Full opinion text
Opinion BAXTER, J. John Lee Holt was convicted by a jury in the Kern County Superior Court of the July 6, 1989, first degree murder (Pen. Code, § 189) (count 1) of Marie Margie Axtell; first degree robbery (§ 212.5, subd. (a)) (count 2) of Axtell; rape (§261, former subd. (2)) (count 3) of Axtell; sodomy (§286, subd. (c)) (count 4) of Axtell; and first degree burglary (§ 460, subd. (a)) (count 5) of the Axtell residence. The jury also found true special circumstance allegations charging that the murder occurred during the commission or attempted commission of robbery, rape, sodomy, and burglary (§ 190.2, former subd. (a)(17)(i), (iii), (iv), and (vii)), and returned a penalty phase verdict of death for the murder. On May 30, 1990, the trial court denied an application for modification of the penalty verdict and imposed a judgment of death. (§ 190.4.) This appeal is automatic. (§ 1239, subd. (b).) We shall reject defendant’s several claims of prejudicial error at the guilt and penalty phases of the trial and affirm the judgment in all respects. I Guilt Phase Evidence A. The Prosecution Case Defendant had been employed for one month in door-to-door sales of household cleaning products on July 6, 1989, when he called at the Bakersfield home of 65-year-old Marie Axtell, a widow who lived alone. He had undergone a short training period before being sent to Bakersfield on July 3, 1989, as part of a 15-person sales crew which was staying in a local hotel. On the morning of July 6, defendant and Cameron Bearden, who had been assigned to assist in training defendant, worked together on one street, after which they split up. Defendant was repeatedly rebuffed in his efforts to make sales. When defendant arrived at the home of Ms. Axtell, she was lying on the living room sofa. The door was open. When she said she did not want his products, defendant jerked opened the screen door, entered the living room, and sexually assaulted Ms. Axtell, first in the living room and then in the master bedroom of the home. Ms. Axtell was strangled and rendered unconscious at some point during the assault. Defendant then took jewelry from the bedroom, root beer from the refrigerator in the kitchen, and money from Ms. Axtell’s wallet, which was on the kitchen table. Returning to the bedroom, he left the unopened root beer on a dresser, took more jewelry, and departed. His company identification badge was found in the living room. His fingerprints were found on items throughout the house, including the root beer can. Glenn Copeland, Ms. Axtell’s son, who lived in Tehachapi, had visited the Axtell house about 8 a.m. He left at 9 a.m. to do an errand for his mother. When he left the house, Ms. Axtell’s purse and wallet were on the kitchen table. On Copeland’s return to the house about 11:30 a.m., he saw a brown briefcase near the front door. The screen door, which his mother had latched when he left, was unlatched and open several inches. The latch had been bent. Alarmed, he entered and found his mother unconscious, lying face-down on the floor in the bedroom. What appeared to be a bag was in her mouth and a cloth was wrapped around her neck and double knotted. Copeland called 911, and after again checking his mother’s condition went next door to seek assistance. As he left the house he confronted defendant who was picking up the briefcase. When accused, defendant denied being inside the house. When Copeland again accused defendant of being in the home, defendant said he was going to check with his boss in the van across the street. There was no van across the street. Copeland directed defendant to remain, but when Copeland returned two minutes later from the house of the neighbor, defendant and the briefcase were gone. Emergency vehicles arrived several minutes later and Ms. Axtell was taken to the hospital. Just after he saw an ambulance on the street defendant was supposed to be working on, Cameron Bearden saw defendant near the pickup area for the sales crew. Defendant beckoned him to come over. Bearden observed that defendant was “hyper,” his hair was “messed up,” and he did not have his briefcase. The briefcase was one issued to salespeople by the company. It contained a “sales kit” of items used in making the sales presentation. Defendant said his briefcase was at the pickup area. Bearden saw the briefcase at the pickup stop. Defendant and Bearden were picked up by a supervisor in a company van. Defendant told the supervisor that he had not made any sales. The supervisor then dropped the two men off in the same area even though defendant said he wanted to work in another area. Defendant left the sleeveless vest he always wore, even in the Bakersfield heat, in the van. The two men were then stopped by Detective West who had heard a police radio call regarding an attempted homicide and a description of a suspect. Defendant was carrying a brown briefcase. The location of the detention was one block from Ms. Axtell’s home. West questioned defendant and Bearden who denied having been on the street on which Ms. Axtell’s home was located. He spoke to them for about 10 minutes. Aubin, another officer, who had heard a description of the suspect, arrived to back up Detective West, as defendant and Bearden were walking away. He detained defendant and Bearden at the request of Detective West who arrived with Ms. Axtell’s son. Glenn Copeland told the officers that he believed he recognized the briefcase carried by defendant, and one of the men as the person he had seen at his mother’s house. The officers conducted a pat-search of Bearden and defendant preparatory to placing them in a patrol car. Aubin found a pen, ointment jar, and jewelry in defendant’s right front pants’ pocket. Defendant was arrested and a more thorough search revealed $160 in $20 bills and cigarettes in the left front pocket. In the meantime, Ms. Axtell was transported to a hospital where she died on July 15, 1989, without regaining consciousness. An examination at the time of her admission revealed no external trauma to the vaginal area. The vault was red, which was consistent with penetration by an adult penis, however. There was no evidence of external trauma in the anal area, but evidence of blood was found in a stool sample or the rectum. This was consistent with penetration by an adult penis. Other forensic evidence also connected defendant to the assault. An autopsy revealed the following external injuries. The tip of Ms. Axtell’s hyoid bone, located high in the throat area above the voice box, was fractured, as were the second and third cartilaginous rings of the trachea, located in the midline of the throat. The damage to the hyoid bone was consistent with manual strangulation. Fractures of the cartilages of the larynx can be seen in either manual strangulation or ligature strangulation. The pathologist later testified that bruises appearing in photos of Ms. Axtell’s neck area were consistent with ligature strangulation. The cause of death was hypoxic brain damage due to strangulation. Death was the result of pneumonia involving both lungs with abscess in the lower lobe of the right lung which resulted from the brain damage. Bearden identified the company photo-identification card found in Ms. Axtell’s home as that issued by the company to defendant and testified