People v. Scott (15 Cal. 4th 1188, 1997)

Opinion

CHIN, J.

Defendant assaulted and raped Wanda Jensen in her home, then set her on fire. While she yet lived, he pleaded guilty to her rape and attempted murder. Later, she died of complications from her bums. A new information, as amended, charged defendant with her murder under the special circumstances of rape and burglary murder. Defendant waived a jury trial. After a guilt trial, the court found defendant guilty of first degree murder, found the special circumstance allegations tme, and found that defendant intended to kill Jensen and used a deadly weapon. After a penalty trial, the court returned a verdict of death. It denied defendant’s automatic motion to modify the verdict and sentenced him to death. This appeal is automatic. We affirm.

I. Facts

A. Guilt Phase

On April 22, 1986, Wanda Jensen lived in an apartment in Palmdale with her five-year-old daughter. Around 2 a.m. that morning, defendant entered Jensen’s apartment with socks over his hands, placed a screwdriver against her side, said he wanted to have sex with her, and threatened harm to her daughter if she refused. He hit her with a baseball bat she kept in the bedroom for protection, raped her, then beat and choked her into unconsciousness on her bed. He set the bed on fire and left. Jensen’s daughter, asleep in an adjoining bedroom, awakened when a smoke alarm sounded. She went to her mother’s room, saw the fire, and pulled at her mother. Jensen, badly burned, picked up her daughter and carried her to the nearby apartment of a friend, who called for assistance.

Jensen had suffered bums over 35 percent of her body. A Los Angeles County deputy sheriff described her appearance at the hospital: “She was extremely burned. It appeared that her nightgown had caught on fire on the right side of her body, and the flames, the burning appeared to go from very, very bad on the right side across her front, lessening to the left side. Her hair was singed off. Her facial hair was burned off. Her nipples were bubbled. She lifted her arm up, and her skin hung off like rags.” Although in pain, Jensen was able to tell investigators what had happened and describe her assailant. She told her friend that the assailant had said he was “Rerun’s brother Tony.” Jensen’s vagina contained semen.

After waiving his rights, defendant confessed in two statements to separate investigators. His account of what occurred was generally consistent with Jensen’s. He said he had used a pack of matches from his pocket to light the bed covers. When the first investigator asked him if he had set the fire “to get rid of the girl and to destroy the evidence,” defendant “lowered his head and he said, ‘Yes.’ ” At that point, defendant glared at the investigator and said “he was now Tony and that Tony had taken charge of James’ body, and he said he had to destroy the girl because she was a shit bomb . . . .” Before the second confession, defendant signed the waiver card with the name, “Tony Adman.” When questioned about the signature, he changed it to his true name. He told both investigators that he was “Tony” and that “James was a wimp.”

Glenn Johnson, known as “Rerun,” testified that shortly before the crime, defendant came to his home. He gave defendant some socks, and they “smoked some cocaine.” Defendant “was getting high.” Although he denied it at trial, Johnson said previously that defendant had asked him for a screwdriver and gloves, and that he gave defendant a screwdriver but had no gloves. Defendant told the police that, before the crime, he purchased some cocaine and “did a couple lines of coke.”

Jensen died on February 25, 1987, of “acute pneumonia due to hypoxic encephalopathy which was a result of thermal bums.” The pathologist testified that the bums caused her ultimate death.

Dr. Marvin Ginsburg testified for the defense that Jensen received negligent medical treatment and would not have died had the treatment been competent. Dr. Ginsburg focused largely on two cardiac arrests Jensen suffered on April 28, 1986, that contributed to her eventual death, and that he believed could have been avoided with competent treatment. In rebuttal, Dr. Bruce Zawacki testified for the prosecution that, whatever deficiencies there may have been in Jensen’s medical treatment, the bums “set in motion a chain of events that ultimately led to this arrest, and without the bum, there would have been no arrest. . . .”

