Full opinion text
Opinion GEORGE, C. J. Following the guilt phase of the trial, a jury found defendant George Hatton Smithey guilty of one count of first degree murder (Pen. Code, §§ 187, 189), first degree robbery (§§ 211, 212.5), attempted rape (§§ 261, former subd. (2), 664), and first degree burglary (§§ 459, former 460.1). The jury found true the allegation that defendant used a deadly weapon (a knife) during the commission of these crimes. (§§ 12022, subd. (b), 12022.3, subd. (a).) The jury also found true three special-circumstance allegations—that the murder was committed while defendant was engaged in the commission of a robbery, the attempted commission of a rape, and the commission of a burglary. (§ 190.2, former subd. (a)(17)(i), (iii) & (vii).) Following the penalty phase of the trial, the jury returned a verdict imposing a sentence of death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase Evidence 1. The Prosecution Case The murder victim, Cheryl Nesler, lived in a trailer in Glencoe, California, with her six-year-old daughter, Rachel, and her four-year-old son, Ross. Her husband, Mark Nesler, had been in jail since January 1988. There was evidence she was in possession of cash at the time of the offense: Wayne Bunnell drove Cheryl to cash a welfare check on or around April 5, 1988. Cheryl also had cashed a welfare check at Láveme Fischer’s store, a short distance from Cheryl’s trailer, on or before March 15. During the first week of April, Fischer gave Cheryl smaller denominations in exchange for a $100 bill. At approximately 4:00 p.m. on April 8, defendant asked to buy some methamphetamine from his friend Linda Esposito-Swetts (Swetts), but she said she had none to sell. Defendant argued with Swetts regarding $200 he owed her. Defendant offered her approximately $44 as partial payment, but Swetts told defendant that if he did not have all her money, she did not want any of it. Defendant then left, stating: “I’ll be back with the rest of your money.” He was known always to carry a large pocketknife, which on this occasion was lying open on the front seat of his automobile, a yellow and white Dodge. At approximately 4:30 p.m. on that day, Renee Blondeau drove for approximately four miles behind a yellow automobile with a white top. The driver was male and was driving erratically. Blondeau observed the vehicle stop near the driveway to Cheryl’s home. Cheryl’s daughter Rachel observed defendant drive his vehicle up to their trailer. Cheryl came outside and talked with defendant as he sat in the vehicle. At some point, defendant exited from the automobile with a knife in his hand and went into the trailer with Cheryl. Rachel went inside and saw defendant and Cheryl in Rachel’s bedroom. Cheryl was on the bed with her feet on the floor, and defendant was on top of Cheryl. Defendant told Rachel to leave. After defendant left the Nesler property, Rachel went into her bedroom and observed her mother with blood on her neck. At approximately 5:15 p.m., Rachel came running toward Linda Contreras’s beauty shop, next door to Fischer’s store, and said: “A man had a knife and he killed my mama.” Contreras called 911 and reported this information, as well as Rachel’s description of the perpetrator’s yellow and white automobile that was headed in the direction of Mokelumne Hill, eight to ten miles away. A deputy sheriff arrived at the Nesler home at approximately 5:30 p.m. and found Cheryl Nesler dead, lying on her back on a bed, with her feet on the floor and throat slit. An autopsy indicated that death was caused by three knife wounds to the neck, causing loss of blood, aspiration of blood into the airway, and interruption of blood supply to the brain. The knife cut through the carotid artery, jugular veins, larynx, and muscles of the neck. On his way to Glencoe to investigate the reported homicide, Deputy Sheriff William Nuttall spotted defendant’s vehicle in a parking lot in Mokelumne Hill. Nuttall asked defendant for identification, and as defendant pulled a wallet from his rear pocket, a bloodstained $1 bill fell out of the same pocket. Nuttall also observed a bloody knife on the front seat. Approximately $70 and a towel consistent with others observed in Cheryl’s bathroom later were seized from defendant’s vehicle. Nuttall arrested defendant. After being advised of and waiving his constitutional rights, defendant told Deputy Sheriff Randy Grasmuck that he had visited someone in Rail Road Flat, gone to the Glencoe store to buy some beer, picked up a hitchhiker, and drove to Mokelumne Hill. When asked about the knife on the front seat of his vehicle, defendant stated that he did not own a knife and did not know of any knife in his vehicle. Defendant further denied knowing Cheryl or Mark Nesler or being at Cheryl’s home. Grasmuck could smell alcohol on defendant’s breath or person, but defendant’s speech was not slurred and Grasmuck noticed nothing in his demeanor to indicate that defendant was intoxicated. Deputy Sheriff Norman Varain drove Rachel and Fischer to Mokelumne Hill to determine whether they could identify the suspect or his vehicle. Rachel identified defendant’s vehicle as the one that had been at her house, and defendant as the man who killed her mother. Fischer recognized defendant as the man who had purchased beer at her store approximately 30 minutes before Rachel reported her mother’s death. Varain returned to Glencoe to investigate the crime scene. He found a wallet lying on top of the bedspread under Cheryl’s left arm next to her body. The wallet contained some loose change but no paper money. Two identification cards and a business card in the wallet had bloodstains on them. Varain also found a $20 bill on the floor underneath a chair in the kitchen area. Draped across the back of a chair was a leather purse with the flap open; the only money in the purse was loose change. No other money was in the trailer. A variety of forensic evidence linked defendant to the crime. Tire tracks in Cheryl’s driveway matched a tire on defendant’s automobile. The driveway gate appeared to have been rammed with a vehicle; the hinges were off and the bottom boards were broken. One board appeared to have been run over by a vehicle, and scrapes on the board matched marks on the underside of defendant’s automobile. Blood on the knife seized from defendant’s automobile was consistent with genetic markers in Cheryl’s blood and could have been contributed by one in ninety individuals. Bloodstains on a $20 bill used by defendant to buy beer in Mokelumne Hill, the $1 bill that fell from his pocket, the cards from Cheryl’s wallet, and a cigarette butt found outside Cheryl’s trailer all contained genetic markers consistent with Cheryl’s. Semen stains on Cheryl’s shirt and on defendant’s shirt were of the same genetic type as defendant’s. Another stain on defendant’s shirt contained genetic types that were the same as Cheryl’s, but foreign to defendant. 