People v. Carpenter (15 Cal. 4th 312, 1997)

Opinion

CHIN, J.

Evidence at the guilt and penalty trials established that defendant is the “Trailside Killer” who terrorized Californians in 1980 and 1981. Over several months, he assaulted hikers on remote paths in Santa Cruz and Marin Counties, shooting to death seven at close range with a .38-caliber Rossi revolver and raping some of them. An eighth shooting victim survived to testify against him.

In the case we now review, tried in Los Angeles County following a change of venue, a jury found defendant guilty of these crimes in Santa Cruz County: the first degree murders of Ellen Marie Hansen and Heather Scaggs, the attempted murder of Steven Russell Haertle, the attempted rape of Hansen, and the rape of Scaggs. The jury found true special circumstance allegations of multiple murder, rape murder as to both murders, and lying in wait as to the Hansen murder. As to the attempted murder, it found that defendant personally used a firearm and inflicted great bodily injury.

Following the penalty phase, a different jury returned a verdict of death. The court denied defendant’s automatic motion to modify the verdict and sentenced him to death. This appeal is automatic. We affirm.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

a. The Hansen/Haertle Crimes

In March 1981, Steven Haertle was a junior and Ellen Hansen a sophomore at the University of California, Davis. The last weekend of the month, they went camping at Henry Cowell Redwoods State Park in the Santa Cruz Mountains. They spent Saturday night in the park, then visited Monterey on Sunday, March 29. That afternoon, they returned to the park and, around 4:00, decided to go for a hike. The two walked to an observation deck, then along the Ridge Trail towards the Cathedral Redwoods. About a mile from the deck, they met a man the evidence showed to be defendant. Defendant was walking in the opposite direction, and they passed without speaking. Haertle and Hansen continued to the Cathedral Redwoods, where they sat for a few minutes enjoying the view. They decided to retrace their steps and return to their campsite. While hiking back along the Ridge Trail, they again encountered defendant.

Defendant said, “ ‘Oh, we’ve met again,’ ” and then pulled out a black revolver. He pointed the weapon at the students and ordered, “ ‘Do what I say.’ ” Haertle put his hands up until defendant told him to put them down. Defendant told the two, “‘Do what I say. You won’t get hurt.’” Haertle warned Hansen, “ ‘Be careful, Ell. He’s got a gun.’ ” Defendant gestured at Haertle and told him to go down the trail. Haertle stepped backwards, then heard Hansen say, “ ‘Don’t listen to him, Steve. Don’t listen [to] what he says.’ ” Haertle pleaded with defendant to let them go. Defendant told them, “‘Now, listen to me and do what I say.’” He approached the two and, looking at Hansen, said, “ T want to rape you.’ ”

Hansen responded, “ ‘No, I’m not going to let you.’ ” Haertle advised her, “ ‘Ellen, stay away from him, he has a gun.’ ” Defendant ordered them to “move towards the bushes off the side of the trail,” and gestured with his . gun. They “both stayed away from the gun. As the gun moved [them] over to the edge of the trail, [they] went towards the edge of the trail.” Haertle started to lose his footing, “and then shots went off.” Haertle “felt like somebody hit [his] neck with a sledge hammer.” He also felt something hit his right hand. The next thing Haertle remembered was “waking up lying on the ground.”

Haertle observed Hansen “lying face down on the ground and her head was in a pool of blood.” He “picked up Ellen’s head to see if she was alive. She wasn’t.” He saw defendant “across the trail with his back” to him. Haertle got up and, bleeding from the neck, fled towards the observation deck “as fast as [he] could.”

