; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574, 99 S.Ct. 2781].) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 461, 760 P.2d 996].) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” (Id. at pp. 932-933.) “ ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ ” (Id. at p. 933, quoting People v. Pierce (1979) 24 Cal.3d 199, 210 [155 Cal.Rptr. 657, 595 P.2d 91].) Defendant does not specify how the evidence fails to support the verdict. Instead, he merely refers us to the statement of facts contained in his opening brief, apparently assuming this court will construct a theory supportive of his innocence and inconsistent with the prosecution’s version of the evidence. That is not our role. “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]” (9 Witkin, Cal. Procedure, (3d ed. 1985) Appeal, § 479, p. 469; see also People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15 [2 Cal.Rptr.2d 112, 820 P.2d 214]; Duncan v. Ramish (1904) 142 Cal. 686, 689-690 [76 P. 661].) This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. (9 Witkin, Cal. Procedure, supra, Appeal, § 479, p. 469.) Nonetheless, we have reviewed the record in light of the standard of review enunciated in the authorities discussed above and find it amply supports the judgment. The evidence indicated defendant possessed the weapon and ammunition used to kill Cindy. Defendant earlier had committed felony offenses against her, for which she had brought a criminal complaint against him. He also had burned down her house and torched her car. Following the murder he fled from a police roadblock. After his arrest he made false statements to account for his whereabouts on the night of the crime. These and numerous other facts presented into evidence warranted the jury in finding defendant guilty of murder and the special circumstances true. 4. Claims of Instructional Error a. First Degree Murder by Lying in Wait The jury was instructed on the alternative first degree murder theories of murder by premeditation and deliberation and murder by lying in wait. In connection with lying in wait, the court instructed the jury, in part, “The term, quote, Tying in wait,’ end quote, is defined as waiting and watching for an opportune time to act, together with concealment by ambush or by some other secret design to take the other person by surprise, [¶] The lying in wait need not continue for any particular time, provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.” (Italics added.) Defendant argues that either deliberation is an element of first degree murder perpetrated by lying in wait, in which case the jury was wrongly instructed, or, if deliberation is not an element, conviction of first degree murder by lying in wait is a denial of a defendant’s constitutional rights. The court did not err in instructing the jury in the disjunctive that the duration of the lying in wait must show either premeditation or deliberation. As we held in People v. Ruiz (1988) 44 Cal.3d 589, 614-615 [244 Cal.Rptr. 200, 749 P.2d 854], the instruction’s disjunctive phraseology is neither inappropriate nor misleading. (See also People v. Hardy (1992) 2 Cal.4th 86, 162-163 [5 Cal.Rptr.2d 796, 825 P.2d 781].) Defendant maintains, however, that in classifying nondeliberating murderers the same as those who deliberate their killings, the Legislature has created a “suspect class” that affects a fundamental liberty interest, thus placing on the People the burden to establish a “compelling interest” and demonstrate that the distinctions are necessary to further that purpose. (People v. Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375].) Defendant’s premise the Legislature has created a suspect class is mistaken. To prove first degree murder of any kind, the prosecution must first establish a murder within section 187—that is, an unlawful killing with malice aforethought. (People v. Dillon (1983) 34 Cal.3d 441, 465 [194 Cal.Rptr. 390, 668 P.2d 697]; People v. Mattison (1971) 4 Cal.3d 177, 182-183 [93 Cal.Rptr. 185, 481 P.2d 193]; People v. Hyde (1985) 166 Cal.App.3d 463, 475 [212 Cal.Rptr. 440].) Thereafter, pursuant to section 189, the prosecution must prove the murder was perpetrated by one of the specified statutory means, including lying in wait, or “by any other kind of willful, deliberate, and premeditated killing, . . .” (Italics added.) Lying in wait is the functional equivalent of proof of premeditation, deliberation, and intent to kill. (People v. Hardy, supra, 2 Cal.4th at p. 162.) Consequently, treating the two kinds of murder the same is not a violation of equal protection. Citing Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368], defendant argues that classifying murder by lying in wait as first degree murder violates the Eighth Amendment proscription against cruel and unusual punishment, because the penalties for first degree murder (25 years to life and, if special circumstances are alleged, exposure to capital punishment) are disproportionate to the culpability of a murderer