that the briefcase was also company issue. He had been surprised at the amount of money found in defendant’s pocket. The company never provided more than a $25 draw for lunch and other expenses, and during the time Bearden worked with defendant, defendant made very few sales. Ms. Axtell’s purse and wallet held no currency when examined by police. Ms. Axtell had cashed a $200 check on July 3, 1989, receiving all of the money in $20 bills. On July 4, she had spent just over $39. The jewelry in defendant’s possession was identified as belonging to Ms. Axtell. At the Bakersfield Police Department after his arrest, defendant had been advised of his constitutional rights. He had waived them and was questioned by Detective Boggs. Boggs testified that defendant initially denied any involvement in the crimes, but later admitted he had assaulted Ms. Axtell. He said he had been aggravated by people slamming doors in his face and became irritated when she said she was not interested in his products. When she told him to leave, something in his head “snapped,” he got mad, jerked open the screen door, and grabbed Ms. Axtell with both hands around her throat and began to choke her as she rose from the couch. When his hand tired as she struggled and tried to escape, he released her and picked up a cloth he found in another part of the living room. He then returned to Ms. Axtell and placed her in a “choke hold.” She continued to struggle until he tightened the choke hold and she became limp and semiconscious. He then wrapped the cloth around her neck and twisted it until she became unconscious. At some point he warned her that if she did not stop moving he would have to hurt her. Defendant then dragged the victim into the bedroom, threw her onto the floor next to the bed and sexually assaulted her. He did not recall whether he had anal or vaginal intercourse, but had ejaculated. He denied stuffing anything into Ms. Axtell’s mouth. He acknowledged that a belt found in the bedroom was his and came off during the struggle, but said he did not remember using it to choke the victim. After the sexual assault he got dressed, took several items of jewelry from a box on the dresser, went to the kitchen where he got a can of root beer, and returned to the bedroom, looked through jewelry and other items, and left. He denied taking any money from the residence. Defendant made his statement in a matter-of-fact demeanor, displaying little emotion. B. The Defense Defendant was the only defense witness during the guilt phase. His testimony was consistent with his earlier statement to the police, and he confirmed that Detective Boggs’s testimony was “pretty much [what I] stated.” Defendant testified that before approaching the Axtell home he had been the object of racial comments. Ms. Axtell told him she was not interested in his product. He persisted and showed her the product. She said she did not want to buy anything. He considered making another sales pitch, but decided to put the product back into the briefcase. At that point he “snapped” or “blew up,” opened the screen door, and ran toward Ms. Axtell who was on the couch. On cross-examination he testified that he did not intend to sexually assault her when he entered, although he did intend to steal something from the house. He began choking Ms. Axtell and told her to remove the belt he was wearing which she did. He took the cloth from a pillow because his hands were getting tired, put it around her neck and tied it. He told her to remove her panties, and when he noticed the front door was open, took her to the bedroom where he pushed her onto the bed. He took items from the dresser, and then sodomized Ms. Axtell. Defendant denied vaginal penetration. Ms. Axtell was conscious at that time. Defendant testified that he then went to the kitchen because he was hot and sweaty. He told Ms. Axtell to get off the bed and lie on the floor, which she did. In the kitchen he took a root beer can from the refrigerator and took the bills from a wallet he saw on the kitchen table. The money taken from him after his arrest was this money. He then returned to the bedroom, put the root beer can on the dresser and took some necklaces or chains. He looked through a jewelry box and took some jewelry. These were the items taken from him in the search at the time he was detained by the police. He left, leaving Ms. Axtell on the floor with the blue cloth still tied around her neck. Defendant testified that Ms. Axtell was conscious the entire time he was in the house. He denied putting the plastic bag in her mouth. He denied telling Detective Boggs that she was unconscious. He had not used that word, but had said that Ms. Axtell was not moving. The only time she started to lose consciousness was when he first grabbed her around the neck in the living room. When defendant realized he had left his briefcase at the house he returned to get it. He rang the door bell, which was answered by Ms. Axtell’s son who accused him of having been in the house. He said he “didn’t do it” and left when the son went next door. The defense conceded sodomy, but argued that the evidence of rape was insufficient, and that the broken hyoid bone and cartilaginous rings of the trachea might have been broken during attempts to resuscitate Ms. Axtell, in which case that injury could be an intervening cause of death. II Penalty Phase Evidence A. Aggravating Evidence In addition to the circumstances of the offense, the aggravating evidence offered by the People was limited to evidence of two Colorado incidents. The first was the rape and robbery of 90-year-old Candeo Tresso during a burglary of her Pueblo Colorado home in 1984. Gino Tresso, son of the victim, testified that his mother did not speak English and had difficulty moving around, even with a walker. Gino Tresso visited her daily at lunch time. On October 7, 1984, he noticed that two windows which looked out from his mother’s duplex unit into a garage were intact. When he arrived the next day, about 40 minutes after his sister, who lived with their mother, had left, he saw a brick and broken glass in the yard. The back door was locked, and when he entered he found Mrs. Tresso standing in the hallway “scared to death.” She stated that she had been robbed. Her bank books were on the bed and envelopes in which she kept her money were scattered about. About $500 in cash was missing. Subsequent examination revealed that Mrs. Tresso had been sexually assaulted. Defendant, then a juvenile placed in a home for troubled children, was questioned and denied involvement even when confronted with evidence placing him at the scene. When his fingerprints were identified he confessed, however, and eventually pled guilty. The second incident led to defendant’s conviction for the 1988 second degree burglary of the apartment of Mary and Glenn Johnson from which he took a ski jacket, a steak knife, an ashtray, and $1.57. He was apprehended by residents of the apartment building without violence. B. Mitigating Evidence The theory of the penalty phase defense was that, at the time of his assault on Ms. Axtell, defendant was in a state of altered consciousness, a “fugue state” caused by a temporal lobe epileptic seizure. The defense also attempted to evoke sympathy for defendant because his parents rejected him and