Full opinion text
Opinion KENNARD, J. A jury convicted defendant Bryan Joseph Mincey of first degree murder (Pen. Code, § 187; all statutory references are to the Penal Code unless otherwise indicated), three felony counts of endangering a child (§ 273a, subd. (1)), and two misdemeanor counts of endangering a child (§ 273a, subd. (2)). The jury found to be true a special circumstance allegation that the murder was intentional and involved the infliction of torture. (§ 190.2, subd. (a)(18).) Defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We reverse the misdemeanor convictions for endangering a child (counts 5 and 6), but otherwise affirm the judgment, including the death penalty. I. Guilt Phase Facts Defendant was Sandra B.’s boyfriend. Defendant and Sandra were jointly charged with the murder of Sandra’s five-year-old son, James; the special circumstance allegation of torture murder, however, was against only defendant. Defendant and Sandra were also charged with five felony counts of endangering a child. Three of those counts related to the victim; the remaining two counts involved the victim’s four-year-old sister, Wendy. The trial court granted Sandra’s pretrial motion for severance, and the case proceeded to trial against only defendant. A. Prosecution Evidence 1. Prior Incidents On the morning of June 20, 1981, San Bernardino County Deputy Sheriff Dana Williams went to an apartment in Fontana, where defendant lived with Sandra B. and her two young children, James and Wendy. Defendant, who was holding a table leg, was arguing with Sandra in the front yard. James had a bloody nose and cuts around his mouth, and Wendy’s two lower front teeth were missing. Defendant told the deputy that he and Sandra had been fighting because she did not want him disciplining the children. He denied having hit or kicked James, but admitted hitting Sandra after she hit him in the head with a brick. Defendant’s head was red and swollen, and he had scratches on his chest. Defendant also admitted throwing a container of 500 capsules of “speed” into a nearby field. According to defendant, the capsules belonged to Sandra. Nearly two years later, on April 14, 1983, Deputy Williams again responded to a call about a fight between defendant and Sandra B. Defendant had a cut over his eye. James had bruises over his body, and large bumps and black and blue marks on his head. Sandra’s upper lip and the inside of her mouth were cut, and the left side of her head was swollen. Defendant told Deputy Williams that he and Sandra had been fighting over the disciplining of James. 2. The Murder of James a. Discovery of the killing At 4 a.m. on December 23, 1983, the fire department responded to a call from Sandra B.’s neighbor. The neighbor had been awakened by Sandra, who was crying, screaming, and knocking on the neighbor’s apartment door. After entering Sandra B.’s apartment, Firefighter Gary Becks saw Sandra lying on a bed next to five-year-old James. The child was wet and wrapped in a blanket; he was dead. Sergeant Patrick McCurry testified that after defendant had been placed in the back of a police car, defendant said: “I don’t know what the big deal is. The kid croaked. That’s all I know.” Defendant’s blood test (taken at 6:15 that same morning) indicated .12 micrograms per milliliter of amphetamines. b. Physical evidence Both inside and outside the apartment, the police found a substantial amount of physical evidence relating to the murder of James. Outside the apartment was a board with blood and fecal material. The blood was consistent with James’s blood. In the living room was a leather belt with metal grommets and feces. There was also feces on a plastic cup near the television. Two small pillows in a trash can in the kitchen had bloodstains that were consistent with the blood types of the victim and his mother, Sandra B. In the bedroom were a pile of wet, bloodstained children’s clothes and a fan belt with human blood on it. Additional items of evidence found in the bedroom consisted of clumps of brown hair, consistent with the hair of the two children; a fan belt; adult-size jeans with a light bloodstain; a leather cartridge belt; and an adult-size plaid shirt with a bloodstain consistent with defendant’s blood type. Throughout the bedroom were blood smears and water-diluted blood; curtains in the linen closet had blood that was consistent with James’s blood type. c. Medical evidence Dr. Irving Root performed the autopsy on James’s body. He concluded that massive blunt-force injuries were the cause of death. The shock of repetitive injuries and the tearing of tissues led to chemical imbalances that resulted in the stoppage of the intestinal tract and swelling of the brain. James’s body had hundreds of injuries, virtually all of which could have been inflicted within 24 to 48 hours of death. There were numerous abrasions and bruises on James’s face and head. His back had a number of abrasions, including four straight lines on the left side of his neck and shoulders. The backs of his hands were bruised, and there was a band of bruises across his waist. James’s hips, thighs, knees, legs, and feet also had a number of bruises and cuts. The penis and the right side of the scrotum were bruised. The mucous membrane of the anus was torn, and there was a tear inside the rectum two to three inches from the opening of the anus. Inside the buttocks, a pocket of tissue was torn where it had been sheared across itself. Dr. Root testified: “Injuries of that sort [shearing and tearing injuries producing a pocket of tissue under the skin] are the kinds of things I see in the automobile accidents. Shearing of tissue against tissue, of tearing. It takes a substantial amount of force to cause that kind of injury.” In Dr. Root’s opinion, many of the bruises could have been caused by a hand hitting James. The shearing of the buttocks, however, could not have been done by hand. Of the physical objects recovered from the scene and shown to Dr. Root at trial, the board was the only object that could have caused the injury to James’s buttocks. The tear in the outside of the anus and in the tissue of the buttocks could have been caused by the edge of the board being forced between the thighs and then pushed towards the anus. The amount of force required would have to have been substantial. The edge of the board could also have caused a number of the straight-line injuries on James’s back. Repeated blows with the cartridge belt could have caused the bruising over the buttocks and thighs. The tear inside the rectum was consistent with an injury caused by a fingernail. Dr. Root stated that James experienced prolonged pain before his death. The amount of time between the onset of the injuries and the loss of sensation or the ability to feel pain as a result of the physiological effects of the injuries was more than a few minutes, perhaps an hour or more. Although he could not be more specific, Dr. Root explained that the metabolic changes caused by the injuries and the onset of death would have taken hours to develop, and that James’s loss of sensation of pain would have occurred 15, 30, or possibly 60 minutes before death. James’s four-year-old sister, Wendy, was examined by Dr. Max Lebow