After hearing the guilt testimony, the court found that Jensen “would probably have survived ... in the absence of what [it] would find to be ordinary medical negligence,” but it did “not find that ordinary medical negligence to be a superseding cause in this case. It is a contributing cause to the death of Wanda Jensen and does not relieve [defendant] of responsibility for her death.”

B. Penalty Phase

The parties stipulated that defendant pleaded guilty in 1983 to assault with a deadly weapon and, on June 24, 1986, in a different case, pleaded guilty to rape with use of a knife and infliction of great bodily injury. The prosecution presented evidence of the circumstances of both crimes. In 1983, defendant assaulted Paula H. with a knife in her house and said he was going to rape and kill her. She grabbed the knife, and they struggled. She managed to escape only after defendant cut and bit her. On April 1, 1986, three weeks before the assault on Jensen, defendant assaulted Violet H. in her Palmdale home with a knife and his fists, raped her, and choked her into unconsciousness.

The defense presented some of Paula H.’s testimony at the 1983 preliminary hearing of that prosecution and a psychological evaluation of defendant prepared in conjunction with that prosecution.

II. Discussion

A. Guilt Phase Issues

1. Double Jeopardy

Before Jensen died, the prosecution charged defendant with noncapital crimes arising from her assault. On June 24, 1986, pursuant to a negotiated plea, he pleaded guilty to raping and attempting to murder Jensen and to charges related to the crimes against Violet H. The court sentenced him to prison for 42 years for all the charges. When Jensen died several months later, defendant was charged with her murder. Defendant argues that the second prosecution violated his constitutional and statutory rights against double jeopardy. Because defendant did not enter a plea of once in jeopardy, the issue is “technically” not cognizable on appeal. (People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; see People v. Belcher (1974) 11 Cal.3d 91, 96 [113 Cal.Rptr. 1, 520 P.2d 385].) However, because defendant contends his attorney was ineffective, we must consider whether the contention has merit. (Marshall, supra, at p. 824, fn. 1; Belcher, supra, at p. 96.) It does not.

Both the United States and California Constitutions provide that a person may not twice be placed in jeopardy for the same offense. (Benton v. Maryland (1969) 395 U.S. 784, 794 [89 S.Ct. 2056, 2062, 23 L.Ed.2d 707]; People v. Saunders (1993) 5 Cal.4th 580, 592-593 [20 Cal.Rptr.2d 638, 853 P.2d 1093].) The court’s acceptance of a guilty plea is the equivalent of a conviction and bars a later prosecution for the same offense. (People v. Bivens (1991) 231 Cal.App.3d 653, 659 [282 Cal.Rptr. 438].) Defendant argues that the attempted murder charge to which he pleaded guilty and the later murder charge were the “same offence” under the prevailing test. (See United States v. Dixon (1993) 509 U.S. 688, 696-697 [113 S.Ct. 2849, 2855-2857,125 L.Ed.2d 556].) However, even if that argument is correct, an exception to traditional double jeopardy analysis applies when, as here, the prosecution is unable to proceed on the more serious charge at the outset because a fact necessary to sustain that charge—here the victim’s death— had not yet occurred. Defendant could not be placed in jeopardy for the murder charge until the victim died.

In Diaz v. United States (1912) 223 U.S. 442 [32 S.Ct. 250, 56 L.Ed. 500], the defendant was charged with assault and battery, tried, and found guilty. When the victim later died, the prosecutor brought a homicide charge against the defendant. The United States Supreme Court affirmed a conviction for that charge. “The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.” (Id. at p. 449 [32 S.Ct. at p. 251], italics added.)