who does not deliberate on the offense. In Enmund the high court held that the death penalty, imposed under the state felony-murder rule, was disproportionate punishment for a robber who did not himself kill, attempt to kill, or intend that a killing take place or that lethal force would be employed. (458 U.S. at p. 797 [73 L.Ed.2d at pp. 1151-1152].) More recently, in Tison v. Arizona (1987) 481 U.S. 137, 158 [95 L.Ed.2d 127, 145, 107 S.Ct. 1676], the court held “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” (Fn. omitted.) In light of these pronouncements, defendant cannot prevail in his argument that his conviction for first degree murder violates the Eighth Amendment. “Murder committed by lying in wait has been ‘anciently regarded ... as a particularly heinous and repugnant crime.’ [Citation.]” (People v. Edelbacher (1989) 47 Cal.3d 983, 1023 [254 Cal.Rptr. 586, 766 P.2d 1].) The moral culpability of the offender who murders by lying in wait justifies fixing the murder in the first degree. (People v. Wolff (1964) 61 Cal.2d 795, 820 [40 Cal.Rptr. 271, 394 P.2d 959]; see also People v. Morales (1989) 48 Cal.3d 527, 558 [257 Cal.Rptr. 64, 770 P.2d 244].) Finally, defendant asserts that if deliberation need not be proved, virtually any premeditated murder can satisfy the requirements of lying in wait and thus be murder in the first degree. He maintains that once the prosecution has proved premeditation, it has, by the same facts, in effect proved lying in wait. This contention is meritless. “Premeditated” simply means “ ‘considered beforehand.’ ” (People v. Perez (1992) 2 Cal.4th 1117, 1123 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) For lying in wait, by contrast, the prosecution must prove the elements of concealment of purpose together with “a substantial period of watching and waiting for an opportune time to act, and . . . immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Morales, supra, 48 Cal.3d at p. 557 [lying-in-wait special circumstance].) These circumstances, taken together, present “a factual matrix . . . distinct from ‘ordinary’ premeditated murder ....’’ (Ibid.) b. Instructions on Express Malice The trial court instructed the jury that “the crime of murder is the unlawful killing of a human being with malice aforethought.” Pursuant to former CALJIC No. 8.11, the court then instructed as follows: “Malice may be either express[] or implied. Malice is express[] when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base antisocial purpose and with a wanton disregard for human life, [¶] The mental state constituting that malice aforethought does not necessarily require any ill will or hatred of the person killed. ‘Aforethought’ does not imply deliberation or the elapse [sic] of considerable time. It only means that the mental state must precede rather than follow the act.” (Italics added.) Citing People v. Conley (1966) 64 Cal.2d 310, 320 [49 Cal.Rptr. 815, 411 P.2d 911], defendant asserts the foregoing instruction erroneously informed the jury they must find express malice if they found intent to kill, thereby creating a mandatory presumption in violation of In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068]. (See, e.g., Francis v. Franklin (1985) 471 U.S. 307 [85 L.Ed.2d 344, 105 S.Ct. 1965]; Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450].) Conley is inapposite. There the trial court, in instructing the jury on the elements of murder, instructed on intention, deliberation and premeditation, but omitted any reference to malice. Defendant’s defense was diminished capacity. Observing that the mental state of specific intent to kill was not necessarily the same as malice aforethought (64 Cal.2d at p. 320), the court held the instructional omission removed from the jury the issue of defendant’s capacity to harbor malice (id. at p. 323). Here, by contrast, the jury was fully instructed on malice. Nor did the instruction erroneously equate malice with intent. When these offenses occurred, “[a]n awareness of the obligation to act within the general body of laws regulating society . . . [was] included in the statutory definition of implied malice in terms of an abandoned and malignant heart and in the definition of express malice as the deliberate intention unlawfully to take life.” (People v. Conley, supra, 64 Cal.2d at p. 322, italics added; see also People v. Polley (1983) 147 Cal.App.3d 1088, 1092 [195 Cal.Rptr. 496].) Although an amplifying instruction may have been required if defendant had relied on a diminished capacity defense (People v. Fusselman (1975) 46 Cal.App.3d 289, 300-301 [120 Cal.Rptr. 282]; see generally, People v. Flannel (1979) 25 Cal.3d 668, 684 [160 Cal.Rptr. 84, 603 P.2d 1]), defendant’s defense of alibi was totally inconsistent with diminished capacity. In the circumstances, the court’s instructions were sufficient. (See People v. Sedeño (1974) 10 Cal.3d 703, 716-717 [112 Cal.Rptr. 1, 518 P.2d 913]; cf. People v. James (1987) 196 Cal.App.3d 272, 289-291 [241 Cal.Rptr. 