on December 23, 1983, the date of James’s murder. She showed these injuries: neck, face, and head bruises that were incurred in a period spanning two to three days to twelve hours before the examination. There were also bruises on her groin, thighs, and feet. The bruises on the thighs were less than 24 hours old. Injuries on Wendy’s back were consistent with her having been hit with a belt with “eyelets,” and the injuries to her left thigh could have been caused by a belt. Bruises on her waist could have been caused by a belt being pulled tightly around her waist; and injuries to her thigh, back of the legs, and buttocks could have been caused by a board. In Dr. Lebow’s opinion, Wendy’s injuries were too extensive to have been accidental. That was also the view of Dr. Herbert Geise, who examined Wendy five days after James’s death. d. Testimony of Wendy Wendy, James’s sister, was five years old when she testified at defendant’s trial. She said that on one occasion defendant had kicked one of her teeth out, that she and James had been whipped with a belt the night James died because she had wet the bed, and that defendant did most of the whipping. Defendant had always been mean to her. e. Interviews of defendant The police interviewed defendant three times after the killing of James. Each of the interviews was tape-recorded and played for the jury. On each occasion, defendant was advised of, and waived, his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. (1) First interview On December 23,1983, at 12:20 p.m., approximately eight hours after the murder of James was discovered, Sergeant Baker and Detective Larry Brown talked to defendant. Defendant made these statements: Defendant admitted having spanked James and Wendy during the day of the murder, but denied having whipped them that night. He had not used alcohol or drugs that night. Around 10:30 p.m., Sandra B. asked defendant to go to the store and buy some diapers. When defendant returned 15 minutes later, the children and Sandra were in the bedroom. Defendant initially stated that he was in the front room playing with the children’s Christmas toys when James started to choke and Sandra called him into the bedroom. He later stated, however, that he went into the bedroom to get his battery charger and at that time held James’s legs down on the bed while Sandra whipped James with a belt. During the whipping, James defecated and defendant sent him to the bathroom to complete his bowel movement. Thereafter, Sandra again whipped James, who again defecated in his pants. When Sandra pulled James’s pants down, the feces fell on the floor. Defendant made James pick up and taste the feces. Defendant left the bedroom. Sandra then called him, saying that James was choking. After attempting mouth-to-mouth resuscitation, Sandra and defendant put James in the shower and rolled him in a blanket. Defendant denied doing the beating that killed James; he also denied knowing anything about Wendy’s injuries, blood on the walls, or the blood- and feces-covered board the police had found. (2) Second interview Five horns after the first interview, Officer Powell and Detective Larry Brown again talked to defendant. Defendant admitted that he had lied in the prior interview about not having hit James the day of the murder. He also admitted hitting Wendy that night. Defendant insisted that Sandra B. had done the beatings, and again denied any knowledge of the board. (3) Third interview On December 26, 1983, Officer Powell and Detective Larry Brown had a third interview with defendant. Defendant accused Sandra B. of administering the fatal beatings. He continued to deny any knowledge of the board. According to defendant, Wendy and James had been sodomized by their 15-year-old cousin, and would use their own feces as a sexual lubricant. On the night of James’s murder, defendant made James taste his own feces; this was to toilet train him. Defendant admitted having whipped James and Wendy three times on the morning preceding the murder, for wetting the bed. B. Defense Evidence Three of defendant’s friends (Nicole Slapper, Michael David Brown, and Carla Brown) testified that they saw defendant use amphetamines, which caused defendant to be very angry and “wired.” The defense also presented psychological and psychiatric testimony. Dr. Craig Rath, a licensed clinical psychologist, testified that defendant had told him the following: Defendant had used amphetamines the day before James’s death. Defendant accused Sandra B. of doing most of the beatings. On the morning of James’s death, defendant spanked the children after catching them in sexual activities. At Sandra’s request, defendant went to the store to buy diapers. When he returned, James was rolled in a blanket. Defendant wanted to take James to the hospital but Sandra refused for fear of losing her welfare check. She threatened to blame defendant for James’s injuries if he took James to the hospital. She and defendant then put James, who could not stand up, in the shower to revive him. That was the first time defendant saw the injuries to James’s buttocks. When he asked, “how did his ass get that way,” Sandra replied, “I beat him while you were gone.” After placing amphetamines on James’s tongue, Sandra went out and called for medical help. Dr. Rath concluded that defendant had an IQ of 78, was functioning at the level of a 14-year-old, and was immature neurologically. In Dr. Rath’s opinion, defendant was not psychotic, he had no significant organic damage, and he did not have a major mental illness. He diagnosed defendant as having a mixed personality disorder, which he described as an “intermittent explosive disorder.” The disorder would cause accumulated psychological pressures to come to an “explosion,” leading to loss of control. According to Dr. Rath, defendant’s acts reflected a desire to punish rather than an intent to kill, and defendant probably did not know that his acts were killing James. Dr. Loma Forbes, a psychiatrist, testified to what defendant’s mother had told her about defendant’s childhood. Defendant’s father was a bmtal man who beat his children with a belt and a board, and sexually molested them. Like Dr. Rath, Dr. Forbes diagnosed defendant as having an intermittent explosive disorder. In the opinion of Dr. Forbes, defendant did not intend to torture James and did not intend to kill, but did intend to participate in punishing him. Defendant was not psychotic and was not suffering from amphetamine psychosis. Dr. Anthony Oliver, a psychiatrist and neurologist, testified that he found no evidence of any disorder. He criticized the reports and conclusions of Drs. Rath and Forbes as inadequate. He found no evidence of organic brain damage or amphetamine psychosis. In his opinion, defendant would have been fully aware of the harm he was inflicting on James and intended to inflict the harm. Dr. Julian Beaber, a child abuse expert, distinguished torture from punishment and child abuse on the basis that the abuser has the long-term goal of controlling behavior, while the ultimate purpose of the torturer is the infliction of pain for its own sake. II. Guilt Phase Issues A. Insufficiency of Evidence Defendant contends his conviction must be reduced