Leland and Kenneth Fritz, father and son, were also in the park that afternoon. Around 5:00, they saw defendant on the observation deck and briefly conversed with him. Defendant occasionally peered towards the Ridge Trail with binoculars. Defendant then left, and walked to the Ridge Trail. Two other campers, Fred and Maureen Morse, saw defendant get a drink of water at a fountain near the deck. A few minutes later, the Fritzes and Morses heard gunshots from the direction of the Ridge Trail. The Fritzes began walking down the trail in the direction of the shots. They soon met the wounded Haertle fleeing towards them. He told them what had happened. The Fritzes assisted Haertle to the observation deck, left him with the Morses, and went to summon help. Maureen Morse, a nursing assistant, began applying first aid. Fred Morse went down the trail to seek Hansen. He met defendant on the way. Defendant told Fred that someone had been shot along the trail, then continued walking.

While Haertle was receiving assistance, he saw defendant walk up the trail. He stood, pointed at defendant, and yelled at Maureen, “ ‘Lady, that’s the man that shot me, get out of here.’ ” Defendant kept going. Maureen testified defendant “was walking through the clearing . . . like he didn’t see us or hear [Haertle] yelling.” As soon as defendant disappeared from view, Maureen walked down the path towards Fred. Haertle fled to the campground, from which he was eventually taken to a hospital. Law enforcement officers soon arrived, but were unable to apprehend the gunman. Leland Fritz and a young girl in the area saw defendant speed away in a red Fiat.

Haertle’s initial assessment that Hansen was dead proved correct. She died of two gunshot wounds to the head and one to the right shoulder fired from close range. Haertle had been shot in the back of the neck. That night he underwent surgery, and the bullet was removed from behind the sternum. It had hit an artery and missed the heart by about two inches. Without prompt attention, Haertle could have bled to death. He was in the hospital for eight days and, as of trial, still suffered lingering effects from his injuries.

b. The Heather Scaggs Crimes

Heather Scaggs and defendant were coworkers at a trade school in Hayward. Scaggs lived in San Jose with her boyfriend. On May 2, 1981, she arranged to drive to Santa Cruz with defendant, where she hoped to purchase a car from a friend of his. Her own car was inoperable. Scaggs left home that morning and did not return. No one saw her alive after that day.

That night some of Scaggs’s friends spoke with defendant to try to find out what had happened to her. Defendant confirmed that Scaggs and he had planned to go to Santa Cruz together, but claimed he overslept, had car trouble, and never saw her. A few days later, on May 8, he told the police the same thing.

On May 24,1981, hikers found a nude, decomposed body in mountainous, wooded terrain 136 yards off the roadway in the Big Basin State Park in Santa Cruz County, about 12 to 15 miles from the Henry Cowell State Park. Dental records proved it was Scaggs. She had died of a single gunshot wound to the face from close range. The vaginal tract contained a high concentration of seminal fluid with a large number of sperm, some with intact tails indicating they had been placed in the vagina around the time of death. The pathologist who performed the autopsy believed that the sperm were placed in the vagina within an hour of the gunshot wound. The condition of the sperm and body was consistent with the body being shot from above while lying on the ground after intercourse. Forensic analysis of the semen was inconclusive.

c. Evidence of Defendant’s Guilt

Ballistics analysis established that a single gun, a .38-caliber Rossi revolver, was used to shoot Scaggs, Hansen, and Haertle. Documents and testimony established that Mollie Purnell, defendant’s friend, purchased the weapon in the fall of 1980. Purnell testified under a grant of immunity that she bought it at defendant’s request and gave it to him. He paid for it. When she was first questioned by law enforcement agents after defendant’s arrest, Purnell said the gun had been stolen. Defendant had told her to say that “if anything happened.” Two other witnesses testified that defendant showed them a similar-appearing weapon in late 1980 and early 1981. The police found the revolver buried under broken asphalt in a vacant lot in San Francisco. Shane Williams led them to it. Williams and his wife Karen, both bank robbers, testified that defendant gave them the gun on May 13, 1981, shortly before his arrest. Shane used the gun in a bank robbery, then hid it in the vacant lot after defendant was arrested.

