Full opinion text
Opinion CHIN, J. A jury found William Michael Dennis guilty of first degree murder for killing his former wife, Doreen Erbert. (Pen. Code, §§ 187,189.) When defendant attacked Doreen with a machete-like weapon, she was eight months pregnant. The jury found defendant guilty of second degree murder for killing Doreen’s fetus. (§§ 187, 189.) The jury also found as a special circumstance that defendant committed multiple murders. (§ 190.2, subd. (a)(3).) At the conclusion of the penalty phase, the jury returned a verdict of death. The trial court denied defendant’s motion to modify the verdict under section 190.4, subdivision (e), and sentenced him to death for Doreen Erbert’s murder. This appeal is automatic. (§ 1239, subd. (b).) I. Facts A. Summary of Facts On Halloween night, October 31, 1984, defendant went in disguise to the home where his former wife, Doreen Erbert, lived with her husband of five years, Charles Erbert, and their four-year-old daughter, Deanna. While Charles was away from the house, defendant attacked Doreen with a machete or similar weapon after she opened the door to him. Doreen was eight months pregnant. Among the many wounds she suffered were severe cuts to her abdomen, uterus, placenta, and the umbilical cord. The fetus suffered severe chopping wounds and was expelled from Doreen’s womb. The fetus was found dead at the scene; Doreen died in the ambulance on the way to the hospital. When police questioned defendant later that night, he denied killing Doreen. At trial, however, defendant did not contest his identity as the killer. Defendant’s counsel argued the killings resulted from mental illness and were not premeditated or deliberated. Defendant presented psychiatric testimony that he became delusional after his four-year-old son, Paul, drowned in Doreen’s pool four years earlier. The psychiatrist asserted that defendant came to believe Doreen had wanted their son to die. In the psychiatrist’s opinion, defendant fixated on blaming Doreen for Paul’s death and fantasized about killing Doreen and Charles Erbert. The defense also said defendant’s recent reassignment to a less prestigious, lower paying job contributed to his depressed and irrational state. The prosecution’s penalty phase presentation relied almost entirely on the evidence of the crimes presented at the guilt phase. The defense presented friends and associates of defendant to testify to his good character, his childhood difficulties, and his love for his son Paul. Defendant did not testify during either the guilt or penalty phases. B. The Prosecution Case Charles Erbert and Doreen met after Doreen’s divorce from defendant; Doreen and Charles married in 1979. After the marriage, Doreen moved into the house Charles had purchased eight years earlier. At the time, Doreen had a three-year-old son, Paul, by her marriage to defendant. On November 26, 1979, Doreen gave birth to Deanna Erbert. Paul continued to live with Doreen, Charles, and Deanna. Defendant came to the house to pick up Paul for visits. Defendant lived within six blocks of the Erberts, about a six-minute walk. In 1980, while Doreen was home with Paul, he died in a drowning accident in the family’s backyard swimming pool. The following year, defendant sued Doreen and Charles for personal injuries and wrongful death for Paul’s drowning. The case proceeded to trial. The jury’s verdict was for the Erberts; the court entered judgment against defendant’s claims in March 1982. In the courtroom after the trial, Charles asked defendant not to come to their house any more. Charles did not speak to defendant again and only saw him once, in public at a shopping center. Defendant was bitter about the divorce from Doreen, and his bitterness continued after his son’s death. He was upset and dissatisfied by the outcome of his wrongful death suit. He blamed Doreen for Paul’s death and believed she had not suffered enough for the drowning. He told a coworker that he believed Doreen killed Paul, that she had not been watching him and did not dive in to rescue him after she found him at the bottom of the pool. It appeared to another of defendant’s coworkers at Lockheed that Paul’s death severed the last tie by which defendant maintained contact with Doreen. Around the first of October 1984, defendant lost his position at Lockheed as a sprayer in the manufacture of tiles used on the space shuttles. To avoid being laid off, defendant accepted a job reduction to work in Lockheed’s document reproduction unit. The change meant that defendant’s pay would be reduced in stages from $13.53 per hour to $10.99 per hour. Although defendant acted congenially toward other workers in the new unit, he was not happy there and commented sarcastically about the unit’s work to his former supervisor. On Halloween night, October 31, 1984, Charles Erbert took Deanna trick-or-treating after he arrived home from work. Doreen remained at home. She was eight months into her term and was visibly pregnant. Doreen’s sister saw her the previous weekend at a family breakfast. Two photographs from that affair were introduced to show Doreen’s physical appearance the week before she died. Her sister said she had teased Doreen, who was under five feet tall, that “she was as far out as she was high.” Charles returned home with Deanna. He had saved a few houses for Doreen to take Deanna to visit while he handed out candy at home. When Deanna and Doreen returned, Charles left for the liquor store in one of his two trucks. Before leaving, he suggested to Doreen it was getting late and she should close up the house for the evening. Charles estimated he was away from the house for about 15 minutes. When he returned, he noticed the front door was unlocked. When he opened the door, he saw Doreen lying bleeding on the floor at the entry to the living room. "He saw the fetus in the living room and thought at first Doreen had miscarried. Then he saw Doreen’s hand lying in the living room along with part of the fetus. He tried to stop Doreen’s bleeding by holding her arm tightly, but he saw there were severe cuts on her neck and stomach as well. While going to the telephone, Charles slipped and fell in the blood, adding to the substantial amount he already had on himself. Unable to get through to 911, Charles called the fire department and a neighbor for help. He noticed Deanna hiding in the living room and took her into the kitchen so that she could not see more. He continued to try to stop Doreen’s bleeding as he waited for help. Charles said that Deanna told him she “heard the baby crying.” She also told him, and later said to the neighbor, Jennie Chapman, that the man who killed Doreen had threatened to kill her if she told anyone. Charles said too that he first recalled at trial that Deanna said Doreen had called out “Michael.” When the paramedics arrived, Charles tried to assist them with Doreen. After his neighbor came to the house, he took Deanna out to sit with the neighbor in her car. He saw the paramedics putting Doreen in the ambulance. When he tried to go with his wife despite the paramedics’ requests, the police arrested him after noticing he was bloody and had alcohol on his breath. They left him handcuffed in the patrol car for the next hour, enraged and kicking at the car’s windows. Deanna testified at trial. She was four years old when her mother was killed and eight years old at the time of trial. She did not remember much about the traumatic attack on her mother. Deanna recalled going to answer the door with her mother, and that, when Doreen opened the door, she said to the man there, “ ‘Get out of my house.’ ” Deanna testified the man said, “ ‘I’m going to kill you.’ ” Doreen told Deanna to get behind the couch, and she ran and hid there. She could not see what was happening, but she heard both her mother’s voice and the man’s. She left her hiding place twice, once to peek from the kitchen and once to get her blanket. She came out again after she knew the man had left. She saw all the blood and went back behind the couch, where she waited until her father returned. She could not remember what she saw when she peeked from the kitchen. Reserve San Jose Police Officer Glen Sutfin responded to a 9:15 p.m. fire department dispatch and arrived on the scene after the paramedics and fire department personnel. He and other police officers on the scene then searched the house because of the possibility the perpetrator was still there. About the same time, paramedics were putting Doreen, who was still alive, into the ambulance for transport to a hospital. Doreen’s severed hand lay in a pool of blood near her fetus. The fetus’s left leg had been severed; a paramedic determined he could not be resuscitated. Doreen was pronounced dead when the ambulance reached the hospital. The scene of the killings was extremely bloody. Many people had tracked in and out of the house as the paramedics, firefighters, and police came and went. An expert on blood spatter interpretation testified that many of the bloodstains in the entryway and on a stool, jack-o’-lantern, the front door, and the ceiling, were velocity stains. The blood on the ceiling and upper walls probably flew off the weapon as it was raised after striking Doreen. There were slash marks on the front door and in the eight-foot-high ceiling above the entryway. A wolf mask was in a comer of the front porch area. The mask was not from the Erbert household. At 12:23 a.m., Sergeant James Morin and four other San Jose police officers arrived at defendant’s house. A uniformed officer rang the doorbell. Although there was a light on in defendant’s bedroom, no one responded to the repeated ringing of the doorbell. The police had county communications telephone the house to inform defendant the police were present and to ask him to answer the door. After defendant answered the telephone, the bedroom light was turned off as a hall light was turned on; one officer heard the sound of running water in the house for a few minutes. When defendant answered the door, he did not look as if he had been asleep. Sergeant Morin explained to defendant that his ex-wife had been attacked recently and that they wanted to know if he had any information that might shed some light on the incident. Sergeant Morin asked if they could enter to speak with him; defendant invited them inside. Once inside, and after defendant was seated at his kitchen table, Sergeant Morin told him that Doreen had been murdered. Defendant replied with a straightforward, “You’re kidding.” Sergeant Morin noticed that the fingers of defendant’s right hand were severely cut and still bleeding enough to saturate the gauze bandages wrapped around each finger. When asked for identification, defendant went upstairs to his bedroom with one officer. The bed did not appear as though anyone had slept in it. The officer noticed that, while defendant was looking for his identification, he also kept glancing over at the bed’s headboard. Another officer later retrieved a loaded revolver from the floor behind the headboard. Defendant consented to a police search of his residence. In the garage Sergeant Morin found blood drops in front of the washer and dryer and a trail of blood that led outside. There were blood drops in the kitchen, a pair of bloodstained jeans on defendant’s bed, blood on a set of keys in defendant’s bedroom, and bloody bandaging in the bathroom garbage. Sergeant Morin arrested defendant and had the house secured. The police found defendant’s mother asleep in her separate apartment at the rear of the house. Later, about 1:45 a.m., police found another trail of blood drops that seemed to start about 100 yards west of defendant’s house and proceed to his driveway. The. trail of blood appeared to continue alongside defendant’s garage and end in front of the washer and dryer. Police found a small ball of bloodstained fibers adhering to the otherwise empty garbage can next to defendant’s garage. They found the same type of fibers in defendant’s mother’s apartment. The hood of the truck parked in defendant’s driveway was warm, but not hot, at 2:00 or 2:15 a.m. The truck was dusty, but the driver’s door and window appeared to have been wiped recently. There was blood on the ignition switch, on the radio switch, on a piece of rope in the truck, on the seat back rest, and on the steering column. A spot of blood was found on the seat and another on the rubber mat under the gas pedal. A week later, in a search under a warrant, police found in defendant’s bedroom closet the adhesive label for a Stanley 18-inch machete. No machete was found in defendant’s house. Receipts found in the house led police to the Milpitas Builder’s Emporium, a local hardware store. There they purchased a Stanley machete that bore a label identical to the one found in defendant’s closet. The machete was introduced in evidence. The wolf mask found on the Erberts’ porch was identified as one that defendant wore to a Halloween party one year before the attack on Doreen. A picture of defendant wearing the wolf mask and matching rubber hands was admitted into evidence. None of the searches of defendant’s home produced a rubber wolf mask or matching rubber hands. This wolf mask was generally described as portraying a “cartoonish” wolf with its tongue hanging out and with bulging eyes. The night that defendant was arrested, he waived his rights and agreed to a taped interview with the police about 2:30 a.m. During the interview, defendant denied killing Doreen. He said that he had been home since finishing work about 4:00 p.m. He briefly walked outside in front of the house a few times because so few children had stopped by for candy. When asked about his Halloween costumes, defendant described several he had worn to parties, but failed to mention the wolf mask he wore to the previous year’s party. He explained his cut hand by claiming he had carelessly tossed a kitchen knife into the air and accidentally grabbed it by the blade. He did not remember if he went to the garage after cutting himself. Defendant denied walking to Doreen’s home or being on the nearby overpass that night. Defendant’s mother testified that she and defendant had dinner that night about 6:00 or 6:30 and that she returned to her separate apartment around 8:15 p.m. Before dinner, she and defendant were not together. Defendant’s next-door neighbor testified defendant gave her some misdelivered mail around 6:30 p.m. and told her he was going to a Halloween