Full opinion text
Opinion GEORGE, C. J. Following the guilt phase of a jury trial, defendant Richard Gonzales Samayoa was convicted of two counts of first degree murder (Pen. Code, §§ 187, 189) and one count of residential burglary (§ 459). A jury found true the allegations that defendant used a deadly weapon (a wrench) during the commission of the crimes (§ 12022, subd. (b)), had served three prior prison terms (§ 667.5, subd. (b)), and previously had been convicted of two serious felonies (§ 667, subd. (a)). The jury also found true one multiple-murder special-circumstance allegation—i.e., that in the present proceeding defendant was convicted of more than one offense of murder (§ 190.2, subd. (a)(3)), and two felony-murder special circumstances —i.e., that each murder was committed in the course of a burglary (§ 190.2, former subd. (a)(17)(vii)). Following the penalty phase of the trial, the jury returned a verdict imposing a sentence of death. We conclude that the judgment must be affirmed in its entirety. I. Facts A. The Guilt Phase Evidence 1. The prosecution case (a) Evidence of the commission of the crimes In December 1985 Nelia Silva resided with her husband, Ronaldo, and their two-year-old daughter, Katherine, on Piedra Street in Southeast San Diego. Defendant lived across the street from the Silva family. On the morning of December 18, 1985, Ronaldo Silva walked his daughter across the street to a baby-sitter’s home and left his daughter there. At approximately 6 p.m., Mrs. Silva returned from work and picked up her daughter from the babysitter. Mr. Silva arrived home at approximately 7:30 p.m. that evening. He opened the garage door, observed his wife’s car parked in the garage, and smelled smoke. He entered the kitchen through the interior garage door and found smoke spewing from the stove top where food was burning. After calling out for his wife and receiving no response, he looked down the hallway and saw the bodies of his wife and daughter lying on the floor in pools of blood. After touching his wife and daughter, he realized they were dead and ran outside seeking help. At 8 p.m., San Diego Police Department officers arrived at the Silva residence and entered through the garage. They discovered the bodies of a small child and a woman lying in the hallway. The child was nude from the waist down, with a large indentation in her head. The woman also was nude from the waist down, wearing only a shirt, and her face was smashed. Outside the residence, Mr. Silva was comforted by Raul and Deana Samayoa, defendant’s brother and sister. Raul and defendant lived across the street with their mother and other members of the Samayoa family. Detective Richard Carey of the San Diego Police Department arrived at the scene at 9:35 p.m. Approaching the hallway from the kitchen, he observed large pools of blood in the area of the woman’s body and the child’s head, and blood spattered on the walls and in the three bedrooms off the hallway. That evening a police department technician searched the area surrounding the Silva residence. He found a wrench and several pieces of jewelry on the ground near an area spattered with blood. He was unable to lift fingerprints from the wrench, the jewelry, or the interior of the residence. Missing from the house were a jewelry box and jewelry, and Mrs. Silva’s purse. Blood samples taken from the two victims and from defendant all were determined to be type A. Mr. Silva knew of defendant, but neither he, nor to his knowledge his wife, ever had spoken with him. A forensic pathologist, Dr. Robert Bucklin, performed autopsies on both victims. Mrs! Silva’s arms, hands, and fingers were covered with multiple bruises and abrasions. She had been struck with blunt force on the head and neck approximately 24 times. Multiple blunt lacerations covered both sides of her head and scalp. Dr. Bucklin testified that a blunt laceration is a crushing type of injury made with a heavy force without a sharp edge. Her jaw bones and teeth were fractured and the left cheek bone was crushed. The eyes were crushed around the orbital ridges on both sides. Upon removal of the scalp, the pathologist observed several skull fractures, one of which had caused a piece of bone to penetrate the brain, and another serious fracture along the skull base that was caused by extensive force. The pathologist testified that Mrs. Silva would have died within several minutes following the infliction of her injuries. He further testified that the wrench (recovered from outside the residence) was consistent with and could have been the instrument that caused the injuries. The autopsy of Katherine revealed three injuries, all blunt lacerations of the scalp. One injury on the right side was two inches long and penetrated the skull into the brain, producing hemorrhaging. The most severe injury fractured the skull base. The brain contusions caused hemorrhaging and edema. The wrench was consistent with, and could have been, the instrument that caused the injuries. A criminalist with the district attorney’s office developed a crime scene reconstruction, determining that Mrs. Silva had received many blows while she was lying on the floor. Katherine had been struck once while near the left leg of her mother and then moved along the hallway, smearing blood on the wall, where she was struck again. Following the commission of the crimes, defendant gave various items of jewelry to family members. He gave his mother, Mercedes Samayoa, a hair comb, and gave his sister, Deana, a pearl necklace and a bracelet. Defendant’s other sister, Inez Sykes, found a man’s diamond gold ring sitting on her bathroom counter. Defendant told her that the ring belonged to him. Each of these items of jewelry later was identified as belonging to Mr. or Mrs. Silva. In January 1986, following defendant’s arrest for a violation of his parole in another criminal case, his mother and his sister alerted the police that defendant had given them items of jewelry. On January 20, 1986, Officers Art Beaudry and Ronald Jordan met with defendant’s mother, brother, and sisters at the Samayoa residence and collected the jewelry. After the officers informed the Samayoas that a jewelry box also was missing, Raul Samayoa discovered it wrapped in a blanket under a shed in the Samayoa backyard. When shown the wrench that was discovered outside the Silva residence, Raul Samayoa told the officers that it appeared similar to the one he had kept in his tool shed. (b) Defendant’s confessions to the commission of the crimes The first interview: On January 31, 1986, two days after defendant was arrested by his parole officer, he was interviewed by Officers Patrick Padillo and Jordan at a jail facility (he was not under arrest for the murders at this time). At the hearing on defendant’s motion to exclude evidence of the ensuing confessions, Officer Jordan, who conducted the interview, testified that he knew defendant from previous contacts arising from defendant’s past criminal activities. He asked whether defendant recognized him. Defendant replied that he recognized the police officer but did not recall his name. Officer Jordan told defendant he wished to question him concerning the murders that had been committed across the street from defendant’s residence, and also stated that evidence had been found at