Full opinion text
Opinion BROWN, J. After 26days of trial, a capital jury convicted defendant of 1 count of murder of the first degree. (Pen. Code, § 187, subd. (a); all undesignated statutory references are to the Penal Code.) It also found defendant guilty of three counts of burglary, two counts of robbery, and one count of attempted murder. (§§459, 211, 664/187.) Two special circumstances alleged in the information—that the murder occurred in the course of the commission of a robbery and a burglary, two of the felonies enumerated as special circumstances in our capital statute (see former § 190.2, subd. (a)(17)(i), (vii); now § 190.2, subd. (a)(17)(A), (G))—were also found true, as were allegations that defendant had personally used a knife in the commission of all but one of the burglaries, had personally used a hammer in the commission of a burglary, a robbery, and the attempted murder, and had personally inflicted great bodily injury upon the victim of the robbery and the attempted murder. (§§ 12022, subd. (b), 12022.7.) Following a nine-day penalty trial, the jury sentenced defendant to death on the first degree murder count; the trial court imposed the upper term of nine years on the attempted murder count, a one-year enhancement for the use of a knife, and a three-year enhancement for the infliction of great bodily injury for a total determinate term of thirteen years; sentencing on the remaining counts was stayed under section 654. The superior court subsequently denied a motion to reduce the death sentence to life in prison without possibility of parole, and directed that judgment be entered on the jury’s verdicts. The direct appeal to this court is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase 1. The prosecution’s case: The robbery and attempted murder of Shawn May. On November 30, 1987, Shawn May, then 18, was working alone as a sales clerk at the Video Mart in Sacramento. Around midaftemoon, defendant entered and began looking through the videotape rentals. As May walked out from behind the front counter, she noticed a dollar bill lying on the floor. She picked it up, returned behind the counter to the cash register, and asked defendant if the bill belonged to him. Told that it did not, May placed the money in the store’s register, remarking that it would save her from being short at the end of the day. Defendant then said, “Well, it’s going to be a lot shorter than you think,” and grabbed May by the neck from behind. Holding the blade of a small knife to her throat with one hand, he reached into the cash register with the other and removed about $100 in cash. Defendant then told May to lock the front door to the store. After getting her keys, May did so, turning over the “Open” sign so that it read “Closed” to passersby. Defendant then demanded that May tell him where more money was hidden. The telephone rang; defendant answered it. “Video store,” he said. The store was busy, he told the caller; he had to go. Hanging up the telephone, defendant ¿gain demanded to know where additional money was kept. May led him to a back room and showed him $100 in bills in a metal file cabinet which he pocketed. By now, customers had begun to gather outside the locked entrance to the Video Mart. Placing May on a chair in the back room, defendant grabbed a nearby roll of duct tape, bound her hands and feet with it and placed tape over her eyes and mouth. May told defendant he could leave by the back door. Defendant rummaged around, May testified at trial, before suddenly ripping the tape from her eyes, mouth and arms. He needed the key in the cash register, he told her. Walking May to the front counter by holding onto her shirt, kneeling down so that he could not be seen by the customers waiting outside, defendant directed May to take the key and give it to him. She did so, and the two returned to the back room. Defendant said little as he taped May to the chair, and retaped her eyes. He told her to be quiet, all he wanted was the money. Defendant took some cash and May’s automated teller machine card from her purse. After asking for her personal identification number (May made up one), he again fell silent. May could still see defendant’s feet through the gaps in the tape, however, and after a few moments said, “I know you’re still here.” She felt a blow to her head, followed by something sharp striking the side of her neck. Defendant had picked up a hammer lying nearby and struck May, then stabbed her in the neck. After defendant left by the back door, May was able to remove the loose tape from her hands and feet and, bloodied, open the store entrance to the waiting customers who came to her aid. 2. The robbery and murder of Norma Painter. On the afternoon of December 7, a week after the Shawn May incident at the Video Mart, defendant walked into the office of Norma Painter, the 53-year-old manager of the Cottonwood Apartments in Sacramento, and asked to see an apartment. After leaving briefly (he was observed, a tenant later testified, standing next to a nearby laundry room), defendant returned to Painter’s office and asked for a rental application. Painter pointed to a pad of blank applications and told him to' help himself. He did so, sitting in Painter’s office and filling out the application form using a fictitious name. After he had completed the rental application, Mrs. Painter showed defendant unit No. 24, a model apartment kept vacant for that purpose. Alone with Mrs. Painter in the apartment, defendant stmck her—probably with his fist, according to a forensic pathologist at trial—on the left eye and left temple, the mouth, the right arm and wrist, and her thighs. He then bound her ankles by knotting her pantyhose, and her hands by looping the maroon-colored belt from her dress and tying it. Shawn Coleman, a tenant in apartment No. 22, next door to No. 24, testified at defendant’s trial that she had been folding freshly laundered clothes on the afternoon of December 7, when she heard a woman cry out, “No, no, leave me alone, don’t do that.” The subsequent police investigation of the crime scene at the Cottonwood Apartments revealed that a length of white cord from a Venetian blind covering one of the windows of apartment No. 24 had been cut, tied around Mrs. Painter’s neck and pulled taut. In addition to this ligature, Painter had been stabbed with a pocket knife four times on the right and left side of the neck, opening the jugular veins at both locations. She had died, according to the pathologist’s testimony, “as a result of ligature strangulation, along with incised injuries of the neck.” The prosecution’s evidence at trial indicated that defendant then left apartment No. 24, returned to the Cottonwood rental office, and took Mrs. Painter’s wallet from her purse, along with cash and checks from the office desk. After removing the handset from the telephone cradle, he left. 3. The defense case. The defense conceded that defendant was responsible for the death of Norma Painter. It asserted, however, that he suffered from organic brain damage which, compounded by extended crack cocaine abuse, prevented him from forming the mental state required for the commission of murder of the first degree. Defendant had not, the defense contended, premeditated, deliberated or acted out of malice in killing Norma Painter because he was incapable of forming