to second degree murder because the evidence was insufficient to establish first degree murder by torture. The essential elements of first degree torture murder are: (1) the acts causing the death must involve a high degree of probability of death, and (2) the defendant must commit the acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. (People v. Davenport (1985) 41 Cal.3d 247, 267 [221 Cal. Rptr. 794, 710 P.2d 861].) Intent to kill is not an element of the offense. (Ibid.) Defendant argues that here the only evidence of intent to torture was the condition of the victim’s body, and that as a matter of law intent to torture cannot be inferred solely from the condition of the victim’s body. He is wrong. In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Hayes (1990) 52 Cal.3d 577, 631 [276 Cal.Rptr. 874, 802 P.2d 376]; People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) As defendant points out, the severity of a victim’s wounds is not necessarily determinative of intent to torture. Severe wounds may be inflicted as a result of an explosion of violence (People v. Steger (1976) 16 Cal.3d 539, 547, fn. 3 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206]) or an “act of animal fury” (People v. Tubby (1949) 34 Cal.2d 72, 78 [207 P.2d 51]). It does not follow, however, that because the severity of the victim’s wounds is not necessarily determinative of the defendant’s intent to torture, the nature of the victim’s wounds cannot as a matter of law be probative of intent. Intent is a state of mind. A defendant’s state of mind must, in the absence of the defendant’s own statements, be established by the circumstances surrounding the commission of the offense. (People v. Davenport, supra, 41 Cal.3d at p. 270.) The condition of the victim’s body may establish circumstantial evidence of the requisite intent. “In determining whether a murder was committed with that intent [to torture], the jury may of course consider all the circumstances surrounding the killing. Among those circumstances, in many cases, is the severity of the victim’s wounds.” (People v. Steger, supra, 16 Cal.3d atp. 546; People v. Davenport, supra, 41 Cal.3d at p. 268.) Defendant’s reliance on People v. Wiley (1976) 18 Cal.3d 162, 168 [554 P.2d 881], is misplaced. In that case, this court stated: “[The defendant] correctly notes that murder by torture cannot be inferred solely from the condition of the victim’s body [citation], or from the mode of assault or injury suffered [citation], but other evidence of intent to cause suffering is also required. [Citations].” (Ibid.) This statement, however, must be read in the context of the case in which it was made. The evidence in Wiley established that the victim died as a result of trauma caused by a blunt instrument. The body had 30 fresh wounds that were inflicted by a baseball bat, the claw of a hammer, and the rounded head of the hammer. (18 Cal.3d at p. 166.) The wounds were inflicted in rapid succession. (Id. at p. 167.) In affirming the torture-murder conviction, this court reasoned that the defendant’s statements that she wanted to hit the victim on the hand and that she wanted her money back from the victim, “when considered with the manner in which the beating to [the victim] was administered,” permitted an inference of intent to cause pain. (Id. at p. 168.) Thus, when considered in context, the language from Wiley, supra, 18 Cal.3d at page 168, relied on by defendant does not preclude as a matter of law an inference of intent to torture based on the condition of the victim’s body. We have recognized, both before and after Wiley, that such an inference may be based on the condition of the body. (See e.g., People v. Davenport, supra, 41 Cal.3d at p. 268; People v. Steger, supra, 16 Cal.3d at 546; People v. Washington (1969) 71 Cal.2d 1061, 1083 [80 Cal.Rptr. 567, 458 P.2d 479], quoting People v. Butler (1962) 205 Cal.App.2d 437, 441 [23 Cal.Rptr. 118].) Here, the evidence shows that defendant beat James repeatedly over an appreciable period of time. The nature of the wounds, which themselves indicate that they were inflicted over a period of time, supports the inference that defendant intended to inflict cruel pain and suffering. Next, quoting language from People v. Sieger, supra, 16 Cal.3d 539, 548, defendant argues that his actions constituted a “misguided, irrational and totally unjustified attempt at discipline” rather than wilful, deliberate, or premeditated acts. Defendant appears to assume, erroneously so, that an intent to torture may not be legally found if a “misguided attempt at discipline” played any part in the process that ultimately led to the victim’s death. In People v. Steger, supra, 16 Cal.3d 539, which involved the fatal beating of a child, we held that the evidence established that “[t]he beatings were a misguided, irrational and totally unjustified attempt at discipline; but they were not in a criminal sense wilful, deliberate, or premeditated.” (Id. at p. 548.) Steger did not, however, hold or suggest that a child abuse homicide could not also constitute a torture murder. We specifically said in Steger. “In holding the evidence does not support a conviction of first degree murder, we do not imply, of course, that a murder of a child can never be torture murder. In appropriate circumstances a child batterer can be found to be a torturer. All we hold is that here the prosecution did not prove defendant murdered her stepchild with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.” (Id. at p. 549.) The death of a child may result from an explosion of violence, a misguided attempt at discipline, or torture, depending on the facts of the case. (People v. James (1987) 196 Cal.App.3d 272, 293 [241 Cal.Rptr. 691].) Just as child abuse can involve torture, a misguided attempt at discipline can involve an intent to cause cruel pain and suffering. There is no legal immunity from conviction for first degree torture murder because the victim happened to be a child. Defendant argues that his first degree murder conviction must be set aside because the evidence was insufficient to support the jury’s finding that he had acted with a premeditated and deliberate intent to inflict extreme and prolonged pain. In support, he cites People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942]. In Anderson we said that generally first degree murder convictions are affirmed when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill. (70 Cal.2d at pp. 26-27.) Defendant contends here there is no evidence of planning, motive, or an exacting manner of killing. Because the requisite element of first degree torture murder is the deliberate and premeditated intent to inflict torture (People v. Steger, supra, 16 Cal.3d at p. 546), rather than intent to kill (People v. Davenport, supra, 41 Cal.3d at p. 267), the issue is whether there is sufficient evidence of planning, motive, or method to inflict torture. With these considerations in mind, we now evaluate defendant’s conviction for murder by torture in light of the evidence in this case, first in the context of the trial court’s denial of defendant’s motion for judgment of acquittal at the end of the prosecution’s case-in-chief and then in the context of the