2. The Defense Case Defendant testified on his own behalf as follows. The day before Cheryl’s death, defendant worked on his automobile all day and through the night. He injected methamphetamine three times and drank beer. When morning came, defendant went to visit someone who owed him money for a set of trailer axles and steel cable, and was paid $170. Defendant later used methamphetamine with Bunnell, and then with defendant’s friend Betty Jo Allee. Around noon, defendant decided to find Swetts. He was upset because he and Swetts were very close friends, but they had been arguing because defendant owed Swetts money. When he encountered Swetts, she offered to obtain some methamphetamine so that defendant could sell it and pay Swetts the money he owed her. Defendant then injected methamphetamine he obtained from Swetts. Later that day, he tried to buy more methamphetamine from her, but she refused. Defendant offered to pay Swetts the money he owed, but she did not come to his automobile to get it. Allee testified that she noticed “quite a few” rolled up bills stuffed beside the ashtray in defendant’s automobile. When Swetts refused to sell him drugs, defendant was upset and was drinking wine. Allee and defendant met at her house a short time later, where defendant was distraught and crying. On cross-examination, Allee stated that before defendant left, he told her that he was going to get some money. Defendant further testified that he decided to go to Cheryl’s home that afternoon to explain why he had been unable to take Cheryl to visit her husband, Mark, in jail, as defendant had promised. While Mark was gone, defendant had helped Cheryl with chores and fixed her water line. He also had engaged in sexual relations with her on two previous occasions. That day, however, defendant was not thinking about having sex with Cheryl or obtaining money from her. When defendant arrived, Cheryl invited him into the trailer. Defendant’s knife was in his back pocket, and he did not remember having it in his hand when he went inside. Defendant recalled sitting with Cheryl on a bed, talking about Mark’s court case. Defendant had his arm on her shoulder. The next thing defendant remembered was standing over Cheryl, shaking her and asking her whether she was okay. Defendant saw blood all over her neck and could not get her to answer. Defendant’s knife was in his right hand; there was blood on the blade. Cheryl was not moving and appeared to be dead. Her pants were halfway down. Defendant was fully clothed. Defendant then walked out of the trailer with the open knife still in his hand. He knew Cheryl was dead but did not know why. Defendant admitted killing Cheryl, because he “was the only one who could have done it standing over there with blood on [him].” Defendant, however, did not remember killing her, looking through her wallet for money, or attempting to have sexual relations with her. He denied intending to steal anything from Cheryl or taking any money from her. As he was leaving Cheryl’s driveway, defendant heard something strike the automobile and did not realize what it was, but evidently it was the gate. The bloody knife was on the front seat of the vehicle. Approximately one-half mile from the driveway, defendant’s automobile broke down, and he pulled off the road. When defendant left Cheryl’s trailer, he intended to get help. By the time his automobile broke down, however, he did not remember that he had killed Cheryl. There was “something bugging” defendant, but he did not know what it was. After he repaired his vehicle, a man walked up and asked for a ride to Mokelumne Hill. Defendant dropped the man off before reaching the parking lot where defendant was arrested. Only when an officer detained him did defendant begin to recall that Cheryl was dead. Defendant remembered telling an officer that he did not own a knife, which defendant admitted was untrue, but did not recall other questions asked by the officer. Three defense experts testified regarding defendant’s mental deficits. Tests indicated defendant had organic brain damage, generally diffuse brain dysfunction, and mild mental retardation. Chronic users of methamphetamine such as defendant may experience impaired judgment, loss of emotional control, and memory impairment. Based upon police reports, a toxicology analysis of defendant’s blood, and the testimony at trial, ample evidence indicated defendant was suffering from classic amphetamine psychosis syndrome. Defendant also had amnesia for certain periods of time on the day of the homicide. His mental disorders caused him to be totally out of control. Absent these disorders he would not have committed this particular crime. 3. Rebuttal Psychiatrist Lee Stuart Coleman expressed his opinion that psychiatrists do not have tools that are better than those of a layperson to determine a person’s state of mind at the time of a crime. He disagreed with the various opinions and diagnoses of the defense experts, because he believed the tests they used in assessing defendant’s mental condition were unreliable. There was no evidence that defendant was psychotic, because nothing suggested he had delusions, hallucinations, or other irrational thinking or behavior. If a person is incapacitated by drugs, disease, or mental disorder, he or she will not be capable of apparently intentional acts. Medical evidence indicates that apparently intentional acts are in fact intentional. B. Penalty Phase Evidence 1. The Prosecution Case In 1966, defendant’s wife, who was estranged from him at the time, refused to go to California with defendant. He removed a gun from the glove compartment of his automobile and fired a shot past his wife into the door. She began screaming, and defendant fired his weapon once or twice into the dashboard, telling her that if she did not go with him, he would kill her. Defendant was arrested in 1968 for robbery. When apprehended, he was carrying a concealed, loaded revolver. Defendant was convicted of armed robbery and sentenced to a 60-year prison term. He escaped from prison in April 1973, and while at large, committed an armed robbery of a tavern. 2. The Defense Case An associate warden and a captain at state prisons in Tennessee testified regarding defendant’s behavior while he was incarcerated for his 1968 robbery conviction. In early April 1973, defendant was one of approximately ten inmates who escaped by cutting through a cellblock roof, making a rope ladder, and going over the wall. There was no harm or injury to prison personnel, and defendant was apprehended within two months. Defendant otherwise was a good inmate, although he had some disciplinary infractions, including possession of a prison-made knife and wine. Neither infraction was uncommon for inmates at the prison; the knife was made “more or less for [defendant’s] own defense.” Defendant never showed any aggressive behavior toward any of the other inmates. He was assigned to a plumbing and electrical maintenance crew and worked hard. He seemed a bit slow intellectually, but his mental deficiencies did not interfere with his ability to do maintenance work. From 1983 until he was paroled in 1987, defendant had no disciplinary problems. He did not participate in a riot that virtually destroyed the prison in 1985, but rather locked himself in his own cell. Defendant could relate well to both inmates and prison staff. He constantly was busy and worked on crafts, such