the crime scene linking defendant to the homicides. Defendant denied any involvement in the murders, stating that he knew the Silvas but had never been inside their home. Officer Jordan then advised defendant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974]), reading from a standard admonition card that he carried with him. He asked whether defendant was willing to speak with the officers, and defendant replied, “Sure.” During the interview, Officer Padillo took notes, interrupting intermittently in order to write down verbatim what was said, and by whom. When Officer Jordan told defendant that hairs had been found linking him to the homicides, defendant again denied any involvement. When shown a photograph of the wrench, defendant said he did not recognize it. When shown the jewelry, defendant said that he had obtained the jewelry from a friend who recently had been released from jail. At this point, Officer Jordan asked whether he could tape-record the interview. Defendant refused. Officer Jordan then stated, “She was a fighter, wasn’t she?” Defendant nodded his head affirmatively. He then related that on the day of the murders, when he saw Mrs. Silva leave her residence and walk across the street, he decided to enter the residence through the open garage door. He went into a bedroom and took the jewelry box. When leaving the bedroom, he was confronted by Mrs. Silva, holding a child. Surprised, he struck out at the infant with the wrench. Mrs. Silva held onto defendant, pulling at his shirt. According to defendant, he assaulted her two or three times and struck the infant once. He claimed he did not strike Mrs. Silva while she was lying on the ground. Defendant said he removed the sweatpants she was wearing so that the assault would appear to have been a rape and robbery, but denied having had sex with her. He then used the sweatpants to wrap around the jewelry box and to open the front door without leaving fingerprints. Defendant maintained that he had taken a wrench (which he had obtained from a tool shed behind his house) in the event Mr. Silva or someone else surprised him. He left the Silva residence through the front door, circled around the back of the house, and jumped over the fence. When he jumped the fence, the jewelry box and wrench fell to the ground. He retrieved some of the items and then fled. Defendant stated that earlier in the day he had been looking for work and had arrived home at approximately 6 or 6:30 p.m. He was standing outside his house smoking a cigarette when he saw Mrs. Silva walk across the street. He said he had not consumed alcoholic beverages or ingested any drugs the day of the crimes. The interview began at 2:45 p.m. and was completed at 3:44 p.m. The second interview: Officers Padillo and Jordan reinterviewed defendant on February 2, 1986, tape recording the interview without defendant’s knowledge. Defendant was advised of his Miranda rights, explicitly waived them, and then repeated the substance of the confession he made during his first interview. The third interview: One day later, on February 3, 1986, defendant was interviewed by a psychiatrist, Dr. Wait Griswold, and a psychologist, Dr. Abigale Dixon, at the request of the district attorney’s office. Immediately prior to the interview, which was tape-recorded, defendant was advised of his Miranda rights, explicitly waived them, and agreed to speak with the doctors. During the interview, defendant again related his commission of the crimes. He stated that he had panicked after hitting the child once, causing him to strike Mrs. Silva four times. 2. The defense case In his opening statement to the jury, defense counsel conceded defendant’s guilt of two counts of first degree murder and one count of residential burglary. Counsel asserted that evidence of defendant’s brain damage would be presented to establish that at the time of his commission of the crimes, defendant lacked the intent to kill his victims (which intent was, at the time of the commission of the crimes, an element of the burglary-murder special-circumstance allegation) (see People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306]). Thereafter, in support of this theory, the defense presented at the guilt phase the testimony of two psychologists, who testified that the results of neuropsychological tests administered to defendant indicated the presence of organic brain damage. Dr. Meredith Friedman, a licensed clinical psychologist and chief psychologist at the Metropolitan Correctional Center, testified she had been retained by the defense to conduct preliminary neuropsychological testing of defendant. Dr. Friedman explained that the field of neuropsychology involves the relationship of cognitive and perceptual behavior to underlying brain dysfunction. In August 1986, Dr. Friedman conducted a battery of neuropsychological tests, including the Luria-Nebraska series, the Canter Background Interference Procedure, and the Bender-Gestalt visual motor test. (She acknowledged she had no formal training in the administration of the Luria-Nebraska tests.) She also analyzed the results of tests conducted one month earlier, applying the Wechsler Adult Intelligence Scale. Additionally, Dr. Friedman interviewed defendant regarding his history of head injuries, and defendant disclosed he had been rendered unconscious in a bicycle accident at 13 years of age, and again in 1972, when he was struck on the head by a billy club wielded by a police officer. According to Dr. Friedman, the test results indicated global intellectual deterioration and brain damage associated with the left parietal, occipital, temporal, and frontal lobe areas of the brain, which would cause hypersensitivity, unmodulated reaction, and overreaction in novel or stressful situations. Such brain damage also would cause episodes of “rage reaction,” resulting in an explosive lack of control, and panic in “fight or flight” situations. Dr. Friedman also testified that defendant demonstrated “viscosity,” signifying that he obsessively pursued or repeated a single function or response—an action consistent with temporal lobe damage. Defendant’s school transcripts reflected that while enrolled in the ninth grade in 1967, his academic scores included one C, one B, and the remainder A’s. In subsequent semesters, his grades were all D’s. Dr. Friedman acknowledged that the results of several portions of the tests administered for coordination, hearing, vision, receptive speech, expressive speech, and memory, fell within the normal range. Defendant’s score on the intelligence quotient test initially was 82 (the lower average range) and upon a retest was 95 (average range). Dr. Friedman recommended that defendant be administered the Halsted-Reitman battery of tests, which are more detailed and refined than the Luria-Nebraska, in order to verify the results she obtained. Dr. Saul Saddick, a licensed clinical psychologist, testified that he specialized in neuropsychological assessment, although he does not hold a board certification in neuropsychology. Dr. Saddick administered to defendant the Halsted-Reitman battery of tests and interviewed him regarding his history of head injuries. Dr. Saddick testified that the test results indicated brain damage to the frontal, temporal, and parietal lobes of the brain, which would