because his childhood problems had been misdiagnosed as having an emotional origin when he was in fact brain damaged. As a result of the misdiagnosis, the responsible public agencies and residential facilities failed to provide appropriate treatment and remediation. Evidence was presented that defendant suffered a brain injury at birth as a result of oxygen deprivation. He exhibited self-destructive behavior when he was four years of age. He tried to stab himself, he cut his fingers and arms, he stole things, and he gave pesticide to a cousin to drink. At age nine he received treatment when he complained of hearing voices. At age 11 he was institutionalized for 10 months for auditory hallucinations of the devil who told him to do good or bad things. He was diagnosed at that time as having an undersocialized aggressive reaction to childhood. Defendant’s parents removed him against medical advice after he spent one year in a subsequent institutionalization at the Colorado Boys Ranch. In 1981, when he was 13 years old, he knocked an elderly woman down and fled with her purse after posing as a Boy Scout to help her with her groceries. Defendant’s parents refused to have him returned to the home at one point and, when he was returned to his home even though a social worker reported that defendant’s parents were abusive and uncooperative, his parents refused to participate in therapy, and refused to acknowledge any wrongdoing. They claimed that defendant was “evil,” was “born from the devil,” and expressed the view that defendant, rather than his twin brother-, should have died shortly after birth. Defendant’s parents continued to be uncooperative and left the state, abandoning him, while he was in one group home placement. The social worker found that defendant had trouble following through on things, but believed this was due to emotional problems, not retardation. The emotional problems affected defendant’s learning ability and led to a diagnosis of learning disability. In shelter schools he functioned at the second, third, and fourth grade levels, but was good at imitating things. From April 1982 to October 1984, defendant was in a residential child care facility for children with emotional problems and those who had committed criminal misconduct. He was then described as a very angry person who did not get along well with his peers, but while in this facility he became more receptive to staff, got along better with his peers, and opened up. He was permitted to attend a public middle school, an alternative school, and then a public high school as his grades got progressively better, possibly because he was in special education classes in which the standards were not as exacting as those in regular classes. A clinical social worker at the residential facility testified that defendant had a “conduct disorder,” a term used to describe persons under 18 who have significant social problems, lie, run away from home, lack respect for authority, and tend to deny responsibility for their behavior. Defendant did not sleep well, sometimes a symptom of depression. He was suspected of committing several burglaries before the rape and robbery of Mrs. Tresso while in this placement. Following his conviction of the earlier offenses, defendant had been placed in a closed treatment center. The clinical therapist who worked with defendant there also believed he had an emotional disorder, not an organic problem. He did not act out his anger, but she could tell that he was angry. When upset he wore many layers of clothing even on hot days and refused to talk. Defendant’s family participated in some family therapy, but his father was not willing to discuss abuse, rigid rules, or defendant’s hatred of him. The mother seemed “overly physical” with defendant. Defendant continued to feel guilt about the Tresso assault and felt responsible when she later died of a heart attack. Defendant was paroled in February 1988 and assigned to a subsidized housing unit. His parole agent testified that had she not been on vacation at the time she would have refused supervisory responsibility, as defendant was not ready to care for himself. He had no savings, was unemployed, and his social skills were deficient. Parole was terminated as a result of a court decision on June 1,1988. At that time the parole agent was preparing to seek revocation of parole because defendant was becoming more frustrated and careless about taking care of himself and his apartment. He had lied about efforts to find employment and was not participating in treatment programs. He had told the parole agent about a door-to-door job which she believed was inappropriate because it involved travel outside the State of Colorado, and because defendant was a very serious offender who lacked the social skills necessary to handle rejection. She believed that with his low frustration level he might commit another offense if rejected. When parole was terminated prematurely, defendant had to leave his apartment. He lived with his parents on two occasions for one week but they rejected him both times. He then committed the burglary for which he was convicted on August 3, 1988. After defendant was convicted of second degree burglary in that incident, he was granted probation, but probation was revoked for 60 days when he tested positive for marijuana. He absconded two weeks later. A Colorado arrest warrant was outstanding when the California offenses were committed. The defense also presented evidence that defendant actually suffered from a brain injury. Dr. Monte Buchsbaum, a professor of psychiatry and human behavior at the University of California at Irvine, testified that positron emission tomography (PET) testing suggested that appellant’s temporal lobes and part of the frontal lobe of his brain were “two standard deviations below normal.” Dr. Buchsbaum detected “emotional system damage” to the cingulat gyrus portion of defendant’s brain, damage consistent with sexual aberrations. Abnormality in defendant’s frontal lobe was associated with judgment, planning, and execution functions, and suggested impulsiveness and poor judgment. Areas of his brain with diminished metabolic activity are those involved in cognitive skills—reading, writing, and arithmetic—and some kinds of abstract reasoning. The abnormalities were most likely a result of brain damage, possibly prenatal or during delivery, when a shortage of oxygen occurred or the head was damaged. The PET scan diagnosis was consistent with that from an electroencephalogram (EEG) which reflected abnormality in both temporal lobes of defendant’s brain. Dr. Buchsbaum concluded, based on the PET scan and EEG that an area of brain dysfunction was present, probably in both the left and right temporal lobes, and that because of brain damage defendant’s brain function would be abnormal. Dr. Buchsbaum acknowledged, however, that violent behavior cannot be predicted on the basis of the data obtained in the tests performed on defendant. Dr. Raul Guisado had conducted a neurological examination of defendant, including an EEG. Computerized interpretation of that examination confirmed an unusual amount of alpha wave activity in the front of defendant’s brain and a relative lack of activity in the side and back. There was abnormal theta wave activity in the temporal