jury’s decision at the guilt phase as a whole. (See fn. 3, post.) The prosecution presented evidence that the police had on two prior occasions responded to calls involving physical injuries to James. In this case, the physical evidence relating to the killing of five-year-old James included blood throughout the bedroom, belts and a board with blood and feces, and a large clump of brown hair consistent with James’s hair. Dr. Irving Root, the physician who performed the autopsy, testified that James had incurred hundreds of injuries within 24 to 48 hours of death; that he had been beaten with hands, belts, and a board; that the beating lasted hours; that James might have lost the ability to feel any sensation of pain for as much as an hour before his death; that the shearing of the tissues in James’s buttocks was caused by a substantial force being applied with a straight edge; that the tear two to three inches inside James’s rectum was not caused by the application of force outside the rectum but was consistent with a tear caused by a fingernail; and that there were puncture marks behind both of James’s knees. We conclude that the trial court properly denied the motion for judgment of acquittal. The evidence presented by the prosecution was sufficient to establish every element of the offense of murder by torture. The length of time over which the beatings occurred, the number of injuries inflicted, the variety of objects with which the injuries were inflicted, and the fact that the victim was made to eat his own feces established planning and a preconceived design to inflict cruel pain and suffering. The evidence was also sufficient to support the jury’s finding that defendant was guilty of murder by torture. In addition to the evidence that we discussed above, Dr. David Oliver testified that in his opinion defendant was aware of the harm he was inflicting on James and intended to inflict the harm. Although there was testimony by Dr. Craig Rath that defendant suffered from an intermittent explosive disorder, he also expressed the opinion that the disorder’s episodes of loss of control of aggressive impulses might be of brief duration, sometimes just seconds, often only a couple of minutes, and that, based on his review of police reports and interviews of defendant, defendant “lies all the time.” As to the latter aspect, we note that defendant’s version of the pertinent events leading to James’s killing varied in the interviews he had with the police. From the circumstances surrounding James’s death—including the number and nature of the wounds, and the length of time over which they were inflicted—and the expert testimony presented, the jury could have reasonably found beyond a reasonable doubt that defendant’s acts were premeditated and deliberate, involved a high probability of death, and were committed with the intent to cause cruel pain and suffering for a sadistic purpose. (See People v. Demond (1976) 59 Cal.App.3d 574, 585 [130 Cal.Rptr. 590].) B. Instructional Error 1. Refusal of Defense Instructions The trial court gave the jury the standard instruction defining torture murder. (CALJIC No. 8.24 (4th ed. 1979).) The court also gave this instruction: “First degree murder by means of torture under section 189 is murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain. In determining whether a murder was committed with that intent, the jury may consider all the circumstances surrounding the killing. Among those circumstances is the severity of the victim’s wounds but such evidence must not be considered to the exclusion of other evidence bearing on intent.” Defendant faults the trial court for refusing to give two instructions patterned after a statement by this court in People v. Steger, supra, 16 Cal.3d at page 548, that “the beatings were a misguided, irrational and totally unjustifiable attempt at discipline.” We disagree. A trial court must instruct on the law applicable to the facts of the case. (§§ 1093, subd. (f), 1127.) In addition, a defendant has a right to an instruction that pinpoints the theory of the defense. (People v. Wright (1988) 45 Cal.3d 1126, 1137 [248 Cal.Rptr. 600, 755 P.2d 1049].) The court must, however, refuse an argumentative instruction, that is, an instruction “of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.” (People v. Gordon (1990) 50 Cal.3d 1223, 1276 [270 Cal.Rptr. 451, 792 P.2d 251]; People v. Farmer (1989) 47 Cal.3d 888, 913-914 [254 Cal.Rptr. 508, 765 P.2d 940].) In asking the trial court to emphasize to the jury the possibility that the beatings were a “misguided, irrational and totally unjustifiable attempt at discipline rather than torture,” defendant sought to have the court invite the jury to infer the existence of his version of the facts, rather than his theory of defense. Because of the argumentative nature of the proposed instructions, the trial court properly refused to give them. With respect to the remaining portions of the two requested instructions, they were repetitive of instructions already given and therefore were properly refused. (People v. Farmer, supra, 47 Cal.3d at p. 913.) Also without merit is defendant’s argument that the trial court’s failure to give the requested instructions violated a “panoply of Federal and State Constitutional Rights.” Specifically, defendant asserts that his right to have the jury determine every material issue presented by the evidence was violated, that a critical factual issue was removed from the jury’s consideration, and that his right to present a defense was impaired. Defendant’s assertion that his acts constituted a “misguided attempt at discipline” is a factually based argument directed at an attempt to negate the element of intent. It is not a legal defense. Defendant fails to recognize this basic distinction. 2. Trial Court’s Refusal to Give Instructions on Manslaughter The trial court instructed the jury on first and second degree murder. It refused to give defendant’s proposed instructions on voluntary and involuntary manslaughter, on the ground there was no factual basis to justify such instructions. Defendant complains that the court’s refusal was erroneous for two reasons. First, defendant argues that the jury could have found him guilty of involuntary misdemeanor manslaughter, based on misdemeanor child endangerment, if it concluded that he had failed to intercede in Sandra B.’s beating of James or that he had failed to exercise due caution in disciplining James. Second, defendant asserts that the jury could have found him guilty of involuntary manslaughter because the defense testimony regarding defendant’s talcing of amphetamines at the time of the offense, his low IQ, and his “explosive personality disorder” provided a basis for the jury to determine that he did not possess the mental state required for murder. Defendant’s arguments assume either that he was not the actual killer of James or that he did not have the intent to kill. Because a trial court’s failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions (People v. Turner (1990) 50 Cal.3d 668, 690-691 [268 Cal.Rptr. 706, 789 P.2d 887]; People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913]), we need not decide whether in this case the evidence required