cause poor impulse control, impairment of reasoning skills, low-frustration tolerance, assaultive behavior, and a “short fuse” profile, consistent with frontal temporal damage. Defendant also demonstrated “viscosity” and “perseveration,” signifying that once engaged in an activity such as aggressive behavior, he would have difficulty discontinuing his actions. Viscosity and perseveration were consistent with left temporal lobe damage. Defendant’s confession to the police was indicative of viscosity, in that his statement was a monologue unresponsive to questions asked, and he spoke in repetitive circles. Persons with the type of brain damage suffered by defendant may experience episodes of “rage reactions,” and according to Dr. Saddick it is difficult to determine whether a person locked into a rage reaction is aware of his conduct or, if aware, is able to stop his conduct. He acknowledged that defendant was aware of the difference between killing someone and inflicting serious bodily injury. Dr. Saddick ultimately diagnosed defendant as having (1) an organic “explosive type” personality syndrome, (2) an antisocial personality disorder, and (3) a moderate cerebral dysfunction. The parties stipulated that People’s exhibit No. 66 was a drawing by defendant of the court reporter, given by defendant to her. The parties further stipulated that Dr. Dixon, the psychologist retained by the district attorney’s office who tested defendant on February 3, 1986, observed during the Rorschach test that defendant often perseverated, indicating “organicity” (i.e., brain damage), the origin of which could be alcohol or drug abuse. 3. Rebuttal Dr. Nelson Butters testified that he is a psychologist specializing in neuropsychology and is a diplómate in clinical neuropsychology from the American Board of Professional Psychology. Dr. Butters reviewed all of the reports pertaining to the testing administered to defendant, the testimony of Drs. Friedman and Saddick, and the tape-recorded interviews of defendant conducted by the police and by Dr. Griswold. Dr. Butters concluded that the testing performed by Dr. Saddick was unreliable and inconclusive. He testified that additional testing would be necessary to determine with any degree of reliability whether there was frontal lobe damage, that there was no evidence of damage to the temporal lobe, and that the results of testing for parietal lobe damage were inconclusive. Dr. Butters criticized Dr. Sad-dick’s reliance upon test results indicating brain damage while ignoring other results falling within the normal range. Dr. Butters also stated that the diagram of the brain as labeled by Dr. Saddick was backward, and that a person who did not understand the differences between the front and back portions of the brain would be unable to analyze brain-behavior relationships accurately. Dr. Dilip Jeste, a professor of psychiatry who was board certified in psychiatry and neurology, also reviewed the pertinent materials relating to defendant’s mental condition. He testified that the diagnosis of “organic rage reaction,” to which Dr. Saddick testified, is not recognized by the American Psychiatric Association, although there are other similar disorders defined as organic personality syndrome, intermittent explosive disorder, and seizure disorder. In Dr. Jeste’s opinion, defendant did not appear to suffer from organic personality syndrome or seizure disorder, because his violence was not random and he did not have difficulty recalling his violent episodes. Defendant did not fit the profile of one with intermittent explosive disorder, which characterizes a person otherwise normal but suffering brief periods of unfocused explosive behavior. 4. Defense surrebuttal Dr. Melvin Schwartz, a clinical neuropsychologist and forensic psychologist who was board certified in neuropsychology, examined the same materials reviewed by the other experts. Dr. Schwartz agreed with Dr. Saddick’s conclusion that defendant suffered left hemisphere brain damage. Behavior of the type demonstrated by defendant (viscosity and perseveration) frequently was demonstrated by brain-damaged individuals. He opined that Dr. Saddick competently had administered the tests in the present case, although Schwartz had found errors in Saddick’s work in another case. B. The Penalty Phase Evidence 1. The prosecution case The 1976 preliminary hearing testimony of Berta Lou Raymond in a prior unrelated criminal prosecution for burglary and rape was read to the jury. (Raymond was deceased and therefore unavailable as a witness.) Raymond testified that she suffered from multiple sclerosis and usually was confined to a wheelchair. On July 8, 1975, at 2:15 a.m., she was at home alone asleep in bed. She was awakened by the sound of the bedroom door opening, and a flashlight was shined in her face. She could hear two men but could not see them. One of the men held a knife at her throat, asking her where she kept her money. When she heard a belt buckle being loosened and a zipper unzip, she screamed, “Please don’t rape me, I’m a cripple.” A male voice responded, “I know, I won’t hurt you.” The man then removed his pants and raped her. At one point he turned her over and entered her rectum with his penis. The initial act of intercourse lasted approximately 15 to 20 minutes. Another man repeatedly entered the bedroom, referring to the man who was raping her as “Jack.” She heard a total of three different voices. Raymond testified that she could not identify any of the men, but she furnished a description of the height and weight of the man who had raped her that was consistent with defendant’s appearance. Defendant was convicted of burglary and rape. David Drew Anderson was one of the participants in the Raymond burglary and had pleaded guilty to the crimes. In the present proceedings, at the penalty phase of defendant’s trial, Anderson testified that on July 7 and 8, 1975, he had been with defendant and James Glasgow, drinking and ingesting heroin. Defendant, recently having been released from custody, needed money. Both defendant and Glasgow lived in close proximity to Raymond, and the three men decided to burglarize her house. They agreed to use fictitious names in the event they needed to communicate with each other while inside the residence. Defendant entered first and began to rape Raymond. Anderson disclosed for the first time (i.e., at the penalty phase of the trial in the present case) that he and Glasgow also had sexually assaulted Raymond. In 1976, Anderson had denied culpability for the rape in order to avoid prosecution for that offense. The prosecution also presented evidence of defendant’s 1981 conviction for assault with a deadly weapon on Elvira R. Rosendo R., the brother of the victim, testified that on the evening of November 13, 1981, he returned from a party, accompanied by defendant. They both fell asleep in Elvira’s bedroom. Elvira was alone in her bedroom, asleep. Elvira testified that she was awakened that evening by someone striking her. Her assailant threatened that he would kill her if she pulled down the covers, and said he wanted to make love to her. When she jumped up, he responded by forcefully striking her in the face. She saw his face and recognized him, crying out, “Oh my God Richard.” After she begged him to allow her to wipe her face, he allowed her to leave the room. She was taken to the hospital that evening for treatment for severe lacerations on her face, requiring stitches. Finally, the prosecution also introduced evidence of defendant’s 1974 burglary conviction. 