those mental states. Defendant was acting randomly when he killed Painter, the defense asserted, and her homicide did not occur during the commission of a felony. The defense opened by calling Ann Schade, a medical technician. Schade testified that she had administered EEG (electroencephalogram) and BEAM (brain electrical activity mapping) tests on defendant and forwarded the results to Dr. Arthur Kowell, a neurologist, for analysis and interpretation. Dr. Kowell testified that defendant’s EEG trace appeared to be within normal limits. The BEAM test results, however, revealed abnormalities in the right temporal region of defendant’s brain. According to Dr. Kowell’s testimony, people with such brain abnormalities may have memory and attention deficits. Impairments in speech, emotion, and impulse control are also common in such people, who tend to be easily irritated. The defense also relied on the testimony of witnesses who had observed defendant around the time of Mrs. Painter’s murder and described his behavior as nervous or “hyper.” It called Dr. Fred Rosenthal, a psychiatrist who is board certified in neurology. Rosenthal had reviewed the results of the BEAM test on.defendant and interviewed him and family members. It was on that basis that Dr. Rosenthal concluded defendant had sustained organic brain damage to the right temporal and perhaps the frontal lobes, damage that had been exacerbated by the extended use of drugs and alcohol since defendant’s early teens. In Dr. Rosenthal’s opinion, habitual abusers of cocaine are emotionally unstable and irritable. They tend to overreact, even after ceasing drug use for a period of weeks; extended use may produce symptoms of psychosis and hallucinations. Defendant’s history, according to Dr. Rosenthal’s testimony, was consistent with that of a cocaine addict whose symptoms were becoming gradually overwhelming, making him increasingly dysfunctional. In Rosenthal’s opinion, a hypothetical cocaine user with defendant’s history would not have been capable of deliberation. Instead, he would have acted rashly and on impulse. 4. Rebuttal and surrebuttal. On rebuttal, the People called Dr. Michael Adelberg, a neurologist. Relying on defendant’s EEG results and a general skepticism of the BEAM test and the utility of its results for diagnostic and forensic purposes, Dr. Adelberg testified that in his opinion defendant showed no evidence of brain damage. The BEAM machine used to test defendant, according to Dr. Adelberg, had been removed from its previous location at the Sierra Vista Hospital because it tended to produce unreliable diagnoses. Contesting Dr. Adelberg’s testimony, Dr. Robert Bittle, a neurologist formerly on the Sierra Vista Hospital Board of Directors, testified that the BEAM machine was of great diagnostic value and that, to his knowledge, the unit at Sierra Vista Hospital had not been removed from that location because of incidents of misdiagnoses. Defendant did not testify. The defense acknowledged that he committed the offenses charged. B. Penalty Phase 1. The prosecution’s case. Six days before his encounter with Shawn May at the Video Mart, defendant entered another video store—Eagle’s Video Showcase—in Fair-field, California, around 8 p.m. He asked Gina R., the employee on duty, if the store had a copy of “The Platoons,” a misnomer, apparently, for the film Platoon (Hemdale Film Corp. 1986). After Gina R. told him they did not, defendant left. He returned a few minutes later, however, and began to browse through the rental tapes. After the other customers had left, defendant grabbed Gina R. from behind in a headlock and placed a five-inch knife blade to her throat. “Don’t do anything stupid,” he told her, “I won’t hurt you.” Holding onto Gina R., he walked her over to the cash register, reached in and took between $100 and $150. Defendant then demanded to know the location of additional money; Gina R. told him there was more in the back of the store. With defendant still holding onto her, the two walked to the rear of the store where defendant took an additional $100 to $200 in bills. He then walked Gina R. to the bathroom, where she kept her purse. There, he took all the money in the purse as well as an earring and a necklace Gina R. was wearing. Using tape and twine lying nearby, defendant bound Gina R.’s hands and put tape over her eyes and mouth. Pulling up her blouse, he had begun to fondle her breasts when a bell on the front door rang and a customer entered. Telling her not to do anything “stupid” and “If you come out of here, I’m going to kill you,” defendant walked to the main part of the store. Impersonating an employee, he told the customer the store’s computer was down and that no movies could be rented. The customer left. Defendant then returned to the bathroom and bound and gagged Gina R. Sitting on a chair, he pulled down her pants and underwear and copulated her orally. After a few minutes, he unzipped his pants and said to Gina R., “My father’s been deprived” or “I’ve been deprived, my father’s in prison.” Then he raped her. In the midst of the rape of Gina R., the front doorbell rang again. Through a slit in the tape covering her eyes, Gina R. could see defendant put down the maroon folding knife he had been holding and reenter the main room of the store. The customer, a man, “just kept talking and talking and talking”; Gina R. sensed defendant was “getting very very nervous. Very shaky.” Eventually, the customer left. Defendant returned to the bathroom. Reminded again that her employer would return any minute, defendant closed the bathroom door. After a few minutes, Gina R. heard him leave. It was stipulated that a print of defendant’s right index finger was lifted from the bathroom door by Fairfield police. Three days after the Eagle’s Video Showcase robbery and rape, on November 27, 1987, around 2:45 p.m., defendant entered another video store, Video International, in Stockton. On that day, the Friday after Thanksgiving, two clerks were on duty, one of them a male, and the store was busy with customers. After about a half hour, defendant left the store. He returned a while later, however, when there were only two or three customers present and the male clerk had completed his shift and left. The remaining employee was Dora S., age 19. After some 15 minutes, when all the customers were gone and Ms. S. was restocking returned videotapes, defendant grabbed her from behind by the neck. “Shut up, bitch,” he said, placing his hand over her mouth. Defendant then walked Ms. S. to the cash register where he took between $250 and $350; he also took a $10 bill from Ms. S.’s pocket. Walking her to a back room, defendant wrapped an extension cord around Ms. S.’s waist, then bound her hands. He then took her into the bathroom and stuffed her mouth with paper towels. After ordering her to sit on the toilet bowl, defendant said “no, never mind, bad idea.” Returning to the store’s back room, he sat Ms. S. on a stool and began to wrap a large plastic banner the store had used for its grand opening around her head. “Oh, no, never mind,” he said. Then, with string taken from the banner, he tied her hands to each other and her feet to the stool. At that point, another customer entered the store. “Hello, hello,” she called, “is anyone there?” “We’ll be with you in a minute,” defendant answered from behind the curtain separating the back room from the front counter. Opening the back door, he stepped outside and disappeared. In addition to this evidence, the People placed in evidence records from the State of Tennessee showing defendant’s prior convictions for burglary, aggravated assault, and escape. 