the giving of instructions on manslaughter. Here, the trial court instructed the jury that, before it could find the special circumstance of torture murder to be true, it had to decide that defendant was the actual killer (see People v. Ross (1979) 92 Cal.App.3d 391, 403 [154 Cal.Rptr. 783]; but see § 190.2, subd. (c)) and that he had the intent to kill (§ 190.2, subd. (a)(18); People v. Davenport, supra, 41 Cal.3d at p. 271). When the jury found this special circumstance allegation to be true, it necessarily resolved against defendant the factual questions on manslaughter. C. Exclusion of Evidence Relating to Sandra B. 1. Evidence of Drug Use and Prior Child Abuse The defense offered to introduce evidence that Sandra B. had used drugs and abused her children before the beatings that resulted in James’s death. After the prosecution stated that if such evidence was admitted the prosecution would also introduce evidence of similar acts by defendant, the trial court granted the prosecution’s motion in limine to exclude the evidence because “Sandra’s abuse of the children has been conceded and testified to and is not in issue,” because introduction of the evidence would require evidence of defendant’s prior abuse to be introduced so that the complete “story” would be before the jury, and because evidence that Sandra or defendant “did certain things in the past” did not establish that Sandra or defendant “did these things in the present.” Thus, the court ruled that evidence of Sandra’s drug use and child abuse at times unrelated to the date of James’s death was improper character evidence (Evid. Code, § 1101), and was irrelevant, cumulative, and would unduly consume time (id., § 352). Defendant contends the trial court abused its discretion in granting the prosecution’s motion in limine. He asserts that the court’s ruling violated his rights to compulsory process, confrontation, and due process under both the United States and California Constitutions. (U.S. Const., Amends. VI, XIV; Cal. Const., art. I, § 15.) He also argues that he was deprived of a fair trial because the prosecution exploited the excluded evidence by comparing defendant’s culpability to Sandra B.’s culpability while preventing the jury from learning of evidence damaging to Sandra. We cannot conclude that the trial court abused its discretion in excluding the evidence under Evidence Code section 352. A trial court may exclude evidence under Evidence Code section 352 if its probative value is substantially outweighed by the probability that admission will unduly consume time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. (Evid. Code, § 352.) Cumulative evidence may be excluded on this basis. (People v. Burgener (1986) 41 Cal.3d 505, 525 [224 Cal.Rptr. 112, 714 P.2d 1251].) The court’s exercise of discretion will not be reversed on appeal absent a clear showing of abuse. (Id. at p. 526.) Here, the discussion of the evidence was limited to general references to Sandra B.’s prior abuse of the children, and was in a context in which it was clear that its admission would result in the admission of similar prior acts of defendant by the prosecution. In this situation, we cannot conclude the trial court abused its discretion in ruling that the admission of the evidence would require an undue consumption of time or create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. (Evid. Code, § 352.) Nor did the trial court abuse its discretion in concluding that the evidence would be cumulative. The evidence before the jury disclosed that Sandra B. too had abused the children. For instance, four-year-old Wendy testified that defendant did most of the “whipping” the night James died; the jury heard the tape-recorded police interview of defendant in which defendant accused Sandra B. of administering beatings; a police officer testified that, in an incident that occurred two years before the murder in this case, defendant claimed that Sandra had abused the children; and there was testimony by Dr. Rath, a clinical psychologist, that he formed the initial impression, based on his review of the reports and records before talking to defendant, that “a good deal of physical abuse of the children had taken place probably by both parties with an unknown extent by one party or the other.” Because the trial court’s ruling was not an abuse of discretion under Evidence Code section 352, we need not address the question whether the court improperly excluded character evidence under Evidence Code section 1101. Also without merit is defendant’s argument that the excluded evidence deprived him of his constitutional right to present a defense. Application of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendant’s right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99].) 2. Sandra B. ’s Invocation of the Fifth Amendment Privilege Against Self-incrimination Defendant subpoenaed Sandra B. to testify at the guilt phase of his trial. Like defendant, Sandra was charged with the murder of James. At a court hearing outside the jury’s presence (see Evid. Code, § 402) the defense questioned Sandra, who refused to respond, asserting her privilege against self-incrimination under the Fifth Amendment of the federal Constitution. Sandra informed the court that, on the advice of counsel, she would invoke the privilege in response to any question asked by defendant. The trial court denied defendant’s request to compel Sandra B. to invoke the privilege against self-incrimination in front of the jury. Defendant contends that the court’s ruling violated his constitutional rights to due process and to present a defense. He argues that Sandra’s interests could not have been infringed by telling the jury of Sandra’s invocation of her Fifth Amendment rights. He is wrong. Evidence Code section 913, subdivision (a) prohibits the trial court and counsel from commenting on a witness’s assertion of a privilege. It further provides that “the trier of fact may not draw any inference [from the assertion of a privilege] as to the credibility of the witness or as to any matter at issue in the proceeding.” And Evidence Code section 913, subdivision (b) requires the court, at the request of an adversely affected party, to instruct the jury that it may not draw any inferences from the exercise of a privilege as to the credibility of a witness or as to any matter at issue in the proceeding. The statutory prohibition applies to witnesses as well as parties litigant. Defendant’s request that the trial court compel Sandra B. to invoke the privilege in the presence of the jury was in direct violation of Evidence Code section 913. The court’s refusal to do so was therefore proper. Defendant argues that Evidence Code section 913 infringes upon his constitutional rights to due process and to present a defense. Defendant’s argument is based on his assumption that Sandra B.’s invocation of the privilege against self-incrimination would allow the jury to draw the inference that it was Sandra, not defendant, who had killed James. But, as explained below, it would have been improper for the jury to draw such an inference. A person may invoke the constitutional privilege against self-incrimination for a reason other than guilt. The privilege