2. The defense case In his opening statement, defense counsel requested the jury to take into account all the evidence of defendant’s brain damage that was presented at the guilt phase. No additional evidence of defendant’s mental condition was presented. Paul Dillard, a counselor with the Department of Corrections, testified that in 1981, while defendant was a prison inmate, defendant held a position in the prison kitchen, demonstrating his reliability and responsibility. Ronald Baldwin, an officer at a correctional facility, testified that he had daily contact with defendant for nearly a year in 1983, and that defendant had been a cooperative, above-average worker. Defendant’s mother and sisters testified that although they had assisted the prosecution, they still loved defendant and did not want him condemned to death. Defendant’s mother identified various drawings and cards she had received from defendant over the years, as well as family photographs. II. Analysis A. The Guilt Phase Issues 1. Claim of insufficiency of the record on appeal Former section 190.9, subdivision (a), required that in all capital cases, “all proceedings . . . , including proceedings in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of these proceedings. [H The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section. Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment shall not be a ground for reversal.” Defendant contends that during the trial proceedings, in violation of former section 190.9, the court permitted 138 discussions that were not recorded, and that the sheer number of these off-the-record discussions, and the inability to reconstruct them in a settled statement, require reversal. No presumption of prejudice arises from the absence of materials from the appellate record (People v. Cummings (1993) 4 Cal.4th 1233, 1333-1334, fn. 70 [18 Cal.Rptr.2d 796, 850 P.2d 1]), and defendant bears the burden of demonstrating that the record is inadequate to permit meaningful appellate review (People v. Arias (1996) 13 Cal.4th 92, 158 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Freeman (1994) 8 Cal.4th 450, 509 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888]). Defendant has not met this burden. First, defendant fails to demonstrate that any of the off-the-record discussions constituted judicial proceedings in this case, within the meaning of former section 190.9, subdivision (a), much less that they pertained to an issue raised on appeal. The reporter’s transcripts indicate that the numerous references to off-the-record discussions simply reflect a pause in the proceedings to allow private conferences between defense counsel and defendant, or among counsel and cocounsel or their witnesses, which properly were not reported. During the record correction and certification process, in response to an inquiry from appellate counsel, the trial judge who had presided over the trial (and who since had retired) stated in a letter that he did not recollect the substance of off-the-record discussions, but that “nothing material was resolved off the record,” and that unreported colloquies pertained to matters such as “professional etiquette” and scheduling. At the final record certification hearing, the trial court informed the parties that the letters and information received from the trial judge, the prosecution, and defense counsel indicated that during the trial proceedings, the court reporter generally noted an “off-the-record” discussion whenever the parties conferred privately among themselves or scheduled a matter. At the conclusion of the certification hearing, appellate counsel stated she was satisfied “that nothing material happened” during the unreported discussions. Second, defendant fails to identify any claim with respect to which the record is inadequate for determination of the issue, or as to which he has been prejudiced by the state of the record. He does not maintain there was any unreported proceeding relating to an issue that he raises on appeal. For these reasons, defendant has not met his burden of demonstrating that the record precludes meaningful appellate review (People v. Freeman, supra, 8 Cal.4th at p. 510), and his claim therefore must fail. 2. Claim of violation of federal constitutional rights in jury selection Defendant contends that as a result of the trial court’s rulings on defense challenges for cause to prospective jurors who exhibited a bias in favor of the death penalty, and on prosecution challenges for cause to prospective jurors who exhibited views against the death penalty, the jury that was selected was skewed in favor of the death penalty, in violation of his federal constitutional right to a fair and impartial jury. In this regard, defendant maintains the trial court employed a different standard when ruling on defense challenges than when ruling on prosecution challenges, thereby improperly favoring the prosecution. Defendant additionally contends he was prejudiced by the trial court’s refusal to permit defense counsel to attempt to rehabilitate jurors who expressed views disfavoring the death penalty in response to questioning by the prosecution and the trial court. To the extent defendant contends the trial court improperly denied defense challenges for cause to prospective jurors (David Krantz, Nancy Schalles, James Kramer, Gilbert Grotta, Max Israel, and Joseph Peterson), his claim is barred by his failure to exhaust his peremptory challenges—defense counsel exercised only 14 of the 20 peremptory challenges that were available to him—or to justify his failure to do so. (People v. Garceau (1993) 6 Cal.4th 140, 174 [24 Cal.Rptr.2d 664, 862 P.2d 664]; People v. Morris (1991) 53 Cal.3d 152, 184 [279 Cal.Rptr. 720, 807 P.2d 949] [“In order to complain on appeal about the trial court’s decisions overruling his challenges for cause, defendant must show: (1) he used a peremptory challenge to remove the juror in question; (2) he exhausted his peremptory challenges or can justify his failure to do so; and (3) he was dissatisfied with the jury as selected.”].) Defendant therefore fails to demonstrate that his right to a fair and impartial jury was affected by the trial court’s denial of his challenges for cause. (People v. Garceau, supra, 6 Cal.4th at p. 174.) With regard to defendant’s claim that the trial court erred in excusing for cause prospective jurors who exhibited anti-death-penalty views, the standard governing our review of such a claim, is whether exclusion was necessary because the juror’s views concerning capital punishment would “ ‘prevent or substantially impair the performance of his [or her] duties as a juror ....’” (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841]; People v. Wash (1993) 6 Cal.4th 215, 254 [24 Cal.Rptr.2d 421, 861 P.2d 1107].) When a juror’s views are conflicting or ambiguous, the trial court’s determination as to his or her state of mind generally is binding on a reviewing court. When there is no inconsistency, but simply a question whether the juror’s responses demonstrated a bias for or against the death penalty, the