Full opinion text
Opinion GEORGE, C. J. Following the guilt phase of a capital trial, a jury found defendant Albert Cunningham guilty of first degree murder based upon robbery felony murder (Pen. Code, § 187, subd. (a)) and robbery (Pen. Code, §211) of Carmen Enrique Treto, and made a special finding that defendant intended to kill the victim. The jury also found defendant guilty of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and attempted robbery (Pen. Code, §§ 211, 664) of Juan Cebreros. The jury found defendant guilty of possessing a firearm, having been convicted previously of a felony. (Pen. Code, § 12021, subd. (a).) The jury found true the allegations that defendant personally used a firearm in the commission of the offenses (Pen. Code, § 12022.5), and that he personally inflicted great bodily injury in the commission of the attempted murder and attempted robbery (Pen. Code, § 12022.7). The jury found true the allegations that defendant had suffered prior convictions of murder and of assault with a deadly weapon upon a police officer (Pen. Code, § 667, subd. (a)). Finally, the jury also found true two special circumstances: (1) that defendant committed the murder of Treto in the course of a robbery (Pen. Code, § 190.2, subd. (a)(17)); and (2) that defendant previously had been convicted of second degree murder (Pen. Code, § 190.2, subd. (a)(2)). At the penalty phase, the jury fixed the penalty at death. The trial court denied defendant’s motion for a new trial and the automatic motion for modification of the verdict, and imposed a sentence of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code § 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt phase evidence The prosecution’s evidence established that defendant, wearing a distinctive three-piece suit, went to a bar in Pasadena where the victims, Carmen Treto and Juan Cebreros, were socializing and consuming alcoholic beverages. Several times during the evening, Treto displayed a large amount of cash. At approximately 2:00 a.m., the victims left the bar. Cebreros started for home, decided that Treto was too drunk to drive, and then returned for him. After some discussion, the two proceeded to the parking lot behind the bar, where they were about to enter Treto’s vehicle. Defendant approached the two, drew a gun, demanded Treto’s cash, and then fatally shot Treto. Cebreros attempted to flee, and defendant shot at him, wounding him in the thigh. Defendant fled in Treto’s automobile. Two weeks later, defendant, wearing the same distinctive suit, returned to the same bar, where he was recognized by the staff. The police were summoned, and defendant was arrested. On December 1, 1985, Maria Treto and her husband Carmen Treto were at their Pasadena residence. Her husband recently had received $1,400 or $1,500 in cash as payment for a job. At approximately 9:00 p.m., Mr. Treto, carrying the money on his person, departed with his friends in Treto’s white and black Buick LeSabre automobile. On the same evening, Juvenal Gallegos was working as a door monitor at the Pair of Aces, a bar located on the 1200 block of North Lake Avenue in Pasadena. Angel Gallegos (no relation), the manager of the bar, observed Carmen Treto, who was very drunk, at the bar. Juan Cebreros and his brother Favio arrived at the bar at approximately 11:00 p.m. Juan Cebreros played pool with Treto. At various times during the period from 7:00 p.m. nearly until the 2:00 a.m. closing time, Angel Gallegos, Juvenal Gallegos, and eventually Juan Cebreros all observed defendant at the bar. Defendant, an African-American in his 40’s, was approximately 5 feet 10 inches in height and quite slender. He wore a burgundy three-piece pinstripe polyester suit and tie and had on thick glasses with dark rims. He had a mustache that connected with a goatee-like beard, and his hair in back was shoulder-length at the middle. One of defendant’s front teeth was gold. Prior to 1:30 a.m., defendant departed from the Pair of Aces and, carrying a long-neck bottle of Coors beer, entered Ricky’s Lounge, a bar just up the street. Jeff Donald, the bouncer, took the bottle from defendant and handed it to Diana Riley, the bartender. Defendant had been present in Ricky’s Lounge for brief periods on several occasions earlier in the evening. On the final occasion, defendant remained in Ricky’s Lounge approximately one-half hour, purchasing a Budweiser beer and playing three games of pool with Keith Anderson, Riley’s boyfriend. Anderson observed that although defendant was left-handed he held his left arm or hand close to his body and, when he was not playing, kept his arms folded so that his coat did not open. Defendant went to the restroom and remained there for some time. When Riley called for him to hurry because the bar was closing, defendant asked for a couple of minutes. When he emerged from the restroom he put down his beer and left the bar. Meanwhile, following defendant’s departure from the Pair of Aces shortly before 1:30 a.m., Juan Cebreros left that establishment before closing time, just prior to Treto’s departure. Although others in the bar previously had urged Treto to leave, he had refused and apparently was the last customer to leave the bar at closing time. Juvenal Gallegos, the door monitor, observed that Treto had a wad of money, consisting of $100 and $50 bills, visible in his front shirt pocket. As he departed, Treto grabbed Juvenal and told him: “Keep on going the way [he] had been.” Juan Cebreros observed that after Treto emerged he remained in front of the bar, standing by a lamppost. Cebreros departed in his own vehicle but returned after a few minutes to offer Treto a ride because Cebreros realized that Treto was too drunk to drive and was by himself. When Cebreros drove up, Treto remained by the lamppost. Cebreros parked his vehicle several places from Treto’s Buick LeSabre in the darkened parking lot at the rear of the bar, walked up to Treto, and offered him a ride home. Treto and Cebreros began to walk toward the parking lot. A stocky African-American man riding a bicycle approached and began talking to Treto. Treto told the man that they should be friends and that “Blacks and Mexicans are friends,” and they embraced. Treto was not agreeable to being driven by Cebreros, but insisted that Treto drive them both to Treto’s residence in his own vehicle. Treto reached the vehicle and bent down to put the key in the driver’s side door while Cebreros stood several feet away. By this time defendant had appeared, walking in the driveway from the direction of Ricky’s Lounge. Cebreros heard defendant say, “Hey, amigo, give me the money.” Cebreros observed defendant behind Treto, holding a gun in both hands with arms outstretched, pointing it at Treto. Defendant said, “This is a .357 magnum.” The man on the bicycle was still in the area but did nothing. Cebreros took out his wallet. Treto straightened, turned to his right to face defendant, and put out his hand or hands. Immediately, defendant fired and shot Treto in the chest. Cebreros began to run away, and defendant fired at him, wounding him in the right thigh. Cebreros fell but got up and continued to run, hearing the sound of a vehicle engine starting in the parking lot. Cebreros ran into a nearby fast-food restaurant and asked the people there to telephone the police. A patrol vehicle