regions, and occasional abnormal bursts of theta wave activity in the temporal regions on both sides of defendant’s head. Other tests reflected normal hearing, but abnormal processing of auditory information. Defendant described lifelong symptoms consistent with temporal lobe epilepsy. An abnormality in the function of the right hemisphere of the brain was also suggested by an abnormal relaxation of muscles on defendant’s left side. Dr. Guisado also performed tests on defendant related to auditory perception and cognitive ability. Based on the auditory tests, Dr. Guisado concluded that defendant had an abnormality on the right side of the brain, mostly localized in the right temporal lobe. This impaired defendant’s ability to understand auditory information. The test of cognitive ability, the ability to pay attention and concentrate on one particular task, was normal. In a history Dr. Guisado took from defendant, defendant described having experienced since age 14 or earlier sudden onsets of an abnormal sensation. His body would go numb, after which he had sharp pains either in the left arm or head. This was followed by a short period during which he was not aware or completely aware of his surroundings. Defendant also stated that he sometimes had episodes when he blanked out. Dr. Guisado testified that these symptoms were commonly described by persons who suffered from temporal lobe epilepsy. While this was highly suggestive of an epileptic form disorder, it was not diagnostic of that condition. Defendant was also found to have abnormalities in the muscle tone on the left side of his body. This finding was tied very well to the physiological evidence of the involvement of the right hemisphere of defendant’s brain. Without additional information Dr. Guisado could not diagnose epilepsy in defendant. He did testify, however, that research into epilepsy and violent behavior suggests that persons with temporal lobe epilepsy, particularly that involving the right hemisphere of the brain, tended to have a higher degree of violent, impulsive behavior and aggression than normal people or those with abnormalities in the left side of the brain. Samuel Benson, M.D., who also held doctorates in physiology and pharmacology, was a specialist in psychopharmacology, and treated persons who had been unsuccessful in other treatment programs. He interviewed defendant and evaluated him based on those interviews as well as records of defendant’s birth, records of other experts, and a description of defendant’s crimes. He concluded that defendant had an organic mental disorder and that there was tissue damage to the brain. Defendant had organic personality syndrome, a partial complex seizure disorder with brain damage particularly to the right temporal lobe. Dr. Benson concluded that the lesions in defendant’s brain likely occurred at birth when defendant delivered in a “double-footed breach” position, did not breathe or cry for two minutes, had to be intubated, and was slow to react normally. He believed that defendant was deprived of oxygen for longer than two minutes, as the placenta would have started to break away when contractions and expulsion of the infant began. In addition, there would have been occlusion in the birth canal cutting off the flow of blood and oxygen to the brain. Defendant’s childhood history included inability to learn, behavioral disturbance, and both auditory and visual hallucinations, which were all signs of organic brain damage. The treatment defendant received in Colorado was not appropriate for a person with organic brain injuries. In Dr. Benson’s opinion defendant did have epilepsy which he had attempted to conceal. Defendant very much wanted to believe that he was normal and to appear normal to others. While defendant’s symptoms were observed and recorded by those providing therapy, they did not have defendant’s birth records, and defendant was never seen by a competent neurologist or psychiatrist. The therapy provided was not effective with a person who had organic brain damage. The proper therapy would have been administration of medications which increase the activity of the brain cells that functioned below normal levels, and antiseizure medication to raise the seizure threshold and allow the brain to function in a normal manner. This expert believed that defendant “confabulates.” In his description of the crimes against Ms. Axtell, although he could not tell Dr. Benson what he intended to do at a particular time, and there were moments in which it was “like he was not there,” he added to his “recollection” of the crimes against Ms. Axtell details he had learned from others. The events about which defendant lacked recall, and as to which his description of the crime varied in different interviews with the experts and Detective Boggs, were not crucial to defendant’s guilt or innocence. He had no incentive to lie about them and simply tried to fill in the gaps in his memory. This is common with people who have organic brain disease. Defendant’s actions during the crimes, such as leaving the briefcase and identification tag, getting the root beer but not drinking it, and other conduct that was nonsensical, reflected a disorganization which, when coupled with defendant’s description of his right temporal lobe pain, the odd feeling down his left shoulder with loss of control and tremor of his left arm and a tingling sensation, followed by a period of confusion, suggested to Dr. Benson that at the time of the attack on Ms. Axtell defendant was experiencing a seizure disorder. Dr. William Pierce, a clinical psychologist, whose report Dr. Benson had reviewed, had himself reviewed the various records about defendant, and had interviewed defendant, his brother, and the persons who had tested or worked with defendant. He testified that defendant was bewildered about his situation, genuinely tried to piece together what had happened and was embarrassed by his conduct. Like Dr. Benson, Dr. Pierce was impressed by the impulsiveness of defendant’s conduct and his confusion and spotty recollection of his acts. Dr. Pierce, too, concluded that defendant had an organic mental disorder, an organic personality syndrome evidenced by aberrant behavior at a very young age and, in later years, leading to development of a borderline personality disorder within the meaning of the third edition of the Diagnostic and Statistical Manual of Mental Disorders. Dr. Pierce also found evidence in the tests he administered that defendant’s problems were organic in nature, and he believed that defendant was in a “fugue” state at the time of the offenses. In that state a person does not lose consciousness, but there is an alteration of consciousness resembling a dreamy or twilight state, followed by confusion that is reflected by gaps in memory. It is characteristic of the disorder for a person to act out very violent behavior that almost looks planned, and for the person to be in a state in which it seems they see themselves doing the act. They give a third party description of their conduct, as if they were watching it. Defendant described his conduct to Dr. Pierce in this manner. Dr. Pierce was also impressed that the things that defendant said he did not remember—such as what happened to his belt, losing his name tag, and putting the plastic bag