trial court’s judgment will not be set aside if supported by substantial evidence. (People v. Wash, supra, 6 Cal.4th at p. 254; People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865].) We conclude the record supports the trial court’s determination that each of the prospective jurors in question (Francis Pilkington, Vincent Guerrero, Zina Hines, John Speights, and Larry Logan) harbored views unfavorable toward the death penalty that substantially impaired their ability to sit as jurors. Although Pilkington stated he did not believe he would vote automatically against the death penalty, upon further questioning he stated variously that he would be “unwilling to send anyone to death,” and “would be very reluctant to vote for the death penalty in certain terms.” Vincent Guerrero indicated that he “generally” did not believe in the death penalty, although it probably was necessary and appropriate for certain crimes. He volunteered that he had refused to undergo a physical examination required for military service during the Korean War, in part because he did not want to kill anyone, and that he did not “really believe someone should be killed or executed,” although there might be appropriate circumstances. Guerrero also disclosed that his son had died of kidney failure one year earlier, a circumstance that might make it difficult for him to render a verdict of death, and confirmed that the prosecution might not have a “fair shot” with him. Zina Hines stated she did not believe she should be required to choose between life imprisonment and death because “I don’t. . . have that right.” Although when asked by defense counsel whether she would vote automatically for a life sentence, she responded “No,” that she would “go by the law,” and that she would keep an open mind, she reiterated upon questioning by the prosecution that she was against the death penalty because she felt no one had the right to take another person’s life, and admitted she did not want to be in that position. Excusing the juror, the trial court observed, “She was almost categorically disqualified from her initial answers, but there was a little glimmer of light, so that I let defense counsel rehabilitate her to some extent. [*][] But the net picture from her demeanor, as well as her words, is that she would find it nearly impossible to conceive of imposing the death penalty on someone.” When questioned during the death qualification portion of the voir dire, John Speights stated his personal belief that the death penalty was “inherently wrong,” and that although he felt he could follow the law in determining the penalty, he was not certain he could do so. He also stated if he were on the jury and a verdict of death were returned, he did not know whether he could face defendant when the jury was polled to confirm that he had voted for death. The trial court denied the prosecution’s challenge for cause at this point, stating that the juror had exhibited a reluctance to make difficult decisions rather than an opposition to the death penalty. When examined again during general voir dire, however, Speights indicated that upon further reflection since his earlier questioning, he had become “really nervous about the death penalty issue” and did not believe he could set aside his personal views on the death penalty. In excusing Speights for cause, the court noted its view that the basis for doing so was “compelling now that there is substantial impairment, in view of his agonizing over it.” Larry Logan stated that “in most places I think I would not vote [for the] death penalty,” and when asked whether there could be a case that was so overwhelming against a defendant that he would be able to vote for death, he stated that it was possible, but that “I don’t think that I—I would say no.” Defendant next claims the trial court improperly restricted defense counsel’s questioning of one prospective juror before denying a defense challenge for cause, and improperly restricted or (in certain cases) prohibited, defense counsel’s attempts to “rehabilitate” through voir dire several prospective jurors who expressed views strongly disfavoring the death penalty, before excusing those jurors for cause. A trial court has the discretion to deny all questioning by counsel when a prospective juror gives “unequivocally disqualifying answer[s]” (People v. Bittaker (1989) 48 Cal.3d 1046, 1085 [259 Cal.Rptr. 630, 774 P.2d 659]), and may subject to reasonable limitation further voir dire of a juror who has expressed disqualifying answers (People v. Mattson (1990) 50 Cal.3d 826, 845-846 [268 Cal.Rptr. 802, 789 P.2d 983]; People v. Fields (1983) 35 Cal.3d 329, 357-358 [197 Cal.Rptr. 803, 673 P.2d 680]). We find no abuse of discretion. During questioning by defense counsel, prospective juror David Krantz indicated that he felt he could be fair and open-minded, but that he might vote automatically for death if the victim were a two-year-old child, because the child had no chance. He then qualified his statement by asserting that he still could conceive of choosing a sentence of life imprisonment. Subsequently, after being shown the crime scene photographs, he admitted he might have some difficulty keeping an open mind. When questioned by the prosecution, Krantz indicated he thought he could follow the law, stated that he thought he had a “lot to learn yet about it,” and answered affirmatively when asked by the trial court whether he felt he could be fair and impartial. Without permitting further questioning by defense counsel, the trial court denied the defense challenge for cause, finding that Krantz was conscientious and capable of being fair. No abuse of discretion is shown. Defense counsel had full and unrestricted opportunity to question the prospective juror, and the responses elicited by the prosecution did not reflect any significant change in position that would support further questioning by the defense. Without allowing questioning by counsel, the trial court excused for cause prospective jurors Antonette Johnson, Laura Lopez, Connie Adams, Noram Stoskopf, Joseph Filiponni, and Rheamarie Bridy. The record reflects that each of these jurors expressed, either in their written questionnaires or in the course of questioning by the trial court, an unequivocal opposition to the death penalty that would prevent performance of their duties as jurors. The trial court excused for cause prospective juror Larry Logan without permitting defense counsel to ask him the same question twice (concerning whether he could have an open mind). Because the record reflects that the juror clearly understood and answered the question the first time, the trial court’s refusal to permit further inquiry did not exceed the bounds of its discretion. For the foregoing reasons, there is no merit in defendant’s claim that he was denied a fair and impartial jury as a result of the jury-selection process. 