The high court has since repeatedly recognized that, “when application of our traditional double jeopardy analysis would bar a subsequent prosecution, ‘[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States[, supra, 223 U.S. at pp. 448-449 (32 S.Ct. at p. 251)]; Ashe v. Swenson [(1970) 397 U.S. 436, 453, fn. 7 (90 S.Ct. 1189, 1194, 25 L.Ed.2d 469)] (conc. opn. of Brennan, J.)].’ ” (Grady v. Corbin (1990) 495 U.S. 508, 516, fn. 7 [110 S.Ct. 2084, 2091, 109 L.Ed.2d 548], overruled on other grounds in United States v. Dixon, supra, 509 U.S. at p. 712 [113 S.Ct. at p. 2864], quoting Brown v. Ohio (1977) 432 U.S. 161, 169, fn. 7 [97 S.Ct. 2221, 2227, 53 L.Ed.2d 187]; see also Jeffers v. United States (1977) 432 U.S. 137, 151 [97 S.Ct. 2207, 2216, 53 L.Ed.2d 168] (plur. opn. of Blackmun, J.) [“One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun.”].) California decisions have long recognized this exception under comparable facts (People v. Wilson (1924) 193 Cal. 512, 515 [226 P. 5]; People v. Bivens, supra, 231 Cal.App.3d at pp. 661-664; In re Saul S. (1985) 167 Cal.App.3d 1061, 1068 [213 Cal.Rptr. 541]), as have decisions from other jurisdictions (e.g., People v. Carrillo (1995) 164 Ill.2d 144 [207 Ill.Dec. 646, 646 N.E.2d 582, 584-585]; People v. Harding (1993) 443 Mich. 693, 699-705 [506 N.W.2d 482, 485-488]).

Penal Code section 654 provides that when “[a]n act or omission ... is made punishable in different ways by different provisions of this code, . . . an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.” Defendant argues that this provision prohibits the subsequent murder prosecution even if the constitutional bar against double jeopardy does not. The same exception, however, applies to the statutory provision as to the constitutional one. (People v. Bivens, supra, 231 Cal.App.3d at pp. 663-664.) Defendant also argues that he could not be prosecuted under the felony-murder rule or for the rape-murder special circumstance because he had already been placed in jeopardy for the underlying rape. Again, the same rationale applies. Defendant was not and could not have been reprosecuted for rape, but, until the victim died, he also could not be prosecuted for murder under any theory. Therefore, until the victim’s death, defendant was not placed in jeopardy for murder under any theory.

Defendant also argues that, at the time he pleaded guilty to attempted murder, the prosecution knew or should have known that the victim’s death was inevitable. If this be so, it is irrelevant. (People v. Bivens, supra, 231 Cal.App.3d at p. 662, fn. 7; In re Saul S., supra, 167 Cal.App.3d at p. 1067.) What is pertinent is that the fact necessary to the murder charge—the victim’s death—had not yet occurred, not that it might, or even inevitably would, occur sometime in the future. A person cannot be prosecuted, and hence cannot be placed in jeopardy, for a crime not yet complete no matter how likely its future completion might be. Defendant finally argues that because he pleaded guilty to and received a substantial prison sentence for the crimes against Violet H., the prosecution did not need to press the charges involving Jensen immediately to prevent his release before she died. This circumstance makes no difference. The rule that a person may be prosecuted for murder after the victim’s death despite an earlier prosecution for related crimes applies to all persons, including those who, like defendant, commit additional, unrelated crimes.

The prosecution had no duty to wait until the victim died before charging defendant with crimes already completed. It was entitled to charge defendant with rape and attempted murder at the outset rather than await the possible, or even inevitable, death of the victim, then bring the more serious murder charge when the victim died. In short, defendant has no right to benefit “merely because his victim proved to be a reluctant corpse . . . .” (State v. Brusseau (1975) 96 Idaho 558, 561 [532 P.2d 563, 566].)

2. Adequacy of the Appellate Record

Defendant contends the appellate record is inadequate because the court held unreported proceedings. Although Penal Code section 190.9, subdivision (a), provides that all judicial “proceedings” in capital cases “shall” be reported, defendant has shown no prejudice. He has the burden of showing that the appellate record is not adequate to permit meaningful appellate review. (People v. Arias (1996) 13 Cal.4th 92, 158 [51 Cal.Rptr.2d 770, 913 P.2d 980].) He has not met that burden.