2. The defense case. The penalty phase defense included testimony from defendant’s mother, father, two brothers, two of his three sisters, his wife, father-in-law, and a high school sweetheart. The gist of the family members’ testimony was that although close, the children had followed their father’s taciturn lead, seldom expressing emotion and never discussing personal difficulties. Defendant’s father, who spent his career in the Army, was tough and laconic. The family often moved from one army base to another before ending up in Cleveland, Tennessee, where his father worked as an electrician and was away most of every week. The jury also heard testimony from Thomas Tioaquen, formerly the warden at the Bradley County, Tennessee, jail. Tioaquen testified to the circumstances surrounding a June 1982 jailbreak by defendant and three other men. Defendant was the youngest of the group, Mr. Tioaquen said, and never left the jail unit. He was found hiding under a blanket beneath a bunk, and apologized to Tioaquen for the escape attempt. In Tioaquen’s view, a death sentence was not an appropriate penalty in defendant’s case. At the heart of the penalty-phase defense was a reprise and elaboration of the psychiatric and neurological expert testimony offered at the guilt phase. A psychologist trained in the treatment of substance abuse, Dr. Steven Pittel, testified that the daily administration of Tedral, a combination of ephedrine and phenobarbital used to treat bronchial asthma, from the time defendant was an infant until he was 14 years old probably had severe central nervous system effects, including nervousness, lack of concentration, and paranoia. When, following a doctor’s suggestion, his parents took him off the drug, Dr. Pittel related, defendant began to “self-medicate,” turning to illegal drugs as substitutes for the missing Tedral. Using a combination of alcohol and marijuana at first, defendant later developed a similar addiction to alcohol and crack cocaine. Prolonged use of these drugs, Dr. Pittel testified, eventually led to a state of paranoia accompanied by physical and mental exhaustion. 3. Rebuttal. On rebuttal, the People presented the testimony of Nino Pipitone, an employee of the state’s Department of Corrections. Mr. Pipitone testified that, based on his experience as a correctional counselor, prisoners serving terms of life without the possibility' of parole are sometimes able to achieve changes in classification that permit them to be housed in less than maximum security conditions. II. Guilt Phase Issues A. Miranda Claims 1. Alleged invalid waiver of Miranda rights. On December 10, 1987, three days after Norma Painter’s body was found, defendant was questioned by Detectives Robert Bell and Stan Reed of the Sacramento Police Department. In the course of that custodial interview, which took the better part of two hours, defendant made three videotaped statements. The first and third of these statements were made to Detectives Bell and Reed; the second to a Detective Vance of the Solano County Sheriff’s Office. In pretrial motions, the defense sought to have all three statements suppressed on the ground that, in obtaining them, the officers had violated the rule announced in Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974] (hereafter Miranda). Because defendant’s purported waiver of his Miranda rights had been obtained involuntarily, the defense argued, his ensuing confession was invalid and inadmissible at trial. The trial court granted the motion with respect to defendant’s statement to Detective Vance, but held that defendant’s Miranda waiver preceding the first and third statements—those given to Bell and Reed—was valid and that these statements, amounting in substance to confessions to the attempted murder of Shawn May and the murder of Norma Painter, were not inadmissible at trial on that ground. Audiotapes and a transcript of defendant’s first statement to Bell and Reed were presented to the jury at trial and admitted into evidence. In challenging the admission of this evidence, defendant contends Detectives Bell and Reed employed a variety of improper means to coerce his statement. Being involuntary, it should not have been admitted at defendant’s trial. We consider these challenges in the order presented. Defendant first argues that Detectives Bell and Reed led him to believe at the outset of their questioning that he was not a suspect in the murder of Norma Painter. Shortly after their interview with defendant began, the following exchange occurred: “Bell: Also in regard to that, ah, we don’t know much about this case yet. Quite honestly, you know .... “Musselwhite: Yeah. “Bell: [W]e’re still getting into it. And as I told you when we were out there, we’ve got a lot of people we’re going to interview, you’re one of many. “Musselwhite: I. don’t know nothing about it. “Bell: Well, that’s great. Well we need to find that out. “Musselwhite: Yeah. “Bell: Well, we don’t know what you know and what you don’t know and so, what we’d like to do is just go ahead and advise you of your rights before we even get started and that way, that there’s no problem with any of it. Is that alright with you?” Defendant asserts that these representations by the two police inspectors were untrue and induced a “false sense of security” that led defendant to waive involuntarily his Miranda rights. The difficulty with such an argument on this record is the absence of evidence suggesting that Reed and Bell had indeed lied when they told defendant they “d[id]n’t know much about this case yet,” were “still getting into it,” had “a lot of people we’re going to interview, you’re one of many,” didn’t “know what you know and what you don’t know,” and for that reason, “what we’d like to do is just go ahead and advise you of your rights before we even get started and that way, that there’s no problem with any of it.” Defendant points out that at the time of the interview, Reed and Bell had information (e.g., impressions taken from the rental applications tablet, defendant’s palm print on the coffee table, witness statements that someone similar in appearance had been in the rental office) strongly suggesting defendant’s presence at the Cottonwood Apartments on the day of Mrs. Painter’s murder. But although suggestive, this evidence hardly added up to premeditated first degree murder. It certainly did not establish that defendant killed Mrs. Painter, or robbed or burglarized the manager’s office. It is not unreasonable therefore to take the statements of Reed and Bell at face value—that they were in the midst of a murder investigation, had leads but were still “getting into” the case, and didn’t know what defendant knew except that he had likely been at the Cottonwood Apartments on or near the day of the homicide. Without that missing factual predicate, defendant’s claim of police “trickery” in inducing the waiver of his Miranda rights falls. The detectives never affirmatively represented to defendant that he was free of suspicion or that someone else was the focus of their investigation. A waiver of Miranda required no more to be valid. (Colorado v. Spring (1987) 479 U.S. 564, 573 [107 S.Ct. 851, 857, 93 L.Ed.2d 954] [only issue presented by Miranda voluntariness claims is whether the suspect’s “ ‘will [was] overborne and his capacity for self-determination critically impaired’ because of coercive police conduct”].) 