The gunman who assaulted Haertle and Hansen was clean shaven. When arrested, defendant wore a beard, which he had started to grow after that assault. Witnesses viewed him in a physical lineup in which all the participants were bearded. Pursuant to a court order, defendant appeared clean shaven at trial. Haertle positively identified defendant as his assailant at the lineup and in court. Leland Fritz also identified defendant both at the lineup and in court. The girl who saw the red Fiat speed away from the crime scene identified a different person at the lineup, but defendant in court. Kenneth Fritz and the Morses could identify no one at the lineup, but identified defendant in court.

Haertle, the Morses, and the Fritzes generally described the gunman as wearing a distinctive gold jacket and a blue or green baseball cap. Candy Townsend lived with defendant in early 1981. She testified defendant owned a green baseball cap. She had once worked at a bar in Billings, Montana, where she acquired a gold jacket that had “Oly” written on the front, and on the back, “Western Bar Olympic Drinking Team, Billings, Montana.” At most only about 20 of these jackets existed. Townsend did not wear the jacket herself. Defendant told her he was wearing it. She last saw it in one of defendant’s cars. After she last saw the jacket, around early April 1981, defendant told her it had been stolen. A San Francisco police officer who issued defendant a traffic citation on March 7, 1981, testified defendant was wearing a “yellow windbreaker” containing the logo on the front of either “Coors” or “Olympia beer.” The jacket was never found.

Leland Fritz testified that the back of the gunman’s jacket “said either ‘Olympic’ or ‘Olympia,’ either ‘beer drinking champion’ or ‘team.’ And I was sure of the ‘Montana’ that was underneath it.” When shown a picture of a jacket that Townsend said looked like her jacket, Leland said it had the same “fancy lettering” as the gunman’s jacket. The configuration of the writing was “pretty close” to that of the jacket. Other witnesses observed varying, but lesser, amounts of the writing on the jacket.

The evidence showed that defendant owned two cars timing this time, a Chevrolet station wagon and a red Fiat similar to the car that Leland Fritz and the girl saw speeding away. The day after the Haertle-Hansen shooting, defendant drove the Fiat to the home of an acquaintance in Marin County, borrowed her car, and left the Fiat with her for four days. After defendant’s arrest, a paper bag containing an unexpended .38-caliber bullet was found in the Chevrolet. The bullet had characteristics similar to bullets used in the shootings.

Witnesses testified that the gunman who shot Haertle and Hansen wore tennis shoes. Criminalists took plaster casts and photographs of distinctive shoe tracks at the scene. Evidence showed that the day before the shooting, defendant purchased a pair of Nike shoes with an identical pattern. The shoes themselves were never found.

In October 1980, Anne Alderson was fatally shot in the head from close range near the top of Mount Tamalpais in Marin County. The body was clothed, but the vagina contained sperm. A semen stain on the panties, probably deposited around the time of death, was of a type consistent with about 6 to 8 percent of the general population, including defendant. In November 1980, Cynthia Moreland and Richard Stowers were fatally shot in the head in a heavily wooded area of the Point Reyes National Seashore. The .38-caliber Rossi revolver used in the Santa Cruz County crimes was also used on these occasions.

2. Defense and Rebuttal Evidence

The defense did not dispute that defendant was the gunman, but sought to cast doubt whether defendant lay in wait for Hansen and raped Scaggs. Brian Wraxall, a forensic serologist, testified that the semen found in Scaggs’s vagina could have come from her boyfriend. Two investigators testified about the topography of the area where defendant shot Hansen. Defendant did not testify.

In rebuttal, the prosecution presented evidence regarding the topography and responding to Wraxall’s testimony.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence of defendant’s other crimes and convictions. In 1960, he assaulted a woman in the Presidio of San Francisco with a knife and hammer, then shot at a police officer with a tear gas gun.