About four months before trial, when defendant waived his right to a jury trial, the question arose whether he would plead not guilty by reason of insanity and, if so, whether the jury waiver would cover that issue. During the discussion, defense counsel stated, “I think the court, perhaps more so than most cases of this nature, is more critically aware of where the defense is headed at this time due to discussions that we have had in the presence of the district attorney as well. At this time I can honestly indicate a [not guilty by reason of insanity plea] is not contemplated.” He also stated, “As the court is aware, [defendant] sits before the court essentially sentenced on the offense, having entered into a plea disposition which committed him to 42 years. The People have that as a safety net. No matter what happens in this case, [defendant] is still under that sentence.”

Defendant infers from his attorney’s statements that there must have been previous unreported proceedings during which (1) the court was apprised that he had pleaded guilty to rape and attempted murder before Jensen died, and (2) the court and parties discussed defense strategy. As to the first point, the record fully establishes that the court knew of defendant’s prior guilty plea and the sentence he received. Defendant can and does fully litigate any issue this circumstance presents. (See post, pts. II.A.6., 7.)

As to the second point, a hearing was held at defendant’s request to settle the record. In reference to an early indication in the record that the court and parties had discussed scheduling in chambers and agreed on pretrial and trial dates (which agreement was then placed on the record), the court acknowledged there had been some early unreported discussions. But the discussions were not substantive. When settling the record regarding defense counsel’s statement that the court was “aware of where the defense is headed,” neither the prosecutor, defense counsel, nor the court could recall any unreported discussions concerning the defense that involved the court except possibly the question whether defendant would plead not guilty by reason of insanity. Defense counsel said that his statement “may simply be a product of an overly broad statement by me” when he was discussing the possibility of an insanity plea.

Other than defense counsel’s vague reference during defendant’s jury waiver four months before trial, which counsel clarified at the record settlement hearing, the record contains nothing suggesting unreported proceedings in which defense strategy was discussed. There is an indication that the attorneys discussed the case between themselves, at least one time “at lunch,” but such discussions are not judicial “proceedings” within the meaning of Penal Code section 190.9. We find no reason to believe the court was told more about defense strategy than the record indicates. (People v. Hawthorne (1992) 4 Cal.4th 43, 64 [14 Cal.Rptr.2d 133, 841 P.2d 118].) “Defendant’s ability to fully litigate any issue on appeal has thus not been compromised by the unreported conferences.” (People v. Freeman (1994) 8 Cal.4th 450, 510 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].)

3. Defendant’s Absence From Proceedings

Criminal defendants have the right to be personally present during all proceedings that bear a reasonable, substantial relation to their opportunity to defend against the charges. (People v. Horton (1995) 11 Cal.4th 1068, 1120-1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].) Defendant contends this right was violated in two respects, both involving events long before trial.

First, on May 16 and 17, 1988, shortly after the preliminary hearing and almost a year before trial, a hearing was held in defendant’s absence, but with defense counsel present, before the eventual trial judge on whether witness Glenn Johnson should be held in custody or ordered to post security to ensure his appearance at trial. (See Pen. Code, § 1332.) The attorneys for both sides expressed concern that Johnson might not appear. While urging the judge to take action, the prosecutor made several statements questioning both Johnson’s willingness to testify and his credibility. The prosecutor quoted Johnson as telling a police officer and others he would not testify. The prosecutor said that, in his opinion, Johnson “did not cooperate in good faith and did not testify in a candid or truthful manner” at the preliminary hearing. The prosecutor also said Johnson was a friend of defendant’s, and “they did coke together according to Mr. Johnson’s admissions.” Johnson told the court he would appear to testify. Ultimately, the court released Johnson “on his own recognizance and promise to appear.” Johnson did testify at trial.

Defendant’s absence at this hearing did not compromise his opportunity to defend against the charges. Although, as he now argues, the prosecutor made unsworn statements regarding the witness, and the court spoke with the witness, all discussion was in the context of determining what steps were appropriate to ensure Johnson’s appearance as a witness at trial. The court was not asked to judge Johnson’s credibility as a witness, but only the risk that he would not appear. Defendant was represented by counsel at the hearing. When Johnson did testify nearly a year later, in defendant’s presence, defendant had the full opportunity to cross-examine and otherwise defend against the charges. We find no error in defendant’s absence at this early hearing.

