Full opinion text
Opinion CHIN, J. A jury convicted defendant of the first degree murder of Lee Ann Thurman (Pen. Code, § 187) with the use of a knife (§ 12022) and found true the special circumstance of a prior murder conviction (§ 190.2, subd. (a)(2)). Later, defendant admitted three prior serious felony convictions. (§ 667, subd. (a).) After a penalty trial, the jury returned a verdict of death, and the court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. The Facts A. Guilt Phase 1. Prosecution Evidence During the evening of August 5, 1988, the body of Lee Ann Thurman, nude but partially covered by a blanket, was discovered on the floor of her apartment in Redding. She was 24 or 25 years old and developmentally disabled; she “had the skills of . . . maybe a 10 year old.” The body had bruises on the face and neck possibly caused by a fist and eight or nine stab wounds, all but one to the chest. The other stab wound, inflicted after death, was to the vagina. The autopsy revealed that the victim had also been manually strangled before she died. The cause of death was “multiple stab wounds to the chest with manual strangulation.” The morning after the body was found, August 6, 1988, defendant entered the Circus Circus casino in Reno, Nevada, and told a security officer, “I just killed a girl. I need a drink.” He said he had killed her “[bjecause she was a whore.” He also said he had the knife and the victim’s identification. Another security officer was called to the scene, and the two seized a knife and wallet from defendant. A short time later, defendant told a police officer, “I killed a lady. Talk to me please.” Defendant spoke with an officer of the Reno Police Department about the killing. His story changed a number of times, but basically he said he picked the victim up while she was hitchhiking in Redding, and he paid her $10 to orally copulate him. The two went to her home, where they had sexual intercourse. He drank a lot of peppermint schnapps. Then, he said, “I just snapped.” He killed her with the knife he showed the security guard, which had been in his pocket. He said, “I just nutted up,” and “I hate women.” When asked why he killed her, he said he “heard helicopters.” He said he had spent two and a half years in Vietnam, from November 1964 to April 1967, and suggested that he had been in combat and had been trained to kill. He claimed he had been honorably discharged from the military and had received a Bronze Star and two Purple Hearts. After he killed her, he said, he wiped his fingerprints off the doorknob, the couch, and the shower. He denied ever having hurt a girl before. Later defendant gave a similar statement to the Redding police. He said he just “snapped.” “I heard chopper blade, ... I just blew it.” He said he had “been drinking a hundred proof of Peppermint Schnapps for two weeks.” The police recovered the truck that defendant said he had driven to the Reno area. It contained a purse that defendant said was the victim’s. The wallet defendant gave the security guards contained Thurman’s identification. The knife that defendant gave the guards had human blood on it that could have been the victim’s but not defendant’s. The truck that defendant drove to Reno belonged to Richard Blakeslee, with whom defendant was living at the time of the killing. Blakeslee testified that defendant had taken the truck once before without permission. On the day of the killing, Blakeslee said, he and defendant had been drinking. One of Thurman’s neighbors testified that around 7:30 to 8:00 p.m., the day of the killing, she saw a man she did not know drive the same truck with Thurman as a passenger to Thurman’s residence. The two got out and entered the residence. The neighbor had not seen the truck before. Richard Blakeslee’s wife, Anna, received a telephone call shortly before 10:00 p.m., the night of the killing. A voice she did not recognize identified itself as “Lee Ann” and said, “Ray wanted me to call and tell you that he’s okay and he’ll be home shortly.” Anna gave the telephone to Richard. Richard heard a woman say something, then heard defendant’s voice say, “Put the phone down or I’ll kill you.” The prosecution also presented evidence that in 1971, defendant stabbed to death a 15-year-old babysitter, Deborah Cema, for which he was convicted of second degree murder. 2. Defense Evidence Defendant presented evidence to suggest that Thurman’s boyfriend, who discovered the body, might have been the killer. But the main thrust of the defense was that he was guilty of a crime less serious than first degree murder. As appellate counsel describes it, defendant presented “a mental defense, based on psychological dysfunction brought on by traumatic experiences in the Vietnam War, and on neurological and psychological deficits resulting from head injuries.” Defendant appeared intoxicated when he came to the Circus Circus casino the day after the killing. A blood sample taken after his arrest had a blood-alcohol level of 0.15 percent; when he arrived at the casino the level would have been around 0.23 percent. A witness estimated that if defendant had drunk the amount of peppermint schnapps that he claimed to have drunk the day of the killing, his blood-alcohol level at 8:00 p.m., the night of the killing, would have been around 0.28 percent. A California Highway Patrol air traffic officer testified that the night of the killing he flew a helicopter in the area of Thurman’s home, including one flight at 10:05 p.m. almost directly over her residence. Such flights were made on a daily basis. Shad Meshad, the executive director of the Vietnam Veterans Aid Foundation in Los Angeles, testified about the trauma members of the military faced in Vietnam. Defendant was in the navy. His military records do not indicate that he experienced any combat, but they show that he had two weeks of training at a “counter-insurgency school” for “SEALS” that teaches the students to kill with knives. Meshad believed defendant may have had a temporary duty assignment