Full opinion text
Opinion THE COURT. Defendant Lance Ian Osband has been sentenced to death under the 1978 death penalty statute for murder. In an information, defendant was charged with the murder on October 5, 1985, of Lois Minnie Skuse. (Pen. Code, § 187; all unlabeled statutory references are to this code.) It was also alleged that he used a knife in the killing. (Former § 12022, subd. (b).) Three special circumstances were alleged: that the murder was in the first degree and he committed it during a burglary (former § 190.2, subd. (a)(17)(vii)), during a robbery (former § 190.2, subd. (a)(17)(i)), and after raping Skuse (former § 190.2, subd. (a)(17)(iii)). Defendant was also charged with the burglary of the Skuse residence (§ 459), and with the robbery (§ 211) and forcible rape (§ 261, subd. (a)(2)) of Skuse. It was alleged that he used a knife to commit the robbery (former § 12022, subd. (b)) and rape (§ 12022.3, subd. (a)). Defendant was also charged with attempting to murder Norma C. 16 days after he killed Skuse. (§§ 187, subd. (a), 664.) He was further charged with the burglary of the classroom in which she was attacked (§ 459), with robbing her (§ 211), and with assaulting her with the intent to rape (§ 220). Each of these four charges also carried allegations of infliction of great bodily injury (§ 12022.7) and knife use (former § 12022, subd. (b)). A jury found defendant guilty on all counts and all the allegations true, except for the knife-use allegations in the charges stemming from the attack on Norma C., following the trial court’s decision to strike those allegations. It found that the murder of Skuse and the burglary of her apartment were offenses committed in the first degree. The burglary of Norma C.’s classroom was found to be in the second degree. Facts I. The Guilt Phase. A. The Prosecution’s Case. 1. The Killing of Lois Minnie Skuse. Just before noon on October 6, 1985, the son and daughter-in-law of 66-year-old Lois Minnie Skuse found her body on the floor of the bedroom of her Sacramento apartment. Her son first saw the body; he cried out “almost instantaneous[ly]” on entering the bedroom from a short hallway. As her daughter-in-law explained: “All of the drawers in her dresser had been dumped” on top of the body so that she and her husband could only “see her legs kind of halfway out from underneath the pile” formed by the drawers and clothing. She called to her husband not to touch anything because there might be fingerprints, and she summoned the police, who arrived while she was still on the phone. A coroner’s deputy saw “one leg and part of another” protruding from underneath the pile. The bedroom had been ransacked. In addition to the drawers and clothing atop Skuse’s body, papers and boxes lay on the bed. Her purse’s contents had also been emptied onto the bed, and her car keys and wallet were missing. Skuse’s television set was also missing. And the padlock to her garage was unlocked, which was unusual. A knife drawer in the kitchen was open, a position in which Skuse, a careful housekeeper, would not have left it. After Skuse died, her son and daughter-in-law moved a knife set of Skuse’s to their house along with other personal effects. A police officer showed her daughter-in-law a photograph of a knife, or the item itself, and it was similar to the type found in that set. However, she could not say that a knife was missing from the set. When the police permitted Skuse’s son and daughter-in-law to reenter the home, they recovered $14,000 in envelopes in various hidden locations. Empty envelopes were scattered “all over the place.” The United States Postal Service mailed Skuse’s wallet to her son and daughter-in-law. Those individuals received it about two weeks after the killing. The coroner’s deputy examined the scene. Skuse had “some fragments” of clothing on. “There was what appeared to be a pair of panties that had been either cut or ripped, where the crotch was not in its normal position with respect to where it should be. [‘JO The waistband was still around the waist . . . .” The deputy collected samples of fluid from Skuse’s pubic area. An impression of defendant’s palm print was found on one of the dresser drawers lying on the body—a police officer testified that he believed it was the topmost drawer in the pile, located near Skuse’s head—and impressions of his fingerprints or thumbprints were found on a small turquoise tissue box located atop the dresser, on the tissue paper itself, and on an envelope and a box lid that were found on the bed. Shoe print impression's apparently formed by blood and consistent with those made by the type of shoe defendant owned were found in the apartment. The pathologist who performed an autopsy on Skuse testified that he found a one-and-three-quarter-inch-deep V-shaped stab wound on the right side of her neck. It could have been caused by a serrated knife found near Skuse’s head. The wound was not “a simple slit-like stab wound[, as] if one stabbed a knife in an apple . . . .” Rather, it had “two arms to it, as if there were two separate stab wounds in the same area” or as if “movement had occurred while the knife went in one direction . . . [and] was twisted slightly, and removed, making two cuts rather than one.” If the product of a single insertion, its shape could also have been caused by movement by Skuse rather than twisting of the knife. It had almost completely severed her carotid artery, and was the cause of death, which would likely have occurred very quickly but not instantaneously. In addition, the pathologist testified that a rib and various facial bones, including the upper jawbone, were broken, consistent with Skuse’s having been beaten. Epidermal and other injuries also revealed that she had been severely beaten about the face. The pathologist found sperm in her urethra, vagina, and vaginal introitos. He also testified that Skuse suffered from osteoporosis or “soft bones” that in turn caused kyphosis, i.e., a stooped or hunchbacked condition. 2. The Attack on Norma C. Early in the evening of October 21, 1985, Gloria Luevano was waiting outside the gymnasium at St. Patrick’s Elementary School in Sacramento County when 51-year-old Norma C., covered with blood and with “one shoe on and one shoe off with one nylon,” came up to her. She went for help and when it arrived she showed a police officer where the second grade classroom was located. The blinds to that classroom were closed, whereas those to the first, third, and fourth grade classrooms were open. Norma C., the second grade teacher, testified that she was grading workbooks at 5:20 to 5:25 that afternoon. The classroom curtains were open. She was wearing boots that zipped up almost to the knee. Defendant entered the room, strode quickly toward her, threw her on the floor and, without a word, started beating and choking her, hitting her at least 15 times. Bleeding profusely, Norma C. told him that she had a daughter and that she hoped he would not kill her. He dragged her—by her arms, she was fairly certain, although a sheriff’s deputy experienced in analyzing bloodstain patterns thought that she was dragged by her feet or legs—to the back