2. Inducing waiver by improper promises of lenity. The second part of defendant’s challenge to the validity of his Miranda waiver is the claim that it was improperly induced by the detectives’ promises of lenient treatment in exchange for defendant’s cooperation in the Painter murder investigation. The entire evidence of improper inducement on which defendant relies consists of a statement by Detective Bell, made immediately after the questioning of defendant had begun: “Bell: I want it. For the record too, that you guys came down voluntarily to, to help us out in the investigation that we made contact at your house. “Musselwhite: Sure thing. “Bell: We offered to let you drive down here on your own but you, you know (inaudible) didn’t have a car so [you] came down with us, right? “Musselwhite: Yeah. “Bell: Okay. I just want to, I just want to show your degree of cooperation.'’’’ (Italics added.) It is on the basis of this abbreviated exchange—and particularly Detective Bell’s italicized comment above—that defendant claims his Miranda waiver was improperly induced by promises of lenity. The evidence relied on, however, is too slender to sustain that claim. As the extract from the interrogation set out above shows, Bell did no more than note for the record that defendant and his wife had voluntarily accompanied the detectives to the station house, as a means of “showing defendant’s] degree of cooperation.” The whole of Bell’s one-sentence statement is nowhere close to the half-hour of “softening-up” of the suspect we disapproved in People v. Honeycutt (1977) 20 Cal.3d 150, 160 [141 Cal.Rptr. 698, 570 P.2d 1050], on which defendant relies. Nor does it present the concerns that led the Court of Appeal to find an invalid Miranda waiver by a juvenile suspect in In re Shawn D. (1993) 20 Cal.App.4th 200 [24 Cal.Rptr.2d 395] (Shawn D.), another case defendant argues supports his involuntariness claim. There, the Court of Appeal found the juvenile’s confession to burglary involuntary because “the police repeatedly suggested that [the juvenile] would be treated more leniently if he confessed.” (Id. at p. 214.) The defendant was told that his honesty would be noted in the police report and that he would receive more lenient treatment if he “explained” his role in the robbery. The police officers also implied, unlike this case, that if the juvenile confessed to and helped recover the proceeds of the burglary, they would intervene on his behalf with the prosecutor: “. . . I will personally talk to the D.A. or persons who do the juvenile.” {Id. at p. 215, italics omitted.) Indeed, the opinion in Shawn D. itself distinguishes this case: “[T]his is not a case where there was merely one isolated instance in which the police implied that [defendant] would benefit from confessing. Rather, the officer continually raised this theme—from the very beginning of the interrogation—to the comments about helping the police get the property back—to the statements about [defendant] being able to see his girlfriend and baby—to the hypothetical about the bank robber—to [the officer’s] statement that, ‘Seriously, you help us get the stuff back and I will personally talk to the D.A. or persons who do the juvenile.’ The promise of leniency in exchange for a confession permeated the entire interrogation.” (20 Cal.App.4th at p. 216, italics added.) Not only was Detective Bell’s statement—that he wanted the record to show defendant’s “degree of cooperation”—too brief and insubstantial to qualify as an inducement, it conveys no suggestion of any benefit in exchange for defendant’s “cooperation.” If defendant’s waiver of his Miranda rights was otherwise knowing, intelligent, and voluntary, it was not invalidated by the single comment seized on by defendant under this heading. 3. Misrepresentation of Miranda rights as a “technicality.” Defendant also argues that his Miranda waiver was invalid because Detectives Bell and Reed misrepresented the rights conferred on criminal suspects by the Supreme Court’s Miranda decision, suggesting they were an unimportant “technicality.” That representation, defendant claims, misled him into devaluing the importance of the rights conferred on criminal suspects by the Supreme Court’s Miranda decision. Had he understood the value of remaining silent during police questioning and of requesting the assistance of an attorney, defendant argues, he would not have waived his Miranda rights. We agree with the proposition that evidence of police efforts to trivialize the rights accorded suspects by the Miranda decision—by “playing down,” for example, or minimizing their legal significance—may under some circumstances suggest a species of prohibited trickery and weighs against a finding that the suspect’s waiver was knowing, informed, and intelligent. The evidence here, however—and it is slender—does not approach that standard. The sum and substance of the alleged “misrepresentations” concerning the importance of defendant’s Miranda rights consists of the following single brief statement, made by Detective Bell immediately before advising defendant of his rights: “Bell: Well, we don’t know what you know and what you don’t know and so, what we’d like to do is just go ahead and advise you of your rights before we even get started and that way, that there’s no problem with any of it. Is that alright with you?” Detective Bell’s comment was not only required as a matter of constitutional law, but was an accurate statement of the office of the constitutionally derived Miranda warning, a “prophylactic” against the danger of inculpatory statements by an uninformed suspect. (Michigan v. Tucker (1974) 417 U.S. 433, 446 [94 S.Ct. 2357, 2365, 41 L.Ed.2d 182].) Nor was the form Detective Bell’s comment took objectionable; the required warning need not be given as a “talismanic incantation.” (California v. Prysock (1981) 453 U.S. 355, 359 [101 S.Ct. 2806, 2809, 69 L.Ed.2d 696].) As the trial court found after viewing the videotape of the questioning and hearing the suppression argument of defendant’s lawyers, “it is obvious that Mr. Mussel-white knew he was there to discuss the incident that occurred in the apartment house . . .he’s placed into a room where he’s . . . begun to be questioned by two detectives ... he certainly would have taken it serious. ... [^[] ... He seemed to me to be taking it seriously. . . . HQ • • • [H]e was aware of all the implications of Miranda.” Last, of course, nowhere does Bell actually use the word “technicality” or words to that effect. . We agree. Given the brevity, as well as the accuracy, of Detective Bell’s statement, the fact that the officers never described the Miranda warning as a “technicality” or used similar words, the absence of similar comments during the course of the questioning, defendant’s record of police encounters as evidenced by two prior felony convictions, the likelihood he was aware he was a suspect in a murder investigation (an awareness drawn from an unexpected police contact at his apartment and reflected in the several lies he told the officers when he was initially questioned), we conclude the record fails to support defendant’s claim that the importance of his Miranda rights was misrepresented by the detectives and that he was thereby “tricked” into waiving them. 4. Refusal to cease police questioning at defendant’s request. Defendant next contends that his Miranda rights were violated when Detectives Bell and Reed refused to cease their questioning after he invoked his right to halt the interrogation. As Miranda itself recognized, police officers must cease questioning a suspect who exercises the right to cut off the interrogation. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Miranda. supra, 384 U.S. at pp. 473-474 [86 S.Ct. at p. 1627].) “Whether the suspect has indeed invoked that right, however, is a question of fact to be decided in the light of all the circumstances . . . .” (People v. Hayes (1985) 38 Cal.3d 780, 784 [214 Cal.Rptr. 652, 699 P.2d 1259].) We have also said that “ ‘[a] desire to halt the interrogation may be indicated in a variety of ways,’ ” (id. at p. 784) and that the words used “ ‘must be construed in context.’ ” (Id. at pp. 784-785.) In the context presented here, Detectives Bell and Reed were attempting to determine whether defendant was in the apartment complex where Norma Painter’s body was found on the day of her murder. The detective said to defendant: . . Okay, we’re talking deadly serious stuff here partner. We’re through, we’re through bantering around. We’re going to have to get down to the facts. Okay. The fact of the matter is, you’re going to have to think very clearly right now. You got to think what’s best for me. Am I in a bind or what. Now what do these guys know and what don’t they know. If they got enough to do me, what’s my best thing to do. What’s best for me.” To this statement, defendant replied, “I don’t know what you, I don’t want to talk about this. You all are getting me confused, (inaudible) I don’t even know what you’re all talking about. You’re getting[,] you’re making me nervous here telling me I done something I ain’t done. Kill somebody, come on, give me a break.” (Italics added.) Detective Reed answered: “What we are telling you is that, that we do know . . . you were in that, in the complex, okay? That’s all. I mean it’s no big deal if you’re honest with us. But what makes us suspicious is if you continue to say that you weren’t there.” “Walking all over the place,” defendant replied, “walking up and down roads.” “Right on, there you go,” said Detective Reed. “Okay, do you cut through complexes?” “Not unless there’s a parking lot and I got to get to a plaza or something,” defendant answered. “That’s the only time?” Detective Reed asked. “Yeah,” defendant answered. Reed replied, “Okay, well that’s a start. Let’s say you cut through the parking lot. Okay.” “I didn’t have to,” defendant said. After viewing the videotape of the police interview, the trial court concluded there was no evidence of an attempt by defendant to cut off police questioning: “I don’t -see any evidence in the way that the defendant was acting or in the way he was responding, that he was asking to end that interview, as far as I was concerned, and when I looked at the tape. So I don’t think that’s a request to terminate.” We give considerable weight, of course, to such a finding by the trial judge. In this case we agree with it. There are a number of cases in which this court and the Court of Appeal have reviewed the findings of the trial court that what is claimed, post hoc, to be a suspect’s attempt to invoke his Miranda right to remain silent and cut off further questioning is something less or other than that. (See, e.g., People v. Davis (1981) 29 Cal.3d 814, 823-824 [176 Cal.Rptr. 521, 633 P.2d 186] [single statement by defendant during polygraph that he did not want to answer a question was not an assertion of Miranda rights]; People v. Jennings (1988) 46 Cal.3d 963, 977-978 [251 Cal.Rptr. 278, 760 P.2d 475] [defendant’s statement, after assailing questioning police officer, that “‘I’m not going to talk’. . . . ‘That’s it. I shut up’ ” reflected “only momentary frustration and animosity” toward one of the officers and was not an invocation of his right to remain silent]; In re Joe R. (1980) 27 Cal.3d 496, 516 [165 Cal.Rptr. 837, 612 P.2d 927] [in context, defendant’s statement, “ ‘That’s all I got to say’ ” or “ ‘That’s all I want to tell you,’ ” did not amount to assertion of right to remain silent]; People v. Silva (1988) 45 Cal.3d 604, 629 [247 Cal.Rptr. 573, 754 P.2d 1070] [defendant’s statement, “ T really don’t want to talk about that,’ ” did not amount to invocation of Miranda).) This is another such case. B. Fourteenth Amendment Voluntariness Issues 1. Police deception concerning evidence. While Detectives Bell and Reed questioned defendant, police forensics personnel were attempting to lift fingerprints from the body of Norma Painter through the use of lasers. Although it appears the detectives did not have the forensics reports in hand at the time of their interview (which in any event were negative for fingerprints), they nevertheless told defendant that his prints had been lifted from the victim’s skin, including her neck. These misrepresentations, defendant argues, made his confession the product of a species of coercion. We disagree. Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary. (People v. Thompson (1990) 50 Cal.3d 134, 167 [266 Cal.Rptr. 309, 785 P.2d 857].) Rather, there must be a proximate causal connection between the deception or subterfuge and the confession. “A confession is ‘obtained’ ... if and only if inducement and statement are linked, as it were, by ‘proximate’ causation. . . . The requisite causal connection between promise [or deception] and confession must be more than ‘but for’: causation-in-fact is insufficient.” (People v. Benson (1990) 52 Cal.3d 754, 778 [276 Cal.Rptr. 827, 802 P.2d 330].) Here, defendant argues, the detectives “made up stories about evidence, including that fingerprints could be taken off skin, and clearly misled [defendant]. This deception must be taken into consideration in determining whether the confession was voluntary under the totality of the circumstances.” We agree with the assertion, as far as it goes, that police deception is a factor to be taken into consideration in determining the voluntariness of a confession. Here, however, the circumstances in which the statements were made by the detectives to defendant, as well as the statements themselves, fall short of what is required to make out a case of prejudicial deception. Assuming it is true that current laser technology is incapable of successfully lifting identifiable fingerprints from a corpse, it does not follow that telling a murder suspect in the course of questioning that his prints had been lifted from the neck of the homicide victim “caused” him to confess. The link between inducement and statement in this case, in other words, falls short of being “proximate.” 