involving a particularly traumatic type of combat that was not reflected in the records. Eventually, defendant received a discharge from the military that was, according to the witness, “other than honorable” because of a “civil conviction.” Dr. Harry R. Kormos, a psychiatrist, testified as an expert on “post traumatic stress disorder” (PTSD), particularly “as it applies to Vietnam veterans.” Persons suffering from the disorder can experience a “flashback,” and thus relive their traumatic experiences. Events such as the sound of a helicopter can trigger a flashback. Robert Buley, director of the Shasta County Substance Abuse Clinic, testified that defendant suffered from “episodic alcoholism” and would go on drinking binges lasting from a few days to a few weeks. When Buley tried to discuss Vietnam with him, defendant would “shake” and refuse to talk about it. Dr. John Wicks, a psychologist, administered various tests to defendant and concluded he has a “brain impairment” and a “personality syndrome” consistent with brain damage which would cause “impulse control problems.” Dr. Stephen Pittel, also a psychologist, testified about defendant’s problems with substance abuse. Dr. Richard Sauer, a neurologist, testified that defendant’s brain is smaller than he would expect in someone his age, and it had an old trauma that looked like a hole. Dr. Arthur Kowell, another neurologist, analyzed the results of EEG (electroencephalogram) tests, which record brain electrical activity, and a “BEAM” test, i.e., brain electrical activity mapping. Defendant’s EEG result was normal, but the BEAM test showed abnormalities in his brain. At the time of trial, BEAM testing was a fairly new technique and had been used primarily for treatment rather than evidentiary purposes. Regarding its validity, Dr. Kowell testified that control groups for the BEAM system were broken down into age groups varying in size from 15 to around 40 persons, and that the group for defendant’s age consisted of 16 people. Dr. Robert Bittle, a doctor specializing in psychiatry and neurology, testified about defendant’s brain abnormalities, his learning difficulties as a child, head traumas he had suffered, including a skull fracture in 1980, and his substance abuse. He opined that defendant has an “organic brain dysfunction”; that he has “post-traumatic stress disorder, Vietnam-type”; that he has a “major affective disorder”; and that he suffers from a “mixed personality disorder” with “schizoid, antisocial, avoidant, aggressive and paranoid elements.” Persons with these problems “routinely misinterpret stimuli, very poorly control[] anger, hostility and aggression and tend to over-respond and misinterpret events or stimuli coming from the environment or those in the environment.” On cross-examination, Dr. Bittle testified about the scientific acceptance of BEAM testing, which was a new technology. The testing and its results are based on data maintained by the person who owned the patent on the machine used in this case. That person “will not release [that data] until the patent runs out.” Therefore the database was not a matter of public record. Although opinion in the scientific community was divided, Dr. Bittle believed that BEAM testing was generally accepted in the scientific community for clinical use. B. Penalty Phase 1. Prosecution Evidence In addition to the prior murder conviction, the prosecution presented evidence that in 1967, defendant abducted a woman at knifepoint from her home in the Redding area, drove her in her car to a remote location, raped her, and tried to force her to orally copulate him. For these events, defendant was convicted of kidnapping, rape, and sex perversion. Additionally, after he stabbed Deborah Cema to death, defendant led a deputy sheriff who was trying to stop him on a high-speed chase, and fired several shots at him, for which he was convicted of assault with a deadly weapon on a peace officer. 2. Defense Evidence Defendant’s former employer testified defendant was a good worker who seemed to abuse drugs and alcohol. Regarding Vietnam, defendant told the employer “that a lot of times when he was under the influence of whatever that he would have flashbacks.” A former girlfriend of defendant’s testified that he treated her “fine” and she did not have problems with him. She ended the relationship because he had emotional and substance abuse problems. Defendant’s aunt testified about his family background and said defendant had changed when he returned from Vietnam. A San Joaquin County deputy sheriff testified that for a number of years beginning in 1978, defendant provided the authorities at the Deuel Vocational Institute in Tracy with valuable information about a prison gang. Two friends of defendant’s testified about his good qualities and problems with drug use and alcohol. Both said he was “compassionate.” II. Discussion A. Jury Selection Issue Defendant contends that excluding from the guilt phase jury those prospective jurors who would automatically vote against the death penalty violated his rights under both the United States and California Constitutions. We disagree. Both this court and, as to the United States Constitution, the United States Supreme Court have rejected the contention. (Lockhart v. McCree (1986) 476 U.S. 162, 176-177 [106 S.Ct. 1758, 1766-1767, 90 L.Ed.2d 137]; People v. Jackson (1996) 13 Cal.4th 1164, 1198-1199 [56 Cal.Rptr.2d 49, 920 P.2d 1254], and cases cited.) We may not depart from the high court ruling as to the United States Constitution, and defendant presents no good reason to reconsider our ruling as to the California Constitution. B. Guilt Phase Issues 1. Admission of Evidence of Prior Murder Before trial, the prosecution moved to admit evidence of defendant’s 1971 killing of Deborah Cema on the question of his mental state when he killed Thurman. Defendant opposed the motion, and the parties argued the question extensively before the trial court. Thereafter, relying heavily on our then recent decision of People v. Robbins (1988) 