691].) c. Instruction on Reasonable Doubt Citing Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct. 328], defendant contends the use of CALJIC No. 2.90 denied him due process of law because the standard instruction impermissibly lightened the prosecution’s burden to prove his guilt beyond a reasonable doubt. Specifically, he criticizes the instruction for employing the term “moral certainty," urging it suffers from vagueness and improperly introduces subjective moral and ethical considerations in place of the objective evidentiary concerns on which the law requires the jury to focus. Recently the United States Supreme Court upheld the constitutionality of the instruction. (Victor v. Nebraska (1994) 511 U.S. _ [127 L.Ed.2d 583, 114 S.Ct. 1239], affirming People v. Sandoval (1992) 4 Cal.4th 155 [14 Cal.Rptr.2d 342, 841 P.2d 862].) Although several justices criticized the term “moral certainty,” its use in the reasonable doubt instruction does not constitute error. (See 511 U.S. at p. _ [127 L.Ed.2d at pp. 595-596 (maj. opn. by O’Connor, J.); id. at p. _ [127 L.Ed.2d at p. 601] (conc. opn. of Kennedy, J.); id. at p. _ [127 L.Ed.2d at pp. 601-604] (conc. opn. of Ginsburg, J.); see also People v. Freeman (1994) 8 Cal.4th 450, 503-504 [34 Cal.Rptr.2d 558, 882 P.2d 249] [holding CALJIC No. 2.90 constitutional].) 5. Denial of Representative and Impartial Jury Defendant contends the exclusion of some potential jurors for cause in accord with Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] (jurors unalterably opposed to the death penalty) denied him his federal and state constitutional rights to an impartial and representative jury. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) The United States Supreme Court has rejected these contentions (Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758]), as have we (People v. Babbitt (1988) 45 Cal.3d 660, 679 [248 Cal.Rptr. 69, 755 P.2d 253]). B. Special Circumstance Issues 1. Denial of Severance Defendant maintains the trial court erred in denying his motion to sever trial of the witness-murder special circumstance from the guilt phase and to try it with the prior murder allegation already severed. He argues the court’s ruling deprived him of the opportunity to present the defense that he killed his wife for a reason other than prevention of her testimony (e.g., “love”), because such a defense would have required him to admit he killed her. Defendant asks this court to rule that when a special circumstance allegation goes to the motive of the charged killing, the defendant is entitled to severance of the allegation. We decline to adopt the rule defendant suggests. First, in this case defendant did not base his severance motion on the grounds he now advances. Rather, he sought severance to prevent the introduction of evidence concerning the nature of the charges brought by Cindy against him and witnessed by her (rape, forcible oral copulation, corporal punishment) and other prejudicial evidence related to those charges. Before ruling on the severance motion, the court suggested the jury could be informed, through stipulation, that Cindy had charged three felony counts against defendant. The prosecutor agreed to so limit the People’s evidence. Then, after weighing probative value and other factors under Evidence Code section 352, the trial court denied the motion for severance. At no time did the defense suggest severance was necessary to permit defendant to present the inconsistent defenses of alibi to the murder charge and of “I killed her for love, not because she was a witness” to the special circumstance allegation. Second, section 190.1 provides for a unitary trial of the guilt and special circumstance issues, except as therein provided. Although more than half of the statutory special circumstances involve motive (§ 190.2, subd. (a)(1), (5), (7), (8), (10), (11), (12), (13), (16)), the statute does not except those circumstances from trial at the same time as trial of the issue of guilt. In People v. Bigelow (1984) 37 Cal.3d 731 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723], this court suggested there should be an exception to the simultaneous proceeding called for by section 190.1 when evidence relevant only to a special circumstance “is highly prejudicial,” in which case “the court should exclude it at the guilt trial and conduct a separate trial of the special circumstance allegations.” (37 Cal.3d at p. 748, fn. omitted.) Barring such “highly prejudicial” evidence, a unitary trial is the rule and severance the exception, to be granted only when the jury’s ability to render a fair and impartial verdict on the special circumstances would otherwise be impaired. (People v. Fierro (1991) 1 Cal.4th 173, 229 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) In the instant case, the allegedly prejudicial evidence of the nature of defendant’s charged crimes against Cindy was excluded by stipulation of the parties. The remaining evidence was admissible as relevant to defendant’s motive. (Cf. People v. Edelbacher, supra, 47 Cal.3d at p. 1028.) Denial of defendant’s severance motion was not an abuse of discretion. 