3. Denial ofPitchess motion and restriction of cross-examination of Officers Jordan and Padillo Defendant challenges as error the trial court’s refusal to disclose the personnel files of Officers Jordan and Padillo and the restriction of counsel’s cross-examination of these officers regarding complaints and disciplinary actions taken against them, asserting a violation of his right of confrontation, among other rights guaranteed by the federal Constitution. As we shall explain, following our independent examination of the personnel files in question, we conclude defendant’s claims have no merit. On November 7,1986, in municipal court proceedings in the present case, the defense filed a motion for the discovery of the personnel files of Officers Jordan and Padillo pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (see Evid. Code, § 1043), based upon a newspaper article reporting incidents of misconduct involving these officers. According to the article, the asserted misconduct resulted in the officers’ transfer out of the homicide unit of their department. Allegedly, the officers were reprimanded after they voluntarily gave up their seats on an overbooked airline flight in exchange for air travel coupons. The article also indicated that Officer Jordan previously had been found to have coerced the confession of a juvenile, James M., in an unrelated homicide investigation. The defense sought access to the officers’ personnel files containing information pertaining to the officers’ history on the ground these records were relevant to the officers’ credibility and the determination as to whether defendant’s initial confession had been coerced. Following an in camera review of the personnel files (Evid. Code, § 1045), the magistrate ordered the release of a redacted copy of a complaint against Officer Jordan filed by a witness (a Mr. Legg) in another, unrelated homicide investigation. The magistrate ordered that all remaining materials be copied and sealed. In the superior court, before the case was assigned to the trial judge, defendant sought review of the magistrate’s ruling on the Pitchess motion by way of a motion to set aside the information pursuant to section 995. At the hearing on the motion, Officers Jordan and Padillo testified that they had been transferred out of the homicide unit following an incident involving their relinquishment of seats on an overbooked airline flight, acceptance of air travel coupons in exchange, and application for overtime pay for the additional time they were required to spend in the airport waiting for a later flight. Following the hearing, the assigned judge (the Honorable Raul Rosado) reviewed in camera the personnel files of each officer and determined that the files contained nothing relevant to the case, with the exception of the previously disclosed complaint of Mr. Legg. The court accordingly upheld the magistrate’s ruling on the Pitchess motion. The Court of Appeal subsequently denied defendant’s petition for writ of mandate, concluding there was no showing of an abuse of discretion with respect to the ruling on the Pitchess motion. On January 28, 1988, defendant renewed his motion in the superior court, seeking the production of any documents contained in the San Diego Police Department personnel files of Officers Jordan and Padillo that pertained to instances of improper conduct involving these officers, including false arrest, illegal search and seizure, fabrication of charges or evidence, improper techniques employed in obtaining admissions and confessions, failure to give Miranda advisements, inadequate or improper Miranda advisements, the use of physical force or psychological coercion in obtaining statements or confessions, or improper tactics in making arrests or obtaining confessions. In support of the motion, defense counsel submitted a declaration stating “upon information and belief’ that during their initial interrogation of defendant, Officers Jordan and Padillo lied to defendant, ignored his request for an attorney, and induced him to confess by telling him “that things would look better or go easier if he answered questions or admitted crimes.” Counsel also stated that defendant did not knowingly or intelligently waive his Miranda rights, and claimed that the files might contain information relevant to whether defendant had been coerced physically or psychologically to waive his rights and confess. The trial judge (the Honorable Douglas R. Woodworth) conducted an in "camera review of the officers’ complete personnel files. In the course of its review (attended by a deputy city attorney), the court noted on the record the previous disclosure of the airline coupon incident. The deputy city attorney disclosed that one of the officers had been accused of the theft of a “scanner” from a suspect during an arrest. The court ultimately concluded that nothing in the personnel files was relevant to the case, stating: “If something were remotely relevant, it is certainly of such trivial significance as to be outweighed by the privilege, the confidentiality attaching to those personnel records.” Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Memro (1995) 11 Cal.4th 786, 832 [47 Cal.Rptr.2d 219, 905 P.2d 1305].) Here, defense counsel did not allege that Officers Jordan or Padillo fabricated charges against defendant, committed violence against him, or obtained evidence against him by false arrest or by illegal search and seizure. Our independent in camera review of the sealed personnel files—including the “James M. incident,” referred to ante, page 825—reveals no materials so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion. Accordingly, we conclude the trial court properly exercised its discretion in excluding from disclosure the personnel files of Officers Jordan and Padillo. Defendant additionally complains the trial court improperly restricted his cross-examination of Officers Jordan and Padillo at trial regarding past incidents of misconduct. On February 23, 1988, in the course of hearings on pretrial motions, the prosecution filed a motion in limine seeking to limit cross-examination (for impeachment purposes) of the police officers concerning past incidents of misconduct in unrelated cases. Defense counsel indicated his intention to file a written response to the motion. On March 7, 1988, the trial court made a “provisional ruling” for the guidance of counsel during jury voir dire, directing counsel not to mention “the prior unrelated disciplinary proceedings affecting the two officers,” remarking that the evidence “may very well not be allowable.” Because no ruling was actually made below, “no review can be conducted here.” (People v. Rowland (1992) 4 Cal.4th 238, 259 [14 Cal.Rptr.2d 377, 841 P.2d 897]; People v. McPeters (1992) 2 Cal.4th 1148, 1179 [9 Cal.Rptr.2d 834, 832 P.2d 146] [“the absence of an adverse ruling precludes any appellate challenge”].) 