of the room and asked her if she had any money. (She was uncertain whether she was dragged on her back or on her stomach.) Although her glasses had been knocked off and her eyesight was dimmed by blood, she could see him going through her purse, which had both paper money and coins in it. She was fully clothed at that time. Then she blacked out. She next recalled being lifted into an ambulance. By the time she arrived at the hospital, she had discovered that her undergarments and one boot were missing. She could not remember telling a police officer at the hospital, in effect, that she had been raped. She identified defendant in the courtroom as the man who had battered her, and also testified that she had identified him in a photographic lineup. Norma C. testified that she was left with a broken jaw and teeth and fractured facial bones. She lost her sense of smell and parts of her face remained numb at the time of trial. She had been lacerated, and had also received “three large incisions, . . . [including] one . . . which was near my neck vein.” She had been required “to go and have some tests to see whether or not my jugular vein had been severed.” She did not keep a knife in the classroom. There were, however, scissors that were evidently not in plain sight. She did not see a weapon in defendant's hand. Norma C. also testified that she did not try to defend herself because the force of defendant’s attack on her convinced her that he intended to kill her in any event and she did not want to increase her suffering. A police officer testified that five to ten minutes after he arrived at 6:20 p.m. he went to the second grade classroom to try to apprehend the culprit. The curtains were drawn. He looked inside the classroom to see whether a suspect might still be there and, observing no one, guarded it for an hour until investigators could arrive and collect evidence. Another police officer testified that the drapes were drawn when she arrived and that she found a stain that appeared to be caused by blood on the inside edge of one of them. Still another officer testified that there was blood at several locations on the classroom floor. And another officer testified that he gathered up the spilled contents of a purse and the purse itself from the floor, retrieving $1.68 entirely in coins. He saw no money inside the purse, although he did not conduct a thorough search of it. He also found and collected a “wad of clothing” consisting of “[l]ady’s underpants, a pair of pantyhose that were turned inside out, and inside the leg of one pantyhose at the foot was a woman’s shoe or boot.” The underpants and pantyhose were tom. An identification technician for the Sacramento Police Department who inventoried the purse’s contents testified that she found $4.99 in coins but no paper money. Defendant’s fingerprints were found in the classroom. Shoe print impressions apparently formed by blood were also found. There was testimony that they were likely made by defendant’s shoes. A doctor who treated Norma C. on the evening of the attack testified that she had a laceration within about an inch from the carotid artery accompanied by swelling of that side of her neck. The swelling raised the possibility that “tiie carotid artery that supplies blood to the brain had been partially transected, such that the blood would leave the vascular channel . . . into the soft tissue.” He also described various facial fractures. She had her jaw immobilized for six weeks and could only drink liquids. A police officer acknowledged on cross-examination that Norma C. told him from her hospital bed that she was unable to see defendant during the attack because of the blood in her eyes. 3. Postarrest Forensic Analysis. When defendant was arrested, he was wearing Nike tennis shoes. They were introduced into evidence. There was testimony that 20 percent of the Black population, including defendant, have type B blood. Skuse had type O blood. Norma C. had type A blood. Defendant’s shoes had been exposed to type O blood and also to blood that could have come from individuals with types A and B or an individual with type AB. There was also testimony that fluid on swabs containing semen found in Skuse’s vaginal area tested positive for type B and type O antigens. The former could have been contributed by defendant, and either he or Skuse could have contributed the latter. A purple robe that Skuse was wearing was semen stained; the semen reacted to a test for type B antigen, consistent with what defendant could produce. 4. Postarrest Interrogation. On October 22, 1985, defendant, evidently having waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R3d 974] to silence and to counsel, told a homicide detective that he had never visited the Skuse apartment. When told that his fingerprints had been found there, he could offer no explanation for their possible presence. He also denied ever having been inside St. Patrick’s Elementary School and could not understand why his fingerprints might be found in a second grade classroom there. B. The Defense’s Case. Defendant testified on his own behalf and, contrary to his pretrial statement to the police, acknowledged having been at both crime scenes. He also admitted wearing at both scenes the shoes that were seized on his arrest. With regard to Skuse’s killing, the defense was alibi—defendant testified, “I didn’t do any murder.” He described two Black males who were carrying a television set down the stairs leading from Skuse’s apartment. He asked them if they were moving and they said that they were. He asked whether the apartment was for rent and they told him to talk to the manager. They loaded the television into a red truck. He tried to find the manager but could not. He saw the solid door to Skuse’s apartment open and the screen door ajar, and, getting no response from inside, entered. He found the bedroom in disarray but saw nobody, dead or alive. He did touch surfaces inside the house. He took nothing from the apartment; he was there for two to three minutes and then continued on his way. When he was arrested the day after he attacked Norma C., the police asked him about a homicide that had occurred at Skuse’s apartment. That scared him and he denied being at the apartment or the elementary school. On cross-examination, defendant admitted that he inspected a jewelry box in the apartment but found nothing valuable. He also admitted, as he had on direct examination, that he entered the apartment with the idea of stealing something. When he entered the bedroom, the light was dim, and although he saw no blood, he did not know whether he might have stepped in any. Defendant admitted that he attacked Norma C. He testified that he did so out of upset: evidently his car had run out of gasoline and stalled nearby, he was having other car trouble, and he had needed to appear in traffic court earlier that day. He dragged her to the back of the room, tearing her pantyhose. When she volunteered to give him money he emptied the contents of her purse onto the floor but, finding only coins, took nothing. He had no weapon, did not rape or attempt to rape her, and did not intend to kill her. He