In January and February 1970, defendant went on a crime spree. On January 27, he assaulted a woman at knifepoint on an isolated road in Santa Cruz County, attempted to rape her, and stabbed her three times. The next day, he broke into a private home in the Santa Cruz Mountains and, using a shotgun in the house, abducted the woman who lived there. He tied her hands behind her back, drove her to another spot, and raped her. The morning after that, January 29, he confronted a woman at gunpoint in the carport under her apartment building in Daly City, tied her hands, and stole her car. On February 3, he robbed a woman in Calaveras County at gunpoint, tied her up, and stole her car. Later the same day, he abducted another woman and her infant son at gunpoint from their home in Angels Camp. Holding the gun on the infant, he forced the woman to drive her car to a remote spot, where he raped her. Defendant was also convicted of escaping from the Calaveras County jail.

In addition to the murders of Anne Alderson, Cynthia Moreland, and Richard Stowers, the prosecution proved that in November 1980, defendant fatally shot Shauna May and Diane O’Connell in the head near where he shot Moreland and Stowers. May’s vagina contained sperm. Defendant used the same Rossi revolver each time.

2. Defense Evidence

The defense presented considerable evidence in mitigation. As summarized by appellate counsel, “The defense told Mr. Carpenter’s life story through a large number of lay and expert witnesses, who identified significant themes: Mr. Carpenter was the product of a physically and emotionally abusive home environment which left him with profound psychological impairments. He suffered from a severe speech impediment [stuttering] which exacerbated both the abuse and his psychological difficulties and contributed to his inability to overcome them. The social welfare, mental health, and criminal justice systems repeatedly recognized the type of intensive treatment Mr. Carpenter needed, repeatedly failed to provide it, and instead consigned him to environments which actually reduced his already-limited ability to cope with life outside a highly structured institution. In contrast to his inability to adhere to societal norms while living outside of prison, Mr. Carpenter adjusted extraordinarily well to prison life.”

Several childhood friends and teachers testified about defendant’s troubled childhood, and other friends about his later years. His three adult children testified about their contacts with defendant and their love for him. Several prison employees testified about defendant’s good behavior while incarcerated in state and federal prisons. An expert testified about the effects of child abuse in general and on defendant in particular. Another testified about stuttering and its deleterious effects on defendant. Dr. William Pierce, a psychologist, testified that defendant suffers from a severe and longstanding emotional disturbance amounting to a personality disorder stemming from emotional neglect and abuse in his childhood, which contributed to his criminal behavior. Dr. Craig Haney, another psychologist, testified that penal and other public institutions failed to provide necessary treatment for defendant, beginning when he was a minor, and that this failure contributed to his criminal behavior.

3. Rebuttal

In rebuttal, the prosecution presented testimony from defendant’s first wife, one of his parole officers, and a state rehabilitation counselor; expert testimony disagreeing with some of the defense experts’ opinions; testimony about minor misbehavior by defendant in county jail; and other evidence.

II. Discussion

A. Jury Selection Issues

At defense request, the court selected separate guilt and penalty juries. Defendant contends the court committed numerous errors during the selection.

1. Refusing to Allow Survey Regarding Economic Hardship

Defendant moved to give all prospective jurors a questionnaire regarding “extended jury service and economic hardship.” He stated the questionnaire was necessary “to collect data to support a subsequent motion to augment juror fees,” which would be based upon defendant’s “constitutional right to a jury selected from a fair and representative cross-section of the community.” The questionnaire asked questions such as the sex, age, race, and income of the juror and then asked, “If you were called to serve on a trial which was conducted four days a week and lasted six weeks, and you were paid $20 per week by the court, how difficult would it be for you to serve?” If the responder said it would be “very difficult,” the final question was why. The court denied the motion, in part because the “survey or the information it would glean about prospective jurors would [not] be of any assistance at all.”

Defendant contends this ruling “precluded [him] from establishing that the jury venire in his case did not represent a fair cross-section of the community” in violation of his “state and federal constitutional right to demonstrate that his juries were not drawn from a cross-section of the community.” The Attorney General responds first that defendant waived the claim by failing to object to the panel or to move to quash the venire. (People v. Fauber (1992) 2 Cal.4th 792, 816 [9 Cal.Rptr.2d 24, 831 P.2d 249].) However, defendant does not directly challenge the jury but only argues that the court erred in denying the survey, which prevented him from challenging the jury or asking that the jurors be paid more than the statutory amount of $5 per day. (Code Civ. Proc., § 215.) This issue was litigated below. So understood, the contention was not waived.