may be asserted, for example, simply to insure that the prosecution against a person charged with a crime is not helped by that person’s own statements. Thus, inferring guilt from the mere exercise of the privilege would be improper and is at best based on speculation, not evidence. (See e.g., People v. Frierson (1991) 53 Cal.3d 730, 743 [280 Cal.Rptr. 440, 808 P.2d 1197]; People v. Johnson (1974) 39 Cal.App.3d 749, 760 [114 Cal.Rptr. 545], quoting Bowles v. United States (D.C. Cir. 1970) 439 F.2d 536, 541-542 [142 App.D.C. 26]; see Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1966 ed.) § 913, p. 496 [Deering’s Ann. Evid. Code (1986 ed.) § 913, p. 80].) To avoid the potentially prejudicial impact of having a witness assert the privilege against self-incrimination before the jury, we have in the past recommended that, in determining the propriety of the witness’s invocation of the privilege, the trial court hold a pretestimonial hearing outside the jury’s presence. (People v. Ford (1988) 45 Cal.3d 431, 441, fn. 6 [247 Cal.Rptr. 121, 754 P.2d 168, 76 A.L.R.4th 785].) This was done here. A defendant’s rights to due process and to present a defense do not include a right to present to the jury a speculative, factually unfounded inference. (See People v. Frierson, supra, 53 Cal.3d at p. 743.) If the trial court in this case had permitted defendant to compel Sandra B. to assert the privilege in front of the jury, it would have been required, on request, to instruct the jury not to draw the very inference defendant sought to present to the jury. (Evid. Code, § 913, subd. (b).) Defendant’s reliance on United States v. Robinson (1988) 485 U.S. 25 [99 L.Ed.2d 23, 108 S.Ct. 864] is misplaced. There, the high court held that it was permissible for the prosecutor to respond to the defendant’s assertion that the government had not allowed him to give his version of events, by pointing out that the defendant had the opportunity to testify and did not do so. (Id. at pp. 26, 34.) Here, it was defendant, not the prosecutor, who attempted to “comment” on a witness’s assertion of a constitutional right, by seeking to have the jury draw an inference of guilt from Sandra B.’s invocation of the privilege against self-incrimination. We conclude that the trial court did not err in refusing defendant’s request to compel Sandra B. to invoke before the jury her privilege against self-incrimination. 3. Trial Court’s Refusal to Have the Jury See Sandra B. During the prosecution’s case-in-chief, the trial court allowed the defense to call Sandra B. as a witness out of order. After Sandra’s assertion of the Fifth Amendment privilege against self-incrimination outside the jury’s presence, the defense requested that the court permit the jury to see Sandra. The prosecution objected on the ground of lack of relevancy. The defense countered that it was relevant to the issue of whether in their relationship defendant or Sandra was the dominant personality and thus “in control of any particular incidents.” The trial court denied defendant’s request without prejudice to it being renewed during the defense case upon a showing of justification. Defendant did not renew the request. The trial court did not abuse its discretion in provisionally denying defendant’s request that the jury view Sandra B. (See People v. Gordon, supra, 50 Cal.3d at p. 1239.) The request was made during the prosecution’s case-in-chief and before the defense introduced expert testimony that Sandra rather than defendant was the dominant personality in their relationship. The trial court expressly denied the request without prejudice to its being later renewed, thus allowing the defense to again raise the issue at a later time. Even if it were erroneous, the trial court’s ruling did not prejudice defendant. The relative physical strength of defendant and Sandra B. was not a critical issue. At the time of his death, James was 45 inches tall and weighed 45 pounds. There is no question that either defendant or Sandra possessed physical strength sufficient to have killed the child. To the extent a jury view of Sandra was relevant at all, it related to defendant’s assertion that Sandra was the dominant personality in their relationship. No evidence was presented at trial that the relative physical size or strength of persons is determinative of “control.” In addition, in the opinion of Dr. Craig Rath, a clinical licensed psychologist called as a witness by the defendant, Sandra rather than defendant was the dominant personality in the relationship. Under these circumstances, the probative value of having Sandra appear before the jury was minimal. D. Challenges to Wendy’s Testimony Wendy, Sandra B.’s daughter and James’s sister, who was five years old at the time of trial, was called as a witness by the prosecution. Defendant contends that Wendy was incompetent to testify as a witness, that he was denied his Sixth Amendment right to cross-examine her, that her testimony was unreliable and thus violated both his Eighth Amendment right to a reliable guilt determination and his Fourteenth Amendment right to due process, and that the trial court erred when it failed to instruct the jury to view Wendy’s testimony with caution. We reject the contentions. 1. Competency as a Witness To determine her competency as a witness, the judge asked Wendy on voir dire whether she knew the difference between telling the truth and lying, and whether she would tell the truth in responding to questions. Wendy said “yes” to both inquiries, as well as to the question whether it would be a lie if the judge said his [black] robe was white. At that point, the judge said, “unless I have objection, [the court] is satisfied that she is a competent witness.” Wendy was then sworn as a witness. At the request of defense counsel, the trial court asked Wendy several questions relating to her memory of the night James died. Wendy did not remember that a police officer took her from her house to a hospital. She did, however, recall several events that occurred the night James died, including riding in an ambulance, seeing a doctor, and talking to people while she was with the doctor. Defendant contends that the trial court abused its discretion in concluding that Wendy was competent to testify, because the trial court’s voir dire of her was inadequate to determine whether Wendy was capable of recounting her impressions of the pertinent events, and because the court did not impress upon her that she would be punished if she did not tell the truth. As a general rule, “every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter." (Evid. Code, § 700; see Pen. Code, § 1321.) A person may be disqualified as a witness for one of two reasons: (1) the witness is incapable of expressing himself or herself so as to be understood, or (2) the witness is incapable of understanding the duty to tell the truth. (Evid. Code, § 701, subd. (a).) The party challenging the witness bears the burden of proving disqualification, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion. (Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 20 [254 Cal.Rptr. 667].) Here, the trial court—through its questioning on voir dire—ascertained that Wendy could distinguish between