left, went back to his car, and finally obtained gasoline by siphoning it from another car. On cross-examination, defendant admitted that he entered the classroom with the intent to steal and that he attacked Norma C. “more or less” because, in the prosecutor’s words, he was “having a bad day.” He did not know why he did not drag her by the ankles rather than her pantyhose, why her tom underpants should have been found on the floor, or whether he turned out the light or pulled the drapes on leaving. He did not know how she could have been stabbed in the neck. He did nothing to try to get medical help for her. After he left and siphoned gasoline out of the car, he went with some friends to buy some beer, had a few drinks, and returned home. Defendant testified that he was of average strength at the time of the crimes. There was evidence for the defense beyond that presented by defendant’s testimony. Defense counsel adduced evidence that a pair of yellow sunglasses found on Skuse’s bed did not belong to her or to defendant. Fingerprint impressions belonging to unknown individuals were found on other property taken from the scene of the killing, and it was impossible to determine how long his fingerprint impressions might have been present on the property recovered from the premises. Skuse’s son conceded in testimony that when he found her, he could see only her ankles. The criminalist acknowledged that Nike is a common brand of shoe and that he had not learned how many shoes with defendant’s sole pattern had been sold in Northern California. It was conceivable that shoes of different size could have the same size and design of sole pattern. The criminalist also stated that the type B activity found on Skuse’s purple robe could have been caused by bacterial contamination, although such an event would be unusual. Bacteria present in fecal matter found on the robe could have altered the analysis of the stains also found on it, and could themselves generate type B activity, in which case the seminal stains could have been caused by anybody. Indeed, all the swabs that tested positive for semen could have been so contaminated, although there was no visual indication that they were. However, the criminologist did not see any unusual bacteria. C. The Prosecution’s Rebuttal Case. A police officer testified that there was blood only in the bedroom of the Skuse apartment and that he found it on the floor “[a]bout and under the victim and at her feet.” The blood at her feet consisted of that left by shoe print impressions, and some shoe print impressions lay underneath her lower legs. The only pooled blood in the apartment lay directly under Skuse’s torso. II. The Penalty Phase. A. The Prosecution’s Case. In aggravation, the prosecution introduced evidence of prior violent criminal activity. Dorothy Cossman, who was approaching her 70th birthday at the time, was walking on a sidewalk on September 1, 1984, when she sensed that someone was fast approaching by bicycle and preparing to snatch her purse. She clutched it and wheeled around to ward off the perceived impending robbery. A person on a bicycle struck her in the buttocks but did not seize the purse. She was not injured or knocked to the ground. She could remember few details of the incident. A police officer testified, however, that defendant was detained and arrested and that Cossman identified him in a showup as the culprit. On cross-examination defendant elicited the officer’s belief that he pleaded guilty to misdemeanor battery. It was later stipulated that he did so. Fourteen-year-old Angela M. was walking to school on March 26, 1984, when defendant offered her a ride. Instead he took her to a house where he forced her into a bedroom, kissed her repeatedly, fondled her over her brassiere, and told her she could not leave “ ‘until I get what I want, and I want to make love to you[]’ . . . .” He was interrupted by the sound of the front door being unlocked and opened, and she was able to flee and ran to her aunt’s house. At some point during the incident defendant apologized for his misconduct. Angela’s mother called the police. Angela testified that defendant later warned her that “if anyone pressed charges against him, someone was going to get hurt.” On cross-examination, asked whether she recalled that defendant was convicted of battery, Angela M. testified that she thought he was convicted of statutory rape. After her testimony the parties stipulated that he pleaded no contest to a misdemeanor battery charge. B. The Defense’s Case. The principal at the elementary school defendant attended until the end of fourth grade testified that he presented no major discipline problems, was friendly with other students, and was a “nice kid.” There was testimony from a pastor that he attended church until his early teens and still believed in Christianity. An older sister testified that he led an uneventful childhood until age 13. There was testimony that at about age 17 he took it on himself for 3 months to care for a sick woman who had nobody else for the task—he was at her house every night and would do chores for her, ignoring an opportunity to steal hundreds of dollars from her purse. And a teacher testified that defendant received a high school diploma in jail—he was the first person to graduate from the independent study program in which he was enrolled—that he wanted to continue formal study, and that he was a very motivated student. Defendant was 19 years old when he killed Skuse and attempted to kill Norma C. There was testimony that he started drinking beer with friends in sixth grade and soon was dabbling in marijuana use. He began using other drugs such as methamphetamine, phencyclidine-laced “sherm” cigarettes, and cocaine, and his circle of friends changed. In the six months before he was arrested he was regularly intoxicated by drugs and alcohol, and when “loaded” he was susceptible to personality changes. His drug and alcohol abuse caused him to become more frenetic, and he began to neglect his once meticulously maintained automobile. A psychologist opined that defendant would adjust well to life in a prison setting. On cross-examination, he admitted that defendant told him he was convicted because the jury was corrupt, that if he were released he would be on methamphetamine or crack cocaine, and that, in the prosecutor’s words, “he’s been a problem ever since he was bom and just didn’t fit into society.” There was other testimony describing defendant’s background and character. His girlfriend of several years’ standing expressed loyalty toward him and testified that she would like to marry him. The two had a son who was twenty months old when she testified. At closing argument counsel for defendant stressed the unpleasantness of prison life and emphasized that life imprisonment without possibility of parole was a very severe punishment. He insisted that defendant was not so entirely devoid of humanity or the ability ever to contribute to society that he deserved execution, and he urged the jury to show mercy to him and compassion for his girlfriend, mother, and infant son. Claims of Error I. Inadequate Record on Which to Bring Appeal. Defendant