Defendant also argues his absence from the “unreported proceedings” (discussed ante, pt. II.A.2.) violated his right to be present. Again, we find no error. It is not clear defendant was absent from any such proceedings, but even if we assume he was, as discussed above, they were not significant. In defendant’s presence, defense counsel informed the court that defendant had already been sentenced pursuant to a negotiated plea, so any previous mention of that plea in his absence did not substantially affect his opportunity to defend against the charges.

4. The Judge’s Failure to Disqualify Herself Sua Sponte

Defendant argues that the earlier proceedings made it impossible for the judge to remain impartial during the court trial, and she should have disqualified herself sua sponte. We disagree.

At hearings months before trial, the judge heard various statements regarding witness Johnson and was informed that defendant had pleaded guilty to and been sentenced for related noncapital charges, and defense counsel gave the judge information about whether defendant would plead not guilty by reason of insanity. We doubt whether these facts alone would require the judge to disqualify herself had any party requested she do so. Although a defendant in a criminal proceeding, indeed a party in any proceeding, “is entitled to a trial by a judge who is detached, fair and impartial” (In re Richard W. (1979) 91 Cal.App.3d 960, 967 [155 Cal.Rptr. 11]), the mere fact a judge obtains information during litigation does not automatically disqualify that judge from further proceedings. “A trial judge hears many items during the course of a trial which are inadmissible, and [s]he is called upon to rule on the admissibility of numerous evidentiary matters. The fact that [s]he has heard these things does not mean that [sjhe cannot divorce them from [her] mind.” (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1009 [95 Cal.Rptr. 360], quoted in In re Richard W., supra, 91 Cal.App.3d at p. 968 [both cases involving a court trial].) The information the judge received here was relatively insignificant and given for purposes other than to establish guilt or innocence. The record does not suggest the judge based her ultimate verdicts on anything but the evidence properly presented at trial. (In re Richard W., supra, 91 Cal.App.3d at p. 968.)

We need not decide definitively whether the judge should have disqualified herself on request, for the defense made no request. Defense counsel knew all the facts defendant now cites, and he did not ask the judge to disqualify herself. Therefore, defendant may not raise the issue for the first time on appeal. “If a judge discovers that [s]he cannot avoid consideration of information from another proceeding, or from a hearsay or other source, the preservation of the proper image of justice requires the judge to either recuse [her] self from conducting the trial or reveal the particular information to the parties so that the person who is possibly affected may either object to the court’s consideration of the case, waive possible grounds for disqualification, or otherwise lay aside the issue.” (In re Richard W., supra, 91 Cal.App.3d at p. 967, italics added.)

Here, the judge did exactly what was required. The defense was fully aware of the facts because they were revealed either by or in front of defense counsel long before trial. The judge did not have to disclose further what the parties already knew. On another occasion, at trial, the judge did reveal information relevant to her impartiality that the parties might not otherwise have known. Before Dr. Ginsburg testified as a defense expert, the judge informed the parties that, years previously, her husband had rented office space from the witness. Neither party expressed concern that this fact would affect the judge’s consideration of the case.

If a judge refuses or fails to disqualify herself, a party may seek the judge’s disqualification. The party must do so, however, “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (Code Civ. Proc., § 170.3, subd. (c)(1).) Here, defendant knew all the facts he now cites by the time he waived a jury, about four months before the trial. Yet he never objected to the judge’s presiding over the trial or otherwise sought her disqualification. It is too late to raise the issue for the first time on appeal. (Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 386, 392 [139 P.2d 930] [“ ‘It would seem . . . intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’ ”]; In re Steven O. (1991) 229 Cal.App.3d 46, 53-55 [279 CaLRptr. 868]; People v. Bryant (1987) 190 Cal.App.3d 1569, 1572-1574 [236 Cal.Rptr. 96]; In re Christian J. (1984) 155 Cal.App.3d 276, 278-279 [202 Cal.Rptr. 54]; In re Richard W., supra, 91 Cal.App.3d at pp. 967-968; People v. Beaumaster, supra, 17 Cal.App.3d at p. 1009.)