The contention, however, lacks merit. The questionnaire could not have significantly aided any potentially meritorious challenge to the jury. “In order to establish underrepresentation, and thus denial of an impartial jury drawn from a fair cross-section of the community, a defendant must make a prima facie showing: ‘(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in the venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.’ (Duran v. Missouri (1979) 439 U.S. 357, 364 [58 L.Ed.2d 579, 99 S.Ct. 664].)” (People v. Harris (1989) 47 Cal.3d 1047, 1077 [255 Cal.Rptr. 352, 767 P.2d 619]; accord, People v. DeSantis (1992) 2 Cal.4th 1198, 1216 [9 Cal.Rptr.2d 628, 831 P.2d 1210].)

As might be expected, many prospective jurors were excused for hardship, although the parties disagree exactly how many. We have already held that persons excused for hardship or persons of low income do not constitute a cognizable class, and that the court need not pay jurors more than the statutory amount. (People v. DeSantis, supra, 2 Cal.4th at pp. 1215-1216; People v. Nicolaus (1991) 54 Cal.3d 551, 570-571 [286 Cal.Rptr. 628, 817 P.2d 893]; see also People v. Mickey (1991) 54 Cal.3d 612, 663-667 [286 Cal.Rptr. 801, 818 P.2d 84].) To the extent defendant argues to the contrary, the argument thus fails.

Defendant also argues he wanted to “develop a correlation between hardship excusáis and unquestioned cognizable classes such as race and sex.” Whether any such correlation would lead to a prima facie showing of a “systematic exclusion” is dubious, but that question is not before us. Nothing prevented defendant from attempting to make that showing. The relevant group in this regard is not the prospective jurors who merely stated on a questionnaire it would be difficult to serve on the jury, but those who were actually excluded for hardship. The questionnaire was neither necessary nor helpful in identifying those who were excluded. As the trial court was correct that the survey would not have assisted defendant, we perceive no abuse of discretion.

2. Alleged Judicial Hostility to Defense Counsel During Jury Selection

Defendant contends that often during jury selection, “the judge addressed defense counsel with inappropriate rancor or attached an overtone of obvious hostility to legal rulings adverse to the defense.” The Attorney General contends defendant waived the contention by not objecting. (People v. Fudge (1994) 7 Cal.4th 1075, 1108 [31 Cal.Rptr.2d 321, 875 P.2d 36].) We disagree. Defense counsel complained about the tone of judicial rulings on a number of occasions and argued the jury would “get the impression as to who is in trouble with the judge.”

The contention, however, lacks merit. A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. (People v. Fudge, supra, 7 Cal.4th at p. 1107; People v. Clark (1992) 3 Cal.4th 41, 143 [10 Cal.Rptr.2d 554, 833 P.2d 561].) We have read each of the alleged instances of hostility in context. They fall far short of establishing misconduct or “betray[ing] a bias against defense counsel.” (People v. Wright (1990) 52 Cal.3d 367, 411 [276 Cal.Rptr. 731, 802 P.2d 221].) The record suggests that on occasion during the protracted jury selection process the court showed irritation with counsel’s voir dire questioning, sometimes outside the presence of prospective jurors, sometimes in front of one or more prospective jurors, and perhaps occasionally in front of a juror who actually sat on one of the juries. But we perceive nothing that crossed the line into improper behavior, and certainly nothing prejudicial to the defense cause. The trial court has the duty to control the trial. (Pen. Code, § 1044; People v. Fudge, supra, 7 Cal.4th at p. 1108.) It effectively fulfilled that duty.