as building items from wood and working on watches. Defendant would make a good “lifer,” because inmates with life terms have more to lose than others if they do not follow the rules. Defendant’s family worked as sharecroppers and lived in small, old houses without basic amenities such as electricity and plumbing. His mother had epilepsy and was hospitalized for approximately one year shortly after defendant was bom. When defendant was four or five years of age, he was required to do farm work. Often the family had little or no food. Defendant was a slow learner; when he was 13 years of age, a psychological evaluation indicated that his mental age at that time was 7 years. The psychologist’s records indicated that defendant was mentally retarded due to an uncertain cause, possibly brain injury. Defendant’s parents neglected and emotionally abused their children, and were physically violent with the children and with one another. Defendant’s father consumed alcohol to excess and often was jailed for alcohol-related offenses. When defendant was released from prison in April 1987, he began working with his brother and sister-in-law in their woodcutting business. Defendant wrecked two of their trucks, and was intoxicated at the time of one of the accidents. Defendant’s parole officer sent him to the county mental health department to fulfill his parole condition that he participate in a mental health program. He was not seen by a mental health professional, however, because the parole officer did not release certain papers required by the health department. Defendant’s parole was transferred to California in August 1987. His California parole officer had no contact with Tennessee officials regarding the mental health program condition of parole, and no knowledge of any steps taken in California to comply with it. Approximately one week before the murder, defendant tested positive for methamphetamine. A clinical psychologist reiterated information previously conveyed by defense experts and defendant’s sisters regarding defendant’s mental condition and background. She also testified that when defendant was between the ages of 16 and 22 years, he worked as a peddler selling fruit. He stayed in abandoned buildings and often was intoxicated. Defendant was married at the age of 22 years and fathered a child. He worked in a lumberyard and sawmill, and sometimes in the oil fields, and he and his wife managed to purchase a house. On the other hand, he was drinking heavily, abusing his wife, and taking drugs. Defendant met several criteria suggesting a greater likelihood that an individual might commit a murder. His low intelligence and exposure to violence in prison also played a role in the present offense. When defendant was in prison, he had no need to exercise good judgment, because all decisions were made for him, so he did not learn any coping skills there. In light of defendant’s poor functioning in society before he went to prison, his escape and commission of a robbery, and his abuse of drugs, defendant would need external controls to adjust to civilian life. The decision to allow him to reside with his brother (and former crime partner) in an unfamiliar setting was predictably a disastrous situation. Defendant testified that the victim, Cheryl Nesler, was a good person, and he expressed sorrow regarding what had happened. He did not go to the Nesler home with the intention of harming Cheryl. Defendant would take her place to bring her back if he could. Cheryl did not deserve to be killed and did nothing to contribute to what happened to her. II. Discussion A. Guilt Phase Issues 1. Claim of Prosecutorial Misconduct in Examining a Defense Expert Section 28, subdivision (a), provides that evidence of mental disease, defect, or disorder is not admissible “to show or negate the capacity to form any mental state,” but is admissible solely on the issue whether the accused “actually formed a required specific intent. . . when a specific intent crime is charged.” (Italics added.) Section 29 also limits the admissibility of evidence of a defendant’s mental state: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” Defendant contends that the prosecutor violated the restrictions imposed by these statutes when, during cross-examination of defendant’s psychiatric expert, and over repeated defense objections, the prosecutor persistently asked the expert questions concerning whether defendant could form or did form the intent to commit the crimes with which he was charged. These statutory violations, defendant maintains, amounted to prejudicial misconduct that denied him the right to a fair trial guaranteed by the Sixth and Fourteenth Amendments. As mentioned previously, the defense elicited testimony that defendant was suffering from organic brain damage, mental retardation, and paranoid psychosis at the time of the homicide. These mental disorders, according to defense expert Robert M. Bittle, M.D., impaired defendant’s judgment and memory and prevented him from responding appropriately to surrounding events and understanding what was occurring around him. In Dr. Bittle’s opinion, defendant would not have committed the crimes if he had not suffered from these mental disorders. During cross-examination, the prosecutor asked whether Dr. Bittle found it suspicious that the only things defendant had not admitted were the relevant mental states at issue in this case. Dr. Bittle responded in part: “I can’t testify as to specific mental states at that time, as you well know.” The following exchange ensued: “[Prosecutor]: “So you don’t have an opinion, then whether or not he could form the intent to commit the crimes that he is charged with? “[Defense counsel]: Your Honor, I am going to have to object because this is getting into an area that the law doesn’t allow him to give an opinion one way or the other, so he certainly can’t comment. If he wants to have the question answered and open the door in this regard, that is fine, but I have to object. “[Prosecutor]: I don’t mind having the door opened in this regard, Your Honor. “[Defense counsel]: Well, it is just improper questioning that Dr. Bittle and I have discussed that the law doesn’t allow questioning in this area, so he is not prepared to testify in this area. And I object, it is not allowed by law. “[Prosecutor]: Well, Counsel’s correct, but I have no objection to opening the door to see whether or not the doctor has an opinion in [szc] the ultimate issue in the case.” After defense counsel indicated that a one-week continuance would be required to prepare for testimony regarding the issue, the prosecutor responded that he did not want to belabor the point and would move on. Subsequently, the prosecutor asked Dr. Bittle whether he had an opinion regarding how defendant “would be able to cause that type of injury with a knife if he didn’t intend to do it,” and how defendant would be able to unfasten Cheryl’s pants and pull them down “if he didn’t intend to do that.” Defense counsel again objected on the ground that the law did not allow the witness to testify regarding intent, and the prosecutor asked a different question. The prosecutor later referred to testimony