in Ms. Axtell’s mouth—did not help or hurt him. Like the other experts, Dr. Pierce could not rule out the possibility that defendant had lied in some of his statements, but he did not believe that to be the case. Rather, the memory gaps and later confabulation as defendant tried to fill them in were symptomatic of the fugue state in which defendant had been acting during the temporal lobe attack. After closing argument and instruction, the jury returned a penalty verdict of death after 60 minutes of deliberation. Defendant’s motions to strike the special circumstances and automatic motion for modification of the penalty (§ 190.4) were denied. Glenn Copeland and defendant each addressed the court, after which the court pronounced judgment, imposing the death penalty for the murder of Ms. Axtell and determinate terms on the remaining counts. Ill Jury-related Issues Defendant claims that three jurors were improperly excluded, that the voir dire conducted by the trial court was inadequate, and that the court erroneously failed to inquire into the bias of a seated juror and to excuse that juror. We address each claim individually. A. Witherspoon-Witt Claims In Witherspoon v. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] (Witherspoon), the Supreme Court held that a capital case prospective juror may not be excused for cause on the basis of moral or ethical opposition to the death penalty unless the juror’s views would prevent the juror from judging guilt or innocence or would cause the juror to reject the death penalty regardless of the evidence. Excusal is permissible only if the juror makes this position “unmistakably clear.” (391 U.S. at p. 522, fn. 21 [88 S.Ct. at p. 1777].) That standard was amplified in Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841] (Witt), where the court, adopting the standard previously enunciated in Adams v. Texas (1980) 448 U.S. 38, 45 [100 S.Ct. 2521, 2526, 65 L.Ed.2d 581], held that a prospective juror may be excused if the juror’s voir dire responses convey a “definite impression” (469 U.S. at p. 426 [105 S.Ct. at p. 853]) that the juror’s views “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424 [105 S.Ct. at p. 852], fn. omitted.) The Witt standard applies here. (People v. Avena (1996) 13 Cal.4th 394, 412 [53 Cal.Rptr.2d 301, 916 P.2d 1000]; People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].) If a juror’s responses are conflicting or equivocal, the trial court’s ruling is binding on us. (People v. Lucas (1995) 12 Cal.4th 415, 481 [48 Cal.Rptr.2d 525, 907 P.2d 373]; People v. Mincey (1992) 2 Cal.4th 408, 456-457 [6 Cal.Rptr.2d 822, 827 P.2d 388].) If not, we will uphold the trial court if the ruling is fairly supported by substantial evidence in the record, giving deference to the trial court which had the opportunity to observe and listen to the juror. (People v. Cain (1995) 10 Cal.4th 1, 60 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v. Wader (1993) 5 Cal.4th 610, 652 [20 Cal.Rptr.2d 788, 854 P.2d 80].) Defendant contends that two prospective jurors were erroneously excused for cause under these standards. 1. Jerry Richards Defendant argues that prospective juror Richards stated without reservation that he would be able to decide guilt and special circumstance charges without regard to the potential punishment and stated that he could fairly listen to the evidence presented at the penalty phase and could vote for the death penalty. Richards placed a significant qualification on his willingness to vote for death, however, stating in response to the prosecutor’s voir dire question: “It would be hard for me to consider the death penalty if I didn’t in my mind believe that he intentionally went there to do that. If it happened while he was doing other things, I would still be inclined to convict him but not— maybe not so the death penalty.” The court then attempted to clarify the juror’s attitude toward imposition of the death penalty for an unintentional felony murder, asking whether Richards was “saying that even though the defendant would have been convicted of murder of the first degree and a special circumstance or more of them were found to be true that you couldn’t impose the death penalty unless, in addition to all that, you were convinced that the defendant intentionally killed the victim, that is that the murder was intentional, that he intended that she should die?” Richards responded: “I would have to feel that he intended to kill her for me to apply the death penalty.” After defendant’s counsel declined the court’s offer to permit additional voir dire, the court granted the People’s challenge for cause, excusing Richards. Relying only on Richards’s earlier response that he would “have difficulty” in imposing the death penalty, defendant claims that the trial court erred. We disagree. There was a hesitancy in the juror’s initial statement that he would have “difficulty” imposing the death penalty when a killing was not intentional. The prosecutor believed that answer to be sufficiently unequivocal to support a challenge for cause and for the court to ask additional questions. When the court asked those additional questions, Richards apparently resolved the matter in his mind and answered unequivocally that he would not impose death for an unintentional killing. The juror’s attitude was sufficiently clear at that point that defendant’s counsel made no effort to rehabilitate him. Richards’s answer was not, as defendant now claims, simply the expression of a preference for life imprisonment. Nor was it only a moral assessment or statement of what he believed would be the appropriate penalty under the evidence in the particular case. The voir dire did not set forth the evidence. It was directed only to the charges. The law of this state provides that death may be imposed for a murder committed in the perpetration of an enumerated felony regardless of whether the killing was intentional. (§ 190.2, subd. (a).) The juror stated unequivocally that he could not impose death for a killing that was not intentional and simply occurred in the course of the felonies set out in the charged special circumstances. This was a statement indicating that he could not follow the law. The court’s action is fairly supported by the record. 