45 Cal.3d 867 [248 Cal.Rptr. 172, 755 P.2d 355] (Robbins), the court granted the motion in a detailed written ruling. At trial, the prosecution did prove the circumstances of the prior killing. Defendant contends the ruling was erroneous. Closely on point is Robbins, supra, 45 Cal.3d 867. In Robbins, during a prosecution for murder with the special circumstance allegation of a murder during the commission of a lewd and lascivious act, the trial court permitted the prosecution to present evidence of a previous similar killing to show the mental state with which the defendant committed the charged crime. We upheld that ruling. (Id. at pp. 878-881.) Even closer on point is the intervening decision of People v. Carpenter (1997) 15 Cal.4th 312 [63 Cal.Rptr.2d 1, 935 P.2d 708] (Carpenter), where, as relevant here, we upheld the admission of three uncharged murders on the questions of intent to kill, deliberation, and premeditation as to the charged crimes. As we explained in Carpenter, “The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.” (Carpenter, supra, 15 Cal.4th at pp. 378-379.) Here, the facts of intent to kill, premeditation, and deliberation were material. Defendant’s not guilty plea put in issue all of the elements of the offenses. (Carpenter, supra, 15 Cal.4th at p. 379.) Defendant argues that he conceded at trial the issue of intent to kill. Even if this is so, the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent. (People v. Scheid (1997) 16 Cal.4th 1, 16-17 [65 Cal.Rptr.2d 348, 939 P.2d 748].) Moreover, the issues of premeditation and deliberation were disputed at trial and, indeed, remain disputed even in this appeal. The previous killing also had a tendency to prove these facts. At trial, the prosecution made a detailed offer of proof. Because defendant does not claim, and we do not discern, a significant discrepancy between the offer of proof and the actual evidence, we will focus on the evidence. In 1971, defendant stabbed to death Deborah Cema, who had been babysitting his girlfriend’s children. The Cema and Thurman killings bore several similarities. Both victims suffered manual strangulation and received a cluster of about eight stab wounds in the chest or abdomen. The victims resembled each other somewhat. Moreover, in both cases, defendant admitted the killing to the police shortly afterwards, but supplied an explanation. After the first killing, defendant claimed he had taken some mescaline, drank some beer, and smoked marijuana. When he arrived home, the victim complained that he had been gone a long time. Then, defendant told the police, “It just hit me the wrong way. All these mescaline and everything was taking effect. And I hit her. The next thing that I really remember is when I stabbed her and all the blood and everything.” In this case, defendant blamed the killing on drinking peppermint schnapps and hearing a helicopter. The two killings were similar enough to make the earlier one relevant to the mental state with which defendant committed the later one. The least degree of similarity between the crimes is needed to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) As we explained in Carpenter and Robbins, the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous. Specifically, the more often one kills, especially under similar circumstances, the more reasonable the inference the killing was intended and premeditated. (Carpenter, supra, 15 Cal.4th at pp. 379-380, 383; Robbins, supra, 45 Cal.3d at pp. 879-880.) Moreover, here the fact that defendant readily admitted the killing on both occasions but supplied explanations was relevant to determining whether the explanations were true or merely convenient excuses for intended, premeditated killings. Defendant argues that the prosecutor conceded that the trial for killing Cema contained no evidence of premeditation, and that he was convicted of second degree murder in that case, meaning that no premeditation was found. Accordingly, he argues, it is illogical and improper to infer premeditation from the evidence of the earlier killing. However, the doctrine of chances is based on a combination of similar events. When defendant killed Cema, he had not yet killed Thurman, so no combination of similar events had occurred. The situation was different at this trial. The fact that defendant killed twice under similar circumstances is logically probative of whether the second killing was premeditated even if no independent evidence existed that the first killing was itself premeditated. Moreover, as discussed in part II. B. 3, below, the prior killing bolstered all three categories of evidence we generally consider in deciding whether the evidence of premeditation and deliberation was sufficient. The fact defendant had previously killed with a knife strengthens the inference that he considered the possibility of homicide from the outset when he entered the victim’s house with a knife. The fact that defendant had previously killed a young woman supports his stated motive that he hated women. The fact that defendant killed twice in the same distinctive manner—a cluster of seven or eight stab wounds in the chest or abdomen combined with manual strangulation— strengthens the inference that he had a calculated design to kill precisely that way. There is also no rale or policy requiring exclusion. As the trial court recognized when it concluded that the probative value of the evidence outweighed its prejudicial effect, evidence of other crimes is inherently prejudicial. (Carpenter, supra, 15 Cal.4th at p. 380.) But this circumstance means the court must exercise its discretion, not that it must always exclude the evidence. Here, the Cema killing was highly probative of defendant’s mental state when he killed Thurman, a critical issue. Moreover, the fact that defendant was convicted of the earlier killing reduces any prejudicial effect. (People v. Balcom (1994) 7 Cal.4th 414, 427 [27 Cal.Rptr.2d 666, 867 P.2d 777].) Defendant argues that the first killing, 17 years before the