Defendant argues he did not waive his objection to the judge because he was not personally present at the hearing regarding witness Johnson. His absence makes no difference. He was represented by counsel, who was present at the hearing. “ ‘When the accused exercises his constitutional right to representation by professional counsel, it is counsel, not defendant, who is in charge of the case. By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics.’ ” (In re Horton (1991) 54 Cal.3d 82, 95 [284 Cal.Rptr. 305, 813 P.2d 1335], original italics [holding that counsel may impliedly stipulate to trial before a court commissioner].) “ ‘An attorney may not sit back, fully participate in a trial and then claim that the court was without jurisdiction on receiving a result unfavorable to him.’ ” (Id. at p. 91.)

5. Validity of the Jury Waiver

Defendant contends that his jury waiver was invalid. We disagree,

a. The Facts

The court accepted the waiver a few months before trial actually began. During the waiver proceeding, the prosecutor stated to defendant his understanding that “it is your intention to waive the right to have a jury in this matter as to all phases of this case and proceed with the understanding that Judge Grignon, this department, would hear the case sitting alone as to all aspects.” Defendant agreed that that was his intention. The prosecutor explained what a jury trial was and that the jury would have to agree unanimously on guilt, special circumstances, and penalty. He explained the charges, including the special circumstance allegations, and their significance, and that, if defendant waived a jury trial, the judge alone could find defendant guilty, find the special circumstances true, and impose the death penalty, with no need for anyone else to agree. He also explained the nature of a penalty trial. Defendant repeatedly said he understood.

Defendant stated that no one had made any threats or promises to induce him to waive a jury. One time defendant requested and was given an opportunity to consult with his attorney. He then said he was waiving a jury as to all phases “freely and voluntarily” because he “consider[ed] it to be the best available strategy and in [his] own best interests.” Defense counsel stated that he and defendant had discussed the matter, and both agreed that the waiver was in defendant’s best interests “in terms of trial tactics.” Defendant personally stated he agreed. When the court noted that defendant had hesitated slightly at one point, defendant reiterated his desire to waive a jury. He said he had had enough time to talk to his attorney and felt comfortable with his decision.

The court accepted defendant’s jury waiver, finding that he knowingly and voluntarily waived a jury as to guilt, special circumstances, and penalty. Defense counsel and the prosecutor joined in the waiver. The prosecutor clarified one point about the nature of the penalty phase, and both defendant and defense counsel reiterated that defendant still wished to enter the waiver.

The case was called for trial in April 1989. The court stated it had reviewed a transcript of defendant’s jury waiver and wanted to discuss it further. The court explained that if, after a jury trial, the jurors returned a verdict of death, the court could still independently decide that death was not appropriate and impose a life sentence, but that with a court trial “there won’t be any different person deciding that issue for the second time.” Defendant indicated he understood and still desired to waive a jury “with respect to the penalty portion of the case.” Defense counsel again joined. The court also explained that it would apply the same standards and law that the jury would have applied. Defendant indicated no one had suggested anything different.

b. Discussion

“A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. I, § 16; see People v. Ernst (1994) 8 Cal.4th 441, 445 [34 Cal.Rptr.2d 238, 881 P.2d 298].) Here defendant and defense counsel expressly, knowingly, and voluntarily waived a jury trial as to all phases, and both parties consented. That being the case, the court was required to accept the waiver. (People v. Terry (1970) 2 Cal.3d 362, 378 [85 Cal.Rptr. 409, 466 P.2d 961] [“The judge does not have to give his consent to a nonjury trial, nor can he overrule the consent of the defendant and prosecutor.”].)