contends that the judgment must be reversed because the superior court clerk’s office destroyed many trial exhibits after the proceeding ended. He asserts that he has been left with an inadequate record to pursue his appeal, in violation of the federal and state Constitutions. Although he generally lists the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and their California constitutional equivalents as the legal basis for his contention, he focuses on claims of violations of his right to due process of law under the Fourteenth Amendment, to an asserted right to a reliable determination of his guilt and punishment under the Eighth and Fourteenth Amendments, and to the effective assistance of counsel on appeal under the Sixth and Fourteenth Amendments. On this court’s order, the trial court held a series of post-trial hearings to determine which exhibits had been lost, to try to reconstruct them, and to prepare and certify a settled statement regarding exhibits that could not be reconstructed. Defendant registered a continuing objection, under the United States and California Constitutions, to the reconstruction of any exhibit absent a finding that it was certain that the replacement matched the original. The court found that misconduct by employees in the clerk’s office resulted in the exhibits’ loss. Although it could not conclusively decide the nature of the misconduct, its findings suggest that the exhibits were improperly safeguarded and hence were inadvertently discarded. Three of the missing exhibits were never admitted into evidence. Those remaining consist of color photographs or diagrams. Aided by the prosecution’s retention of some 800 photographic negatives, the court found that 62 exhibits could be precisely reconstructed. Although another twelve original exhibits—all photographs—could not be traced to a single replacement photograph, it was possible in each case to identify between two and five such photographs that “may be the same as the original exhibit.” Six exhibits could not be reconstructed. These were the subject of a settled statement. The first, a manila folder that may once have contained lineup photographs, was among the three exhibits not admitted into evidence. The second and third, diagrams drawn by witnesses who were medical doctors, could not be reconstructed. One, however, “is described in the trial transcript.” The fourth was “a color photograph of the victim Lois Skuse, sitting at a kitchen table . . . .” The fifth and sixth, diagrams previously drawn and then marked during testimony, survived only in unmarked form. We review the court’s findings regarding the reconstruction of the missing exhibits, which are essentially factual, on a deferential substantial evidence standard. (See People v. Hardy (1992) 2 Cal.4th 86, 183, fn. 30 [5 Cal.Rptr.2d 796, 825 P.2d 781].) We then independently determine whether the record, as reconstructed and settled by the trial court, is adequate to allow the appeal to proceed meaningfully. Turning to the first prong, we see, with one exception to be discussed, no reason to question the court’s findings regarding reconstruction of the lost exhibits. Preliminarily, we observe that defendant’s somewhat conclusory argument that generally no substantial evidence supports the rulings fails to persuade. We turn to the heart of defendant’s argument: that the findings that five particular exhibits (Nos. 14, 16, 34, 51, and 52, all photographs) were reconstructed are unsupported by substantial evidence. Having reviewed the record with regard to each exhibit’s reconstruction, we agree with defendant in one case, but otherwise disagree. In the case of exhibit No. 52, defendant is correct that substantial evidence does not support the ruling reconstructing the exhibit. There was trial testimony by a police officer that exhibit No. 52 showed, in the prosecutor’s words, “the lower portion of the remains of Lois Skuse as she was [lying] on the floor.” But there was also testimony that exhibit No. 52 showed a television stand—testimony buttressed by the court’s description of the exhibit when it and the parties were later reviewing them. The People speculate that the officer was describing exhibit No. 72. However, that surmise is questionable, because, without any indication that he was being shown the same exhibit again, the prosecutor later asked him whether exhibit No. 72 depicted the victim on the floor. Moreover, the prosecutor appeared generally to be proceeding in numerical order as he showed the officer the exhibits. We agree with defendant that the court’s finding must be set aside to the extent it finds that exhibit No. 52 was reconstructed. In the case of the other four exhibits, we will not disturb it. Defendant further contends that the superior court’s ruling that exhibit No. 48—a photograph of the victim while alive—should be replaced with a new, similar photograph must be set aside because substantial evidence does not support it. But the court made no attempt to find that the new photograph replaced the lost original, only that it was similar. The prosecutor testified that the replacement photograph was “fairly similar in contents [to the original]. It is a photograph of her sitting at a kitchen table. The only thing really missing is the [Christmas] present sitting on the table in front of her, but that’s it. That is the same likeness of her.” Turning to the next prong of our inquiry, we conclude on independent review that the record is adequate to allow the appeal to proceed. The exhibits “admitted into evidence or refused” are part of the record on appeal. (Cal. Rules of Court, rule 4.5.) Defendant is entitled to a record “adequate to permit meaningful appellate review.” (People v. Howard (1992) 1 Cal.4th 1132, 1165 [5 Cal.Rptr.2d 268, 824 P.2d 1315] [impliedly considering state and federal law]; see also id. at p. 1166 [explicitly addressing Eighth and Fourteenth Amendment requirements].) But the burden is his to show that the deficiencies in the record are prejudicial to him. (Id. at p. 1165.) The parties were able either to reconstruct or to issue a settled statement regarding virtually the entire record. The reconstruction restored most of the record; the settled statement provided a satisfactory substitute for other portions (People v. Holloway (1990) 50 Cal.3d 1098, 1116 [269 Cal.Rptr. 530, 790 P.2d 1327]). Although the record as reconstructed remains deficient, defendant has not met his burden of showing that the deficiencies—the loss of certain exhibits and the court’s inability to assign an exact replacement photograph to each of 12 original photographic exhibits—have left him unable to proceed with his appeal on a record adequate to permit meaningful appellate review. We turn to defendant’s argument that proceeding with this appeal on a deficient record will preclude counsel from providing effective assistance on appeal. A defendant claiming ineffective assistance of counsel under the federal or state Constitutions must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [233 Cal.Rptr. 404, 729 P.2d 839].) We apply that standard to representation on appeal. (People v. Hamilton (1988) 45 Cal.3d 