second, was too remote to have significant probative value. Although the trial court should consider remoteness in exercising its discretion, given the similarities of the killings, we do not believe the time factor compelled the court to exercise its discretion in only one way. Moreover, because defendant was convicted of the earlier murder, we may also presume he was incarcerated a substantial part of the intervening time and thus had little or no opportunity to commit a similar killing. Defendant also reiterates that he conceded the question of intent to kill at trial. The trial court should consider whether the party objecting to the evidence actually disputes the fact for which it is offered in weighing the probative value against its prejudicial effect. If the fact is undisputed, the evidence has less true probative value. But here intent was so critical to the question of guilt that the court could, in its discretion, conclude the prosecution was entitled to prove it fully. Moreover, as noted, premeditation was strongly disputed and the prior killing was highly probative on that issue. We perceive no abuse of discretion in admitting the evidence. (Carpenter, supra, 15 Cal.4th at p. 380.) Defendant also notes that, by statute, the special circumstance allegation of a prior murder conviction is tried only after the defendant has been convicted of first degree murder. (§ 190.1.) He infers from this provision a legislative intent to exclude evidence of the prior murder from the trial of guilt. We agree that, at the trial of guilt, the jury should not automatically learn of the prior conviction merely because that conviction establishes the special circumstance. But we see no suggestion the Legislature intended to exclude evidence of a prior crime that is otherwise admissible under normal rules of evidence. Finally, citing McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, defendant argues that admitting the evidence of the Cema conviction violated his federal due process rights. That case held that “ ‘if there are no permissible inferences the jury may draw from the evidence,’ ” its admission can violate due process. (Id. at p. 1384.) We need not decide here to what extent, if any, evidence solely going to character might violate due process (cf. People v. Falsetta (1999) 21 Cal.4th 903, 921-922 [89 Cal.Rptr.2d 847, 986 P.2d 182]), for, as explained, here the evidence of the Cema killing supported the permissible inference that the second killing was intended and premeditated. 2. Testimony of the Pathologist The pathologist who performed the autopsy of Deborah Cerna had died by the time of trial in this case. Accordingly, the court permitted Dr. Thomas Resk, who performed Thurman’s autopsy, to rely on the earlier autopsy report in testifying about similarities between the two killings. The court stated that “the purpose of the inquiry is basically just to compare the similarities between two events.” It ascertained that the prosecutor did not intend to ask the witness “to render any opinions other than as to similarities as to location and possibly force . . . .” Based on the earlier autopsy report, Dr. Resk testified on direct examination about the Cema killing. He expressed no opinion regarding the mental state with which either killing was performed. On cross-examination, the defense elicited Dr. Resk’s opinion that the Thurman killing might have been committed in a “rage.” Thereafter, on redirect examination, the prosecutor asked whether the Thurman killing could also have been “methodical.” Dr. Resk responded “yes.” Over objection, the prosecutor then asked whether the fact that the same person committed both the Cema and Thurman killings would influence Dr. Resk’s opinion. Noting that the defense had itself gone into the area, the court permitted the question. Dr. Resk testified that due to the numerous similarities between the two killings, the fact that the same person committed both would “[djefinitely” influence his opinion. He then detailed the points of similarity between the killings but said nothing further about the mental state involved in either killing. Defendant contends the court erred in permitting Dr. Resk to testify, as defendant describes it, “to the effect that the killing of Lee Ann Thurman was premeditated.” He argues that this “whole line of testimony should have been excluded” because it was not the proper subject of expert testimony under Evidence Code section 801, subdivision (a). That section provides that expert testimony must relate “to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” Defendant argues that whether the similarity of the crimes permitted the inference that the second killing was methodical was not the proper subject of expert testimony because the jury could draw any such inference as well as an expert. The defense, however, not the prosecution, initiated this “whole line of testimony.” On direct examination, the prosecutor did not elicit any testimony regarding the mental state involved in either killing; indeed, it appears that the court might not have allowed it to do so. Rather, the defense first raised the matter when it asked on cross-examination whether the Thurman killing might have been committed in a rage. Despite defendant’s assertion that the court should have excluded the whole line of testimony, we assume he is not really complaining about the defense cross-examination—which clearly helped the defense—but only about the redirect examination, which sought to neutralize that cross-examination and present the full picture. Once the defense elicited Dr. Resk’s opinion on cross-examination that the Thurman killing might have been done in a rage, the prosecution was entitled to elicit on redirect examination the further opinion that it might have also been methodical. “The extent of the redirect examination ' of a witness is largely within the discretion of the trial court. . . . It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he may be examined on redirect as to such new matter.” (People