Defendant claims, “Nothing in the record indicates that [he] was aware he could contest all elements of the capital charges, including intent to murder, despite his prior entry of the guilty plea to rape and attempted murder,” and that “the record does not even show that [he] was aware his pleas had been disclosed before he gave up his jury trial right . . . .” However, nothing suggested he was not aware that he could contest all elements of the charge. He waived a jury trial, not a trial at all. He did receive a contested trial. Moreover, the prosecutor explained to defendant that, even in a court trial, he would have the right to confront and cross-examine witnesses and to testify on his own behalf. The court’s awareness of defendant’s plea to the noncapital charges was not relevant to the validity of his jury waiver. In addition, defendant heard his attorney inform the court of the plea and gave no hint he wanted to change his mind despite ample opportunity to do so.

Defendant also argues that he hesitated whether to waive a jury. The court gave defendant all the opportunity he desired to consult with his attorney. After this consultation, he waived a jury without hesitation. Defendant also argues that he neither agreed nor was aware that his guilty plea to the noncapital crimes would be used against him in the capital case. However, as explained (post, pt. H.A.6.), that plea was not used against him. Defendant claims he “never affirmatively stated that he desired to waive [a] jury . . . .” The record shows otherwise. He also argues he did not “personally offer any reasons for such a decision but his counsel made clear his own opinion that a jury waiver was ‘tactically ... the best thing to do.’ ” “The law, however, does not impose on the trial court an obligation to explore a defendant’s reasons for giving up the right to a jury.” (People v. Diaz (1992) 3 Cal.4th 495, 571 [11 Cal.Rptr.2d 353, 834 P.2d 1171].) That the defendant discussed the decision with counsel and relied on counsel’s advice strengthens, not weakens, the waiver’s validity. (Ibid.)

The advisement in this case was more detailed than the required minimum. (People v. Wrest (1992) 3 Cal.4th 1088, 1105 [13 Cal.Rptr.2d 511, 839 P.2d 1020] [“There is no constitutional requirement that appellant understand ‘all the ins and outs’ of a jury trial in order to waive his right to one.”]; People v. Robertson (1989) 48 Cal.3d 18, 38 [255 Cal.Rptr. 631, 767 P.2d 1109] [court need not “inform [defendant] that it would automatically review any verdict of death returned by a jury”].) The record shows that defendant understood he had a right to a jury trial as to guilt, special circumstances, and penalty, and that he voluntarily and knowingly waived that right as to each. The court properly accepted that waiver. (People v. Diaz, supra, 3 Cal.4th at p. 571.)

6. Issues Regarding the Trial

Defendant argues that his guilty plea to Jensen’s rape and attempted minder, entered before she died, effectively admitted all the elements of the capital offense except causation, including, particularly, intent to kill, and that the plea was “improperly used against him without admonishment or waiver.” His argument fails factually. Although defense counsel ensured that the court was aware of his prior plea, it was not used against him in this case.

Several months before Jensen died, defendant pleaded guilty before a different judge to Jensen’s rape and attempted murder and to charges related to the crimes against Violet H. in return for the dismissal of other charges and a promised maximum prison sentence of 42 years. As noted previously, at the hearing in which defendant waived a jury trial, defense counsel stated, “As the court is aware, [defendant] sits before the court essentially sentenced on the offense, having entered into a plea disposition which committed him to 42 years. The People have that as a safety net. No matter what happens in this case, [defendant] is still under that sentence.”

At trial, the court expressly stated that intent to kill was an issue. In defense counsel’s guilt phase opening statement, given after the prosecution presented its case-in-chief, he stated, “it’s the defense’s position in this case that . . . [defendant] was committed to a sentence of 42 years in state prison, representing an aggregate number of charges in this case, and it is our position that that was the appropriate measure for a sentence, given the circumstances and given what I hope will develop in the course of the defense testimony.” The prosecutor objected: “I have avoided his prior convictions because by agreement they are not admissible in part [sz'c] of the trial, and they either are or aren’t. [