351, 377 [247 Cal.Rptr. 31, 753 P.2d 1109]; Alford v. Rolfs (9th Cir. 1989) 867 F.2d 1216, 1220; see also In re Harris (1993) 5 Cal.4th 813, 833 [21 Cal.Rptr.2d 373, 855 P.2d 391]; cf. Evitts v. Lucey (1985) 469 U.S. 387, 392 [83 L.Ed.2d 821, 827, 105 S.Ct. 830] [declining to decide whether same standard to show ineffective assistance on review applies to appellate as well as trial counsel].) There is no reasonable probability that the outcome of this appeal differs because of the deficiencies in the record before us. As we show below, we are able to review the judgment in a meaningful manner notwithstanding those deficiencies. Defendant has not been denied any right to an adequate appeal. Defendant also claims that the trial court erred by refusing to find beyond a reasonable doubt that the replacement exhibits matched the original. To the extent that the court used a lower standard of proof in reconstructing the record—e.g., finding by a preponderance of the evidence that an exhibit had been reconstructed—it did not err. (Evid. Code, § 115; see also Curl v. Superior Court (1990) 51 Cal.3d 1292, 1305-1306 [276 Cal.Rptr. 49, 801 P.2d 292].) II. Issues Regarding Pretrial Proceedings. A. Claims Regarding Forensic Analysis of Tardily Discovered Hair. Before trial, defendant moved to have laboratory tests performed on physical evidence taken from the crime scenes, or to have samples provided to him so that he could perform his own tests. The motion was granted. Near the conclusion of jury selection, counsel for both parties informed the court that an item of evidence retrieved from the Skuse murder scene had just been discovered to contain some hair. Before the presentation of evidence was to begin, defendant moved to continue the case pending analysis of the hair. The prosecutor, for his part, agreed not to call any witnesses to discuss the hair’s significance for the rest of that week. Defendant agreed to proceed, and reserved his opening statement. The parties do not say whether evidence based on the tardily discovered hair was ever introduced, or whether tests were ever performed on it. Defendant contends that the prosecution intentionally withheld evidence material to his culpability. In essence, he asserts that the failure to disclose the evidence disrupted his trial strategy, notably by forcing him to reserve his opening statement. The prosecution has a due process duty under the Fourteenth Amendment to the United States Constitution to disclose evidence to a defendant. (See, e.g., United States v. Bagley (1985) 473 U.S. 667, 674-677 [87 L.Ed.2d 481, 488-491, 105 S.Ct. 3375].) But such evidence must be both “favorable” to the defendant and “ ‘material’ ” to either guilt or penalty. (Id. at p. 674 [87 L.Ed.2d at p. 489].) Favorable evidence is evidence that the defense could use either to impeach the state’s witnesses or to exculpate the accused. (Id. at p. 676 [87 L.Ed.2d at p. 490].) “Bagley held that . . . favorable evidence is material, and constitutional error results from its suppression. . . , ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” (Kyles v. Whitley (1995) 514 U.S. 419 [131 L.Ed.2d 490, 505, 115 S.Ct. 1555].) A “reasonable probability” is one sufficient to “undermine[] confidence in the outcome.” (United States v. Bagley, supra, 473 U.S. at p. 678 [87 L.Ed.2d at p. 491].) Defendant candidly acknowledges that it is impossible on this record to know the significance of the additional samples, and that “full resolution of this issue must await the presentation of additional facts in [his] Petition for Writ of Habeas Corpus.” We agree that the issue cannot be resolved on the record now before us. He points to no place in the record that might divulge the evidence to be material or favorable. Thus, on appeal, he has not established that any delay or purported misconduct in handling the tardily discovered hair prejudicially affected the outcome at trial. He also contends that his counsel were ineffective under the Sixth and Fourteenth Amendments to the federal Constitution for failing to vigorously pursue enforcement of the court’s discovery orders. This contention rests on a general assertion that counsel neglected discovery matters until jury selection was underway. But he refers only to the tardily discovered hair samples. As stated, a defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. Defendant concedes that the significance of the hair samples is unknown. On this record, therefore, it is impossible to find prejudice, assuming for purposes of argument that counsel’s performance may have been deficient in some respect. He also asserts that counsel’s neglect of discovery matters forced him to reserve his opening statement until the presentation of his case. But he does not contend that any need to do so resulted in prejudice to him. This contention we also reject. B. Denying Motion to Sever Skuse- and Norma C.-related Counts. Defendant moved to sever the counts charging crimes in the Skuse killing from those in the attack on Norma C. The court denied the motion. We review the court’s ruling for an abuse of discretion. (See People v. Cummings (1993) 4 Cal.4th 1233,1284 [18 Cal.Rptr.2d 796, 850 P.2d 1].) A court abuses its discretion when its ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) The ruling did not fall outside those bounds. The governing statute is section 954, which provides in relevant part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts .... 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 or divided into two or more groups and each of said groups tried separately. . . .” “The statutory requirements for joinder were met here because both incidents involved the same class of crimes—murder [and attempted murder, both involving batteries (see People v. Miller (1990) 50 Cal.3d 954, 987 [269 Cal.Rptr. 492, 790 P.2d 1289])]. Since the requirements for joinder were satisfied, defendant can predicate error only on a clear showing of potential prejudice. [Citation.] ‘The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.] “ ‘The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’ [Citation.] Refusal to sever may 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 of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 [14 Cal.Rptr.2d 342, 841 P.2d 862], affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 583, 114 S.Ct. 1239].) The criteria listed in Sandoval should not be misunderstood as being equally significant, however. “[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.” (People v. Balderas (1985) 41 Cal.3d 144, 171-172 [222 Cal.Rptr. 184, 711 P.2d 480]; see People v. Mason (1991) 52 Cal.3d 909, 934 [277 Cal.Rptr. 166, 802 P.2d 950].) Cross-admissibility suffices to negate prejudice, but it is not needed for that purpose. Although “ ‘we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.’ ” (People v. Sandoval, supra, 4 Cal.4th at p. 173; see also §954.1, eff. June 6, 1990 [codifying rule].) “[T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard.” (People v. Cummings, supra, 4 Cal.4th at p. 1284.) Defendant conceded that his fingerprints were found at both crime scenes, along with shoe prints similar to those made by a pair of shoes he owned, but argued that those facts did not suffice to establish identity and that judicial economy did not require one trial. He also argued that the murder case was much weaker than the attempted murder case, in which Norma C. identified him as her assailant, but that a jury hearing Norma C. testify about the attack on her would be outraged and would therefore be unfairly inclined to convict him of Skuse’s murder. The prosecution introduced evidence relating to cross-admissibility. It offered evidence that defendant’s shoes bore traces of blood, and argued that the blood evidence would be cross-admissible because the evidence showed that the traces could only have been left by (1) a single individual with type AB blood, or (2) two or more contributors. There was insufficient blood to be able to prove that it came from defendant or the two victims. Because Skuse was type O, Norma C. type A and defendant type B, the prosecution explained that it would need to introduce evidence of both sets of crimes to explain why the blood on the shoes did not come from a person with type AB blood. The prosecution also argued that at trial it would present strong evidence that defendant committed both sets of crimes. It declared there would be evidence that his palm print was found on a drawer lying atop Skuse’s body and that Norma C. had identified him as her assailant. It contended that his shoes matched the pattern of bloody shoe prints found at both scenes. The prosecution also argued that his modus operand! was to rape both women, who were alone and vulnerable, to kill them with a knife following a savage beating, and then to opportunistically steal whatever valuable items might be in the vicinity. The court denied the motion without comment. Implicitly, it found evidence of the offenses cross-admissible, for the hearing focused on the blood evidence taken from defendant’s shoes. The court did not abuse its discretion in implicitly finding no cross-admissibility consideration that might favor severance. For that reason alone, its ruling must be sustained. (See Frank v. Superior Court (1989) 48 Cal.3d 632, 639 [257 Cal.Rptr. 550, 770 P.2d 1119].) Defendant calls any such reasoning “spurious”; in his view, the evidence could have been tailored at each trial to exclude mention of the other blood. Nevertheless, as stated, the burden was his to “ ‘clearly establish that there is a substantial danger of prejudice’ ” arising from the joinder of charges (People v. Sandoval, supra, 4 Cal.4th at p. 172). The court did not abuse its discretion in ruling that he failed to meet that burden. Finally, “[e]ven if the ruling was correct when made, we must reverse if defendant shows that joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.” (People v. Arias (1996) 13 Cal.4th 92, 127 [51 Cal.Rptr.2d 770, 913 P.2d 980].) For the reasons the prosecution presented to the court, no gross unfairness occurred when the motion was denied. III. Jury Selection Issues. A. Denying Motion for Separate Juries for Guilt and Penalty Phases. Defendant maintains that the court violated the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution by denying his motion to impanel separate juries to hear the guilt and penalty phases of his trial. The gravamen of the basis for the motion was that “the exclusion from the guilt phase of jurors categorically opposed to the death penalty deprived him of a jury composed of a representative cross-section of the community, in violation of his Sixth and Fourteenth Amendment rights. We have rejected such claims [citation], as has the United States Supreme Court [citation].” (People v. Kaurish (1990) 52 Cal.3d 648, 674 [276 Cal.Rptr. 788, 802 P.2d 278].) Defendant withdrew a motion to bar voir dire on the death penalty after the court denied the motion to impanel separate juries. He perfunctorily asserts that counsel were ineffective, apparently in violation of the Sixth Amendment to the United States Constitution, for doing so on his behalf. To the contrary, it was certainly not professionally unreasonable to examine jurors who might decide whether his life should be spared or taken on their opinions regarding that subject. B. Other Jury Selection Issues. At defendant’s behest and over the prosecutor’s objection, the court agreed to use a “modified struck system” of jury selection. (See People v. Johnson (1992) 3 Cal.4th 1183, 1211 [14 Cal.Rptr.2d 702, 842 P.2d 1]; People v. Pride (1992) 3 Cal.4th 195, 226-227 [10 Cal.Rptr.2d 636, 833 P.2d 643]; People v. Ashmus (1991) 54 Cal.3d 932, 955-956 [2 Cal.Rptr.2d 112, 820 P.2d 214].) The record reveals that the court was concerned about subjecting many prospective jurors to what it believed to be the tedium of the “jury box” system, and that after observing similar selection proceedings in another courtroom, it decided to accede to defendant’s request in an effort to save time and reduce tedium. Under the version of the struck system used in this case, pools of prospective jurors were screened seriatim for hardship. Those prospective jurors who remained filled out questionnaires. Next, they were randomly selected to appear in groups of five in the morning and six in the afternoon and each was examined outside the presence of the others to determine whether he or she should be excused for cause. After this process, 12 of the remaining prospective jurors were randomly selected for seating in the jury box and the parties exercised their peremptory challenges. A prospective juror who was excused was replaced with another from the pool of qualified prospective jurors by name drawn at random. The foregoing procedure occurred in three rounds. At the end of the first, defendant used 21 of his 26 peremptory challenges. At the end of the second, he consumed two of the five remaining. At the end of the third, he had one left. At that point, and after the jury was sworn, he moved for a mistrial based on the jury selection procedure. Specifically, he declared that the use of three rounds of peremptory challenges rather than one made it impossible to exercise them effectively. The court denied the motion. Defendant contends that the jury selection procedure violated rights he locates in the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and their California equivalents, essentially because, in his view, the first jury pool was prosecution-prone and he was therefore forced to consume many of his peremptory challenges early in the process without knowing whether members of succeeding pools would be more or less objectionable. Had the court used a pure struck system, he contends, he would have known the views of all prospective jurors when exercising peremptory challenges. But defendant has not preserved his claim for review. He objected to the selection process after the jury was sworn, and therefore did so in an untimely manner. (Former § 1060, enacted 1872; see now Code Civ. Proc., § 225, subd. (a)(1); People v. Flowers (1974) 38 Cal.App.3d 813, 818 [113 Cal.Rptr. 701].) Next, defendant contends that the court wrongly failed to excuse six jurors he challenged for cause. But because he did not exercise all of his peremptory