2. Erlinda Jones Defendant next argues that the court had insufficient evidence on which to excuse prospective juror Erlinda Jones from the jury panel, and that she did not indicate she would refuse to weigh the evidence during the penalty phase. The test is not whether the juror would refuse to weigh the evidence, but whether, having done so, the juror would be unable or unwilling to impose the death penalty. If the voir dire is adequate to permit the court to make the latter determination, it is not necessary that the juror also be asked specifically if he or she would weigh the evidence. The voir dire of Jones elicited responses similar to those of two jurors in People v. Wash (1993) 6 Cal.4th 215, 255 [24 Cal.Rptr.2d 421, 861 P.2d 1107], who also repeatedly insisted that they did not know if they could impose the death penalty and could not tell the court the answer to that question. In both instances we concluded that the responses were equivocal and found no Witt error in excusing the jurors for cause. The answers by Jones were not simply equivocal. She never stated that she would consider imposition of the death penalty. She repeatedly expressed inability to state whether she could vote for death. The closest she came to even implying that she might be able to impose the death penalty was an affirmative answer when asked if she would have great difficulty in doing so. The trial court exercised considerable restraint and patience attempting to elicit meaningful responses from Jones, and was justified in concluding that she could not carry out her obligations as a juror at the penalty phase. After the prosecutor challenged Jones for cause, defense counsel, apparently satisfied with the voir dire by the court and the prosecutor, twice declined the opportunity to inquire further into her views. Defendant will not now be heard to complain that more specific questions were not asked regarding Jones’s ability to weigh the evidence. We find no error. B. Bias!Conflict of Interest 1. Jacqueline Etta Cummings Prospective juror Jacqueline Etta Cummings had a lawsuit pending against the district attorney at the time she was called for service in this case. She was excused for cause on the prosecutor’s challenge even though she stated that the pending action would not affect her ability to be impartial. Again, defense counsel acquiesced, simply submitting the question without objection or argument. In excusing Cummings the court stated that the pendency of the lawsuit would constitute a conflict of interest. Defendant argues that this was error inasmuch as Cummings had the statutory qualifications for serving as a trial juror (Code Civ. Proc., §§ 203, 228) and the trial court found no actual bias. (Code Civ. Proc., § 225, subd. (b)(1)(C).) The error, he claims, burdened Cummings’s First Amendment right to petition the government (by suing the district attorney), and his rights to a fair and impartial jury under the Sixth, Eighth, and Fourteenth Amendments by depriving the jury panel of a juror with scruples against the death penalty who could not be disqualified under the Witherspoon-Witt standard. It is not clear from the statement that the court did not question Cummings’s integrity when she said she would be fair that the court did not find actual bias. That statement and the remark that the pending lawsuit created a conflict of interest as a matter of law could be understood as a conclusion that notwithstanding Cummings’s belief that she could be fair, the court believed that actual bias existed. A juror is disqualified and thus subject to challenge for cause (Code Civ. Proc., § 227, subd. (c)) on the basis of “[ajctual bias—the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C).) A juror is also disqualified for “[ijmplied bias—as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror.” (Code Civ. Proc., § 225, subd. (b)(1)(B).) Code of Civil Procedure section 229 limits the causes for which a challenge for implied bias may be made to those set forth in that section. The pendency of a prospective juror’s lawsuit against a party is not among the causes recognized in that section. The People argue that, if the court’s action was error, it was waived by defendant’s failure to object. Defendant counters that, because the People made the challenge for cause, he had no obligation to object. “In general, the qualification[s] of jurors challenged for cause are ‘matters within the wide discretion of the trial court, seldom disturbed on appeal.’ ” (People v. Kaurish (1990) 52 Cal.3d 648, 675 [276 Cal.Rptr. 788, 802 P.2d 278].) We cannot say that the trial court abused its discretion here by upholding a challenge for cause based on the fact that the challenged juror was suing the district attorney. Moreover, defendant cites no authority for his assumption that an error in excusing a juror for reasons unrelated to the jurors’ views on imposition of the death penalty requires reversal. “[T]he general rule [is] that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment.” (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 148 [211 Cal.Rptr. 368, 695 P.2d 665].) Defendant claims that he was denied a juror with scruples against the death penalty who could not have been disqualified on Witherspoon-Witt grounds, but Cummings was not excluded on those grounds. Defendant has a right to jurors who are qualified and competent, not to any particular juror. (Ibid.) He does not assert that, as a result of the excusal of Cummings, a juror was seated who did not meet those criteria or that, as a result of her excusal, he was tried before a jury that was not fair and impartial. There is merit in the People’s argument that a defendant should be required to object to the excusal of a juror on grounds other than a Wither-spoon-Witt challenge in order to preserve any claim of error for appeal. We held in People v. Ashmus (1991) 54 Cal.3d 932, 987, footnote 16 [2 Cal.Rptr.2d 112, 820 P.2d 214], that a defendant has an obligation to preserve a claim that discharge of a juror is error. “As a general rule, a defendant may properly raise in this court a point involving a trial court’s allegedly improper discharge of a juror only if he made the same point below.” (Ibid.) While we have not addressed the impact of a failure to object to a ruling excusing a juror for cause in this context, we see no reason that the Ashmus rule should not apply to excusing, as well as to discharging, a juror. We have held in analogous situations that an objection is necessary to enable the court to avoid or correct error. In People v. Champion (1995) 9 Cal.4th 879, 907 [39 Cal.Rptr.2d 547, 891 P.2d 93], e.g., we held that the defendant failed to preserve the issue for appeal when he failed to object on the ground asserted on appeal—that he had been denied a jury drawn from a representative cross-section of the community because wage earners were systematically excluded when the trial court granted hardship excuses to several jurors. In People v. Fauber (1992) 2 Cal.4th 792, 816 [9 Cal.Rptr.2d 24, 831 P.2d 249], we held that failure to object to the panel or move to quash the venire on the basis that excusing hearing-impaired prospective jurors denied the defendant the right to a jury drawn from a representative cross-section of the community waived the point. In People v. Howard (1992) 1 Cal.4th 1132, 1159 [5 Cal.Rptr.2d 268, 824 P.2d 1315], we held that an appellate claim that the trial court’s excusal of prospective jurors for hardship resulted in a venire that did not fairly represent the Hispanic population of the county was waived. In People v. Gallego (1990) 52 Cal.3d 115, 166 [276 Cal.Rptr. 679, 802 P.2d 169], we applied the rule to an appellate claim that the court should have inquired into the prosecutor’s use of preemptory challenges to remove Blacks from the jury. Then, in People v. Visciotti (1992) 2 Cal.4th 1, 38 [5 Cal.Rptr.2d 495, 825 P.2d 388], we acknowledged the court’s obligation to comply with statutory jury selection procedures designed to ensure random selection, but held that a failure to object could, nonetheless, constitute a waiver. “[I]mportant policies mandate that criminal convictions not be overturned on the basis of irregularities in jury selection to which the defendant did not object or in which he has acquiesced. (Cal. Const., art. VI, § 13; People v. Edwards (1991) 