3. Restrictions on Voir Dire of Prospective Penally Jurors

Defendant contends the court unduly restricted his questioning of prospective penalty jurors. Under the law that prevailed at trial (it is different now; see People v. Edwards (1991) 54 Cal.3d 787, 829-830, fn. 9 [1 Cal.Rptr.2d 696, 819 P.2d 436]), “counsel should be allowed to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds sufficient to sustain a challenge for cause.” (People v. Williams (1981) 29 Cal.3d 392, 407 [174 Cal.Rptr. 317, 628 P.2d 869].) In Williams, we “[left] intact the considerable discretion of the trial court to contain voir dire within reasonable limits.” (Id. at p. 408; see also People v. Edwards, supra, 54 Cal.3d at p. 829; People v. Mason (1991) 52 Cal.3d 909, 939 [277 Cal.Rptr. 166, 802 P.2d 950].)

We have reviewed the restrictions and find each came within the court’s discretion. The court generally allowed defense counsel to question jurors at length. For example, the voir dire of the first juror defendant discusses, who actually served on the jury, consumed 51 pages of reporter’s transcript, of which about 35 pages was defense questioning. The occasional restriction regarding specific questions was proper to contain the voir dire within reasonable limits. At one point, defense counsel asked to use a written questionnaire (different from the previously discussed one that concerned hardship). The court denied the request. Although a written questionnaire may sometimes be helpful, we have never required its use, and the court did not abuse its discretion in refusing this one. At another point, two prospective jurors who had already been examined were returned for further examination regarding their attitudes towards the death penalty. The court limited both sides to 15 minutes per juror for the reopened questioning. After the questioning, the defense complained the time was inadequate. The court disagreed, stating as to the first juror, “You reach a point where we are just wasting time to ask somebody the same question over and over and over again, and get the same answer.” Neither this ruling nor any of the others was unreasonable. (People v. Lucas (1995) 12 Cal.4th 415, 480 [48 Cal.Rptr.2d 525, 907 P.2d 373] [no abuse of discretion in disallowing further questioning “because the subject had been exhausted”].) From our review of the record, “It does not appear counsel was prevented from making reasonable inquiry into the fitness of any venire person to serve on the jury.” (People v. Wright, supra, 52 Cal.3d at p. 419, original italics.)

Moreover, we find no prejudice even if we assume an occasional abuse of discretion. In People v. Bittaker (1989) 48 Cal.3d 1046, 1086 [259 Cal.Rptr. 630, 774 P.2d 659], the court imposed far greater restrictions than in this case, but we found that we should “limit reversals to those cases in which the erroneous ruling affected defendant’s right to a fair and impartial jury.” As in Bittaker, any error was harmless here. The rulings were minimally restrictive. Moreover, the defense had several peremptory challenges remaining when it accepted the jury, and it did not express dissatisfaction with the jury as sworn. “When the jury was finally selected, defendant did not claim that any juror was incompetent, or was not impartial. We therefore find no prejudicial error.” (People v. Bittaker, supra, 48 Cal.3d at p. 1087; see also People v. Avena (1996) 13 Cal.4th 394, 413 [53 Cal.Rptr.2d 301, 916 P.2d 1000]; People v. Pinholster (1992) 1 Cal.4th 865, 916 [4 Cal.Rptr.2d 765, 824 P.2d 571].)

Defendant also argues the combination of the restrictions and the court’s hostile attitude was prejudicial. We disagree. There was no error to accumulate.