that defendant had told several individuals that he was going to go up the hill and return with some money, and asked Dr. Bittle whether “[t]he fact that he did go up the hill, and the fact that it appears as though he did rob the victim, does that indicate that his judgment was impaired?” Dr. Bittle responded, “He might have some intent to rob, based upon that statement.” After Dr. Bittle and the jury were excused, defendant moved for a mistrial on the ground that the prosecutor was aware of the proscriptions of sections 28 and 29, but decided to continue to violate them until he finally elicited an answer regarding defendant’s intent to rob. Defendant contended that the jury would understand from the prosecutor’s questions and the defense objections that the defense did not want Dr. Bittle to answer, because he would have testified that defendant did have the requisite intent to commit the crimes. The court denied the motion and admonished the jury to disregard the questions and answers regarding defendant’s intent. “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2].) “[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (Ibid.) “It is, of course, misconduct for a prosecutor to ‘intentionally elicit inadmissible testimony.’ [Citations.]” (People v. Bonin (1988) 46 Cal.3d 659, 689 [250 Cal.Rptr. 687, 758 P.2d 1217], overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Such misconduct is exacerbated if the prosecutor continues to attempt to elicit such evidence after defense counsel has objected. (People v. Bell (1989) 49 Cal.3d 502, 532 [262 Cal.Rptr. 1, 778 P.2d 129].) An expert witness may not be cross-examined regarding matters that are not relevant to the expert’s opinion or qualifications. (Ibid.; see Evid. Code, § 721, subd. (a).) As we have seen, an expert may not offer an opinion regarding whether the defendant had the capacity to form the intent required for the crime, or whether the defendant actually did form the requisite intent. (People v. Samayoa, supra, 15 Cal.4th at pp. 835-837.) The prosecutor’s question seeking to elicit Dr. Bittle’s inadmissible opinion regarding defendant’s capacity to form such intent at the time he committed the crimes, and the prosecutor’s subsequent remarks that he was willing to “open the door” on that issue, were improper. Even if an experienced prosecutor legitimately could believe that the parties may waive the prohibitions in section 28 and 29, a showing of bad faith or knowledge of the wrongfulness of his or her conduct is not required to establish prosecutorial misconduct. (People v. Hill, supra, 17 Cal.4th 800, 822-823 & fn. 1.) On the other hand, the prosecutor’s questions concerning how defendant could perform certain acts without intending to do them, and whether defendant’s actions indicated that he had impaired judgment, were not inappropriate. Defendant concedes that the prosecutor legitimately could attempt to show intent by emphasizing defendant’s acts, and that his cross-examination in this regard was not “technically objectionable.” Dr. Bittle’s statement that defendant “might have had some intent to rob” was not responsive to the prosecutor’s question concerning whether defendant’s actions indicated that defendant’s judgment was impaired, as Dr.' Bittle previously had testified. The prosecutor’s improper question and remarks regarding capacity did not amount to an egregious pattern of conduct that rendered the trial fundamentally unfair in denial of defendant’s federal constitutional right to due process of law. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Assuming the prosecutor’s conduct constituted a deceptive or reprehensible method to persuade the jury, in violation of state law, such misconduct was not prejudicial. The prosecutor’s improper question “constituted an isolated instance in a lengthy and otherwise well-conducted trial . . . .” (People v. Bonin, supra, 46 Cal.3d at p. 690.) As described in more detail below, the trial court quickly admonished the jury to disregard questions posed to Dr. Bittle regarding defendant’s intent to commit the crime and any answers to such questions, explained that any objections to such questions were proper, and read the text of section 29. Furthermore, at the conclusion of the guilt phase, the trial court instructed the jury: “If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. fl[] Do not assume to be true any insinuation suggested by a question asked a witness.” We presume the jury followed the court’s detailed instructions regarding this matter and conclude that, in light of the instructions, there is no reasonable likelihood the jury was misled by the prosecutor’s improper question. (People v. Mayfield (1993) 5 Cal.4th 142, 179 [19 Cal.Rptr.2d 836, 852 P.2d 331].) Accordingly, no prejudice is shown. In a related claim, defendant contends the prosecutor’s misconduct violated his Sixth Amendment right to confrontation, because the only way defendant could rebut the inference raised by the prosecutor’s improper questions was to ask Dr. Bittle similar improper questions that would elicit inadmissible testimony. Defendant relies upon Douglas v. Alabama (1965) 380 U.S. 415, 416-420 [85 S.Ct. 1074, 1075-1078, 13 L.Ed.2d 934], in which the defendant’s accomplice was called to testify at the defendant’s trial. The prosecutor read portions of the accomplice’s alleged confession, pausing periodically to inquire whether the accomplice had made the statements. The accomplice repeatedly invoked his privilege against self-incrimination and refused to answer. The high court held that the prosecutor’s reading of the confession and the accomplice’s refusal to answer may have been construed by the jury to be the equivalent of testimony establishing that the accomplice did make the confession and that his statements, some of which were prejudicial to the defendant, were true. Because defense counsel could not question any witness regarding the matters raised during the prosecutor’s examination of the accomplice, the high court held that the defendant was denied his right to confront and cross-examine the accomplice. Douglas is distinguishable from the present case. Dr. Bittle was available for cross-examination, and the prosecutor’s improper question regarding defendant’s intent could not reasonably have been construed by the jury to constitute testimony by Dr. Bittle. (See Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643, fn. 15 [94 S.Ct. 1868, 1871, 40 L.Ed.2d 431] [there is no deprivation of the right to confrontation when the prosecutor does not introduce statements made by persons unavailable for questioning at trial].) The doctor’s testimony that defendant might have had the intent to rob, as we have seen, was volunteered and not responsive to the prosecutor’s question. In any event, the jury was instructed to disregard all questions regarding defendant’s intent and any answers that may have been given. Defendant was not denied his right to confrontation. 