2. Inconsistent Instructions Pursuant to CALJIC No. 2.51, the court instructed the jury that “[m]otive is not an element of the crime charged and need not be shown.” Pursuant to CALJIC No. 8.81.10, the court also instructed the jury that in determining the truth of the witness-murder special circumstance, they had to determine whether the victim was killed for the purpose of preventing her testimony. Defendant argues that because motive and purpose are synonymous, the two instructions were inconsistent and may have misled the jury to defendant’s prejudice. We rejected a similar contention in People v. Edelbacher, supra, 47 Cal.3d at page 1027. As there stated, “The ‘crime charged’ was murder and any reasonable juror would have understood the instruction as referring to this substantive offense only and not to any special circumstance allegation.” (Ibid.; accord, People v. Noguera (1992) 4 Cal.4th 599, 637 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) 3. Dominant Purpose of the Killing Pursuant to the standard instructions, the court instructed the jury that to find the witness-murder special circumstance true, they must find, inter alia, that “the witness was intentionally killed for the purpose of preventing her testimony in a criminal proceeding . . . (CALJIC No. 8.81.10.) Defendant contends the court erred in failing to instruct the jury sua sponte that to find the special circumstance true, they must find the predominant purpose of the murder was to prevent the victim’s testimony. He maintains that if he would have killed Cindy in any event for other reasons, application of the witness-murder special circumstance to impose the death penalty fails to serve the dual goals of retribution and deterrence, in violation of his right to due process and freedom from cruel and/or unusual punishment. (See People v. Rodriguez (1986) 42 Cal.3d 730, 781-782 [230 Cal.Rptr. 667, 726 P.2d 113].) Defendant’s argument is specious. The trial court correctly instructed the jury in the language of the statute. More is not required. A defendant who kills his victim in furtherance of more than one purpose is not thereby less culpable than one whose crime has a single purpose. So long as one purpose of a defendant was to prevent the victim from testifying against him, the electorate could reasonably conclude that sentencing him to death would fulfill the dual social purposes of retribution for his deed and deterrence of others. Moreover, a contrary rule would unjustifiably reward defendant for having a criminal ambition greater than one whose killing is motivated only by the desire to eliminate a witness. (People v. Sanders (1990) 51 Cal.3d 471, 519 [273 Cal.Rptr. 537, 797 P.2d 561].) Riley v. State (Fla. 1978) 366 So.2d 19 and other Florida cases relied on by defendant are inapposite. In Florida there is no special circumstance directed at murder for the purpose of preventing testimony. One aggravating circumstance, however, that can render a murderer eligible for the death penalty is that the murder was committed “for the purpose of avoiding or preventing a lawful arrest.” (See Fla. Stat. Ann. §921.141.) The Florida Supreme Court found that this circumstance, although concerned primarily with the killing of law enforcement officers, could also validly be applied when the victim was not a law enforcement officer. However, because its application to civilians would invariably arise during the defendant’s commission of another felony, to avoid overlap in that instance with Florida’s felony-murder aggravating circumstance, the court held “the mere fact of a death is not enough to invoke this factor when the victim is not a law enforcement officer. Proof of the requisite intent to avoid arrest and detection must be very strong in these cases.” (366 So.2d at p. 22.) Thus, in Menendez v. State (Fla. 1979) 368 So.2d 1278, 1282, involving a store owner killed during a robbery, the court held that for the aggravating circumstance to apply, it must clearly be shown “the dominant or only motive” for the murder was the elimination of witnesses. (Accord, Herzog v. State (Fla. 1983) 439 So.2d 1372, 1378-1379 [no evidence of previous crime to which victim was a witness].) Like Florida, this court also has determined that it is appropriate to construe special circumstances in such a way as to minimize the application of multiple special circumstances arising out of the same conduct. (People v. Bigelow, supra, 37 Cal.3d at p. 751.) Unlike Florida, however, the California witness-murder special circumstance expressly excludes a killing committed during the commission of the crime to which the victim was a witness. (§ 190.2, subd. (a)(10); see People v. Garrison (1989) 47 Cal.3d 746, 792 [254 Cal.Rptr. 257, 765 P.2d 419]; People v. Silva (1988) 45 Cal.3d 604, 631 [247 Cal.Rptr. 573, 754 P.2d 1070].) Hence, the reason for Florida’s “dominant purpose” rule doe