truth and falsity, and that she understood she had to tell the truth. The court repeatedly impressed upon Wendy the importance of telling the truth, and repeatedly extracted from her a promise that she would do so. Contrary to defendant’s assertion, an actual direct threat of punishment for not telling the truth is not a prerequisite for a trial court’s determination that a person is competent to be a witness. We have reviewed Wendy’s brief testimony. Some of her statements were inconsistent. On cross-examination, defense counsel challenged those inconsistencies and Wendy’s inability to recall some of the details of what had occurred the night of James’s death. Inconsistencies in testimony and a failure to remember aspects of the subject of the testimony, however, do not disqualify a witness. (Adamson v. Department of Social Services, supra, 207 Cal.App.3d at p. 20.) They present questions of credibility for resolution by the trier of fact. (People v. McCaughan (1957) 49 Cal.2d 409, 420 [317 P.2d 974]; Adamson v. Department of Social Services, supra, 207 Cal.App.3d at p. 20; see Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1966 ed.) § 701, pp. 9-10 [Deering’s Ann. Evid. Code (1986 ed.) § 701, pp. 331-332].) The trial court did not abuse its discretion in ruling that Wendy was competent to testify as a witness. 2. Defendant’s Other Challenges to Wendy’s Testimony Defendant’s other challenges to Wendy’s testimony do not require an extended discussion. There is no merit to defendant’s assertion that he was denied his right to cross-examination: defense counsel did cross-examine Wendy. Also without merit is defendant’s claim that his constitutional right to due process under the Fourteenth Amendment and the requirement of the Eighth Amendment that a judgment of death be based on sufficiently reliable evidence were violated because Wendy’s testimony was unreliable. Both the federal and the California Constitutions require certain procedure to ensure reliability in the fact-finding process. (Ford v. Wainwright (1986) 477 U.S. 399, 411 [91 L.Ed.2d 335, 347-348, 106 S.Ct. 2595]; People v. Geiger (1984) 35 Cal.3d 510, 520 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055].) Here, defendant was fully afforded such protections. He was given an opportunity to be heard and to cross-examine in a judicial forum. (Ford v. Wainwright, supra, 477 U.S. at pp. 413-416 [91 L.Ed.2d at pp. 348-351].) 3. Trial Court’s Failure to Give Cautionary Instruction We reject defendant’s claim that the trial court erred in failing to instruct the jury on its own motion that Wendy’s testimony should be viewed with caution. In People v. Thomas (1978) 20 Cal.3d 457, 471 [143 Cal.Rptr. 215, 573 P.2d 433], we said that the giving of such an instruction was committed to the discretion of the trial court. When, as here, the testimony of a child is involved, the trial court is under no duty to give a cautionary instruction on its own motion. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1209-1210 [275 Cal.Rptr. 729, 800 P.2d 1159]; People v. Hovey (1988) 44 Cal.3d 543, 565-566 [244 Cal.Rptr. 121, 749 P.2d 776].) E. Prosecutorial Misconduct 1. Griffin Error In his closing argument to the jury, while arguing the applicability of the instructions to the evidence presented, the prosecutor briefly discussed the instruction that a witness wilfully false in a material part of his or her testimony is to be distrusted in other parts of the testimony. After observing that defendant never admitted killing James or having the intent to kill James, the prosecutor remarked, “[Defendant] was not a witness anyway.” Defendant contends that this statement constituted improper prosecutorial comment on his exercise of the Fifth Amendment privilege against self-incrimination. Defendant did not object to the prosecutor’s remark. Its brevity and the unlikelihood of an adverse inference being drawn by the jury indicate that an objection and admonition might have cured any possible harm. Accordingly, defendant may not now raise the issue on appeal. (People v. Guzman (1988) 45 Cal.3d 915, 947-948 [248 Cal.Rptr. 467, 755 P.2d 917].) Even if properly before us, defendant’s contention is without merit. A prosecutor may not directly or indirectly comment on a defendant’s failure to testify in his or her own defense. (Griffin v. California (1965) 380 U.S. 609, 614 [14 L.Ed.2d 106, 109-110, 85 S.Ct. 1229].) But the prosecutor may comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses. (People v. Hovey, supra, 44 Cal.3d at p. 572.) Here, the prosecutor made the comment at issue in summarizing to the jury what defendant had said in the police interviews, tapes of which were played to the jury during the trial. When considered in light of the evidence before the jury and the context in which it was made, it becomes clear that the prosecutor’s statement was not directed at, and would not have been understood by the jury as referring to, defendant’s failure to testify. Moreover, even if we were to accept defendant’s characterization of the prosecutor’s remark, it was an indirect, brief and mild reference to defendant’s failure to testify as a witness without any suggestion of an inference of guilt. (People v. Hovey, supra, 44 Cal.3d at p. 572.) Such references have uniformly been held to be harmless error. Under the circumstances in this case, the error was certainly harmless beyond a reasonable doubt. (Ibid.; People v. Jackson (1980) 28 Cal.3d 264, 305 [168 Cal.Rptr. 603, 618 P.2d 149].) 2. Expression of Personal Belief in Guilt In arguing that the prosecutor improperly expressed a personal opinion or belief in defendant’s guilt, defendant points to three remarks made by the prosecutor. The first remark occurred in the prosecutor’s opening statement: “I’m not going to specifically describe to you the injuries found on James . . . Junior, the five year old boy. You’ll see the photos that have been referred to. Dr. Root’s testimony is going to be extremely extensive on that. Suffice it to say I think at the end of the case there will be no serious issue that he was actually tortured to death. You will be wrestling with much different issues by the end of the case.” In the second instance, the prosecutor said in closing argument: “If we took away the blows that Sandra . . . delivered James . . . would still be dead. If we took away the [blows] Bryan Mincey delivered the credible evidence indicates that James . . . would still very likely be alive today. So I think on that issue, it is clear that Mr. Mincey is the most legally culpable. He is the actual, based on the credible evidence, the actual physical perpetrator of the death of James . . . .” The third comment occurred later in the prosecution’s closing argument when he said: “Mr. Whitney [defense counsel] said there’s no evidence that [defendant] did everything. I thought I made it clear as many ways as I could the prosecution clearly believes and expects you to believe that Sandra . . . was involved in this beating. We believe and you should believe that [defendant] was the primary perpetrator. There are lots of reasons, but the biggest reason is Wendy’s testimony.” A prosecutor may not express a personal opinion or belief in the guilt of the accused when there is a substantial danger that the jury will view the comments as based on information other than evidence adduced at trial. (People v. Bain (1971) 5 Cal.3d 839, 848 [97 Cal.Rptr. 684, 489 P.2d 564].) The prosecutor’s comments must, of course, be evaluated in the context in which they were made, to ascertain if there was a substantial risk that the jury would consider the remarks to be based on information extraneous to the evidence presented at trial. (People v. Green (1980) 27 Cal.3d 1, 35 [164 Cal.Rptr. 1, 609 P.2d 468].) Each of the prosecutor’s remarks challenged here was specifically made in reference to evidence that the prosecutor intended to, and did, introduce at trial. Under the circumstances, there was no substantial risk that the jury would interpret the prosecutor’s remarks as referring to information other than evidence adduced at trial. 