arrived and drove Cebreros back to the scene of the shooting. At approximately 2:20 a.m., Deputy Sheriff Key was on the northeast comer of Hill Avenue and Washington Boulevard in Pasadena, when he observed an African-American man in his 30’s wearing glasses, with hair several inches in length, driving a white two-door Buick with a black top and without headlights illuminated, eastbound on Washington Boulevard. Approximately 2:30 a.m., Police Officer Edwards was writing parking tickets on East Washington Boulevard, when he observed an African-American man driving a large white and black-top American sedan eastbound without headlights illuminated. Two minutes later, Officer Edwards received instructions over his police radio to proceed to the Pair of Aces. In the parking lot of the bar, he observed Treto lying flat on his back, with several Mexican men standing nearby. Treto’s shirt was open and he had a gunshot wound in the chest, from which blood was bubbling. Treto was having difficulty breathing and did not appear to be conscious. One of Treto’s shoes had been removed and a small amount of cash was on the ground. Officer Edwards summoned paramedics. Officer Thomas was instructed to collect physical evidence and to photograph the crime scene. Arriving at approximately 2:30 a.m., he found a small amount of cash on the ground and eight $1 bills in Treto’s pants pocket, but Treto’s wallet did not contain any money, nor was there money in his shoes, shirt, or jacket. Treto’s vehicle was gone. Officer Thomas unsuccessfully searched the area for a bullet. The paramedics treated Cebreros at the scene for a gunshot wound caused by a bullet that had entered and exited from his thigh. Officers Ortiz and Carter soon arrived, and approximately one hour after the shooting, Cebreros told Officer Ortiz that before Treto was shot, Treto had extended his hands. Cebreros did not say that Treto had reached for defendant’s gun. Cebreros was transported to the hospital, and later described to Officer Baroni the suspect’s height and appearance, stating that the suspect wore a brown suit, had glasses, and wore a beard. Cebreros was treated and released, subsequently having to use crutches for a few weeks. Treto was transported to the hospital. The medical examiner concluded that his death was caused by uncontrollable hemorrhage with cardiac arrest. The .357 magnum caliber bullet had traveled from front to back, right to left, and slightly downward, injuring structures in the abdominal cavity, liver, a major blood vessel, other veins, and the small bowel, lodging in the spine. The injury to the liver and major vessel caused heavy bleeding, resulting in rapid death. There was no gunpowder residue around the entrance of the wound. Treto had a bruise on his left knee and a bruise on top of his right foot. Treto had a .17 percent blood-alcohol level, and .35 micrograms per million of cocaine in his system, indicating usage within several hours of death. A police firearms expert examined the bullet removed from Treto’s body and determined that the bullet was .38 caliber, capable of being fired either from a .38 special or a .357 magnum weapon. The expert testified that in general, gunshot residue is found on the target and surrounding surfaces if they are within three feet of the weapon and is less likely to be found if the target and surrounding surfaces are within four or five feet of the weapon, and that such residue would not be found if the target is six feet or more from the weapon. The expert observed that Treto’s jacket did not have gunshot residue on the front near the bullet’s entry point, on the sleeves, or other areas that would have been in proximity to the gun if Treto had attempted to grab the gun at the time it was fired. Police Officer Eldridge obtained a description of defendant from interviews with witnesses at Ricky’s Lounge and retrieved the Coors beer bottle confiscated from defendant earlier. The police tested the bottle for fingerprints, but defendant’s prints were not among those found. On December 3, 1985, the police located Treto’s vehicle, “stripped” and abandoned on 126th Street in the City of Compton. The police fingerprint technician examined the vehicle interior and exterior but was able to identify only fingerprints belonging to Mrs. Treto on the rearview mirror. The technician testified that rain can wash off fingerprints on the exterior of a vehicle. It had rained on December 2, 1985. On December 13, 1985, defendant returned to the Pair of Aces. Defendant approached Margarita Medrano, took her hand, and remarked that he had promised he would return, and “there he was.” Meanwhile, Angel Gallegos and Juvenal Gallegos recognized defendant, and Angel telephoned the police. Officer Delgado was dispatched to the scene and met with Margarita Medrano outside the bar. Angel Gallegos informed the officer that he recognized the man currently inside the bar as having been present in the bar on the night of the shooting and that he believed him to be involved in the murder. Officer Delgado went inside, observed that defendant fit the description of the suspect, arrested him, and transported him to the police station. At approximately 1:15 p.m. on December 16, 1985, Officer Baroni, the investigating officer on the case, in the presence of Officer Gallon, spoke with defendant in a jail interview room. After Officer Baroni advised defendant of his constitutional rights pursuant to Miranda, defendant waived those rights. The interview was not tape-recorded. Officer Baroni told defendant that between December 1 and 2, a shooting had occurred during a robbery or attempted robbery on the 1200 block of North Lake Avenue and one of the victims had died. Officer Baroni asked whether defendant ever had been arrested. Defendant stated he had been arrested for “driving under the influence.” Asked whether he ever had owned a handgun, defendant stated he had not. Defendant told Officer Baroni that he lived with Aubrey Vaughn (also known as Rosa Vaughn, defendant’s mother) and Victor “Junior” Washington, had worked as a word processor for Kaiser Permanente Hospital for nine years, and presently worked at the Boys Club in Pasadena. Officer Baroni asked defendant what he had been doing on the night of December 1 and the early morning of December 2. Defendant explained that on Sunday, December 1, he had assisted his friend Beverly Son in locating an apartment to rent in Pasadena. He stated he did not drive and normally took the bus. He stated that generally he drank only California Coolers rather than beer. He stated he had something to drink on that evening but never drank to the point that he could not remember what had happened while he was under the influence of alcohol. Officer Baroni described the circumstances of the shooting. Defendant stated that he did not shoot anybody and “most certainly didn’t kill anybody.” In response to further questions, defendant stated he did not own a maroon three-piece suit but did own a brown three-piece suit with pinstriping. Defendant recalled that he had been out drinking on three occasions since December 1. Defendant stated he had at some point gone to the Pair of Aces and Ricky’s Lounge. Officer Baroni again inquired concerning defendant’s activities on the evening of December 1. Defendant explained that normally he went to a bar on Fair Oaks and