party. Don Isbell, a neighbor of the Erberts, testified that he and two of his children went trick-or-treating in the neighborhood. They stopped at the Erberts’ home earlier in the evening, before going to a 7:00 p.m. party at his son’s school. He said Doreen obviously was pregnant. As he left, Isbell noticed a man wearing a wolf mask resembling defendant’s. The man was standing in the street and looking towards the Erberts’ home. Isbell’s son also noticed the man in the wolf mask. Between 6:30 and 7:00 p.m., another neighbor, Manuel Gonzalez, saw a man he later recognized as defendant standing across the street from the Erberts and looking at the house next door to theirs. Another adult who was escorting children that night said she saw a man wearing “mechanics-type” coveralls, not bib overalls, and a “goofy” wolf mask about 8:55 p.m. The man was walking down the street on which defendant lived, heading towards the pedestrian overpass that connected defendant’s neighborhood to Doreen’s. The man held a large grocery bag at his side. The bag appeared to contain a heavy object. One of defendant’s neighbors, then 10 years old, saw a man in a wolf mask walking down the street toward the pedestrian overpass at 8:30 or 9:00 p.m. Dr. John Hauser testified to the results of the autopsies he performed on Doreen and the fetus on November 1. Doreen died from multiple chopping wounds that resulted in exsanguination. The wounds probably were inflicted with a heavy, sharp, sword-like instrument that was able to cut cleanly through soft tissues and into bone. A blade like the one on the Stanley 18-inch machete could inflict such injuries. Doreen suffered many cuts on. the left and right sides and back of her head. Some cuts penetrated the skull. She had numerous deep wounds on the right side of her head, some of which fractured the skull; one penetrated two inches into the brain. Doreen’s left hand was completely severed just above the wrist. She had wounds on the upper back portion of her left shoulder, including a gaping cut down to the bone. She also received severe cuts to the right shoulder, some of which cut into the scapula and one of which severed the head of the humerus. Her right breast received three cuts, including one that was consistent with a stabbing injury. On Doreen’s thighs and legs there were long, deep, gaping wounds consistent with chopping. A heavy blow caused a large, gaping cut to her right thigh and penetrated to the bone, fracturing the femur. Doreen had a nine-inch gaping wound in her abdomen and another five-and-one-half-inch chopping wound parallel to that. She had suffered multiple cuts through the abdomen while the fetus was still inside her. Her stomach and large bowel were cut open. There were three cuts to her uterine wall, including an eight-inch cut that extended through it. Her placenta was cut, and there were four cuts to the umbilical cord, including one that severed it near the place where it had been attached to the fetus. The fetus was separated from Doreen after her abdominal wounds allowed his expulsion. The fetus was one month short of full term and could have survived if bom prematurely. A cut to his head penetrated into the bone. His left shoulder blade was cut through, although his arm was not, indicating that it was up and out of the way. The fetus’s scrotum, penis, perineum, and back of the right thigh were cut. His left leg was severed below the knee. A large, five-inch wound cut through half of his body. This wound extended from his upper right abdomen through his left chest to his left armpit, cutting through the shoulder blade, the second thoracic vertebra, the liver, and one lung, and transecting the heart. This wound stopped his heart and circulation. Examination of his lungs demonstrated they had never been expanded, and there was no air in them. The fetus never breathed or lived independently of Doreen. The injuries to Doreen and her fetus prevented the fetus from ever breathing. C. The Defense Case Defendant presented evidence that Paul’s drowning death adversely affected his job performance, which previously had been very good. Friends testified that defendant, who had a hearing impediment, was a compassionate and good-natured person who had been proud of his son. One friend testified that defendant was a quiet person who was devastated by his son’s death and became even more withdrawn as a result. This friend said defendant’s despair over his son seemed almost abnormal, and that defendant appeared despondent before Halloween. Dan Reed, who rented a room in defendant’s house starting in August 1984, said defendant did not appear to be obsessive about Paul and did not show animosity toward Doreen. A neighbor of the Erberts testified to the circumstances of Paul’s drowning and Doreen’s efforts to rescue Paul from the pool. He testified that Doreen was very shaken by the drowning. Defendant’s attorney in the wrongful death action said he believed the suit was motivated by defendant’s desire to have Doreen accept responsibility for Paul’s death. He said that defendant was upset with the verdict, and in an emotional scene soon afterwards, defendant wailed and said, “ ‘She got away with it.’ ” Psychiatrist Samuel Benson interviewed defendant five times during April and May of 1986. The last interview was a videotaped, four-hour session conducted while defendant was heavily sedated with sodium amytal, a drug that reduces inhibitions and can help people discuss matters they have repressed. Dr. Benson based his eventual diagnosis of defendant on the five interviews, medical reports, the public defender’s investigator’s notes, a psychosocial history done by a sentencing resource specialist, a psychological report done by a Dr. Stevenson, and various persons’ reports of defendant’s life history. Dr. Benson recounted a great deal of the information he had received from and about defendant. He noted that defendant suffered from hearing loss as a youth, which caused him to stutter and to stare at others in order to read their lips. Defendant’s parents divorced when he was nine years old. Defendant developed an eating disorder and gained a lot of weight, a problem he would continue to have throughout his life. By about the age of 19 or 20, defendant was depressed and unable to “get any girlfriends.” He made what Dr. Benson believed was a genuine attempt at suicide. Less than one year after defendant met Doreen, they were married. Problems arose between them; defendant lost his job, and Doreen had affairs. They divorced after Paul was bom. Defendant did not contest Doreen’s custody of Paul because he believed she would be a good mother. After Doreen’s dog drowned in the swimming pool, defendant became concerned about Paul’s safety. He demanded that Doreen fence the pool and offered to pay all or part of the cost. Doreen eventually did have a fence installed around the pool. Defendant told Dr. Benson that he had been concerned because Doreen used marijuana while Paul was in her care. He also said he had been very generous to both of them after the divorce. Defendant told Dr. Benson that Paul was very close to him and sometimes did not want to return to Doreen after visits. Defendant had returned Paul to Doreen