3. Prosecutor’s References to Nonphysical Torture Defendant argues that the prosecutor engaged in misconduct by referring to “nonphysical torture” in his opening statement. Defendant cites no authority to support his assertion that the mental aspects of torture are irrelevant in assessing criminal liability for torture murder. In addition to first degree murder, defendant was also charged with five counts of endangering a child. Unjustifiable infliction of physical pain or mental suffering is an element of both felony and misdemeanor child endangering. (§ 273a, subds. (1), (2).) The prosecutor’s reference to “nonphysical torture” was appropriate; it referred to matters properly within the scope of the charged offenses. 4. Misconduct During Voir Dire Defendant contends that the prosecutor engaged in misconduct during the voir dire of a prospective juror. These were the relevant remarks by the prosecutor: “To [prove that a five-year-old boy was intentionally tortured to death], I’m going to have to present some extremely unpleasant evidence. I mean, just appalling evidence. [Not] just pictures. Frankly I have attempted to elect pictures that are bad but not as horrible as they could be. [][] But you’re going to hear ... a pathologist testify and I’m going to ask him to use diagrams and show the injuries, and all of you or most of you have had some general description of the kind of injuries we’re talking about. They’re terrible. And you might think to yourself I don’t want to listen to this. Why is he presenting this awful stuff. Do you think you would do that?” Defendant asserts that the prosecutor’s statements created an improper impression that there existed evidence against defendant of a more damaging nature than the evidence that would be produced at trial. The contention lacks merit. The prosecutor’s remark was brief and the purpose of the inquiry was to ascertain whether the gruesome nature of the evidence might have an adverse effect on the prospective juror’s ability to sit as a fair and impartial juror. When the statements are read in context, it cannot reasonably be concluded that the remark would have any significant impact on the jury; and, even if error, the comment was harmless beyond a reasonable doubt. (See People v. Jackson, supra, 28 Cal.3d at p. 305.) F. Ineffective Assistance of Counsel Defendant contends that his trial counsel was ineffective for (1) not arranging to have excised from the tapes of the first two police interviews of defendant certain comments by the police about the physical evidence relating to the murder, statements attributed to Sandra and Wendy, and assertions that defendant was lying; (2) not objecting to the jury’s hearing of the tape of the third police interview of defendant; and (3) arguing against defendant’s interest. To establish a claim of ineffective assistance of trial counsel, a defendant must show by a preponderance of the evidence that the attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s conduct, the result of the proceeding would have been different. Courts must in general exercise deferential scrutiny in reviewing such claims; the reasonableness of defense counsel’s conduct must be assessed “under the circumstances as they stood” at the time of counsel’s acts or omissions; “second-guessing” is to be avoided. (In re Fields (1990) 51 Cal.3d 1063, 1069-1070 [275 Cal.Rptr. 384, 800 P.2d 862]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [233 Cal.Rptr. 404, 729 P.2d 839].) Defendant has failed to establish ineffective representation, as we shall discuss. Before the tapes of the police interviews of defendant were played to the jury, the prosecutor expressed reservations about excising from the tapes certain comments made by the police. The prosecutor explained that the comments at issue in the first two tapes were relatively brief and did add meaning to the answers given by defendant in the interviews. The defense attorney then informed the court that he and cocounsel had weighed the competing considerations in playing the tapes and decided as a matter of trial tactics to let the first two tapes be played in their entirety to the jury. Defense counsel feared that to excise from the tapes the relatively innocuous comments by the police, might lead to speculation by the jury; counsel suggested that the court handle the matter by an admonishment to the jury. Just before the first tape was played, the court admonished the jury that (1) certain portions of the tape were objectionable, (2) the defense had waived its objections because “They don’t want you to have any questions about anything that their client said during any of these interviews,” (3) the police in their efforts to elicit information from defendant made statements that were not true, and (4) any statements made by the police of what other persons had told them could not be used against defendant because they were not made under oath and defendant did not have an opportunity to confront and cross-examine those individuals. Before the second tape was played, the court gave the jury a similar but more factually specific admonition. An abbreviated admonition preceded the playing of the third tape. Defense counsel’s decision to have the tapes played in their entirety to the jury did not constitute ineffective assistance. The tapes enabled defense counsel to get defendant’s version of events before the jury without the necessity of having defendant take the witness stand and subject himself to cross-examination. (See People v. Edwards (1991) 54 Cal.3d 787, 837-838 [1 Cal.Rptr.2d 696, 819 P.2d 436].) Because defendant had steadfastly maintained in each of the three tape-recorded police interviews that Sandra B. was responsible for James’s death, defense counsel’s decision not to request that some of the police comments be excised from the tapes was a reasonable tactical choice: from defendant’s repeated denial of guilt an inference could be drawn that he was innocent of the murder of James. In any event, defendant’s statements about his overall role in the events culminating in James’s death were admissible as statements of a party. (Evid. Code, § 1220.) In contending that trial counsel argued to the jury against defendant’s interest, defendant cites certain remarks by counsel. During voir dire, defense counsel mentioned that people sometimes asked him how he co