2. The Potentially Ambiguous Curative Instruction Defendant contends that the trial court’s admonition to the jury following his motion for mistrial was confusing and ambiguous, and that there is a reasonable likelihood that the jurors understood the instruction to mean they were to disregard all the expert testimony defendant introduced regarding his intent to commit the acts underlying the crimes. According to defendant, the instruction thus prevented the jury from considering evidence presented in his defense and lowered the prosecution’s burden of proof, in violation of the Sixth and Fourteenth Amendments of the United States Constitution and corresponding provisions in the California Constitution. Defense counsel’s objections to the prosecutor’s questions regarding intent came near the end of the prosecutor’s cross-examination of Dr. Bittle. After a brief redirect examination, the trial court excused the jury to allow defendant to make his motion for a mistrial. When the jury returned a few minutes later, the trial court gave the following extemporaneous instruction: “Ladies and gentlemen, the Court wants to admonish the jury that they’re to disregard questions that were given to the expert as to the intent of the defendant to commit the crime of the charge [sic] and to disregard any answers that may have been given to that question. Any objection [sic] made to such questions are proper objections under the law.” The court read the text of section 29 and continued: “So there were some questions put to the expert asking him about whether or not the defendant may have had an intent to do this or that. I want you to disregard those questions and disregard any answers that may have been given, and also that the objections that were made to these questions were proper objections. So with that, you will follow my instructions, please.” Engaging in an elaborate parsing of this instruction, defendant contends that the jurors would not know which questions and answers they were to disregard and which objections were proper under the law. Furthermore, defendant continues, the language of section 29 read by the court referred to the testimony of “any expert,” thus rendering the instruction equally applicable to the testimony of the other defense experts. In addition, section 29’s statement that an expert shall not testify “as to whether the defendant had or did not have the required mental states,” according to defendant, would cause lay jurors to believe that they could not consider expert testimony regarding any matters that might assist them in deciding whether defendant formed the required intent. Defendant also observes that the prosecutor’s initial improper question violated section 28, not section 29, and thus nothing in the instruction informed the jurors that Dr. Bittle could not state his opinion regarding defendant’s capacity to form the required mental state. Under the circumstances, and in light of Dr. Coleman’s subsequent testimony that expert witnesses are no better equipped than laypersons to determine the defendant’s mental state at the time he or she committed an act, defendant contends that the curative instruction essentially directed the jury to disregard all the important testimony of defendant’s mental health experts. If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 [112 S.Ct. 475, 482, 116 L.Ed.2d 385]; People v. Avena (1996) 13 Cal.4th 394, 417 [53 Cal.Rptr.2d 301, 916 P.2d 1000].) “ ‘ “[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.” ’ [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [74 Cal.Rptr.2d 212, 954 P.2d 475].) We find no reasonable likelihood that the curative instruction could have been understood in the manner suggested by defendant. Although particular portions of the instruction potentially might have been confusing, taken as a whole and in context, the instruction adequately directed the jury to disregard the prosecutor’s questions regarding Dr. Bittle’s opinion as to defendant’s intent to commit the crimes. The jury was aware from the attorneys’ comments that the major point of contention during Dr. Bittle’s testimony was the prosecutor’s questioning regarding capacity and intent. The court’s instruction was given only minutes after these comments were made. There is no reasonable likelihood that the instruction to disregard “questions that were given to the expert as to the intent of the defendant to commit the crime” and “any answers that may have been given” was interpreted by the jurors as indicating they properly could consider the question regarding capacity, nor is there a reasonable likelihood the jury construed the instruction as referring to all of Dr. Bittle’s testimony or the testimony of other defense experts. Otherwise, there would have been no reason for the jury to hear several days of expert psychiatric and psychological testimony regarding defendant’s mental state, for the court to instruct the jury that it could consider and weigh expert opinions in deciding questions in controversy at trial, or for both the prosecutor and defense counsel to refer during argument to the expert testimony regarding defendant’s mental disorders and mental state. 3. Dr. Coleman’s Testimony Regarding Forensic Psychiatry Defendant contends that Dr. Coleman’s rebuttal testimony was inadmissible, and that its admission deprived him of his constitutional right to psychiatric assistance in preparing his defense, denied him the right to have the jury consider his defense, and usurped the court’s role in determining the qualifications of expert witnesses and the reliability of scientific methods. Defendant further contends that his trial attorney’s failure to object on these grounds constituted ineffective assistance of counsel, and that the prosecutor’s presentation of this testimony constituted misconduct. Dr. Coleman’s testimony may be summarized as follows. Psychiatrists and other mental health professionals are no more qualified than a layperson to determine a defendant’s mental state at the time he or she committed a crime, or to decide whether a defendant is psychotic. Such professionals have no special skills for doing so, and the tools they use are far inferior to those that a layperson would use. The opinions of the defense experts were based upon tests that are unreliable, unscientific, and irrelevant, because, among other things, the examiner cannot ascertain whether someone performs poorly on a test simply because he or she is distracted, not interested, not trying, or malingering, and the results must be interpreted subjectively. The tests were not designed to be used in a forensic setting to ascertain a defendant’s mental state at the time of a crime; moreover, they are not reliable even for what they were intended to accomplish. In determining whether defendant was psychotic when he killed Cheryl, the jurors first should realize that “psychotic” simply means crazy, irrational, or out of touch with reality. “[Ejither a person shows that they’re acting and thinking crazy or they don’t. There’s nothing we [psychiatrists] can see below the face that lay persons couldn’t see.” The jurors should “not listen to any psychiatric labels or psychiatric reconstruction, but simply . . . look at the evidence, whatever evidence you get.” The best way for the jurors to make sense of all the psychiatric testimony would be “to decide whether or not they think the