earlier on the day he drowned, although he wanted to stay with defendant. Defendant said he had a premonition of Paul’s death and initially blamed himself for Paul’s death. However, Dr. Benson testified that defendant came to blame Doreen for Paul’s drowning. Defendant thought Doreen should have jumped into the pool herself to save Paul instead of going to the neighbor’s house for help. He sued the Erberts against the advice of family and friends. Defendant said he could not see Doreen suffering from Paul’s death. He thought he had been the only sad person at the funeral. Defendant came to believe that Doreen had wanted Paul to die, although no one else believed that. Defendant and Doreen argued over the funeral expenses and his last child support payment. He felt Doreen and Charles mistreated him. Dr. Benson said he believed defendant sued Doreen and Charles to relieve his own guilt over Paul’s death. He testified that defendant became more psychotic after losing the suit and held a delusional belief that his attorney would kill him. Dr. Benson believed the therapy defendant received was inadequate. According to Dr. Benson, defendant eventually started to fantasize about killing Doreen and Charles in retribution for Paul’s death. Dr. Benson suggested that, on the night of the killings, defendant was struggling with these fantasies when he became overwhelmed by longing for his son triggered by trick-or-treating children. Defendant decided to do something that night because he thought he could get away with it. Dr. Benson’s opinion was that defendant was suffering from a mental disease and became delusional. Defendant admitted to Dr. Benson that he killed Doreen and the fetus, but he insisted that he did not know Doreen was pregnant. Dr. Benson believed that defendant became enraged, as shown by his inability to relate more than “spotty” details of the moments before the killings. According to Dr. Benson, this showed defendant’s brain was not functioning and recording events properly. Dr. Benson also accepted defendant’s assertion that he saw no color during the killings as demonstrating a “medical condition” and that he was enraged. Defendant said that when Doreen answered the door, she turned her back on him. He told her, “You killed my boy.” Doreen then recognized his voice and told him to leave. Defendant told Doreen he was going to kill her and began stabbing her. Defendant said he realized Doreen was pregnant only after he saw the amniotic fluid and the fetus on the floor. Defendant told Dr. Benson he would not have hurt Doreen if he had known she was pregnant. Defendant said that he left after seeing Doreen vomiting blood. Defendant denied cutting the fetus. Defendant told Dr. Benson that while he was killing Doreen, he asked her how it felt to drown. Dr. Benson’s opinion was that defendant suffered a major depressive episode over his son’s death, and that he had a dependent personality disorder. In Dr. Benson’s view, defendant’s mental disease or defect at the time of the killings had “a tremendous impact” on his acts. Defendant also told Dr. Benson of a plan he had to drown Doreen and Charles by placing them in body bags in boxes and dumping them into the sea from Ms boat. Dr. Benson attributed tMs plan to fantasy as well, although defendant owned a boat and had in his toolshed two reinforced, lockable boxes that he made, two apparently hand-stitched body bags, and two anchors. D. Penalty Phase By stipulation, the trial evidence was deemed included in the penalty phase. The prosecution introduced as additional evidence the materials found in defendant’s toolshed, which the prosecutor connected to defendant’s plan to drown the Erberts. Defendant offered evidence from his friends and associates as to Ms childhood difficulties, his shyness and loneliness due to Ms hearing problem, his friendly and easygoing nature, Ms pride and love for his son and Ms devastation at Paul’s death, Ms honesty, thoughtfulness, and sensitivity, Ms good record at Lockheed, and his compassion for others. Defendant’s mother presented a pictorial biography of defendant’s life and their relationsMp and spoke of awards he won. The jury also heard a tape recording of defendant and his son. II. Discussion A. Guilt Phase 1. Section 12022.9 Issues Defendant raises a series of arguments based on the premise that the court should have instructed the jury on section 12022.9 as an alternative charge to the fetal murder alleged in count 2. That section was enacted in 1985, the year after the killings in tMs case, and became effective January 1, 1986. At the time of defendant’s trial the section read: “Any person who, during the commission or attempted commission of a felony, . . . knows or reasonably should know that the victim is pregnant, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman which results in the termination of the pregnancy shall, in addition and consecutive to the punishment prescribed by the felony or attempted felony of which the person has been convicted, be pumshed by an additional term of five years in the state prison. The additional term provided in this section shall not be imposed unless the fact of such injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact, Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 of the Penal Code.” (Stats. 1985, ch. 1375, § L p. 4881.) The keystone for defendant’s arguments is his contention that section 12022.9 should be considered to be either a lesser included offense or a lesser related offense to fetal murder. If section 12022.9 is viewed as a lesser included offense to fetal murder, defendant believes the trial court had a sua sponte duty to instruct the jury on that section. If it is seen as a lesser related offense, then defendant asserts his counsel was ineffective for failing to request an instruction. In either case, defendant argues he was entitled to have the statute applied retroactively to his acts as an alternative to the fetal homicide charge. In this regard, he also declares he would have waived any ex post facto bar to an instruction on section 12022.9 as an alternative to fetal murder. The fundamental flaw underlying defendant’s contentions is that section 12022.9 defines a sentence enhancement, not a substantive offense. Enhancements, like special circumstances, are not substantive crimes. (People v. Morris (1988) 46 Cal.3d 1, 16 [249 Cal.Rptr. 119, 756 P.2d 843], disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5, 6 [37 Cal.Rptr.2d 446, 887 P.2d 527].) California courts have long recognized that an enhancement is not a separate crime or offense. (People v. Wims (1995) 10 Cal.4th 293, 304 [41 Cal.Rptr.2d 241, 895 P.2d 77].) As we recently stated in Wims: “[I]n our statutory scheme sentence enhancements are not ‘equivalent’ to, nor do they ‘function’ as, substantive offenses. Most fundamentally, a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.]. . . The Legislature, moreover, has in various ways expressed its intention that enhancements not be treated as substantive offenses.” (Id. at p. 307, fn. omitted, original italics.) An enhancement is “ ‘an additional term of imprisonment added to the base term.’ ” (People v. Hernandez (1988) 46 Cal.3d 194, 207 [249 Cal.Rptr. 850, 757 P.2d 1013], quoting Cal. Rules of Court, rule 405(c).) Section 12022.9 provides for “an additional term of five years” of imprisonment “in addition and consecutive to the punishment prescribed by the felony or attempted felony of which the person has been convicted . . . .” The explicit description of the term section 12022.9 imposes as being “additional” is consistent with a legislative intent to designate an enhancement. (People v. Hernandez, supra, 46 Cal.3d at pp. 207-208; cf. People v. Rayford (1994) 9 Cal.4th 1, 9-10 [36 Cal.Rptr.2d 317, 884 P.2d 1369].) We also note that section 12022.9 specifies only a single term of imprisonment rather than a range of possible terms. A statute’s specification of confinement for one of three possible terms does not necessarily mean it concerns a separate crime instead of an enhancement. (People v. Rayford, supra, 9 Cal.4th at p. 9; People v. Hall (1994) 8 Cal.4th 950, 958-959 [35 Cal.Rptr.2d 432, 883 P.2d 974].) Nevertheless, a statute’s provision for only one term of additional imprisonment is characteristic of an enhancement. (People v. Hernandez, supra, 46 Cal.3d at pp. 207-208; cf. People v. Rayford, supra, 9 Cal.4th at pp. 9-10.) Here, as in Hernandez, the words of the statute and the specification of a single term leave no doubt the Legislature intended section 12022.9 to be an enhancement rather than a substantive crime. (People v. Hernandez, supra, 46 Cal.3d at p. 208.) Indeed, in section 1170.1, the Legislature repeatedly identified section 12022.9 as an enhancement. (See former § 1170.1, subds. (a), (b)(1), (e), (f), (g)(1), (h).) As an enhancement, section 12022.9 does not represent an alternative to a charge of fetal murder in violation of section 187. Instead, it imposes an additional punishment for committing, or attempting to commit, a felony in a manner that intentionally injures a pregnant woman and results in termination of her pregnancy. The enhancement relates to the particular injury a defendant inflicts on a woman in committing the substantive crime. Imposition of the enhancement neither precludes punishment for, nor constitutes an alternative to conviction of, a separate crime—murder—against a second victim—the fetus. (See People v. Apodaca (1978) 76 Cal.App.3d 479, 493 [142 Cal.Rptr. 830], disapproved on other grounds in People v. Davis (1994) 7 Cal.4th 797, 804, 810 [30 Cal.Rptr.2d 50, 872 P.2d 591].) The Legislature’s directive in the final paragraph of former section 12022.9 (now the final paragraph of subdivision (a) of that section) reinforces our conclusion. That paragraph provides: “Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 of the Penal Code.” The plain import is that the section 12022.9 enhancement shall not be interpreted as substituting for, or precluding, a charge and conviction of fetal homicide under section 187. We therefore find no merit in defendant’s claim that section 12022.9 was intended to address lesser degrees of culpability for fetal death than murder under section 187. The enhancement imposed under section 12022.9 instead concerns the greater degree of culpability attributable to a defendant whose felonious conduct injures a pregnant woman and causes the loss of her pregnancy. Thus, defendant’s argument that the trial court was obliged to instruct the jury on section 12022.9 as a lesser included offense of fetal murder lacks merit. Also meritless is defendant’s contention that the court should have instructed the jury on section 12022.9 for the count concerning Doreen’s murder in order to serve as a lesser related alternative to a multiple-murder special-circumstance finding. Defendant argues that, under Beck v. Alabama (1980) 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392] (Beck), the lack of a section 12022.9 instruction improperly narrowed the jury’s choices and resulted in an unreliable and arbitrary finding of death eligibility. In Beck, the high court held that a trial court cannot constitutionally impose the death penalty if the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense that the evidence would have supported. (Beck, supra, 447 U.S. at p. 627 [100 S.Ct. at p. 2384].) By statute, Alabama had precluded instruction on lesser included offenses in capital prosecutions. (Id. at pp. 628-629, fn. 3 [100 S.Ct. at p. 2385] and accompanying text.) The court noted that the practice of allowing conviction of a lesser offense necessarily included in a charged offense originated as an aid to the prosecution in cases where the proof failed on an element of the charged crime. (Id. at p. 633 [100 S.Ct. at pp. 2387-2388].) The court recognized, however, that the practice may benefit a defendant by giving a jury a less drastic alternative to the choice between conviction of the charged offense and acquittal. (Ibid.) The high court observed in regard to capital cases; “That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the ‘third option’ of convicting of a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.” (Id. at p. 637 [100 S.Ct. at p. 2389].) The high court therefore concluded the federal Constitution prohibits a trial court from denying a jury the option of convicting of a lesser included offense if the unavailability of an instruction on that offense enhances the risk of an unwarranted conviction. (Id. at p. 638 [100 S.Ct. at p. 2390].) Defendant’s attempt to apply Beck to his conviction has two shortcomings. First, the jury was not forced to choose between convicting defendant of a capital offense or acquitting him. The jury was instructed on the lesser included offense of second degree murder with respect to both deaths and was instructed on voluntary manslaughter for Doreen’s killing. Thus, there is no ground in this case for Beck’s concern that jurors might convict not because they believe the defendant is guilty of a capital offense, but because they simply wish to avoid setting him free. (See Beck, supra, 447 U.S. at pp. 633-634 [100 S.Ct. at pp. 2387-2388].) Second, because section 12022.9 is an enhancement and not an offense, it therefore cannot be a lesser included offense to murder. As the high court observed in Spaziano v. Florida (1984) 468 U.S. 447, 455 [104 S.Ct. 3154, 3159, 82 L.Ed.2d 340]: “Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process. Beck does not require that result.” Beck’s central concern was that a jury’s guilt determination would be unreliable because the jurors were forced improperly to make an all-or-nothing choice between a capital verdict and an acquittal. (Beck, supra, 447 U.S. at pp. 637-638 [100 S.Ct. at pp. 2389-2390]; Spaziano v. Florida, supra, 468 U.S. at p. 455 [104 S.Ct. at p. 3159].) The trial court’s instructions here gave defendant’s jury the option of finding both victims’ deaths were only second degree murder, and the additional option of finding Doreen’s death was only voluntary manslaughter. “[T]he logic of Beck does not apply when, as here, the jury has been properly instructed as to second as well as first degree murder.” (People v. Hawkins (1995) 10 Cal.4th 920, 953 [42 Cal.Rptr.2d 636, 897 P.2d 574], fn. omitted.) We likewise reject defendant’s argument that he was entitled to a retrospective application of section 12022.9 under