v. Kynette (1940) 15 Cal.2d 731, 752 [104 P.2d 794].) The prosecution was also entitled to inquire into the facts that might influence this opinion. (See People v. Montiel (1993) 5 Cal.4th 877, 918 [21 Cal.Rptr.2d 705, 855 P.2d 1277] [experts are entitled to explain the reasons for their opinions].) Moreover, contrary to defendant’s contention, Dr. Resk did not testify that the killing was either in a rage or methodical. He merely said it might have been either and the fact that the same person committed both killings was relevant to the question. We see no error in permitting this very limited redirect examination in response to the cross-examination. Relying on authority involving situations in which a witness says something irrelevant—for example, a testifying defendant makes a broader than necessary assertion of innocence—and the adverse party seeks to take advantage of that statement by introducing otherwise irrelevant character evidence, the concurring opinion disagrees with our conclusion. The concurring opinion argues that by failing to object to an opposing party’s question of a witness, a party forfeits not only (1) the right to claim on appeal that the evidence elicited was improper, but also (2) the right to question the witness on the same subject if the party who asked the question successfully claims the question was improper. Failure to object does, indeed, forfeit the right to raise the issue on appeal. (Evid. Code, § 353.) We also agree that a party should not be allowed to take advantage of an obvious mistake to introduce prejudicial evidence. We do not believe, however, that a party may ask relevant questions, then, when the other side does not object, prevent all cross-examination (or redirect examination) responding to the same point by successfully asserting that its own question was improper. As noted, the matter lies within the discretion of the trial court, which should strive to prevent unfairness to either side when one side presents evidence on a point, then tries to prevent the other side from responding. Witkin notes that the “authorities are difficult to reconcile” regarding the problem of what to do when a witness “makes a statement on an irrelevant matter,” and the adverse party seeks “to capitalize on the blunder or accident by offering impeaching evidence on a collateral matter.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 352, pp. 439-440.) The cases the concurring opinion cites illustrate this difficulty. (Cf. People v. Wells (1949) 33 Cal.2d 330, 340-341 [202 P.2d 53] [defendant’s testimony that he “got along” with prison officers did not justify the prosecution’s presenting evidence of a wide range of otherwise irrelevant evidence of prison misbehavior] with People v. Westek (1948) 31 Cal.2d 469, 475-481 [190 P.2d 9] ' [defendant’s testimony that he had never committed any act of sodomy or lewdness on any boy did permit the prosecution to present evidence of uncharged crimes against three boys].) Witkin suggests that “[i]f the evidence were relevant and merely incompetent (e.g., hearsay or inadmissible opinion), the failure to object would be a waiver of its inadmissibility [citation]. On the other hand, failure to object cannot give irrelevant evidence any probative effect [citation].” (3 Witkin, Cal. Evidence, supra, § 352, p. 439.) We do not express a view on this question, for it is not presented. The defense question, whether the killing may have been in a rage, was neither irrelevant nor a blunder. The prosecution was entitled to ask the witness questions on the same point despite the failure to object to the defense question. The concurring opinion concludes that the prosecution could have asked these questions on direct examination regardless of the cross-examination. It may be correct but, because the question is not presented, we do hot decide it. 3. Sufficiency of the Evidence Defendant contends the evidence of premeditation and deliberation was insufficient to support the verdict of first degree murder. “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331 [75 Cal.Rptr.2d 412, 956 P.2d 374].) Defendant relies heavily on the familiar tripartite test of People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], In that case, “we identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, . . . ‘Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]’ ” (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.) Here, Anderson guides our assessment quite effectively, for all three categories of evidence exist. As to planning, the jury could Infer that defendant carried the fatal knife into the victim’s home in his pocket, which makes it “reasonable to infer that he considered the possibility of homicide from the outset.” (People v. Alcala (1984) 36 Cal.3d 604, 626 [205 Cal.Rptr. 775, 685 P.2d 1126].) This inference is much stronger in this case, because defendant had already stabbed another woman to death. When a person stabs a woman to death, then leads another woman into her apartment with a knife in the pocket, the jury can readily infer that the person possessed the knife for the same purpose. Additionally, as the trial court noted when it denied defendant’s motion to dismiss the first degree murder charge, Richard Blakeslee testified that when he was speaking with “Lee Ann,” whom the jury could reasonably have found was the victim, he heard defendant say, “Put the phone down or I’ll kill you.” This evidence suggests a planned killing. Defendant argues Blakeslee’s testimony was not credible, but the jury could reasonably have believed it. As to motive, defendant told the police that he hated women. This statement, combined with the fact he had once before killed a young woman of somewhat similar appearance, provides strong evidence of motive. Finally, defendant stabbed the victim about eight times in the chest and strangled her. Previously, he had killed another woman in almost the same distinctive manner. This manner of killing, and doing so the same way twice, “supports the inference