methods are reliable, having heard the testimony of the other doctors, my testimony .... And then, based on that decision, give the testimony the weight they think it deserves. ft[] If the methods are not considered reliable, then obviously no doctor . . . can make ... a silk purse out of a sow’s ear, . . . and therefore it would deserve no weight if it was based on unreliable methods. And if they conclude otherwise, then again they have to give it the weight they think it deserves.” On cross-examination, Dr. Coleman acknowledged that he believes using a psychiatrist to determine mental state in a forensic setting is “so flawed in its concept that it’s completely worthless.” Defendant concedes that, although his trial counsel objected to certain portions of Dr. Coleman’s testimony, counsel did not assert the grounds he presently raises or argue that Dr. Coleman’s “generic attack on psychiatry” should have been excluded. Thus, defendant has waived the issue on appeal. (People v. Danielson (1992) 3 Cal.4th 691, 729 [13 Cal.Rptr.2d 1, 838 P.2d 729].) Because, however, defendant claims that such failure to object amounted to ineffective assistance of counsel, we consider his claim that this evidence was inadmissible in order to enable us to assess whether any alleged deficiency in counsel’s performance prejudiced defendant. (People v. Kipp (1998) 18 Cal.4th 349, 366 [75 Cal.Rptr.2d 716, 956 P.2d 1169] [“If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.”].) On several occasions we have considered testimony of Dr. Coleman that was virtually identical to that offered in this case, and in each instance we rejected defense claims based upon such testimony. (People v. Clark (1993) 5 Cal.4th 950, 1019 [22 Cal.Rptr.2d 689, 857 P.2d 1099]; People v. Danielson, supra, 3 Cal.4th at pp. 728-731; People v. Babbitt (1988) 45 Cal.3d 660, 698-700 [248 Cal.Rptr. 69, 755 P.2d 253] [claim of prosecutorial misconduct arising from reliance upon Dr. Coleman’s testimony]; see also People v. Prince (1988) 203 Cal.App.3d 848, 856-859 [250 Cal.Rptr. 154] [cited with approval in Danielson].) Although a defendant has the right to present a psychiatric defense through experts, and, as we have observed, the courtroom is not the proper forum to challenge the propriety of this process (People v. Babbitt, supra, 45 Cal.3d at p. 700), testimony such as Dr. Coleman’s does not violate that right. As we determined in People v. Danielson, supra, 3 Cal.4th 691, Dr. Coleman’s testimony regarding the unreliability of psychiatric testimony was neither improper nor prejudicial, because he did not suggest that courts should bar psychiatrists from the courtroom. Thus, his criticism of forensic psychiatry and of the opinions of the defense experts went to the weight of those opinions rather than their admissibility. (Id. at p. 730.) Moreover, because the trial court instructed the jury that an expert was entitled to state an opinion on a matter at issue in the trial, and that the jury was entitled to disregard an expert opinion if it was unreasonable, we have found such testimony by Dr. Coleman to be “ ‘clearly nonprejudicial.’ ” (Id. at p. 731, quoting People v. Babbitt, supra, 45 Cal.3d at p. 700.) Defendant attempts to distinguish the foregoing decisions on the ground that in the present case Dr. Coleman characterized psychiatric testimony in a forensic setting as “completely worthless,” and exhorted the jurors “not to listen to any psychiatric labels or psychiatric reconstruction”—essentially telling them to disregard the defense experts’ psychiatric testimony altogether. Defendant contends that Dr. Coleman’s testimony thus deprived him of his right to have psychiatric experts assist the jury in making the necessary mental state determinations. As in People v. Danielson, however, Dr. Coleman did not ask the jury completely to disregard psychiatric opinion. Although he expressed his own view that psychiatric methods are unreliable and offer no assistance in determining the mental state issues presented in the case, Dr. Coleman also stated that if the jury determined that those methods are reliable in light of all the psychiatric testimony, the jury must give the opinions of the defense experts whatever weight they deserve. This testimony, together with the court’s instructions permitting the jurors to consider expert opinions with the reasons given for them, to give them the weight to which they are entitled, to disregard opinions they find to be unreasonable, and to resolve any conflict in the expert testimony by weighing the opinion of one expert against another, clearly indicated that it was the province of the jury to consider and weigh all the expert testimony. The admission of Dr. Coleman’s testimony thus was not improper or prejudicial. Therefore, defendant’s claim of ineffective assistance of counsel fails, as does his claim that the prosecutor committed misconduct in eliciting the testimony. Defendant further contends that Dr. Coleman’s testimony circumvented the trial court’s exclusive authority to determine the qualifications of experts and the admissibility of expert opinion based upon scientific methods. Defendant asserts that any challenge to the psychiatric testimony or to the reliability of the psychological tests used by his experts should have been raised in a Kelly hearing outside the presence of the jury. (People v. Kelly (1976) 17 Cal.3d 24, 30 [130 Cal.Rptr. 144, 549 P.2d 1240] [admissibility of evidence produced by a new scientific technique requires a preliminary showing that it is reliable and generally accepted in the relevant scientific community, that the witness testifying regarding such reliability is properly qualified as an expert on the subject, and that correct scientific procedures complying with that technique were used in the particular case]; see People v. Venegas (1998) 18 Cal.4th 47, 76-81 [74 Cal.Rptr.2d 262, 954 P.2d 525].) Neither the prosecutor nor Dr. Coleman, however, disputed the admissibility of the defense experts’ opinions based upon the results of psychological testing. Rather, Dr. Coleman stated his opinion that psychological evaluations and testing are unreliable because the results must be interpreted subjectively and the expert has no means to determine whether extraneous causes, such as malingering, affect the results. This rebuttal testimony was not subject to Kelly’s requirements. As defendant acknowledges, California courts have accepted a qualified expert’s decision to base his or her opinion regarding mental state upon standardized psychological tests such as those used by the defense experts in this case, and have not suggested that Kelly applies to expert opinions based upon such tests. (People v. Stoll (1989) 49 Cal.3d 1136, 1154, 1157-1158 [265 Cal.Rptr. 111, 783 P.2d 698].) Instead, “issues of test reliability and validity may be thoroughly explored on cross-examination at trial. (See [Evid. Code,] § 721, subd. (a).) The prosecution also may call, in rebuttal, another expert of comparable background to challenge defense expert methods. [Citation.]” (People v. Stoll, supra, 49 Cal.3d at p. 1159, italics added.) As an example of this procedure, our decision in Stoll cites People v. Coleman (1985) 38 Cal.3d 69, 79-80 [211 Cal.Rptr. 102, 695 P.2d 189], which describes rebuttal testimony by Dr. Coleman similar to that presented in this case. If expert opinion based upon psychological tests is admissible without first determining the reliability of those tests in a Kelly hearing, rebuttal expert opinion regarding reliability also must be admissible. (People v. Stoll, supra, 49 Cal.3d at pp. 1157-1159; see People v. Clark, supra, 5 Cal.4th at p. 1019 [Dr. Coleman was qualified to give expert testimony regarding the unreliability of psychiatric testimony, which is a proper subject for expert opinion]; People v. Prince, supra, 203 Cal.App.3d at p. 858 [Dr. Coleman’s testimony was relevant to the issues of weight and credibility of the expert opinions presented to the jury].) 