4. Denial of defendant’s motions to suppress his confessions Defendant contends the trial court erred in denying his motions to suppress his three confessions on the grounds that (1) at the initial interrogation, after being advised of his Miranda rights, defendant invoked his privilege against self-incrimination when he refused the officers’ request to tape-record the interview, and (2) defendant’s waiver of Miranda rights was not knowing or voluntary, because of the circumstance—in conjunction with his refusal to be tape-recorded—that he was not advised specifically that his statements could be used against him “in court.” For these reasons, argues defendant, his initial confession was obtained in violation of Miranda, his second and third confessions were the tainted product of his initial confession, and the failure to suppress all three confessions requires reversal of his conviction and sentence of death. (a) Procedural background Prior to trial, defendant moved for the suppression of evidence of his confessions on the ground that his first confession was involuntary as the product of coercion, and in violation of his Miranda rights. At the evidentiary hearing on the motions to suppress, Officers Jordan and Padillo testified to the circumstances of their first interview with defendant and his confession. As observed (fn. 2, ante), Officer Jordan did not specify in his testimony that he had advised defendant (at the first interview) that defendant’s statements could be used against defendant “in court.” As further noted (fn. 2, ante), the court additionally received in evidence the transcript of the preliminary hearing testimony of Officers Jordan and Padillo, the tape recording and transcript of defendant’s second interview with the officers (reflecting that Officer Jordan, when reading from the admonition card, specifically advised defendant that his statements could be used against him “in court”), and the tape recording and transcript of the interview with Drs. Griswold and Dixon (reflecting that defendant was advised that the interview would be tape-recorded, was advised of his Miranda rights, and waived his rights and agreed to speak with the psychiatrist and the psychologist). Following argument on defendant’s motion to suppress on the ground his waiver of rights was involuntary, the trial court denied the motion, finding that defendant had been advised adequately pursuant to Miranda, that any slight deviation in wording from the standard admonition form was immaterial, and that there was “not a hint of any improper coercion, much less physical force . . .” at any time. Following argument on the motion to suppress on Miranda grounds (based upon defendant’s refusal to allow the officers to tape-record the interview), the trial court denied the motion, finding that defendant had been advised fully of, and explicitly waived, his Miranda rights, and that there was “no hint on this record that the defendant desired or intended to assert his Fifth Amendment right to remain silent . . . The court further found that Officer Padillo’s “conspicuous note taking” was “equivalent” to a tape recording from defendant’s standpoint, precluding any reasonable assumption that his statements were off the record. On March 4, 1988, the Court of Appeal (Fourth Appellate District, Division One) denied defendant’s petition for a writ of mandate seeking relief from the denial of his motions to suppress his confessions. The appellate court’s order stated that the facts supported the conclusion that “petitioner’s refusal to have his interrogation taped was not an indication of his right to remain silent.” (b) Analysis Defendant first contends he invoked his privilege against self-incrimination when he refused to allow the first interview with Officers Jordan and Padillo to be tape-recorded. In reviewing the trial court’s rulings related to this claim, we accept its resolution of disputed facts and inferences, and its evaluations of credibility, if substantially supported (People v. Crittenden (1994) 9 Cal.4th 83, 128 [36 Cal.Rptr.2d 474, 885 P.2d 887]), but we independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged confessions were obtained illegally. (Ibid.) “ ‘[U]nder the familiar requirements of Miranda, . . . a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent.’ ” (People v. Crittenden, supra, 9 Cal.4th at p. 128; People v. Sims (1993) 5 Cal.4th 405, 440 [20 Cal.Rptr.2d 537, 853 P.2d 992], citing Miranda v. Arizona, supra, 384 U.S. 436, 444-445, 473-474 [86 S.Ct. 1602, 1612-1613, 1627-1628].) This court has observed “that no particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent” (People v. Crittenden, supra, 9 Cal.4th at p. 129), and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely {ibid.). It is well established, however, that a suspect does not invoke his or her right to remain silent merely by refusing to allow the tape recording of an interview, unless that refusal is accompanied by other circumstances disclosing a clear intent to speak privately and in confidence to others. (People v. Johnson (1993) 6 Cal.4th 1, 25-26 [23 Cal.Rptr.2d 593, 859 P.2d 673].) In People v. Johnson, supra, 6 Cal.4th 1, the defendant asserted he had invoked his right to remain silent at the outset of a custodial interrogation by remarking: “No tape recorder. I don’t want to incriminate myself.” Following this remark, he was given the Miranda advisements and expressly consented to be interviewed. Upholding the trial court, we determined that the advisements, and the defendant’s agreement to speak following his “[n]o tape recorder” remark, clearly confirmed his general willingness to converse with the officers. (6 Cal.4th at p. 25.) Of particular relevance to the present case, we observed that “ ‘it was for the trial court to determine whether [the defendant’s] refusal to . . .be recorded was in fact an invocation of his right to silence. The court found [the defendant] in fact had understood his rights and waived them, and his conversations with the officers were therefore voluntary. Such a conclusion was reasonable, and we will not disturb it on appeal.’ ” (6 Cal.4th at p. 26.) Similarly, in the present case, the trial court found that defendant’s “no tape recording” remark, following an explicit waiver of his Miranda rights, and immediately followed by his incriminating admissions that conspicuously were transcribed by Officer Padillo, was not inconsistent with a willingness to discuss the case freely and completely. The trial court thus reasonably concluded that defendant did not invoke his right to remain silent by refusing to allow the interview to be tape-recorded. Defendant additionally contends that even if he purported to waive his Miranda rights, the circumstance that he was not advised specifically that his statements could be used against him “in court,” in conjunction with his refusal to be tape-recorded, establishes that his waiver of Miranda rights was not knowing or voluntary, because he “believed he was speaking off the record by not having the interrogation tape recorded.” As the United States Supreme Court has observed, the prophylactic Miranda warnings are “ ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected’” (Duckworth v. Eagan (1989) 492 U.S. 195, 203 [109 S.Ct. 2875, 2880, 106 L.Ed.2d 166]), and the warnings therefore need not be given in the exact form described in that decision (id. at p. 201 [109 S.Ct. at p. 2879]). Thus, a reviewing court need not examine a Miranda warning for accuracy as if construing a legal document, but rather simply must determine whether the warnings reasonably would convey to a suspect his or her rights as required by Miranda. (Id. at p. 203 [109 S.Ct. at p. 2880]; People v. Wash, supra, 6 Cal.4th at pp. 236-237.) The trial court made no specific finding as to whether during the officers’ first interview of defendant, Officer Jordan included the words “in court" when he advised defendant that his statements could be used against him. Instead, the trial court determined that the alleged omission had no significance, in light of the circumstances that defendant otherwise was fully informed of