of a calculated design to ensure death, rather than an unconsidered ‘explosion’ of violence.” (People v. Alcala, supra, 36 Cal.3d at p. 627.) “Under all the circumstances, we find ample evidence of premeditation and deliberation.” (Ibid.) 4. Instructional Issues Defendant contends the trial court committed several instructional errors, a. CALJIC No. 8.73 The court instructed the jury on first and second degree murder and voluntary manslaughter due to provocation. Although questioning whether the evidence warranted manslaughter instructions, the district attorney stated he was requesting them “out of an abundance of caution.” Defendant contends that the court had a sua sponte duty also to instruct in accordance with CALJIC No. 8.73 that if the evidence showed “provocation” that was insufficient to make the crime manslaughter, the jury might consider that provocation in deciding whether the crime was first or second degree murder. We need not decide whether the court must give such an instruction sua sponte when the evidence warrants (compare People v. Mayfield (1997) 14 Cal.4th 668, 778 [60 Cal.Rptr.2d 1, 928 P.2d 485], with People v. Johnson (1993) 6 Cal.4th 1, 43 [23 Cal.Rptr.2d 593, 859 P.2d 673], and People v. Perez (1992) 2 Cal.4th 1117, 1129 [9 Cal.Rptr.2d 577, 831 P.2d 1159]), for here no evidence of provocation existed. (People v. Perez, supra, 2 Cal.4th at pp. 1129-1130.) “The fact that the prosecutor requested a heat of passion instruction for manslaughter does not establish that the evidence would have necessitated a sua sponte instruction. Such instructions are commonly requested out of an abundance of caution.” (Id. at p. 1130.) Defendant does not argue evidence existed that the victim provoked him into killing her. Rather, he argues that the word “provocation” is a “shorthand expression” for the statutory language defining voluntary manslaughter as a killing “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) He concedes there was no evidence of provocation in the sense of a quarrel, but he focuses on the phrase “heat of passion” and argues there was ample evidence he killed in the heat of passion. Indeed, he argues, the entire defense theory of the case was that he killed under the heat of passion caused by a combination of circumstances. But this argument does not aid him. Although the court did not use the word “provocation” in regard to the degree of murder, it did instruct on “heat of passion.” It told the jury that for the killing to be first degree murder, it must not have been committed “under a sudden heat of passion or other condition precluding the idea of deliberation.” (CALJIC No. 8.20.) By specifically referring to heat of passion and generally referring to any other condition precluding deliberation, the court fully instructed on the law relevant to the actual evidence. It did not also have to refer to “provocation” regarding the degree of murder, which would not have fit the evidence. For the same reasons, we reject defendant’s alternate argument that his trial attorneys were ineffective in failing to request CALJIC No. 8.73. Defense counsel expressly recognized at trial that no evidence existed of a “sudden quarrel.” They ensured that the instructions addressed their theory of the case and the evidence actually presented, not some other theory and some other evidence. b. Instruction on Heat of Passion The trial court gave the standard instructions on voluntary manslaughter due to heat of passion. Defendant contends the court erred in refusing additionally to give an instruction the defense requested: “The passion necessary to constitute heat of passion need not mean rage or anger but may be any violent, intense, overwrought or enthusiastic emotion which causes a person to act rashly and without deliberation and reflection.” The court refused the instruction, finding that the standard instructions fully instructed the jury on heat of passion. The instruction the defense requested is derived from language in our decisions. (E.g., People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777]; People v. Borchers (1958) 50 Cal.2d 321, 329 [325 P.2d 97].) The Courts of Appeal have divided on whether the trial court could, or should, give this instruction on request. (Cf. People v. Rupe (1988) 206 Cal.App.3d 1537, 1540-1542 [256 Cal.Rptr. 126] [court should not give the instruction even if requested], with People v. Thompkins (1987) 195 Cal.App.3d 244, 256-257 [240 Cal.Rptr. 516] [the court should give some such “pinpoint” instruction on request].) We need not decide the question, for no evidence warranted any heat of passion instructions whatever as to voluntary manslaughter. No evidence exists that the victim provoked defendant. Since its adoption in 1872, section 192, subdivision (a), has described voluntary manslaughter as the unlawful killing “upon a sudden quarrel or heat of passion.” Noting that this language does not specifically require “provocation,” defendant argues that any kind of heat of passion will suffice for manslaughter, not merely heat of passion due to provocation. We disagree. Section 192 is not the only legislative word on the question. Also since its adoption in 1872, section 188 has stated that malice is implied “when no considerable provocation appears.” (See People v. Williams (1969) 71 Cal.2d 614, 623-624 [79 Cal.Rptr. 65, 456 P.2d 633].) Under this language, “[e]vidence of adequate provocation overcomes the presumption of malice.” (Id. at p. 624.) Accordingly, for voluntary manslaughter, “provocation and heat of passion must be affirmatively demonstrated.” (People v. Sedeno (1974) 10 Cal.3d 703, 719 [112 Cal.Rptr. 1, 518 P.2d 913]; see also People v. Breverman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) The heat of passion requirement for manslaughter has both an objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327 [185 Cal.Rptr. 436, 650 P.2d 311].) The defendant must actually, subjectively, kill under the heat of passion. (Id. at p. 327.) But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, “this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” (People v. Logan (1917) 175 Cal. 45, 49 [164 P. 1121].) Defendant’s evidence that he was intoxicated, that he suffered various mental deficiencies, that he had a psychological dysfunction due to traumatic experiences in the Vietnam War, and that he just “snapped” when he heard the helicopter, may have satisfied the subjective element of heat of passion. (See In re Thomas C. (1986) 183 Cal.App.3d 786, 798 [228 Cal.Rptr. 430], citing People v. Berry, supra, 18 Cal.3d at p. 515.) But it does not satisfy the objective, reasonable person requirement, which requires provocation by the victim. (In re Thomas C., supra, 183 Cal.App.3d at p. 798.) “To satisfy the objective or ‘reasonable person’ element of this form of voluntary manslaughter, the accused’s heat of passion must be due to ‘sufficient provocation.’ ” (People v. Wickersham, supra, 32 Cal.3d at p. 326.) “[E]vidence of defendant’s extraordinary character and environmental deficiencies was manifestly irrelevant to the inquiry.” (People v. Morse (1969) 70 Cal.2d 711, 735 [76 Cal.Rptr. 391, 452 P.2d 607].) As far as manslaughter is concerned, defendant’s evidence, if anything, shows diminished capacity, not heat of passion. “Provocation and heat of passion are not synonymous with diminished capacity.” (People v. Spurlin (1984) 156 Cal.App.3d 119, 128 [202 Cal.Rptr. 663].) “The essence of a showing of diminished capacity is a ‘showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication.’’ ” (People v. Berry, supra, 18 Cal.3d at p. 517.) However, the Legislature abolished the defense of diminished capacity before defendant committed this crime. (People v. Castillo (1997) 16 Cal.4th 1009, 1013-1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Only diminished actuality survives, i.e., the jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether defendant actually had the required mental states for the crime. (People v. Saille, supra, 54 Cal.3d at p. 1116; but see current § 22, subd. (b); People v. Castillo, supra, 16 Cal.4th at p. 1014 & fn. 1.) The trial court instructed the jury on this point. Thus, although the trial court instructed the jury on heat of passion voluntary manslaughter out of caution, it did not have to do so, as no evidence supported the instructions. Accordingly, the court did not have to give yet more instructions on the point. (People v. Perez, supra, 2 Cal.4th at pp. 1129-1130.) c. Instruction on Premeditation Defendant requested, and the court refused to give, an instruction on premeditation derived from People v. Anderson, supra, 70 Cal.2d 15, including that to find premeditation, the jury had to “find evidence of planning activity, motive to kill, and a calculated killing; or extremely strong evidence of planning activity; or evidence of motive to kill, in conjunction with either planning activity or a calculated killing.” The court correctly refused the instruction. “By its very terms, People v. Anderson, supra, 70 Cal.2d 15, guides appellate courts in conducting sufficiency-of-evidence review of findings by juries of premeditation and deliberation. (See id. at pp. 24-34.) It does not even purport to constrain juries in making such findings.” (People v. Berryman (1993) 6 Cal.4th 1048, 1080 [25 Cal.Rptr.2d 867, 864 P.2d 40]; see also People v. Bolin, supra, 18 Cal.4th at pp. 331-332.) d. Objective Standard of Voluntary Manslaughter Pursuant to CALJIC No. 8.42, the court instructed the jury on the objective component of heat of passion manslaughter—that to reduce murder to manslaughter, the heat of passion “must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct . . . .” Defendant argues that section 192, subdivision (a), which merely refers to an unlawful killing “upon a sudden quarrel or heat of passion,” does not itself require this objective standard, and therefore this court erred in adopting it. We disagree. As explained, section 192 must be read together with section 188, which implies malice “when no considerable provocation appears.” Our cases have long and continuously held that whether the provocation is considerable enough to negate malice must be judged objectively. (E.g., People v. Wickersham, supra, 32 Cal.3d at p. 326; People v. Logan, supra, 175 Cal. at p. 49; see also People v. Valentine (1946) 28 Cal.2d 121, 136-144 [169 P.2d 1] [reaffirming the objective standard after a thorough review of § 192 and its history].) Defendant presents no good reason to reconsider these decisions. Defendant also argues that the jury must consider all the circumstances confronting him, including his particular mental condition. He claims that “the law of manslaughter required the jury in this case to consider how an otherwise ordinary person, having [his] Vietnam War background, his resulting clear symptoms of post-traumatic stress disorder, and his brain function abnormalities which led him to misinterpret and overreact to events, would have acted in the situation in which [he] found himself at the time of the killing.” However, because only he fits this particular description, defendant would be setting his own standard of conduct, contrary to the law. Such a rule would eliminate the objective standard in favor of a subjective one. It would, in effect, resurrect the abolished defense of diminished capacity in the guise of an expanded form of heat of passion manslaughter. As noted, the jury was allowed to consider defendant’s evidence in determining whether he actually had the required mental states for the crime. The law does not, however, permit defendant to use himself as the measure of what is adequate provocation to reduce what would otherwise be murder to manslaughter. C. Penalty Phase Issues 1. Failure to Give 1989 Version of CALJIC No. 8.84.1 In People v. Babbitt (1988) 45 Cal.3d 660 [248 Cal.Rptr. 69, 755 P.2d 253], the trial court failed to explain to the jury at the penalty phase which of the guilt phase and, in that case, sanity phase instructions applied at the penalty phase. The defendant