Colorado and then took the bus to the Pair of Aces, departing at 10:00 p.m. when the buses stopped running. That night he did not walk into the Pair of Aces or Ricky’s Lounge with a bottle of beer, because he drank only California Coolers, but someone at Ricky’s Lounge had asked him to relinquish a bottle containing such a beverage and he placed it on the bar. Defendant recalled playing pool with an African-American male at Ricky’s Lounge but did not order beer or speak to a woman. He remembered departing from the bar at 10:00 p.m., and when the bus did not appear someone gave him a ride to his mother’s residence. Everyone there was asleep, and he also retired. Officer Baroni wrote down a description of defendant’s account of his whereabouts on the evening of December 1 and on the following morning, which defendant reviewed and initialed. On December 16, 1985, Officer Baroni displayed a photographic lineup of six African-American males, including defendant’s photograph, to Cebreros, who affirmatively identified defendant as the man who had shot him. On December 17, Officer Baroni conducted a search of the residence of Mrs. Vaughn, located two miles from Lake Avenue, and discovered a brown three-piece pinstripe suit in defendant’s room. Further investigation revealed that Treto’s vehicle was recovered from a location within a relatively short distance of an address where defendant had lived with his former wife in May 1985 and near Mrs. Vaughn’s address where he was staying in July 1985. A business associate of defendant’s, who had known him since 1984, had seen him wear a burgundy three-piece suit on several occasions. The defense rested without presenting evidence. The jury found defendant guilty of first degree murder and made a special finding that defendant had acted with the intent to kill. The jury also found defendant guilty, of robbery, attempted murder, attempted robbery, and possessing a firearm after having suffered a prior felony conviction. The jury found true the allegations that defendant personally used a firearm in the commission of the offenses and personally inflicted great bodily injury in the attempted murder and attempted robbery. The jury also found true the alleged special circumstance that defendant committed the murder in the commission of a robbery. B. Evidence of prior convictions After the foregoing verdicts and findings were rendered, the prosecution presented evidence of defendant’s prior convictions. Through the testimony of the investigating officer, Deputy Sheriff Kushner, and court records, the prosecution presented evidence that defendant was convicted on August 6, 1976, of the second degree murder of Ella Mae Fellows, committed on June 1, 1975. Defendant was released from prison on parole on February 6, 1980. Through the testimony of defendant’s parole officer and court records, the prosecution presented evidence that, upon his plea of guilty, defendant was convicted on January 20, 1981, of assault with a deadly weapon on a police officer, committed on September 20, 1980. Defendant was released from prison on parole on November 14, 1984. The defense rested without presenting evidence. The jury found true the allegations that defendant previously had been convicted of second degree murder and of assault with a deadly weapon upon a police officer. The jury also found true the special circumstance that defendant committed first degree murder after previously having been convicted of murder. C. Penalty phase evidence 1. Defense case The defense was permitted at its request to present evidence in mitigation before the prosecution presented evidence in aggravation. The defense’s first witness was defendant’s mother, Rosa Vaughn, who testified that while she was eight months pregnant with defendant, his father, Albert Cunningham, Sr., hit and kicked Vaughn and she fell on her stomach. Defendant, born October 21, 1947, had to be delivered with forceps that left small holes on the sides of his head. He was in the hospital two months. Vaughn left Mr. Cunningham four months after defendant was born and moved in with her family. Defendant did not have any male influences in his early life other than Vaughn’s brothers, who were working. They lived in South Central Los Angeles. Defendant started school, accelerating a grade because he was intelligent. Defendant began to have psychological problems, and Vaughn took him to be examined by several psychiatrists and spoke with several ministers about his behavior. Vaughn took him to be examined by a neurologist, who passed away before treatment was completed. In 1954, when defendant was seven years of age, Vaughn married Leland Young. Young did not understand children, was very negative, and frequently “strapped” defendant, making him fearful. By the time defendant was eight or nine years of age he frequently was in trouble at school, and therefore Vaughn decided to send defendant to live with his father, where he remained for eight months. Albert Cunningham, Sr., had been in juvenile hall, had committed a robbery prior to defendant’s birth, and had been shot. At the time defendant lived with him, defendant’s father was an alcoholic and worked as a pimp, drug dealer, and gambler. At one point his father beat defendant and injured his penis, causing blood to flow from it. Vaughn summoned the police, who appeared but did not pursue the matter. When defendant was eight years of age, he drove off in Vaughn’s sister’s automobile. A family friend who observed the vehicle thought that a midget was driving but recognized defendant and telephoned Vaughn’s sister. Defendant, who had learned to drive by observing his uncle, was a fairly good driver and did not get into an accident. Vaughn explained to defendant that taking automobiles was wrong, but defendant continued to engage in this conduct. Defendant also took another child’s bicycle even though defendant owned a new one. A neurologist told Vaughn that defendant had a compulsion to take other persons’ property. When defendant was 12 years of age, he was placed in a juvenile corrective facility because he had thrown rocks at a playmate’s mother. Defendant spent much of the period during high school in juvenile facilities for the offenses of joyriding and vehicle theft. When defendant was 18 years of age, he was sent to prison. His defense attorney requested that defendant be examined by a psychiatrist prior to trial, but that step was not taken. In 1972, defendant attempted to commit suicide, shooting himself with a shotgun he had tied to a chair. Defendant required eight hours of surgery and spent a year recovering. He continued to suffer stomach problems, “nervous condition,” and headaches. In 1975, defendant was incarcerated for the murder of Ella Mae Fellows. When Vaughn explained to defendant the effect of the offense on the victim’s family, defendant expressed remorse. He explained that Fellows sold drugs and had given him drugs and alcohol that caused him to hallucinate. In 1980, defendant, armed with Vaughn’s husband’s .38 revolver, was in a gunfight and was shot five times by police officers. He was sent to state prison and was confined to a wheelchair for two years. Following his release in 1984, defendant obtained a job at Fedco and enrolled in classes for computer and word processing training, in which he was at the top of the class. For