his rights and expressly acknowledged that he understood them, was told the statements could and would be used against him, was an ex-felon who would have been familiar with the Miranda admonitions from his previous criminal involvement, and was aware of Officer Padillo’s conspicuous, detailed notetaking, which would enable the officers to reconstruct defendant’s statements and use them against him in a future criminal proceeding. On the basis of the trial court’s findings, which are substantially supported by the record, we conclude the trial court reasonably determined that defendant’s explicit waiver of his Miranda rights was knowing and voluntary, and not the result of a misconception that his statements were off the record. Accordingly, the trial court did not err in denying defendant’s motions to suppress his confessions on the ground of a Miranda violation. Because we conclude that defendant’s initial confession was not obtained in violation of Miranda, we also reject defendant’s related claims that his second and third confessions—in which he repeated his statements after full Miranda waivers—were the tainted product of his initial confession. In any event, we observe that admissions made pursuant to full Miranda waivers may not be suppressed because of prior Miranda violations unless the later admissions were in fact involuntary. (Oregon v. Elstad (1985) 470 U.S. 298 [105 S.Ct. 1285, 84 L.Ed.2d 222].) The record discloses no basis on which to conclude that defendant’s Miranda waivers at the second and third interviews were other than knowingly and voluntarily given, and thus valid. Accordingly, admission of the first interview, even if erroneous under Miranda, was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 306-309 [111 S.Ct. 1246, 1262-1265, 113 L.Ed.2d 302]; People v. Sims, supra, 5 Cal.4th at p. 447.) 5. Trial court’s modification of instruction on mental defect in relation to intent to kill Defendant contends the trial court erred in modifying a jury instruction on mental defect by including an instruction on voluntary intoxication which, according to defendant, undermined his defense on the issue of the intent to kill required under the special circumstance allegation. Defendant’s claim has no merit. During the presentation of the prosecution’s case, defendant’s brother Raul Samayoa testified that on the afternoon of the murders, he was home having a party in the garage while working on his automobile. On cross-examination by defense counsel, evidence was elicited that Raul and several other persons, including defendant, were drinking beer from a keg. Raul testified that he probably was drunk by 5 or 6 p.m., and that defendant was at the party that evening. As part of the defense case, it was stipulated that the psychologist, Dr. Abigale Dixon, if called as a witness, would testify that shortly following the crimes she administered psychological tests to defendant that indicated defendant often “perseverated,” a circumstance suggesting “organicity, the origin of which could well be alcohol or drugs.” At the conclusion of the prosecution’s rebuttal case, outside the jury’s presence, the trial court raised the issue whether the jury should be instructed on voluntary intoxication, referring to the evidence presented relating to defendant’s ingestion of alcohol. At the conclusion of the presentation of the guilt phase evidence, the trial court again raised the issue of an instruction on voluntary intoxication, indicating its view that such instruction was necessary in light of the evidence of defendant’s possible intoxication. At the time of trial (prior to our decision in People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588]), appellate decisions indicated that a trial court should instruct sua sponte on voluntary intoxication if warranted by the evidence and not inconsistent with a defense theory of the case. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1179-1180 [270 Cal.Rptr. 286, 791 P.2d 965]; People v. Robinson (1970) 5 Cal.App.3d 43, 48 [84 Cal.Rptr. 796].) When the trial court stated it would instruct sua sponte on voluntary intoxication pursuant to CALJIC No. 4.21 (Voluntary Intoxication—When Relevant to Specific Intent), defense counsel did not object. Defense counsel had submitted a modified version of CALJIC No. 4.21, which substituted the term “mental defect” for the term “intoxication.” The trial court advised counsel that it had determined to add language relating to intoxication to defendant’s modified version of CALJIC No. 4.21, to state that the jury could consider mental defect or intoxication, if shown by the evidence, in determining whether defendant had the intent to kill required for the special circumstances. Defense counsel objected to this modification of his proposed instruction. Ultimately, the jury was instructed on this point as follows: “In each of the three special circumstance charges, the necessary element is the existence in the mind of the defendant of a specific intent to kill. [<]D If the evidence shows that the defendant had a mental defect and/or that he was intoxicated at the time of the alleged offense, then the jury should consider such mental defect and/or such state of intoxication in determining whether or not the defendant had such a specific intent to kill. ['¡D If from all the evidence you have a reasonable doubt whether the defendant formed such specific intent to kill, you must give the defendant the benefit of that doubt and find that he did not have the specific intent.” (Italics added.) Defendant contends the trial court erred in modifying the instruction originally proposed by defense counsel (which had referred exclusively to mental defect), because the additional instruction on the assertedly weaker defense of intoxication tended to diminish the significance of a defense based upon mental defect relating to the issue of intent to kill. The instruction given by the trial court, however, correctly stated the law, accurately conveying two potential defense theories that could be considered by the jury in determining whether defendant had formed the intent to kill. Defendant fails to identify any language contained in the instruction that would tend to mislead the jury as to the significance of the mental defect evidence. At the time of trial (in 1988), the instruction properly was given sua sponte. (See People v. Ramirez, supra, 50 Cal.3d at pp. 1179-1180; see also Use Note to CALJIC No. 4.21 (4th ed.) (1987 pocket pt.) p. 61 [“If there is evidentiary basis, this instruction must be given sua sponte.”].) The jury concurrently was instructed pursuant to CALJIC No. 17.31 that the applicability of some instructions depended upon the jury’s determination of the facts, and instructions that were not applicable should be disregarded. Accordingly, there was no reasonable likelihood that the jury was led to believe that the instructional reference to the defense of voluntary intoxication should affect its determination as to the defense of mental defect. (See People v. Kelly (1992) 1 Cal.4th 495, 525 [3 Cal.Rptr.2d 677, 822 P.2d 385] [the question “is whether there is a ‘reasonable likelihood’ that the jury understood the charge as the defendant asserts”].) The trial court’s instruction did not deprive defendant of a fair trial, a reliable determinat