In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], There we said: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter .punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.) Defendant views section 12022.9 as providing a diminished punishment for killing a fetus. Therefore, he argues the rule in Estrada required jury instructions on section 12022.9 in his case. . The fundamental function of the Estrada rule is to further a legitimate legislative intent that is manifested by a change in the punishment prescribed for an offense. When an amendment moderates the punishment for an offense, the ordinary and reasonable inference is that the Legislature determined imposition of the lesser penalty on offenders from then on will sufficiently serve the public interest. (In re Pedro T. (1994) 8 Cal.4th 1041, 1045 [36 Cal.Rptr.2d 74, 884 P.2d 1022].) Here, of course, there is no basis for discerning such a legislative intent in the language of section 12022.9. That section did not diminish the punishment for killing a fetus with malice aforethought; the penalties for that offense remain the same as for any other murder. Rather than decreasing the penalty for killing a viable fetus, the crime section 187 was then thought to describe (see People v. Davis, supra, 7 Cal.4th at pp. 802-805), section 12022.9 increases the punishment for committing an offense that inflicts a singular injury on an expectant mother regardless of fetal viability. This provision hardly suggests the Legislature determined a lesser punishment for fetal murder would serve the public interest. Estrada does not apply in these circumstances. (Cf. In re Pedro T., supra, 8 Cal.4th at pp. 1045-1046.) We also reject defendant’s claims that his trial counsel was ineffective for failing to request an instruction on section 12022.9 as a lesser related offense to fetal murder. Section 12022.9 is not a lesser related offense to murder; it creates an enhancement, not a substantive offense. Our conclusions in this regard make it unnecessary to address defendant’s subsidiary claim that he could and would have waived any ex post facto bar to an instruction under section 12022.9. We similarly find no merit in defendant’s claim that the prosecutor’s decision not to allege section 12022.9 as an alternative to fetal homicide, and the omission of a jury instruction to that effect, denied defendant his rights under the Eighth and Fourteenth Amendments of the United States Constitution. Defendant bases this argument as well on the mistaken premise that section 12022.9 defines a separate and lesser punishment for killing a fetus than is provided in section 187. Defendant does not claim the prosecutor’s charging decision was the product of invidious discrimination, which generally is the only basis for our review of that discretionary executive function. (See People v. Pinholster (1992) 1 Cal.4th 865, 971 [4 Cal.Rptr.2d 765, 824 P.2d 571].) Prosecutorial discretion to select cases in which the death penalty will or will not be sought does not, in and of itself, render the death penalty unconstitutional in this case. (People v. Crittenden (1994) 9 Cal.4th 83, 152 [36 Cal.Rptr.2d 474, 885 P.2d 887]; People v. Keenan (1988) 46 Cal.3d 478, 505-506 [250 Cal.Rptr. 550, 758 P.2d 1081].) Therefore, the prosecutor’s decision to seek two murder convictions for the deaths of Doreen and her fetus and to allege the multiple-murder special circumstance, instead of simply seeking an enhanced prison sentence for Doreen’s death, does not of itself evidence an arbitrary and capricious capital punishment system or offend principles of due process, equal protection, or the prohibition of cruel and unusual punishments. (People v. Crittenden, supra, 9 Cal.4th at p. 152; People v. Keenan, supra, 46 Cal.3d at pp. 505-506.) 2. Manslaughter Issues Defendant presents two arguments for his claim that the trial court should have instructed the jury on manslaughter for the death of the fetus as was done for Doreen’s death. First, he contends that trial testimony created a factual issue as to whether the fetus was bom alive and thus was a “human being” under the manslaughter statutes. If so, he asserts the jury should have had the option of returning a manslaughter verdict for that death also. Second, defendant claims his rights under the Eighth and Fourteenth Amendments were violated because California law does not include manslaughter as a crime in the death of a fetus. We discuss each argument in turn and conclude that neither has merit. a. The “Live Birth” Claim Under the Penal Code, as was true under common law, a fetus is not a “human being” within section 187’s definition of murder as “the unlawful killing of a human being . . . .” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 628, 631 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].) After Keeler, the Legislature amended section 187 specifically to include as murder “the unlawful killing of . . . a fetus . . . .” (Stats. 1970, ch. 1311, § 1, p. 2440.) The Legislature made no similar amendment to section 192’s definition of manslaughter as “the unlawful killing of a human being without malice.” As a result, the unlawful killing of a human being, or a fetus, with malice aforethought is murder, but only the unlawful killing of a human being can constitute manslaughter. (People v. Carlson (1974) 37 Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) There is no crime in California of manslaughter of a fetus. (People v. Brown (1995) 35 Cal.App.4th 1585, 1592 [42 Cal.Rptr.2d 155]; People v. Apodaca, supra, 76 Cal.App.3d at pp. 491-492; People v. Carlson, supra, 37 Cal.App.3d at p. 355.) Under Keeler, the dispositive question is whether the fetus was “born alive,” and so became a “human being” within the meaning of the homicide statutes. (Keeler v. Superior Court, supra, 2 Cal.3d at p. 628.) Keeler did not address the indicia that could determine when a fetus is “bom alive.” The fetus in Keeler, though developed to the stage of viability, had suffered a fractured skull in útero that caused its immediate death; the fetus was delivered stillborn with no air in its lungs. (Id. at pp. 623-624.) Therefore, Keeler considered the defendant’s act to be the killing of an unborn, though viable, fetus and not the killing a “human being” for purposes of the homicide statutes. (Id. at p. 631.) More recently, People v. Flores (1992) 3 Cal.App.4th 200 [4 Cal.Rptr.2d 120] discussed this issue in the context of a defendant charged with gross vehicular manslaughter while intoxicated in violation of section 191.5, subdivision (a). There, after the defendant’s car collided with a pregnant woman’s car, doctors attempted to deliver her eight-and-one-half-month-old fetus by emergency cesarean section. (People v. Flores, supra, 3 Cal.App.4th at pp. 203-204.) The fetus had a faint, weak heartbeat that lasted for a few minutes, but the evidence failed to show it ever had breathed independently. (Id. at p. 204.) The medical examiner testified that death occurred during the perinatal period, defined as the time immediately before, during, and after birth. (Id. at p. 205.) Flores reviewed the common law antecedents that Keeler noted, which suggested that one of the tests for a live birth was an independent circulation