54 Cal.3d 787, 813 [1 Cal.Rptr.2d 696, 819 P.2d 436].) The failure to object will therefore continue to constitute a waiver of a claim of error on appeal.” The reason for such a rule is apparent. We cannot assume that a party who fails to object to the excusal of a juror wants to have that juror on the panel. Taking a neutral position as defendant did here may be a tactical choice. If the juror is excused, the defendant need not use a peremptory challenge to remove the juror. Having made that choice the defendant should not be heard to complain on appeal that excusing the juror was reversible error. We explained in People v. Mickey, supra, 54 Cal.3d 612, 664, in the context of hardship excusals: “A defendant may properly raise in this court a point involving an allegedly improper excusal for undue personal hardship only if he made the same point below. The requirement of a contemporaneous and specific objection promotes the fair and correct resolution of a claim of error both at trial and on appeal, and thereby furthers the interests of reliability and finality. When a contemporaneous and specific objection is made, the parties are put on notice to characterize the claim as they think proper and to set out the law and facts as they deem necessary. With their response, the trial court is provided with a basis on which to define the claim and then determine whether it is meritorious and, if so, how any harm may be avoided or cured as promptly and completely as possible. On such a record, the appellate court may then decide whether a challenge to the trial court’s ruling is sound.” Defendant offers no reason why the requirement of an objection to an excusal of a juror for cause should not apply to non -Witherspoon-Witt challenges other than an assertion that the ruling here was made on a challenge brought by the People. Nothing in Ashmus or in the Mickey reasoning is inapplicable to such challenges for cause, and we conclude that in the future an objection must be made if a claim of error in excusing the juror is to be preserved for appeal. Nonetheless, because at the time of this trial we had not expressly held that an objection is necessary, we do not apply this rule here. (See People v. Scott (1994) 9 Cal.4th 331, 357-358 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) In any trial which commences after finality of this opinion, however, the failure to object will be deemed a waiver of the claim. 2. Billy Ross After the jury had been sworn, opening arguments made, and pre-instructions given, Juror Billy Ross informed the court that his son had been arrested and charged with felony assault in an incident in which the son entered a rental unit owned by Ross and occupied by an African-American woman to fix a broken door. The court interrupted Ross’s explanation of the incident, and questioned him on his ability to be fair. Ross expressed his belief that he could continue to be so and remained on the jury after the court expressly found that Ross could continue to serve as a juror as he had indicated his ability to follow instructions and decide the case based upon the evidence and that he could be fair to both sides. Defendant complains that the court’s inquiry was inadequate, and removal of Ross was mandatory, as Ross himself might have had some (unidentified) criminal liability as he might be responsible as a principal for his son’s conduct. Finally, he argues the fact that the son was facing criminal charges was a factor that bore on the qualifications of Ross and the court might have inferred that he harbored a bias. These claims lack merit. The suggestion that Ross might be criminally responsible for the offense with which his son was charged is speculation as is the suggestion that Ross might be tempted to “curry favor” with the prosecutor. Nothing in the record suggests that Ross solicited, ordered, encouraged, aided, or abetted his son in the conduct underlying the criminal charge. Criminal liability under section 31 is not based on a tort theory of respondeat superior. The court was obviously aware that the incident was a factor and that bias was a possibility. The questions put to Ross reflected that awareness. Ross had informed the court of the incident immediately, and nothing in his responses to the court’s inquiries suggested that he would be biased against defendant and could not perform his duty. (§ 1089.) His tone and demeanor apparently satisfied not only the judge, but all counsel, as neither defendant nor the prosecutor sought his removal. Both counsel were afforded the opportunity to ask additional questions of Ross: only the prosecutor did. Ross assured him also that he could put the incident involving his son out of his mind and evaluate the case solely on what he heard in the courtroom. Before an appellate court will find error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a “demonstrable reality.” The court will not presume bias, and will uphold the trial court’s exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. (People v. Beeler (1995) 9 Cal.4th 953, 975, 989 [39 Cal.Rptr.2d 607, 891 P.2d 153].) Substantial evidence supports the trial court’s ruling here. There was no abuse of discretion. The circumstances are simply not comparable to those in the decisions on which defendant relies in some of which jurors were excused and the defendant complained of that on appeal. (See People v. Morris (1991) 53 Cal.3d 152, 154 [279 Cal.Rptr. 720, 807 P.2d 949] [same deputy district attorney had prosecuted juror]; People v. Williams (1988) 199 Cal.App.3d 469 [245 Cal.Rptr. 61] [juror personally facing prosecution in case filed by same deputy district attorney]; People v. Farris (1977) 66 Cal.App.3d 376 [136 Cal.Rptr. 45] [juror facing current criminal charges, had past charges and attitude]; In re Devlin (1956) 139 Cal.App.2d 810 [294 P.2d 466] [juror charged with felony did not believe he could be fair].) C. Inadequate Voir Dire 1. Inquiry Into Possible Racial Bias Defendant, who is African-American, next argues that he was denied his Sixth Amendment right to a fair, impartial, and racially unbiased jury because the voir dire conducted by the court was inadequate to remove jurors who harbored particular prejudices or biases. It was not, he claims, “a suitable inquiry ... to ascertain whether [each] juror has any bias, opinion, or prejudice that would affect or control the fair determination by him [or her] of the issues to be tried” (Connors v. United States (1895) 158 U.S. 408, 413 [15 S.Ct. 951, 953, 39 L.Ed. 1033]) because it did not include all areas of inquiry recommended by the Judicial Council, and the manner in which the court’s questions were asked “telegraphed” the correct response. He asserts that particular care was needed in this case because Kern County has a history of racism. There is no evidence in this record that racism is currently prevalent in Kern County, however. At least one superior court judge in that county has rejected that assertion. (See People v. Chaney (1991) 234 Cal.App.3d 853, 859 [286 Cal.Rptr. 79].) Nonetheless, adequate inquiry into possible racial bias is, as defendant claims, essential in a case in which an African-American defendant is charged with commission of a capital crime against a White victim. (Mu’min v. Virginia (1991) 500 U.S. 415, 425 [111 S.Ct. 1899, 1905, 114 L.Ed.2d 493].) The defendant is entitled to have prospective jurors told the race of the victim and to have them questioned on the issue of possible racial bias. (Turner v. Murray (1986) 476 U.S. 28, 36-37 [106 S.Ct. 1683, 1688-1689, 90 L.Ed.2d 27]; People v. Kelly (1992) 1 Cal.4th 495, 517 [3 Cal.Rptr.2d 677, 822 P.2d 385].) As the court noted in Mu’Min, however: “ ‘Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.’ ” (500 U.S. at p. 424 [111 S.Ct. at p. 1904], quoting Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [101 S.Ct. 1629, 1634, 68 L.Ed.2d 22].) Trial court judges should closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards to ensure that all appropriate areas of inquiry are covered in an appropriate manner. Failure to use the recommended language may be a factor to be considered in determining whether a voir dire was adequate, but the entire voir dire must be considered in making that judgment. Here, unlike Mu’Min, the inquiry was not conducted by the judge alone. Both sides were afforded unlimited opportunity to inquire further into the views of the prospective jurors and to probe for possible hidden bias and took advantage of that opportunity. The voir dire conducted in this case covered substantially all of the areas of inquiry in the Standards, and followed the completion by each prospective juror of a questionnaire that covered an even broader range of topics. Those inquires were supplemented by additional questioning of the jurors by counsel. Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal. (Mu’Min v. Virginia, supra, 500 U.S. at pp. 425-426 [111 S.Ct. at pp. 1905-1906].) A fortiori, the same standard of reversible error applies when both the court and counsel participate in the voir dire. After reviewing the entire voir dire of all prospective jurors, including those eventually seated, we are satisfied that the inquiry into possible racial bias was adequate to meet the demands of the Sixth and Fourteenth Amendments to the United States Constitution. 2. Other Voir Dire-related Claims Defendant also complains that the court failed to ask that persons in one group of prospective jurors give a short biographic sketch of themselves even though that is recommended in section 8.5(b)(20) of the Standards, gave the jurors “inconsistent” information about the role of sympathy in the guilt and penalty determinations they were to make, did not make adequate inquiry into possible media influence and gave inconsistent information regarding the obligations in that regard, did not inquire adequately about prior jury service, and sanctioned gender bias in the selection process. Again, the claims fail to establish error, let alone reversible error. Defendant does not identify any seated juror whom he was not given the opportunity to fully examine following the voir dire by the court. The seated jurors were properly instructed during the guilt and penalty phases of the trial regarding the role of sympathy. Assuming that the jurors may not have understood that the court was speaking only about the guilt phase in an explanation that sympathy is not a factor, the instructions were more than adequate to clear up any misapprehension caused by the court’s preliminary statements to the prospective jurors. We cannot agree with defendant’s assertion that general statements made during voir dire create such an indelible impression on prospective jurors that they are unable to follow specific instructions given at the time the case is submitted to the jurors for decision. Jurors are presumed to understand and follow the court’s instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331 [19 Cal.Rptr.2d 529, 851 P.2d 811].) Defendant’s claim that the court sanctioned gender bias is based only on the court’s statement to the jury that attorneys often exercise peremptory challenges to get more men, or more women on a jury. He does not assert that the People actually exercised peremptory challenges for that reason. No objection was made on that basis and the record does not support the claim that the court actually sanctioned such use of peremptory challenges as occurred in J.E.B. v. Alabama ex rel. T.B., supra, 511 U.S. 127 [114 S.Ct. 1419], on which he relies. There the respondent used nine of its ten peremptory challenges to remove men for a paternity and child support trial, with the result that the case was tried before an all-woman jury. Similarly, defendant’s complaint that prospective jurors were not adequately questioned regarding prior knowledge of the case is based only on an alleged failure to follow up the jurors’ answers to the questionnaires they had completed to ascertain whether they had been exposed to media coverage after the time they competed those questionnaires. Again, defendant had ample opportunity to inquire into this subject during voir dire. While defendant asserts that the court failed to adequately admonish the prospective jurors to avoid media coverage of the case, the questionnaire advised them of this responsibility. Defendant points to nothing in the record to suggest that any juror either received information from the media about the case or allowed such information to affect his or her deliberations. The court did admonish jurors about the different burden of proof in civil and criminal cases. Defendant’s complaint regarding inadequate inquiry into prior jury service is based on the court’s failure to ask if the jurors could disregard what they had heard in prior criminal cases. He had full opportunity to ask that of any juror if he felt the court’s voir dire was inadequate. The same is true with regard to the court’s omission of questions regarding personal backgrounds in the voir dire of one of the five panels of jurors. If defendant felt the court’s voir dire was inadequate, he could have probed more deeply when given the opportunity to question each prospective juror. IV Guilt Phase Claims A. Failure to Make Electronic Recording of Interrogation Defendant claims that the trial court erred in admitting evidence of his statement to Detective Boggs. He argues that doing so violated his state and federal constitutional rights to a fair trial. Defendant made a pretrial motion in limine to exclude his statement to interrogating officers from evidence, asserting that failure to tape-record the statement rendered it inadmissible on due process grounds. He argued in support of the motion that due process mandates enhanced standards of reliability in capital case fact-finding, and the recording of such statements was necessary to such reliability. Although defendant now acknowledges that this court has rejected the argument that tape recording of statements is required to ensure fundamental fairness (People v. Marshall (1990) 50 Cal.3d 907, 924-925 [269 Cal.Rptr. 269, 790 P.2d 676]; People v. Murtishaw (1981) 29 Cal.3d 733, 755, fn. 17 [175 Cal.Rptr. 738, 631 P.2d 446]), he asks the court to reconsider that conclusion. The argument is predicated in part on a concern that a confession may not be the voluntary “product of a rational intellect and a free will” (Blackburn v. Alabama (1960) 361 U.S. 199, 208 [80 S.Ct. 274, 280, 4 L.Ed.2d 242]), and the need to test the voluntariness of a confession on the basis of “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” (Sc