challenges, that claim, too, is precluded on appeal. (People v. Morris (1991) 53 Cal.3d 152, 184 [279 Cal.Rptr. 720, 807 P.2d 949].) Defendant contends that because he can justify his refusal to use his last peremptory challenge, that rule does not apply to him. (But see ibid, [defendant must also show he was dissatisfied with the jury as selected].) He asserts that when the final group of prospective jurors had been qualified, he knew about each juror’s views, but did not know the order in which they would be called, and therefore had to reserve a peremptory challenge. The implication is that someone worse for the defense might be called and he had to hedge against that possibility. But we have previously rejected the argument that the struck-jury system permits exceptions to the exhaustion rule (People v. Johnson, supra, 3 Cal.4th at p. 1211) and decline to reexamine our reasoning. Defendant next contends that counsel were ineffective, apparently in violation of the Sixth Amendment to the United States Constitution, for failing to adequately question seven prospective jurors who, in his view, were hostile to him. As stated, to show ineffective assistance of counsel, defendant must establish deficient performance and a prejudicial outcome. (Ante, at p. 663.) He has not met his burden. Preliminarily, we note that only one of the seven prospective jurors was actually seated, and defendant did not exhaust his peremptory challenges. With regard to the other six, therefore, any contention that counsel were ineffective is, as the People respond, pure conjecture—no prejudice can arise from any deficiency involving the voir dire of them. (People v. Cain (1995) 10 Cal.4th 1, 62 [40 Cal.Rptr.2d 481, 892 P.2d 1224].) The seventh juror, Edward Kluza, sat on the jury. He seemed to be taken aback by a question whether he would consider defendant’s background in deciding penalty. Initially he stated that he would assign the factor no mitigating weight; then, in response to the next question, he said, “I can’t see that it should weigh that heavily.” Kluza was then asked, “if ... we only introduce evidence in mitigation [that] consisted of . . . Mr. Osband’s background, . . . would you totally say, ‘Hey, that’s the only evidence they got, automatic death penalty’?” He replied, “Oh, no. No. I don’t—I don’t think I’d close my mind.” He continued in a similar vein. Counsel’s questioning of Kluza was not deficient. The questioning elicited his views and revealed that he was open-minded with regard to penalty. Moreover, Kluza’s written questionnaire would already have assured counsel on that score: he answered that he had “no strong feelings one way or the other” about the death penalty, that the principle of lex talionis—“ ‘an eye for an eye’ ”—is “a little too broad,” and that he would have no difficulty whatever ignoring it. Indeed, the prosecution had reason to be concerned about Kluza, because in his questionnaire he ventured that “[t]oo much is at stake to allow circumstantial evidence to dictate” the rendering of a guilty verdict. In general, the questionnaire suggests a juror who would be fair to both sides and would sit without invidious preconceptions or prejudices. Counsel were not deficient with regard to the voir dire of Kluza. Finally, defendant contends that three seated jurors were wrongly told during voir dire that the penalty process was standardless and subjective—in effect, that they could impose the death penalty on a whim. Not so. What the jurors he lists were told was that if the trial reached a penalty phase it would be up to them to decide defendant’s fate by assigning whatever weight they deemed proper to each factor in aggravation and mitigation. This was correct. “As we have emphasized, the sentencing function is inherently moral and normative [citation] and therefore the weight or importance to be assigned to any particular factor or item of evidence involves a moral judgment to be made by each juror individually.” (People v. Crandell (1988) 46 Cal.3d 833, 882-883 [251 Cal.Rptr. 227, 760 P.2d 423] (lead opn. by Kaufman, J.).) Defendant also implicitly complains that the prosecutor committed misconduct when he effectively told one of the three jurors, Sara Kint, that “[w]hatever moral misgivings [she might feel about the death penalty] would be secondary to the fact that ... it is the law here in Califomia[.]” Defendant did not object to this statement at the time, and may not do so now. In any event, the implication of his point is that the prospective juror was improperly told the decision would be purely mechanical without any room to exercise discretion or mercy. (See People v. Champion (1995) 9 Cal.4th 879, 947-948 [39 Cal.Rptr.2d 547, 891 P.2d 93].) But the prosecutor immediately informed Kint that she personally and subjectively would have to decide the issue by weighing the aggravating and mitigating circumstances presented. We find no misconduct. IV. Guilt Phase Issues. Defendant raises various claims that prejudicial error occurred during the guilt phase. As will appear, none of them has merit. A. Order Compelling. Defendant to Provide Blood and Hair Samples. The prosecution sought an order, after trial began but before the taking of evidence, to compel defendant to furnish samples of blood and hair for forensic analysis. It explained that it was seeking these specimens because it needed hair from additional locations on his body, and that previously drawn blood had deteriorated over time. Defendant argued that it was unreasonable under the Fourth Amendment to the United States Constitution to take the samples, in essence because no exception to the warrant requirement appeared and there was no probable cause to support the intrusion. Nonetheless, the court granted the motion. Defendant renews his contention, declaring that taking the blood and hair samples violated the Fourth Amendment’s bar against “unreasonable searches and seizures” because it was conducted without a warrant. He also asserts perfunctorily that it violated other constitutional rights. Taking the blood sample constituted a search and seizure under the Fourth Amendment. (Schmerber v. California (1966) 384 U.S. 757, 767 [16 L.Ed.2d 908, 918, 86 S.Ct. 1826].) Although “the plucking of defendant’s hairs by the police constituted a ‘seizure’ that might conceivably be subject to the constraints of the Fourth Amendment” (State v. Sharpe (1973) 284 N.C. 157, 162-163 [200 S.E.2d 44, 48]), nevertheless the question whether taking hair samples generally implicates the Fourth Amendment appears to be unsettled. (United States v. De Parias (11th Cir. 1986) 805 F.2d 1447, 1456 [matter undecided in federal courts]; see also United States v. D’Amico (2d Cir. 1969) 408 F.2d 331, 333 [“clipping” a “few strands of hair from appellant’s head was so minor” an intrusion that the Fourth Amendment is not implicated].) We need not decide under what circumstances taking hair samples might constitute a search or seizure that implicates the Fourth Amendment, however. There was no constitutional violation in this case. It is hornbook law that “ ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable’ ” under the Fourth Amendment’s warrant requirement unless they fall within one of a few narrow exceptions thereto. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454-455 [29 L.Ed.2d 564, 576, 91 S.Ct. 2022] (plur. opn. by Stewart, J.).) But as long as the prosecution shows that probable cause exists for the intrusion, a court order compelling specimens to be taken from the body of a criminal defendant satisfies the Fourth Amendment’s guaranty. (Com. v. Trigones (1986) 397 Mass. 633, 641 [492 N.E.2d 1146, 1151]; Matter of Abe A. (1982) 56 N.Y.2d 288, 290 [452 N.Y.S.2d 6, 7, 437 N.E.2d 265, 266 ] [criminal suspect]; see also State v. Weigel (1980) 228 Kan. 194, 198 [612 P.2d 636, 642] [hair sample]; State v. Jones (1977) 279 Or. 55, 59 [566 P.2d 867, 870]; but see Mills v. State (1975) 28 Md.App. 300, 302, 307 [345 A.2d 127, 129, 132].) Probable cause was surely present here. There was strong evidence of defendant’s presence at both crime scenes; indeed, “at the time of the motion for blood and [hair] samples, a preliminary hearing had already been held at which one of the victims, under oath, identified [him]. Because probable cause had been established at a hearing prior to this motion, we are persuaded that [defendant] was accorded as much constitutional protection under this court order as he would have had under a search warrant.” (State v. Brown (1984) 118 Wis.2d 377, 388 [348 N.W.2d 593, 599]; see also Com. v. Trigones, supra, 397 Mass, at p. 641, fn. 4 [492 N.E.2d at p. 1151] [discussing blood evidence].) And the order was issued following a contested hearing—in sum, the procedures more than satisfied the policy against oppressive governmental intrusions that lies behind the Fourth Amendment’s warrant requirement. (Ibid:, Coolidge v. New Hampshire, supra, 403 U.S. at pp. 454-455 [29 L.Ed.2d at pp. 575-576] (plur. opn.).) There was no Fourth Amendment violation in taking the blood or hair. Nor was any other provision of the federal or state Constitutions violated. B. Issues Regarding Restraints on Defendant. Before the prospective jurors first saw him, defendant moved to have only one bailiff seated behind him, in addition to the regular courtroom bailiff, who evidently was seated or standing elsewhere, and not to be restrained by chains or handcuffs in the courtroom. He also moved to have his handcuffs removed in the hallway, where jurors or prospective jurors could not see the procedure. The court granted the motions. On one occasion, however, prospective jurors briefly may have seen him in handcuffs. First, defendant contends that the court violated the federal Constitution by restraining him in chains while in court. The People respond that the record shows he was not mechanically restrained. We agree: as we read the record, the court granted defendant’s motion and he was specially secured only by the presence of the extra bailiff seated behind him, as he sought in his motion. Without clearly articulating the legal basis for the claim, defendant also argues that even the presence of that bailiff constituted excessive security. But he invited any error—the court granted his proposal for security arrangements. Defendant also contends that the court erred on state law and federal constitutional grounds in not investigating, on its own, the effect on prospective jurors of once briefly seeing him in handcuffs, and in not instructing them that they should not consider the presence of restraints an indication of guilt. It is unclear whether they did see him in restraints. However, any glimpse by prospective jurors of him in handcuffs could not have caused prejudice, whether under state law or federal constitutional standards, even if error occurred. (See People v. Rich (1988) 45 Cal.3d 1036, 1083-1085 [248 Cal.Rptr. 510, 755 P.2d 960].) C. Denying Motion to Exclude Putrid Clothing. The prosecutor moved to introduce in evidence blood-saturated pantyhose and underwear taken from the Norma C. crime scene. He alerted the court that the two items had a foul odor attributable to the blood’s putrefaction, and that the prosecution had been trying to air the garments that morning to reduce the odor, with partial success. Defendant objected, asserting that photographs of the exhibits should be introduced in place of the original items. The court ruled that the garments could be introduced, but that it would be done just before a recess with the side door open to allow more air circulation. The jurors were informed in advance of the garments’ stench, and a witness showed them, pointing out a tear in each item. The garments were exhibited only briefly, and the court then immediately excused the jury for lunch. After the jurors left defense counsel asked the court to leave some doors open to air the room, and the court so ordered. Defendant contends that the court erred under state law (Evid. Code, § 352) by permitting the prosecution to introduce evidence that was substantially more prejudicial, by reason of its odor, than it was probative. He also predicates claims of violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution on the asserted state law error. We review a ruling on an objection of undue prejudice for an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 660 [7 Cal.Rptr.2d 564, 828 P.2d 705].) Under this deferential standard, we find no error. As a rule, the prosecution in a criminal case involving charges of murder or other violent crimes is entitled to present evidence of the circumstances attending them even if it is grim. “Service on a murder trial jury is not entertainment; such duty is serious and onerous; by serving, the jurors are executing a primary and necessary duty as citizens. Often the details of evidence are unpleasant, but adult finders of fact must face this duty calmly and undismayed.” (People v. Campbell (1965) 233 Cal.App.2d 38, 43 [43 Cal.Rptr. 237].) The evidence was relevant to establish the charge of assault with intent to rape Norma C. The court did what it could to minimize the prejudicial impact of the odor. It did not abuse its discretion in admitting the evidence. Because there was no state law error, neither was there any predicate for a constitutional violation. D. Failing to Ask Jurors What They Overheard in Hallway. Counsel for defendant complained that two police officers were discussing material contained in their police reports, including the time of their arrival at the Norma C. crime scene, in the hallway where jurors could overhear them. The court ordered the prosecutor to make sure his witnesses stayed at the far end of the corridor, and when the jurors took their seats it admonished them, “You’re not to consider anything that’s said outside the courtroom. The only evidence that you are to consider is the evidence that comes from the witness stand . . . .” At trial, defendant did not request a hearing on the matter. Nevertheless he contends that the court erred by not conducting a hearing on its own initiative to determine what the jurors might have overheard. He argues that they might have heard a discussion so prejudicial that no admonition could cure it. He claims generally that the failure to hold a hearing violated the Fifth, Sixth, Eighth and Fourteenth Ame