and that evidence of breathing alone may not be conclusive. (People v. Flores, supra, 3 Cal.App.4th at pp. 206-207.) Flores also analyzed the earlier decision in People v. Chavez (1947) 77 Cal.App.2d 621 [176 P.2d 92]. From that case Flores drew the mle that a killing during the birth of a demonstrably alive and viable fetus is the killing of a human being, if the birth would in the natural course of events be completed successfully. (People v. Flores, supra, 3 Cal.App.4th at pp. 208-209; see also Keeler v. Superior Court, supra, 2 Cal.3d at pp. 637-638.) Flores read Chavez as establishing that evidence of independent heart and lung action is sufficient evidence the infant was bom alive. (People v. Flores, supra, 3 Cal.App.4th at p. 209.) From these and other authorities, Flores attempted to distill the criteria that can establish a live birth under common law standards. The court stated: “Heart action, or circulation, is not enough in itself to sustain life; there also must be respiration. Consequently, a faint heartbeat lasting only briefly generally is insufficient in the absence of other signs of life. [Citation.] HQ Conversely, if there is evidence of independent respiration, this generally establishes an independent circulation and existence. [Citation.] However, that a fetus/infant takes but a few spontaneous breaths and then immediately ceases breathing will not establish a live birth, i.e., an independent existence, for such evidence supports only the possibility and that is insufficient. [Citation.]” (People v. Flores, supra, 3 Cal.App.4th at p. 209.) Flores found a more authoritative and appropriate test, however, by looking to the statutory definition of death stated in Health and Safety Code section 7180, subdivision (a). Reasoning that life is the obverse of death, and that common law definitions should be used only when there is no statutory definition, the Flores court held that for life to be present, both of the statute’s disjunctive prongs must be absent. (People v. Flores, supra, 3 Cal.App.4th at p. 210.) Flores concluded that evidence of an independent heartbeat alone could be sufficient to show circulation and respiration had not irreversibly ceased. {Ibid.) However, the court also said a conclusion that life exists requires more. At least, there must be evidence of brain stem activity, such as an attempt to breathe independently. (Id. at pp. 210-211.) Defendant contends substantial evidence shows the fetus was bom alive and thus died as a human being. Therefore, he asserts the trial court should have instmcted the jury on manslaughter as a lesser included offense to murder for that death, as the trial court did for Doreen’s killing. However, we need not decide in this case what evidence is sufficient to establish a fetus was born alive so as to be a “human being” as the term is used in the homicide statutes. We therefore also have no occasion to discuss what circumstances could have required a manslaughter instmction in this case. The record here lacks substantial evidence of any indicia that the fetus was bom alive. “ ‘[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instmction.’ [Citations.]” (People v. Kaurish (1990) 52 Cal.3d 648, 696 [276 Cal.Rptr. 788, 802 P.2d 278], quoting Hopper v. Evans (1982) 456 U.S. 605, 611 [102 S.Ct. 2049, 2052-2053, 72 L.Ed.2d 367], italics in Hopper.) Substantial evidence in this context is evidence from which a rational trier of fact could find beyond a reasonable doubt the elements of the lesser offense. (People v. Berryman (1993) 6 Cal.4th 1048, 1081 [25 Cal.Rptr.2d 867, 864 P.2d 40].) “[Speculation is not evidence, less still substantial evidence. [Citation.]” (Ibid.) The expulsion of the fetus from Doreen’s womb in no way resembled the live birth of a human being. The chief medical examiner and coroner testified in detail concerning the objective findings made during the autopsy of Doreen and her fetus. Defendant’s attack on Doreen inflicted many deep wounds, including a gaping, nine-inch-long wound to her abdomen and a parallel five-and-one-half-inch-long chopping wound. Multiple cuts penetrated her abdomen and uterus while the fetus was inside. The cuts passed through or around the fetus and into the placenta, which remained inside Doreen’s abdomen. There were four cuts in the umbilical cord, which was still attached to the placenta; one cut severed the umbilical cord close to the fetus’s body. The fetus was expelled through the large abdominal wound. The fetus too sustained many cutting wounds. A cut to the head penetrated into the bone. The left leg was severed below the knee. A large, five-inch wound cut through half of the fetus’s body. The wound extended from the upper right abdomen through the left chest and to the left armpit, cutting through the shoulder blade, the second thoracic vertebra, the liver, and one lung, and transecting the heart. This wound stopped the heart and circulation. Examination of the lungs demonstrated they had never been expanded, and there was no air in them. The fetus never breathed or lived independently of Doreen. The injuries to Doreen and her fetus prevented the fetus from ever breathing. Against this physical evidence and expert opinion, defendant offers one ambiguous piece of testimony to establish his position. As Charles Erbert testified about what he did when he came home and found his wife and the fetus lying in a blood-covered hallway, the prosecutor asked if his daughter Deanna had tried to come to him. Charles answered: “I remember I turned around and I saw her standing there. I went over and grabbed her, and I took her around the kitchen area so she would—couldn’t see. I guess—she said she saw the whole—she came out, she heard the baby crying.” Defendant construes this passage as meaning Deanna told her father that she heard the fetus crying during the attack. Defendant characterizes this as evidence of independent breathing such that the court should have had the jury decide whether the fetus was bom alive. To the contrary, no rational finder of fact could have reached that conclusion based on this fragment of Charles Erbert’s testimony. There simply was not substantial evidence that the fetus was bom alive under any recognized criteria. b. Exclusion of Feticide From Manslaughter Defendant argues his rights under the Eighth and Fourteenth Amendments were violated because California’s statutory scheme contains no provision for the crime of manslaughter in the killing of a fetus. He contends the statutory scheme is unconstitutional because it requires a finding of death eligibility whenever a defendant is found guilty of the first degree murder of a pregnant woman and any degree of murder of her fetus. Defendant suggests there is an inherent bias whenever the jury finds first degree murder of the mother. In these cases, defendant argues, the jury must then find the multiple-murder special circumstance to be true if it finds either degree of murder as to the fetus. The jury’s only other choice at that point would be to find no crime for the fetus’s death, because it does not have the option of a manslaughter verdict. This procedure, defendant contends, results in the unreliable, arbitrary, and capricious application of the death