4. Guilt Jury Selection

Defendant challenges several rulings during selection of the guilt jury. He contends the court erroneously excused one prospective juror for cause without allowing defense counsel to question him. After that juror expressed opposition to the death penalty, the court asked, “Are you so opposed to the death penalty that you could not find a man guilty or find that special circumstances were true because somebody else might impose the death penalty if you did?” The juror answered, “Yes.” The court explained that the juror would not be called upon to decide penalty but only guilt, and that, if the guilt verdict warranted it, another jury would decide the punishment. When the court asked if the juror could “be fair in deciding is he guilty or not, knowing that if you did find him guilty, somebody else might say the death penalty,” the juror answered, “I don’t think I can.” Upon further questioning, he said he could not vote for guilt under such circumstances even if he were convinced beyond a reasonable doubt the defendant was guilty. He could not vote guilty “if it is a decision between, you know, life in prison or death. Maybe it would appear different if I knew which one they were going to do, you know. Maybe it would be different.” Finally the court asked, “You feel so strongly that your conscience just wouldn’t let you do anything else?” The juror answered, “Yes, that’s true.” The court refused to allow defense counsel to ask questions and excused the juror for cause.

Defendant claims the questions were improper and the answers inadequate to support the challenge for cause. We disagree. “If the offense charged [is] punishable with death, the entertaining of such conscientious opinions as would preclude [the juror’s] finding the defendant guilty” is grounds to remove the juror for cause. (Pen. Code, former § 1074, subd. (8), repealed by Stats. 1988, ch. 1245, § 34, p. 4155, now Code Civ. Proc., § 229, subd. (h).) The questions were reasonably directed to determining whether to excuse the juror under this standard, and the record amply supports the court’s ruling. (People v. Wash (1993) 6 Cal.4th 215, 256 [24 Cal.Rptr.2d 421, 861 P.2d 1107].)

Defendant also argues that the court “committed an even more basic error by excusing [the juror] prior to questioning by defense counsel.” Again, we disagree. The court has discretion to refuse to allow defense counsel to question jurors for the purpose of rehabilitation if their “answers made their disqualification unmistakably clear ....’’ (People v. Bittaker, supra, 48 Cal.3d at p. 1085, citing People v. Nye (1969) 71 Cal.2d 356, 364 [78 Cal.Rptr. 467, 455 P.2d 395].) “We do not question a judge’s discretion to decide that a juror’s disqualification is so clear that further voir dire is pointless, and to excuse the juror . . . .” (People v. Bittaker, supra, at p. 1085.) Defendant argues that in some respects the juror’s answers were equivocal, but as a whole the juror made clear he could not find defendant guilty if the death penalty were possible. We find no abuse of discretion.

Defendant next argues the court erroneously denied two defense challenges for cause. Our review of the record discloses no error, but even if we assume error as to both, defendant has failed to show prejudice. Defendant peremptorily challenged both jurors and did not exhaust his challenges. He did not express dissatisfaction with the ultimate jury. “Any erroneous inclusion of prospective jurors was therefore harmless.” (People v. Edwards, supra, 54 Cal.3d at p. 830.)

One prospective juror stated in front of other prospective jurors, “I am terrified, and would like to be excused from this case.” At a bench conference, the court observed that the juror “appears to me to be very visibly upset, very nervous, shaking.” Without objection, the court excused the juror. Defense counsel asked the court to “make it clear to these other people that her fear has nothing to do with anything in this case,” arguing that “[t]hey may form a conclusion that some kind of thing happened from us that makes her fearful.” The court refused the request. Defendant claims, “Without a cautionary instruction, it is reasonably probable that the remaining jurors speculated whether [the juror’s] fear was justified and could, be laid at Mr. Carpenter’s feet.” We disagree. The juror expressed a generalized fear of sitting in a case such as this, not a specific fear of defendant. The trial court was in the best position to judge the need or advisability of a cautionary instruction. We find no abuse of discretion.

Defendant also contends the court erred in excusing one juror for hardship after the guilt jury had been selected. A substantial delay ensued between the selection of the guilt jury and the beginning of the actual trial. When the trial began, but before the guilt jury was sworn, one of the selected jurors asked to be excused. She stated that her employer, a large business, had recently changed its policy and would no longer pay for her jury time. Defense counsel asked if a “phone call from the judge” would help. She answered, “I don’t know. They said, when I talked to the manager, ... he said that if he had to pay, he would pay, and they would take a loss on it. [