several months at the end of 1985, defendant worked at Kaiser Permanente Hospital. Vaughn dropped him off at work on the morning of December 2, 1985. She did not see him driving a white automobile with a black top on December 1 or 2, 1985, or within the next two weeks. Following his arrest for the present offenses, and while Vaughn visited defendant in custody, a deputy told her that defendant was a “hell of a guy” who had given the officer advice on learning how to deal with inmates, which proved useful in completing the deputy’s probationary period. Defendant was enrolled in classes and requested that Vaughn obtain books for him that explained sign language so that he might assist deaf people. Defendant also employed English and mathematics texts to assist other inmates. Vaughn believed that defendant had become “institutionalized” and seemed to do quite well in prison no matter where incarcerated. He did not cause problems, performed well at jobs, made gifts for his family or for charity at the prison woodshop, and won civic awards and commendations. Vaughn read to the jury some of these commendations. Vaughn believed that defendant wanted to help others, and he had written her requesting books to enable him to assist illiterate inmates in learning to read and write. From his early years, defendant always wanted to be a minister and had a strong “Christian desire.” While in prison, defendant completed ministry and Bible study courses and became an ordained minister. She believed that as such, defendant was an asset in prison. He also had an artistic side and made greeting cards and other artwork. Vaughn believed that defendant should receive a life sentence, because she did not believe in killing. Defendant was her only child. She asked the court and the jury to give defendant a chance to live, rather than punish him with death. The defense’s second witness was Reverend Johnnie Washington, who testified that he rented a room at Vaughn’s residence in April 1983 and was living there at the time of defendant’s arrest. Defendant had preached a sermon at Washington’s church in August 1985, taught Sunday school every Sunday from August until December 1985, had been active in recruiting new members for the church, and had organized a youth choir. Washington believed defendant’s life was worth saving because the Bible said “Thou shalt not kill.” Washington loved defendant very much. An employee of Volt Temporary Services next testified that defendant had been placed at Kaiser Permanente Hospital in Pasadena on November 25, 1985, and work records established he had worked there until December 13, 1985. His employment application indicated he had attended Sacramento High School and two years of college at the University of Southern California. He informed the agency that he previously had been convicted of a felony in the 1960’s, for which he had received probation. The defense’s final witness was defendant himself, who testified that he understood what he was facing and wanted to live. When he was young his father boasted about having been in several institutions, stating it was “no big thing.” While defendant was staying at his father’s residence, prostitutes used the residence to “turn tricks,” and defendant had had a sexual experience with one of the women working for his father. Once, defendant’s father beat him for having broken a water pipe while playing. Defendant’s father kept guns at the residence and once threatened defendant with a gun. His father taught defendant how to shoot and gave him a rifle. Defendant became expert and could shoot using only one hand. Defendant was raised more by his aunts, uncles, and grandmother than by his mother. When he was eight years of age, defendant needed a ride to go to a park. When defendant stated he would drive himself, his uncle said, “Go ahead,” without meaning it. Defendant drove the vehicle to the park but did not have enough gasoline to return to his residence. He stopped at a gasoline station and was detained by the attendant until the police arrived. After-wards, his uncle beat him. Defendant attended several grade schools. He tended to be disruptive and frequently was expelled. On one occasion, defendant and other children were throwing rocks. When a child was injured, the child’s mother slapped defendant. He was too small to slap her so instead he threw a rock at her. He was placed in the California Youth Authority, where he discovered that gangs formed along racial lines and preyed on individuals who did not join them. In high school, defendant was transferred to a new school that appeared to be a “school for gangs.” While in high school, defendant received a 99 percent score on a college test in a class that his mother was attending. Defendant completed high school in a juvenile facility. Defendant began stealing automobiles as a young teenager because it was a popular activity among his associates at the time. His juvenile record consisted of offenses for joyriding. He began stealing vehicles in order to make money, and in 1966 at 19 years of age was sentenced to serve a five-year prison term for vehicle theft. Due to his good conduct he was transferred to a camp, where he discovered that a group consisting primarily of correctional officers had a Ku Klux Klan organization. He requested a transfer and was moved to San Quentin Prison. Defendant began to find his identity. He worked as a commander’s clerk, assisted in the snack bar, and cooked for the staff. He was transferred to Soledad Prison, where he taught school, worked in the administration, and stayed out of trouble, including any gang affiliation. Defendant was a member of the Men’s Advisory Council. He published articles and poetry, including greeting card messages, and enrolled in a number of ministry courses. Defendant also sought psychiatric assistance while in prison but was refused because the psychiatrists did not have time for him. When he did receive psychiatric treatment, he believed the psychiatrists did not want to prescribe medication for him but merely wanted to conduct “talk” therapy. They were supposed to evaluate him but simply wanted to be paid and were not helpful. Defendant was paroled in 1971. He married Sharon that year, and in 1973 they had a daughter, Felicia. In 1971, defendant also trained as an inhalation therapist at the University of Southern California. He worked with psychiatric patients in Vacaville and Soledad. In 1972, defendant became depressed and shot himself in the stomach. The wound resulted in several chronic conditions, including pancreatitis, which he treated by taking a painkiller, to which he became addicted and which, combined with his heavy drinking, caused hallucinations. Defendant became acquainted with Ella Mae Fellows, a prostitute, several months prior to her death in June 1975. Defendant was not her pimp but acted as her protector and told his parole officer that she was his girlfriend. On the day of her death, they spent time together. They argued and yelled. Defendant was under the influence of a drug. Defendant knew that she had been stabbed eight times in the left breast. He could not remember whether he had killed her, but he did remember “red.” Shortly after her death, defendant was found driving her automobile, but she often let him drive it, so that was not unusual. Defendant accepted the prosecution’s “deal” on the ensuing murder charge because he did not know what had happened. He expressed sorrow to the family of the victim and was sorry that he did not know whether he had murdered her or not. He did not deny responsibility for the murder. In 1976, as a result of this incident, defendant was sentenced to prison upon his conviction of second degree murder. He had no trouble adjusting to prison life. During that time, after a physician administered sodium pentothal, defendant began to remember more about the incident. He realized it had occurred during a time when he was experimenting with drugs. His actions were “impulsive,” and he would not have done what he did had he not been “high.” In 1977, another prisoner swung at defendant after defendant called him a name, and the incident was reported by a prison guard. Defendant worked as a disc jockey at a prison radio station but was replaced because he left the radio room unattended for an hour. Originally defendant was restricted from working with women due to the nature of his offense, but the restriction later was removed. In May 1978, defendant’s prison cell was searched and restricted items were discovered, but defendant had placed the items in his cell with the knowledge of the prison staff. That same month, defendant was subjected to a body search that revealed marijuana in his rectum. Defendant forfeited good conduct and work credits and spent time in the “hole.” Defendant was released in February 1980. In September 1980, defendant worked for Yellow Cab Company and stole a taxicab, because he had been cheated out of money. Defendant drove the taxicab to a location in Silverlake and won $6,000 gambling. To protect himself, defendant carried a gun despite his knowledge that this was illegal due to. his prior felony conviction. To secure his winnings, defendant was forced to exit through the bathroom window. He drove away, but when he stopped at a red light, a person in a white T-shirt carrying a gun approached the taxicab and said, “Pull over or I will shoot.” Defendant believed it was one of the men from Silverlake and stepped on the gas pedal. He was fired upon but escaped. When the taxicab had a flat tire, defendant proceeded on foot. Running into a doorway, defendant yelled out that the persons pursuing him could have the money. The shots continued, and therefore he emerged from the doorway firing his weapon. Only at that point did defendant notice that his pursuer wore a police uniform. Defendant fell and became unconscious. When he regained consciousness, an officer was attempting to place a gun in defendant’s mouth. Defendant turned his head to the side and was shot in the jaw. When defendant was handcuffed and lying on the ground, an officer shot him three more times. Defendant again lost consciousness, and when he awoke he found himself being transported in an ambulance. An officer attempted to beat defendant but was restrained by the ambulance driver. Witnesses to the confrontation with the police believed that defendant was being robbed and heard defendant yell that they did not need to kill him to obtain the money. Defendant had attempted to defend himself. He was shot 12 times, causing nerve damage to his right arm, paralysis to his tongue on one side, lack of feeling in his jaw, and confinement to a wheelchair for two years. During his trial on a charge of assault with a deadly weapon on a police officer, he was heavily medicated and went along with whatever others wanted him to do. Afterwards he could not remember the trial. He felt sorry for what had happened and wished that the officer had identified himself. Defendant wrote a letter of apology to the injured officer. Defendant began a seven-year prison term in 1981. In prison, defendant assumed clerical duties, performed occupational therapy, made ceramics, clocks, and jewelry, and wrote poetry. Defendant wrote to 1,167 people around the world to give them the “word of God” and otherwise wrote to 2,500 people per month. Although defendant was raised a Catholic, participated in the Nation of Islam during the 1960’s, and was baptized in the Seventh-Day Adventist religion in 1971, he was ordained a minister in the Southern Baptist Convention in 1978. Defendant received certificates and awards from religious organizations. In late 1984, defendant’s sentence was reduced for good conduct, and he was placed on parole. He attended the Chavez Institute to increase his clerical skills, and met Beverly Son. Defendant was among the leading students in the class. In May 1985, defendant’s wife Sharon discovered him with another woman and attacked her, provoking defendant to strike Sharon several times with a wooden paddle. Defendant was arrested and jailed for violation of the terms of his parole and was released in August 1985. In October 1985, defendant and Sharon separated. Defendant thereafter began to dedicate himself to God and lived with his mother. In November, defendant began to work at Kaiser Permanente Hospital and also at a job unloading trucks, where he attempted to organize a union. On Saturdays, he volunteered at the Boys Club in Pasadena. Defendant attended Alcoholics Anonymous (AA) meetings but continued to consume alcoholic beverages. In the early evening of December 1, 1985, defendant and Beverly Son drove around looking for an apartment for Son closer to defendant’s residence, because she was pregnant with his child. After he located an apartment for Son, defendant attended an AA meeting and then Son drove him home at 10:00 p.m. At approximately 10:45 p.m. defendant went out again to several bars, including the “Pair of Deuces” (sic: Pair of Aces) and Ricky’s Lounge, and subsequently returned to his residence. Defendant did not have a gun in his possession and was not involved in killing Treto. During his stay in jail awaiting trial on the current charges, defendant acted as a mediator between the jail officials and the inmates. He had been hired as a medication trustee and devised a new system that made the dispensing of medication to the inmates more efficient. Defendant also explained that inmates had a physical need for “release,” and that there were situations where two individuals would be found in a consensual sexual encounter but where the weaker person would claim the other raped him in order “to keep from getting a case.” Defendant had had sexual encounters including sodomy, and had assumed the dominant role. Ordinarily defendant was heterosexual, but in those circumstances he was bisexual but not homosexual. An inmate who had accused him of attempted sodomy was lying. Defendant merely visited him, asked for money that defendant was owed, and departed. Subsequently, an officer placed defendant in a lineup and someone accused him of attempted sodomy. Defendant agreed that his life had been “long and full of violence and misdeeds,” but asked the jury not to impose the death penalty. He could help young persons in many ways, for example through religion and encouraging them to obtain an education, even though they were in prison. Defendant had been incarcerated for 25 years of his life, had learned to live in prison, and believed his prison record was basically good, with no problems. He had done bad things in prison but had not committed, or ever been prosecuted for, offenses while in prison. 