penalty in cases of feticide, particularly where the fetal killing is not first degree murder. Defendant further argues this scheme also violates equal protection because these double killings are treated differently from other multiple murders solely because the second killing was a feticide. All other defendants charged with multiple-murder special circumstances are entitled to manslaughter instructions for any killing if the evidence of malice is sufficiently doubtful to support instruction on the lesser included offense. As the Attorney General observes, these arguments simply recast defendant’s assertions of a constitutional entitlement to jury instructions on the section 12022.9 enhancement as a lesser included or lesser related offense. That California law does not provide for the crime of manslaughter of a fetus does not result in an unreliable death eligibility determination if a defendant is charged with a multiple-murder special circumstance for the deaths of a pregnant woman and her fetus. The due process concern for a reliable factfinding process in capital cases that underlies Beck, supra, 447 U.S. 625, is not implicated solely because a defendant does not have a full panoply of lesser charges made available to the jury. (Schad v. Arizona (1991) 501 U.S. 624, 645-646 [111 S.Ct. 2491, 2504-2505, 115 L.Ed.2d 555].) “Our fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” (Schad v. Arizona, supra, 501 U.S. at p. 646 [111 S.Ct. at p. 2504].) These concerns do not arise when the jury, as here, is not faced with that all-or-nothing choice between capital murder and acquittal. (Id. at p. 647 [111 S.Ct. at p. 2505].) As we have already discussed, defendant’s jury had several choices other than acquittal and capital murder in assessing his culpability for killing Doreen and her fetus. The trial court’s instructions allowed the jury to return verdicts of second degree murder for both deaths and gave the jury the additional option of a verdict of voluntary manslaughter with respect to Doreen’s killing.■ We do not find arbitrary, capricious, or irrational the distinction between a defendant whose jury may consider several manslaughter verdicts because of the state of the evidence and the victims’ status, and a defendant whose jury may consider only one manslaughter verdict because the victims were a pregnant woman and her unborn fetus. The Legislature could reasonably and rationally conclude the unlawful killing of a fetus should be punished when committed with express or implied malice, but that when such a killing occurs “upon a sudden quarrel or heat of passion” (§ 192, subd. (a)), the punishment for the crime against the mother is sufficient. In any event, it appears that a manslaughter instruction even as to Doreen’s death was not called for in this case. The killings could not have occurred in a sudden quarrel or heat of passion. (§ 192, subd. (a).) They took place four years after the death of defendant’s son and two years after the verdict in his wrongful death case. There was no claim of imperfect self-defense. The trial court gave no instructions on these theories. Instead, the court instructed the jury that mental disease or disorder could negate malice so that defendant’s killing of Doreen could be the offense of manslaughter. This instruction was improper after the abolition of the diminished capacity defense, which occurred before defendant killed Doreen and her fetus. (See People v. Saille (1991) 54 Cal.3d 1103, 1115-1117 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Of course, any error in giving a manslaughter instruction was harmless given the jury’s verdict of murder. 3. The Disproportionate Penalty Claim In a related argument, defendant asserts the application of the multiple-murder special circumstance to the crimes of killing a pregnant woman and her fetus constitutes a disproportionate penalty violating the state and federal Constitutions. Although we rejected this argument in People v. Bunyard (1988) 45 Cal.3d 1189, 1239-1241 [249 Cal.Rptr. 71, 756 P.2d 795] (Bunyard), defendant contends that case is distinguishable. We disagree. In Bunyard, a jury convicted the defendant of the first degree murders of his wife and her healthy full-term fetus. The jury also found true a multiple-murder special circumstance and imposed the death penalty. The defendant contended that application of the multiple-murder special circumstance to situations in which one of two victims was a fetus would be unconstitutional as a disproportionate penalty under the state or federal Constitution. We rejected the argument. We observed in Bunyard that “In determining whether a particular sentence constitutes cruel or unusual punishment under the state Constitution (art. I, § 17), we must determine whether the penalty ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch [(1972)] 8 Cal.3d [410,] 424 [105 Cal.Rptr. 217, 503 P.2d 921]; People v. Frierson (1979) 25 Cal.3d 142, 183 [158 Cal.Rptr. 281, 599 P.2d 587].) Defendant presents no evidence or argument regarding two of the factors we held relevant in determining disproportionality under Lynch—the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society, and whether more serious crimes are punished in this state less severely than the offense in question. The offense at issue—willful, deliberate and premeditated murder—creates the utmost danger to society. The fact that the victim murdered is an unborn child does not render defendant less culpable, or the crime less severe, in light of the Legislature’s determination that viable fetuses receive the same protection under the murder statute as persons.” (Bunyard, supra, 45 Cal.3d at p. 1240.) As for the federal Constitution, Bunyard held that “Defendant’s arguments suggesting a potential Eighth Amendment violation also fail. Our high court has established that one of the objective factors for reviewing the proportionality of sentences under the Eighth Amendment is the ‘gravity of the offense.’ Murder is the gravest of all, a crime ‘so grievous an affront to humanity that the only adequate response may be the penalty of death.’ (Gregg v. Georgia (1976) 428 U.S. 153, 184 [96 S.Ct. 2909, 2930, 49 L.Ed.2d 859, 881].) Since the evidence in this case was sufficient to establish that defendant acted with express malice towards [the fetus], this case raises no questions of death-eligibility under Tison v. Arizona (1987) 481 U.S. 137 [107 S.Ct. 1676, 95 L.Ed.2d 127]. ‘A critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. Deeply engrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and therefore, the more severely it ought to be punished.’ (Tison, supra, 481 U.S. at p. 156 [95 L.Ed.2d at p. 143, 107 S.Ct. at p. 1687].) Additionally, defendant fails to present any evidence or argument concerning other relevant criteria for reviewing a claim of Eighth Amendment violation—the sentencing decisions made by juries, and the charging practices of prosecutors—with respect to the imposition of the death penalty for the murder of a pregnant woman and her viable fetus. [50 ... [51] In sum, we find no federal or state constitutional infirmity in applying the multiple-murder special circumstance to the circumstances in this case.” (Bunyard, supra, 45 C