2. Threats to defendant’s wife. Defendant also contends that, during their questioning of him, Detectives Bell and Reed made threats against his wife. The portion of the transcript of the interview on which defendant relies (set out below) comes after he had already confessed to murdering Norma Painter. “Musselwhite: Where’s my wife? Still here? “Bell: I think so. I’ll let you talk to her as soon as we get through here, Joe. As soon as we get, you come a long way. You might as well clear it all up.” After providing the detectives with additional details surrounding the Painter murder, defendant said: “Musselwhite: Got to see my wife first. Man, let me see my wife. “Bell: Alright. Like I say, well right now, tell me about the video store, Joe. “Musselwhite: I want to see my wife. “Bell: Okay. I have only one question, Joe, before I go. I don’t understand why you hit the lady in the video store. I mean, was she starting to scream too? There’s got to be a reason for it, Joe. You didn’t just do it out of cold-blood, what was it? “Musselwhite: She was trying to get away from me. “Bell: She was trying to ran out the store? “Musselwhite: No, she was trying to get in the other door cause there was people out front. I want to see my wife. “Bell: Let me talk, have you concluded? “Musselwhite: Want to tell .... “Bell: You want to tell her? “Musselwhite: Yeah. “Bell: Okay. “Musselwhite: (Inaudible) “Bell: He wants to talk to his wife. (Door opens, Reed returns) “Reed: Sure, no problem. “Bell: What I going to do, why don’t we turn this tape off, let him talk to her. “Reed: Okay.” This exchange, defendant argues, demonstrates that the detectives’ refusal to allow him to speak to his wife implied that if he did not confess, they might never release her. “[T]here were implied threats,” defendant asserts, “to [his] wife.” He was thereby induced to complete his confession to the murder of Norma Painter and to confess to the video store robbery. The trial court rejected a similar argument—casting the exchange between Detective Bell and defendant not as a threat to defendant’s wife, but as a reward to defendant himself for his cooperation. It found that “[i]t was the defendant who asked to speak to his wife .... I don’t view that as a request to terminate the proceedings. I didn’t view that as a request for an attorney or for help. I simply don’t think it rises to that level.” Although the trial court focused on the question whether defendant’s request to see his wife amounted to an indication that he wanted the questioning to cease, we agree that the exchange equally fails to present a factual basis for a finding that the detectives threatened either defendant or his wife, offered a reward for his cooperation, or otherwise rendered defendant’s waiver of his rights under Miranda and his subsequent confession involuntary. Defendant had already confessed to killing Norma Painter; it was he who raised the question of seeing his wife, not the detectives. Moreover, nothing in the record suggests that Mrs. Musselwhite wás under any official constraint; she appears to have accompanied her husband to the stationhouse and waited there while he underwent questioning. The fact that Detective Bell tied up a couple of loose ends left hanging during previous questioning before acceding to defendant’s request to see his wife does not render his statements involuntary. (People v. Howard (1988) 44 Cal.3d 375, 394 [243 Cal.Rptr. 842, 749 P.2d 279]; People v. Thompson (1980) 27 Cal.3d 303, 327 [165 Cal.Rptr. 289, 611 P.2d 883]; In re Shawn D., supra, 20 Cal.App.4th at pp. 213-214.) In short, evaluating the circumstances of the police questioning of defendant in its totality, we conclude it falls short of rendering his confession to the murder of Norma Painter involuntary in any constitutionally meaningful sense. C. Denial of Motion to Sever Defendant contends the trial court committed reversible error when it refused to grant his pretrial motion to sever the capital counts arising from the Painter murder from the robbery, assault, and attempted murder charges filed in connection with the Video Mart incident that occurred a week earlier. Specifically, defendant argues that the evidence supporting the charges stemming from the video store incident and the injuries to the store clerk, Shawn May, was especially inflammatory, so much so that it prejudiced defendant in the eyes of the jurors when it came to consider the capital murder charge arising out of the killing of Norma Painter. That inflammatory evidence, defendant contends, coupled with the strength of the prosecution’s case on the robbery and assault charges, made the trial court’s refusal to sever the counts a denial of due process. Section 954 provides that two or more offenses of the same class may, in the discretion of the trial court, be consolidated for trial. Robbery and murder are the same class of crime; both involve a common element of assault on the victim. (People v. Lucky (1988) 45 Cal.3d 259, 276 [247 Cal.Rptr. 1, 753 P.2d 1052]; cf. People v. Balderas (1985) 41 Cal.3d 144, 170 [222 Cal.Rptr. 184, 711 P.2d 480].) The threshold requirements for joinder under section 954 were thus met here. That circumstance, however, is not the end of the story. Severance may nevertheless be constitutionally required if joinder of the offenses would be so prejudicial that it would deny a defendant a fair trial. (See, e.g., Williams v. Superior Court (1984) 36 Cal.3d 441, 447 [204 Cal.Rptr. 700, 683 P.2d 699].) And where, as in this case, one of the charged crimes is a capital offense, it is important that a reviewing court “consider the [joined] cases both separately and together in order to fairly assess whether joinder would tend to produce a conviction when one might not be obtainable on the evidence at separate trials.” (Id. at p. 454; People v. Balderas, supra, 41 Cal.3d at p. 171.) We review the denial of a motion to sever under an abuse of discretion standard, assessing the trial court’s exercise of discretion “in light of the showings then made and the facts then known. [Citations.]” (People v. Balderas, supra, 41 Cal.3d at p. 171, italics added.) In Williams v. Superior Court, supra, 36 Cal.3d at pages 452-454, we described in detail the factors through which the trial court’s exercise of discretion is channeled: whether evidence of the crimes to be tried jointly would or would not be cross-admissible; whether some of the charges are unusually likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case (or with another weak case), so that a “spillover” effect from the aggregate evidence on the combined charges might alter the outcome as to one; and whether any of the joined charges carries the death penalty. (See also Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135 [172 Cal.Rptr. 86]; People v. Davis (1995) 10 Cal.4th 463, 508 [41 Cal.Rptr.2d 826, 896 P.2d 119]; Frank v. Superior Court (1989) 48 Cal.3d 632, 639 [257 Cal.Rptr. 550, 770 P.2d 1119]; People v. Balderas, supra, 41 Cal.3d at pp. 171-173.) The burden of demonstrating an abuse of discretion rests with the party seeking severance—here defendant—who must “ ‘clearly establish’ ” a “ ‘substantial danger of prejudice requiring that the charges be separately tried.’ ” (People v. Davis, supra, 10 Cal.4th at p. 508; People v. Balderas, supra, 41 Cal.3d at p. 171.) At the hearing on defendant’s motion to sever the counts, Judge Ridgeway expressed what he called a “gut reaction” that the evidence was not cross-admissible. He found, however, that while cross-admissibility “is one factor the Court should definitely consider, it is not controlling.” That was also true, the trial court found, with respect to the capital nature of the Painter murder count. “Granted, it’s a capital—one’s a capital case and one is a non-capital case, but that doesn’t seem to be that controlling when I view the cases . . . .” To the trial judge, the decisive considerations against severance were the other two factors—whether the evidence supporting one of the charges was unusually inflammatory, and whether the prosecution had joined a weak case with a strong one. “I don’t view this as a weak versus strong case, at least based on what I’ve seen and heard so far,” he stated. Nor did the court regard the evidence on the video store robbery counts as especially inflammatory, at least when viewed in light of recent case law from this court affirming denials of requests for severance. It is true the photographic evidence of Shawn May’s injuries was gruesome, but no more so than the photographs of Norma Painter’s body after she had been fatally beaten, strangled and stabbed. We cannot conclude that the evidence in the robbery, assault, and attempted murder case was more lurid and inflammatory than similar evidence in the murder case. The same is true of defendant’s claim that Shawn May’s eyewitness identification was especially prejudicial in the sense it amounted to the joinder of a strong case with a weak one. Defendant had given a confession to the murder of Norma Painter, the People would seek its admission into evidence at trial, and the defense would acknowledge that defendant was the killer. Shawn May’s eyewitness identification of defendant would thus have added little to an already very substantial, indeed overwhelming prosecution case, one that included fingerprints and testimony placing defendant at the model apartment minutes before Painter was murdered. In any event, error in denying severance could not have prejudiced defendant, given his defense as it unfolded at trial. In its case-in-chief, the defense called a psychiatrist to present expert testimony designed to establish the existence of a brain disorder and its effect on defendant’s conduct, including the killing of Norma Painter. As part of that testimony, defense counsel elicited from the witness—Dr. Rosenthal—a detailed account of defendant’s criminal history, up to and including the “spree” of felonies committed in the two weeks culminating in the Painter murder: an escalating abuse of crack cocaine, the robbery and assault on Shawn May at the video store, two other video store robberies, one involving a rape, and, last, the murder of Norma Painter. Although the direct and cross-examination of Dr. Rosenthal did not explore, fully and directly, the identical details presented by Shawn May’s testimony, it touched repeatedly on the extent to which defendant’s conduct revealed a capacity to deliberate or its absence. Given that line of inquiry, evidence supporting the robbery and assault charge could have been, and to some extent was, properly admitted into evidence on the capital murder charge. We also conclude, albeit in hindsight, that the evidence supporting the video store robbery would in all likelihood have been admissible at the trial of the capital murder charge, given the mental defense tendered by defendant and the manner in which it was presented to the jury. As noted, the defense to the capital murder charge was defendant’s claim that he suffered from a functional brain disorder which caused him to kill on impulse and without deliberation. The detailed testimony of Shawn May describing defendant’s conduct at the video store—recounted in part above (ante, at pp. 1227-1228.)—impaired the credibility of that defense. May testified that after entering the video store, defendant browsed through the tapes until the two were alone. After furtively dropping a dollar bill on the floor, defendant denied it was his, leading May to open the cash drawer. Then, knife in hand, he assaulted May, forcing her to lock the store entrance. He then diverted any suspicion that might have been aroused by an unanswered ringing telephone, taking the call himself and devising an intelligent, on-the-spot deception. The ensuing escape plan defendant then executed also displayed intelligent planning and improvisational resourcefulness. The Attorney General’s brief aptly sums up the likely effect of this evidence on the jury in resolving defendant’s claim that he was afflicted with a mental disorder that made him incapable of deliberation and that he killed on impulse: “This evidence demonstrated planning, weighing of alternatives, imagination, sophisticated deception, role playing, and response to the situation as it developed. These are all indicators, one week before the murder, of a lack of the extensive brain damage [defendant] was trying to establish .... [I]t would have been highly relevant on rebuttal.” To this line of reasoning, defendant responds that, had his pretrial motion to sever the Painter from the Shawn May counts been granted, the tactical situation facing the defense would have been changed significantly. Indeed, it might even have led, defendant argues, to a decision by the defense to forego altogether the mental defense it actually adopted in the aftermath of the trial court’s denial of the motion to sever. Evaluating the merits of the trial court’s exercise of discretion retrospectively, however—in light of what occurred at the trial on the joined counts—is inconsistent with our statement in People v. Balderas, supra, 41 Cal.3d at page 171, that we review the trial court’s disposition of a motion to sever in light of the circumstances known to the trial court at the time it ruled. Rejecting a similar post hoc claim by Balderas that the trial court had erred by denying a pretrial severance motion, we said that “[w]e cannot accept defendant’s argument, since it depends on events which occurred at trial and would not necessarily have been apparent at the time the issues of severance . . . were decided.” (Id. at p. 172.) Although defendant’s argument here is the obverse of the defendant’s argument in Balderas, the operating principle is identical: On review, the merits of the severance motion must be assessed from the perspective of the trial court at the time it ruled, rather than in light of subsequent events at trial. Defendant makes a final claim, pendent to the severance issue, that given the possibility of a prejudicial spillover from those counts to the capital charge, the trial court should have given an instruction limiting the use the jury could make of the video store robbery evidence to those three related counts. Because that evidence was highly relevant to defendant’s defense to the capital murder charge, however, it would have been error of constitutional magnitude had the jury been instructed that it could not consider the video store robbery and assault evidence as it bore on defendant’s mental state defense. And, again, given the nature of the defense, the details of the video store robbery were not “prejudicial” in the sense in which that word is used in this context: They were not the sort of factual details “ ‘ “uniquely tending] to evoke an emotional bias . . . which has very little effect on the issues.” ’ ” (People v. Garceau (1993) 6 Cal.4th 140, 178 [24 Cal.Rptr.2d 664, 862 P.2d 664].) Instead, the evidence was material to defendant’s claim that he lacked the capacity to deliberate. D. Refusal