2. Prosecution case The prosecution presented additional information concerning the murder of Ella Mae Fellows. On June 4, 1975, Deputy Sheriff Kushner went to a vacant lot in the City of Carson where the body of Fellows, clothed in a blue and gray patchwork pantsuit, had been discovered. From the body, drag marks led to vehicle tire tracks, indicating Fellows had been murdered elsewhere and transported to the lot. The level of decomposition indicated that Fellows had been dead several days when her body was discovered. Fellows had suffered eight stab wounds to the left chest over the left breast. The wounds were orderly but of different degrees of penetration. Various wounds had penetrated the heart, lung, diaphragm, and stomach, and several of the wounds individually would have been fatal immediately. On June 6, 1975, Deputy Sheriff Kushner searched defendant’s apartment, located 80 blocks south of the lot where the body was discovered. The police observed a steak knife consistent in size with that responsible for Fellows’s injuries. A box with a portrait of Jesus Christ on the lid was found that contained a Polaroid photograph of Fellows wearing the same pantsuit she was wearing when she was found. A magazine was discovered, which depicted scenes from a horror film in which the victim had wounds of approximately the same position and quantity as those suffered by Fellows. Defendant was driving Fellows’s vehicle when stopped by the police. A search of the vehicle revealed a Polaroid photograph of the victim wearing the same pantsuit and standing before the same. background as in the photograph found at defendant’s apartment. During police questioning, defendant denied having a relationship with Fellows and told the police that her boyfriend had given defendant the keys to her vehicle. Defendant denied committing the murder and claimed to have no recollection of his activities during that time period, although he did not attribute his lack of memory to having been under the influence of drugs. The prosecution presented additional information concerning defendant’s conviction for assault with a deadly weapon upon a police officer. At approximately 1:00 a.m. on September 20, 1980, uniformed Los Angeles Police Officers Osmond and Lane were patrolling on motorcycles when they received a radio broadcast that a taxicab had been stolen. The officers observed a taxicab matching the identification given, activated their red lights, and pursued the taxicab, which came to a stop. Officer Osmond approached with his revolver drawn and said, “Freeze.” The taxicab then accelerated, and the officers pursued it on motorcycles with their red lights and sirens activated. After the taxicab collided with a parked vehicle, defendant exited and ran down the street and along several driveways. The officers pursued on their motorcycles, but eventually reached a chain across the driveway in front of them. As Officer Lane prepared to dismount, defendant turned around and jammed a gun into the windshield of the officer’s motorcycle. Officer Lane dropped the motorcycle, and defendant fell over the chain. Officer Lane fired three shots in his direction, but defendant stood up and ran back toward the taxicab. Officer Lane fired three more shots. The officers gave chase on foot. Officer Osmond was in front and observed defendant appear to enter the door of a building. When Officer Osmond rounded the comer of the doorway, defendant was on the other side, facing and nearly touching the officer. When defendant and Officer Osmond fired their guns at one another, the officer was propelled backward 15 feet, temporarily losing consciousness. By this time Officer Lane had approached and defendant, who was pointing his weapon at Officer Osmond’s upper body, swung the weapon toward Officer Lane, who grabbed defendant’s weapon and struck him several times with the officer’s own gun. As they wrestled over defendant’s weapon, it discharged, hitting defendant in the jaw. Defendant’s weapon was determined to have discharged four rounds. Officer Osmond was hit by three of the bullets. Two bullets hit his police-issue bulletproof vest in the breast and rib cage area, and the third hit his belt buckle. He sustained serious bruising in these three areas. The police department extensively investigated the incident, and Officer Osmond was determined to be not at fault. Officer Osmond subsequently suffered depression and left the police force. Officer Lane received a departmental Medal of Valor. A parole officer testified that in November 1984, defendant was released from prison on parole. On July 30, 1985, he violated the terms of his parole by hitting his girlfriend with a paddle during a fight over his contact with another woman. Defendant was released from custody on August 13, 1985. The parole officer examined defendant’s “prison package” and testified that defendant generally had been confined in medium and maximum security facilities during his various stays in prison. Beverly Son testified that she was defendant’s girlfriend at the time of the present murder. She had seen him with a handgun probably two weeks prior to the incident. She was with defendant on Sunday, December 1, 1985, and dropped him off early in the evening. When she met defendant the next day at her workplace, he appeared “quite a bit late” and stated that he had been up all night. Defendant told Son that he had been at a bar where there had been a shooting, that he did not “do it,” but that the police probably would come after him because he was on “probation.” On October 20, 1986, during his incarceration on the present allegations, defendant was in the “pill module” of the county jail. Inmate Henry White observed defendant hit an inmate in the face or head, push the inmate to his knees, hold the inmate in a “full Nelson” headlock, and insert his erect penis in the inmate’s rectum. The inmate appeared to have been forced into this activity. Defendant told White, “Get away from the front of the cell.” The jury fixed the penalty at death. II. Discussion A. Jury selection issues 1. Hovey voir dire Defendant contends that the trial court erred in utilizing a procedure for death-qualification voir dire of the jury that violated the instructions of this court in Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301] (Hovey) to isolate the prospective jurors during that phase of the voir dire. According to defendant, the trial court’s procedure restricted defense counsel’s participation in Hovey voir dire, obliging the defense to make further death-penalty-related inquiry during the remainder of voir dire in open court. Defendant also contends that the trial court erred in conducting Hovey voir dire prior to the inception of the guilt phase. Prior to jury selection, the trial court informed counsel for both parties that the court would conduct individual, in-chambers voir dire, initially asking each prospective juror five standardized questions: whether that individual (1) automatically would vote against a verdict of first degree murder or (2) automatically would vote against finding a special circumstance to be true, despite its being proved, in order to avoid having to decide the issue of the death penalty and having to discuss that issue with the other jurors; (3) was so much in favor of the death penalty as to vote automatically for that punishment without consideration