4. Dr. Coleman’s Testimony Regarding Intent In challenging another aspect of Dr. Coleman’s testimony, defendant maintains that the doctor’s opinions regarding intent were likely to mislead the jury into believing that if an individual performs a particular act, he or she necessarily intended to do so. Defendant points to Dr. Coleman’s view that “you cannot create a human being who does things in which the behavior would seem to show a purpose behind this behavior, an intention; but in fact, the person doesn’t really have this intention. . . . That is a fantasy, a myth. . . . [I]t does not happen from brain disease. It does not happen from drugs, it does not happen from mental disorders. . . . fl[] So if a person behaves in a way which would seem to show that they intended a certain thing, then medical evidence would indicate that was their intention because there’s no other reason a person would do it unless they intended to do it.” According to defendant, this evidence was inconsistent with legal principles permitting defendants to rely upon mental state defenses. (E.g., People v. Saille (1991) 54 Cal.3d 1103, 1116-1117 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Moreover, defendant contends, the testimony created an unconstitutional presumption of intent. (Sandstrom v. Montana (1979) 442 U.S. 510, 520-524 [99 S.Ct. 2450, 2457-2459, 61 L.Ed.2d 39] [jury instruction creating a presumption that a person intends the ordinary consequences of his or her voluntary acts held unconstitutional].) Defendant claims that the prosecutor committed misconduct in eliciting this testimony, that defense counsel was incompetent for failing to object, and that the trial court shirked its obligation to limit or exclude the introduction of inadmissible evidence, rendering his trial fundamentally unfair. Contrary to defendant’s assertion, the testimony of one witness could not have created a legal presumption of intent, as did the improper jury instruction considered in Sandstrom v. Montana, supra, 442 U.S. 510. Furthermore, the court’s instructions to the jury eliminated the possibility that Dr. Coleman’s testimony would preclude the jurors from considering whether evidence of defendant’s mental state showed that defendant did not have the requisite intent to commit the crimes. The trial court properly instructed the jury that for each crime charged, there must have existed “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.” (Italics added.) The jury also was told that it could consider evidence of mental disease, mental defect, mental disorder, and intoxication for the purpose of determining whether defendant actually formed the mental state that is an element of the crime charged. A defendant may demonstrate that he or she did not form the intent required for a crime because of mental illness or voluntary intoxication, but may not exclude expert opinion evidence tending to demonstrate to the jury that such mental illness or intoxication did not prevent the defendant from forming the requisite intent. The extensive testimony of defendant’s experts, and the trial court’s instructions concerning expert testimony, intent, and mental disorder, persuade us that there is no reasonable likelihood the jury considered itself bound to accept Dr. Coleman’s testimony regarding intent. This testimony did not raise an improper presumption of intent or render defendant’s trial fundamentally unfair. 5. Delores Gandara’s Testimony After defendant left the victim’s home, he stopped at a grocery store in Mokelumne Hill. The cashier, Delores Candara, testified that she sold defendant a six-pack of beer and a baseball cap. Defendant wanted to buy Candara a beer, and she replied that she was working and could not drink beer. Defendant then gave her a dollar, and she told him that she would buy herself a beer when she finished work. Defendant held Gandara’s hand and said that he thought Candara was “a pretty girl.” Pursuant to Evidence Code section 352, defendant moved to exclude as irrelevant and unduly prejudicial any testimony regarding defendant’s holding Gandara’s hand and telling her she was pretty. The prosecutor contended that the testimony was relevant to demonstrate defendant’s state of mind around the time of the crime, and that his comments to Candara were relevant to establish whether he was coherent and knew what he was doing. The court denied defendant’s motion and stated: “I think the witness has a right to state everything that did take place . . . . . [I]t is not going into an area that is going to have an undue consumption of time or it isn’t that highly prejudicial. It just shows what happened. And I think that she has a right to testify as to what happened at that precise time.” In response to defense counsel’s question whether the court was making a finding that the probative value outweighed the prejudicial effect of the evidence, the court responded: “Well, I don’t find that the testimony would necessitate undue consumption of time, nor create substantial danger of undue prejudice, or of confusing the issues, or of misleading the jury. ft¡] It’s something that took place at a time that [the prosecutor] has a right to show what the defendant did. . . .” Defendant contends that the court erred, because the record does not show affirmatively that the court actually weighed prejudice against probative value; in particular, according to defendant, the court did not identify the probative value that it weighed against the potential for prejudice. As we have explained, however, “the court need make no express statements on these issues so long as the record affirmatively shows that weighing occurred, and there is an adequate basis for appellate review. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 155 [51 Cal.Rptr.2d 770, 913 P.2d 980].) In finding that the prosecution had a right to “show what defendant did,” and “what happened,” the court implicitly accepted the prosecutor’s contention that the evidence was relevant to prove defendant’s state of mind at or around the time of the crime. The court also expressly stated that the evidence was not unduly prejudicial. The record demonstrates that the trial court adequately weighed the testimony’s probative value against its potential for prejudice. We further conclude that the trial court did not abuse its discretion in overruling defendant’s objection pursuant to Evidence Code section 352. Defendant’s actions and speech immediately following the crime were probative of his mental condition at the time of the crime, and also of his condition at a time when he claimed he was unable to remember that he had intended to seek help for Cheryl. Candara’s statement that defendant held her hand and told her that she was pretty described relatively innocuous conduct and did not carry an undue risk of prejudice. Defendant contends that prejudice arose from the manner in which the prosecutor used the evidence. According to defendant, the prosecutor did not argue to the jury that this evidence was relevant to defendant’s mental state, but rather used the testimony to portray defendant as a predator upon women and chronic womanizer, whose character flaw in this regard motivated the crime. Although during argument the prosecutor posed the rhetorical question, “[W]hat type of person are we dealing with here in George Hatton Smithey?,” and then mentioned that defendant “flirted” with Candara after “committing cold-blooded murder,” taken in context this reference appears not to have been intended to demonstrate that defendant had a character flaw, but rather to impeach defendant’s testimony that “something was bugging” him at the store because he had intended, but had forgotten, to get help for Cheryl. The circumstance that defendant held Candara’s hand and told her she was pretty was not likely to have led the jury to believe that defendant was a predator upon women or more likely to commit violent crimes against women. The trial court did not abuse its discretion in determining that the probative value of this testimony outweighed any risk of prejudice. 6. Testimony Regarding the Victim’s Suspicion of Defendant’s Prior Theft Wayne Bunnell testified during the prosecution’s case-in-chief that he helped Cheryl with various tasks after her husband went to jail. On cross-examination, defense counsel asked Bunnell whether he once had helped Cheryl by repairing the gate to her driveway. Bunnell responded: “I patched the gate up so she could get it closed because she was pretty sure that somebody had been down there and stole a welder. And she told me she thought it was [defendant], [5¡] And I told her I wouldn’t let anyone [in] there because somebody was slowly taking Mark [Nesler’s] possessions. So when Mark was in jail, things were slowly missing on the property.” On redirect examination, the prosecutor pursued this matter further, and Bunnell repeated his testimony that Cheryl believed defendant had stolen the welder. Defense counsel objected, contending that the testimony was irrelevant hearsay. The trial court overruled the objection on the ground that on cross-examination Bunnell already had mentioned the theft of the welder. In response to additional questions by the prosecutor, Bunnell testified that at the time Cheryl had informed him of the missing welder, Mark was in jail and defendant and Bunnell had been the only individuals with access to Mark’s workshop around the time Cheryl noticed the welder was missing. Defendant contends that the trial court erred in admitting this testimony on the theory that the subject of the missing welder was raised during cross-examination. He relies upon decisions concluding that a failure to object to improper questions or testimony on direct examination may not be used on cross-examination to elicit immaterial or irrelevant testimony. (E.g., People v. McDaniel (1943) 59 Cal.App.2d 672, 677 [140 P.2d 88].) Defendant further observes that Bunnell’s initial comments regarding the welder were volunteered and nonresponsive to the question posed by defense counsel. Because the testimony did not damage the prosecution’s case, defendant contends, the prosecutor should not have been allowed to pursue this line of questioning on redirect examination, the prosecutor having no need to impeach or rebut this evidence. Defendant claims that the testimony was irrelevant for any purpose other than to suggest his predisposition to steal from Cheryl, and that the trial court had a sua sponte duty either to strike the testimony and instruct the jury not to consider it, or to grant a mistrial. Defendant further asserts that the admission of the testimony regarding Cheryl’s belief deprived him of his federal and state constitutional rights to confrontation, due process of law, and a reliable death verdict. The Attorney General concedes that the trial court should not have ruled the testimony admissible solely because defendant had “opened the door” during cross-examination. The evidence, however, was admissible for the nonhearsay purpose of showing Cheryl’s state of mind concerning defendant. (Evid. Code, § 1250, subd. (a)(1); People v. Jones (1996) 13 Cal.4th 535, 548 [54 Cal.Rptr.2d 42, 917 P.2d 1165].) Indeed, the prosecutor did not argue to the jury that defendant had stolen the welder, but rather asserted that Bunnell’s testimony was important to show Cheryl’s state of mind. Defendant testified that he had a friendly relationship with Cheryl, and that she had invited him into her home on the day of the crime. Evidence that she thought defendant previously had stolen from her was admissible to impeach defendant’s testimony in this regard. The circumstance that defendant did not testify until after Bunnell had testified does not change the conclusion on appeal that Bunnell’s statements regarding Cheryl’s state of mind were admissible. “ ‘ “[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” [Citation.]’ (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [112 Cal.Rptr. 786, 520 P.2d 10].)” (People v. Zapien (1993) 4 Cal.4th 929, 976 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Defendant also asserts that the evidence should have been excluded because it was unreliable. (Evid. Code, § 1252.) He notes that neither Cheryl nor Bunnell had personal knowledge that defendant stole, the welder, and that defense counsel had no opportunity to cross-examine Cheryl to test the veracity of her statement. As explained above, however, the prosecutor did not use the evidence as proof of the truth of the circumstance that defendant had committed a theft. Whether or not defendant stole the welder, Cheryl suspected that defendant had done so. Nothing in the record suggests that Cheryl spoke dishonestly to Bunnell when she indicated her belief to him, or that she had a motive to fabricate that belief. Defense counsel did not question Bunnell regarding the circumstances of Cheryl’s statement, nor did counsel object to the testimony on this ground. We therefore reject defendant’s contention that the statement was made under circumstances indicating a lack of trustworthiness. (See People v. Jones, supra, 13 Cal.4th at pp. 548-549.) In any event, the testimony to which defendant objected on redirect examination essentially restated Bunnell’s testimony elicited by defendant, without a motion to strike, on cross-examination. Therefore, the evidence elicited on redirect examination was cumulative, and any error in overruling defendant’s objection during redirect examination was harmless. 7. Photographs of the Victim The trial court admitted, over defendant’