to Give Defendant’s Pinpoint Instruction on Mental Disorder At the guilt phase instructions conference, defense counsel requested that the court give the jury the following special instruction: “If the evidence shows that the defendant was suffering from a mental disturbance, mental disorder or mental dysfunction at the time of the alleged offense, the jury should consider this evidence in determining whether the defendant engaged in premeditation or deliberation, as those terms have been defined for you, or harbored malice aforethought, [ft] If from all the evidence, you have reasonable doubt whether defendant formed those mental states you must give the defendant the benefit of the doubt and find he did not have such mental state.” The trial court declined to give defendant’s proposed special instruction. Instead, it read to the jury the following instruction, the text of which had been agreed upon by both the prosecutor and defendant’s attorneys: “Evidence has been received regarding a mental disease, mental defect, or mental disorder of the defendant at the time of the crime charged in the Information. You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crimes charged in Counts One and Seven, to wit, murder and attempted murder.” Relying upon our opinions in People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847] and People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885 [123 Cal.Rptr. 119, 538 P.2d 247, 92 A.L.R.3d 845], defendant argues that because his proposed instruction “pinpointed” the crux of his defense and related the reasonable doubt standard of proof to particular elements of the offenses charged, he was entitled to have it given to the jury. Moreover, he argues, the instruction actually given by the trial court was flawed: Counts 1 and 7 of the information charged defendant with murder of the first degree (count 1) and nonpremeditated attempted murder (count 7), that is, attempted murder with malice aforethought only. Because the only mental element common to both of these offenses was malice aforethought, defendant’s argument runs, a conscientious jury could well have reasoned, in light of the specific instruction given, that it could consider the evidence of defendant’s mental state only to negate his capacity for malice. The specific prejudice resulting from such an incomplete instruction, defendant argues, was that the jurors might have concluded they were barred from relying on evidence of defendant’s mental impairment or incapacity to negate the premeditation and deliberation elements of the first degree murder charge. Because defendant’s only real defense to count 7 was that his capacity to premeditate and deliberate was substantially impaired by a functional brain disorder compounded by crack cocaine abuse, the practical effect of the trial court’s refusal to give defendant’s version of the pinpoint instruction was the denial of the opportunity to present his theory of the case, an error that, under the circumstances, violated the Sixth Amendment and was reversible per se. Considered in their totality, however, the instructions were adequate. As we said in People v. Castillo (1997) 16 Cal.4th 1009, 1016 [68 Cal.Rptr.2d 648, 945 P.2d 1197], “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” (Quoting People v. Burgener (1986) 41 Cal.3d 505, 538 [224 Cal.Rptr. 112, 714 P.2d 1251]; id. at p. 539 [“ ‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’”]; see also People v. Chavez (1985) 39 Cal.3d 823, 830 [218 Cal.Rptr. 49, 705 P.2d 372] [“[W]e must look to the entire charge, rather than merely one part, to determine whether error occurred.”]; People v. Noguera (1992) 4 Cal.4th 599, 630-631 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) The jury was instructed that “in the crime[] of murder, the necessary mental states are malice aforethought, premeditation, and deliberation. fl[] In the crime of attempted] murder, the necessary mental state is express malice aforethought, namely, a specific intent to kill unlawfully another human being.” A mere three paragraphs later, the trial court instructed the jury that “[ejvidence has been received regarding a mental disease, mental defect, or mental disorder of the defendant at the time of the crime charged in the Information. . . . [ft] . . . You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crimes charged in Counts One and Seven[,] to wit, murder and attempted murder.” The instructions also explained to the jury, however, that “[i]f the evidence shows that the defendant was intoxicated by drugs or alcohol at the time of the alleged crime, you should consider that fact in determining whether the defendant had such specific intent or mental state,” and that “[i]f from all the evidence you have a reasonable doubt whether the defendant formed such specific intent or mental state, you must find that he did not have such specific intent or mental state.” Finally, in its closing guilt phase argument to the jury, the defense pointed out, “[Ojne of the things that you have to do is look at all the evidence and make a determination for yourself as to whether or not you think the evidence is such that the intoxication and/or mental disease was sufficient at the time that Norma Painter died, that Mr. Musselwhite was unable to even form malice. [1Ü • • . And the burden is on the People that they not only have to prove Mr. Musselwhite is guilty, but they have to prove beyond a reasonable doubt that the death, the death of Norma Painter, was not as a result of such disorder.” The jury instructions as a whole, we conclude, adequately informed the jury that it could consider the evidence of defendant’s mental disease or defect in deciding whether the People had carried their burden of proving the mental elements of first degree murder beyond a reasonable doubt. E. Duty to Instruct Sua Sponte, in Felony-murder Prosecution, on Simultaneity of Killing and Specific Intent to Commit Underlying Felony Defendant contends that under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution, the trial court was under a sua sponte duty to instruct the jury that in a capital prosecution based on the felony-murder doctrine, the People are required to prove that the killing and defendant’s intent to commit the underlying felony occurred concurrently. As counsel formulates the requirement, even without a request, the jury should have been instructed that “the specific intent required for felony murder (to commit a burglary or robbery) had to exist concurrently with the act (the killing) for [defendant] to be found guilty on that theory.” Defendant points out that the trial court gave the jury a similar instruction with respect to the other counts charged. Because the felony-murder doctrine incorporates the specific intent required for the underlying felony, the argument runs, a “concurrent event” instruction was required here. We conclude that the instructions given the jury taken as a whole adequately covered defendant’s point. As read to the jury, CALJIC No. 8.21 required that the killing occur “during the commission or attempted commission of the crime of burglary or robbery,” a requirement that in its turn required proof that defendant had the specific intent to commit burglary or robbery. In addition, CALJIC No. 3.31 as read to the jury stated that the crimes of burglary and robbery