of the evidence; (4) was so much against the death penalty as to vote automatically for life imprisonment without the possibility of parole without consideration of the evidence; and (5) had thoughts or feelings about the death penalty that would prevent him or her from being a fair and impartial juror and following the law. The trial court explained that it would restrict the prosecution and the defense each to three follow-up questions. The trial court advised counsel they might ask other questions of prospective jurors in open court. The trial court’s procedure did not violate the standards enunciated in Hovey. “ ‘The [sole] purpose of Hovey voir dire is to ascertain whether any prospective juror has such conscientious or religious scruples about capital punishment that his or her views would prevent or substantially impair adherence to the instructions and the juror’s oath. [Citation.] The inquiry “seeks to determine only the views of the prospective jurors about capital punishment in the abstract, to determine if any, because of opposition to the death penalty, would ‘vote against the death penalty without regard to the evidence produced at trial.’ ” [Citation.] However, “[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is therefore subject to challenge for cause.” ’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 444-445 [79 Cal.Rptr.2d 408, 966 P.2d 442].) In the present case, the trial court did not limit the Hovey aspect of voir dire to examination by the court. (Cf. People v. Bittaker (1989) 48 Cal.3d 1046, 1083-1084 [259 Cal.Rptr. 630, 774 P.2d 659].) We have approved Hovey voir dire limited to questions by the trial court, with follow-up inquiry by defense counsel. (People v. Avena (1996) 13 Cal.4th 394, 413 [53 Cal.Rptr.2d 301, 916 P.2d 1000]; see People v. Tuilaepa (1992) 4 Cal.4th 569, 586 [15 Cal.Rptr.2d 382, 842 P.2d 1142].) In view of the circumstances that the trial court employed a procedure that automatically gave counsel three questions and frequently permitted counsel more than three questions, we cannot conclude that the procedure employed violated our requirement in Hovey. Even assuming error in the present case, reversal is not required. In People v. Bittaker, supra, 48 Cal.3d 1046, 1085-1087, we rejected a reversible per se standard of review for such error. Defendant was at liberty to use the general voir dire to explore further the prospective jurors’ responses to the facts and circumstances of the case. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248].) Defendant has not established that any juror who eventually served was biased against him, and thus has not established prejudice arising from the procedure employed. (People v. Avena, supra, 13 Cal.4th 394, 413-414; People v. Bittaker, supra, 48 Cal.3d at pp. 1085-1087.) The trial court also did not err in conducting Hovey voir dire prior to the guilt phase. In Hovey, we explained that “[t]he most practical and effective procedure available to minimize the untoward effects of death-qualification is individualized sequestered voir dire. Because jurors would then witness only a single death-qualifying voir dire—their own—each individual juror would be exposed to considerably less discussion and questioning about the various aspects of the penalty phase before hearing any evidence of guilt. Such a reduction in the pretrial emphasis on penalty should minimize the tendency of a death-qualified jury to presume guilt and expect conviction.” (Hovey, supra, 28 Cal.3d 1, 80.) Thus, the Hovey procedure itself was adopted expressly in the expectation that, in general, death-qualification voir dire would be conducted prior to the guilt phase, and a defendant is not entitled to a new jury at the penalty phase merely to accommodate the death-qualification voir dire. 2. Challenges for cause Defendant contends that the trial court erred in denying several of his challenges for cause, obliging him to employ peremptory challenges in order to excuse these prospective jurors. Defendant also contends that the trial court erred in granting several of the prosecutor’s challenges for cause. (3) A prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would “ ‘prevent or substantially impair’ ” the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841]; People v. Crittenden (1994) 9 Cal.4th 83, 121 [36 Cal.Rptr.2d 474, 885 P.2d 887]; People v. Mincey (1992) 2 Cal.4th 408, 456 [6 Cal.Rptr.2d 822, 827 P.2d 388].) “ ‘ “A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.” [Citation.]’ [Citation.] In addition, ‘ “[o]n appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.” [Citations.]’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 987 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) In addition, in order to demonstrate that his or her right to a fair and impartial trial was affected by any error in the trial court’s refusal to sustain the defendant’s challenges for cause, a defendant must have employed a peremptory challenge to excuse the juror or jurors in question, exhausted the defendant’s peremptory challenges or justified the failure to do so, and communicated to the trial court the defendant’s dissatisfaction with the jury ultimately selected. (People v. Ochoa, supra, 19 Cal.4th 353, 444; People v. Williams (1997) 16 Cal.4th 635, 667 [66 Cal.Rptr.2d 573, 941 P.2d 752]; People v. Crittenden, supra, 9 Cal.4th 83, 121-122.) “ ‘[I]f he can actually show that his right to an impartial jury was affected because he was deprived of a peremptory challenge which he would have used to excuse a juror who sat on his case, he is entitled to reversal; he does not have to show that the outcome of the case itself would have been different. [Citations.]’ ” (Crittenden, at pp. 121-122.) As a threshold matter, defendant has not demonstrated that his right to a fair and impartial trial was affected by any error in the trial court’s refusal to sustain defendant’s challenges for cause, and he has suffered no prejudice from the trial court’s actions. Defendant utilized peremptory challenges to excuse these prospective jurors. Defendant did not exercise all of his peremptory challenges, nor has he justified his failure to exercise them, and therefore he cannot establish that the selection of jurors would have been different had he not exercised his peremptory challenges against these prospective jurors. Nor did defendant express dissatisfaction to the trial court with the jury ultimately selected. In any event, as the following evidence indicates, no error appears in the denial of the defense challenges for cause. a. Denial of defense challenges The record discloses that the defense invited the prospective jurors to think of instances in which they believed the death penalty would be appropriate. Where the defense unsuccessfully challenged prospective jurors for cause, the prospective juror typically responded that the penalty would be appropriate in a fairly broad range of murder circumstances, but, when questioned by the prosecution whether he or she would be able to consider only the circumstances of the particular case, he or she responded affirmatively. As we shall explain, the trial court did not err in denying defendant’s challenge for cause with regard to these jurors. (1) Prospective Juror Me. Questioned by the defense with regard to which circumstances she believed justified imposition of the death penalty, Prospective Juror Me. stated initially that she would impose that punishment for any murder, including a murder that resulted from a quarrel or fight. Questioned further by the prosecution, Prospective Juror Me. indicated that she would weigh the circumstances, and the penalty would depend upon the particular circumstances of the case. The trial court described a hypothetical situation involving substantial circumstances in aggravation and in mitigation. Prospective Juror Me. indicated that she could weigh the circumstances in deciding the penalty. Given a hypothetical example of a killing involving provocation, she stated it was possible that a life sentence would be appropriate. It is apparent that Prospective Juror Mc.’s responses originally reflected her views on the appropriate punishment when confronted with the general offense of murder. When given more specific examples, her views were not inflexible, but reflected a willingness to consider the particular circumstances in determining the appropriate penalty in a specific case. She did not express “views indicative of an unalterable preference in favor of the death penalty,” such that her protestation that she would follow the law would not “rehabilitate” her. (People v. Crittenden, supra, 9 Cal.4th 83, 123; cf. Morgan v. Illinois (1992) 504 U.S. 719, 733-736 [112 S.Ct. 2222, 2232-2234, 119 L.Ed.2d 492].) Because her responses were conflicting, the trial court’s determination as to her true state of mind is binding upon this court. (People v. Jenkins, supra, 22 Cal.4th 900, 987.) (2) Prospective Juror L. Asked by defense counsel whether there were any circumstances in which the death penalty may be appropriate, Prospective Juror L. indicated that it might be appropriate in the case of premeditated murder. Asked whether a person convicted of first degree premeditated murder should receive the death penalty, he answered, “Probably.” Asked whether he believed every first degree murder warrants the death penalty, he responded that it would depend upon the circumstances, but in general, “yes.” Questioned by the prosecutor whether everyone who commits murder should receive the death penalty, Prospective Juror L. indicated he did not so believe. Asked whether the death penalty should be applied in the case of someone who commits murder in the course of a serious felony such as rape, robbery, or burglary, as he had stated with regard to premeditated murder, he responded: “No, it’s not the same,” and that all the facts should be considered. Asked whether he would follow the law if it was different from what he believed, he said, “Well, I have to. You have to obey the law. . . .” During general voir dire, he stated that he probably would believe the testimony of a police officer over that of another witness, but would not prejudge the testimony. Prospective Juror L. stated an initial generalized opinion as to the type of case probably meriting the death penalty but subsequently expressed an ability to consider the facts of the particular case, and an understanding that he would be required to, and would, follow the law. In People v. Lucas (1995) 12 Cal.4th 415, 480-481 [48 Cal.Rptr.2d 525, 907 P.2d 373], we concluded that the trial court did not err in denying the challenge for cause of a prospective juror who similarly indicated that she probably would vote for death in any case of multiple murder, but also promised to keep an open mind. To the extent Prospective Juror L.’s responses were conflicting, the trial court’s determination of his true state of mind is binding upon this court. (People v. Jenkins, supra, 22 Cal.4th 900, 987.) (3) Prospective Juror Q. Questioned by defense counsel whether the death penalty was appropriate for every proven murder, Prospective Juror Q. indicated that every first degree deliberate murder deserved the death penalty and she could not think “off-hand” of a circumstance in which life without possibility of parole would be appropriate for a proven first degree murder. Asked by the prosecutor whether she could follow the judge’s instruction to examine defendant’s life in considering punishment, she indicated, “I would hope so.” Questioned further by the trial court, she indicated that her decision would not be automatic and she would think very carefully, consider the evidence on both sides, and listen to everything before making up her mind. This prospective juror expressed views indicating a broad, although not uniform, potential application of the death penalty, followed by views strongly indicating that she would consider the facts of the particular case and follow the law. (Cf. People v. Lucas, supra, 12 Cal.4th 415, 480.) (4) Prospective Juror Le. Questioned by the defense as to which cases he believed warranted the death penalty, Prospective Juror Le. indicated that it might be appropriate in “predetermined” murder but not in every murder. He could envision situations in which life without possibility of parole was appropriate. Questioned by the prosecutor, Prospective Juror Le. stated he realized that the death penalty was not warranted in every murder case. During subsequent general voir dire when questioned about punishment, he stated that he would not favor any penalty and would want to hear all the evidence before making a decision. The record does not reflect that he had a bias in favor of the death penalty, merely from his response when asked to envision hypothetical, generalized situations in which it might be appropriate. He believed that life without the possibility of parole also was appropriate and understood that the circumstances of the case before him must be weighed and the penalty decided individually. (5) Prospective Juror M. Questioned by defense counsel, Prospective Juror M. indicated he understood that he was not obligated to vote for the death penalty. Questioned whether he would consider both alternate punishments and vote for the sentence he felt was appropriate based upon his individual determination, he responded in the affirmative. Asked by the prosecutor how he felt about the death penalty, Prospective Juror M. stated it had a place in our society for “crime running rampant” and that “it’s something we need.” During general voir dire, he indicated that capital punishment was valid “in certain cases” when first degree murder was proven. Although he stated he was speculating, in such a case he was more apt to vote for the death penalty than for life imprisonment without the possibility of parole. Prospective Juror M. exhibited a slight preference for the death penalty in first degree murder cases, but also indicated he would vote as the circumstances of the individual case warranted, and not that he would vote for the death penalty in general in such a case. (See People v. Lucas, supra, 12 Cal.4th 415, 480.) To the extent his responses were conflicting, the trial court’s determination of his true state of mind is binding upon this court. (People v. Jenkins, supra, 22 Cal.4th 900, 987.) b. Grant of prosecutorial challenges Defendant also contends that the trial court improperly sustained several of the prosecutor’s challenges for cause to prospective jurors who exhibited reluctance to vote for the death penalty but who also indicated that they would follow the law and were not invariably opposed to the penalty. Defendant con