argued that this failure left the jury without proper guidance, and that if the jury believed that all of the guilt phase instructions applied at the penalty phase, he “was denied a fair penalty determination because the jury was instructed at the guilt phase not to be influenced by sympathy for defendant and to disregard the consequences of its decision.” (Id. at p. 717.) We found no error but suggested that in future cases, to avoid possible confusion, “trial courts should expressly inform the jury at the penalty phase which of the instructions previously given continue to apply.” (Id. at p. 718, fn. 26.) In response to this suggestion, the Committee on Standard Jury Instructions of the Superior Court of Los Angeles County (the Committee) rewrote CALJIC No. 8.84.1. (See Use Note to CALJIC No. 8.84.1 (1989 new) (5th ed. 1988).) In the new version of CALJIC No. 8.84.1, the Committee departed somewhat from our suggestion. Rather than tell the jury which guilt phase instructions apply to the penalty phase, the new instructions simply tell the jury to disregard all previous instructions. Then the trial court is to reinstruct the jury entirely from the beginning. As the Use Note to the instruction explains, the rewritten CALJIC No. 8.84.1 is to provide introductory information in place of CALJIC No. 1.00, which is the guilt phase introductory instruction. The trial court is then to reread all guilt phase instructions that also apply to the penalty phase, beginning with CALJIC No. 1.01, and the remaining penalty phase instructions. The Use Note to the instruction states, “Our recommended procedure may be more cumbersome than the suggestion advanced in [People v. Babbitt, supra, 45 Cal.3d at page 718,] footnote number 26, but the Committee believes it is less likely to result in confusion to the jury.” Although trial in this case occurred shortly after adoption of the 1989 version of CALJIC No. 8.84.1, the trial court did not give that instruction. Instead, it gave the previously standard instructions augmented with several special instructions. Defendant contends the court erred. However, as we explain, the actual instructions, including the special instructions, many at defense request, fully instructed on the law and informed the jury at the penalty phase which of the previous instructions would continue to apply. Although the approach the Committee took—telling the jury to disregard previous instructions and reinstructing anew—may be effective, perhaps even preferable, we have never mandated it. The actual instructions satisfied the concerns we expressed in Babbitt. The court explained to the jury which guilt phase instructions applied at the penalty phase. It expressly told the jury it could consider sympathy. At the guilt phase, the court had instructed, “Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just verdict regardless of the consequences.” Defendant does not argue that the court should have specifically told the jury to disregard the reference to reaching a just verdict “regardless of the consequences.” The penalty phase instructions as a whole made clear that the jury did have to consider the consequences; after all, the whole point of that phase was to decide what penalty to impose. The court specifically admonished the jury to “also keep in mind that each of you bears the ultimate responsibility to determine the appropriate penalty under all the circumstances of this case.” As in Babbitt, which did not have these special instructions, “We conclude that the jury could not have been misled as to its responsibility to consider the consequences of its decision.” (.People v. Babbitt, supra, 45 Cal.3d at p. 718.) Defendant argues that the failure to give the new version of CALJIC No. 8.84.1 withheld from the jury “several fundamental principles.” But each of these principles was covered in other instructions, including CALJIC No. 1.00, given at the guilt phase. Defendant makes the following specific arguments: (1) CALJIC No. 8.84.1 tells the jury to “determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise.” However, the court did tell the jury “to consider all of the evidence which has been received during any part of the trial of this case except as you may be hereafter instructed.” (See CALJIC No. 8.85.) (2) CALJIC No. 8.84.1 tells the jury to “accept and follow the law that I shall state to you.” However, at the guilt phase, the court told the jury “to accept and follow the law as I state it to you whether or not you agree with the law.” (See CALJIC No. 1.00.) (3) CALJIC No. 8.84.1 tells the jury not to be “swayed by public opinion or public feelings.” At the guilt phase, the court told the jury not to be “influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” (see CALJIC No. 1.00) and, at the penalty phase, it told the jury not to consider “for any reason whatsoever the deterrent or non-deterrent effect of the death penalty or the monetary cost to the state of execution or maintaining a prisoner for life.” (4) CALJIC No. 8.84.1 tells the jury, “Both the People and the Defendant have a right to expect that you will . . . follow the law [and] exercise your discretion conscientiously . . . .” As noted above, the guilt phase instructions said essentially the same thing and, at the penalty phase, the court told the jurors “to keep in mind that each of you bears the ultimate responsibility to determine the appropriate penalty under all the circumstances of this case.” Thus, although the court did not give the 1989 version of CALJIC No. 8.84.1, it did give its substance. There was no error. 2. Failure to Give 1989 Version of CALJIC No. 8.88 Before 1989, CALJIC No. 8.88, the standard penalty phase concluding instruction, did not itself define “aggravating” and “mitigating.” Nevertheless, in at least two cases tried before 1989, the trial court gave special instructions defining those terms. (People v. Adcox (1988) 47 Cal.3d 207, 269 [253 Cal.Rptr. 55, 763 P.2d 906]; People v. Dyer (1988) 45 Cal.3d 26, 77-78 [246 Cal.Rptr. 209, 753 P.2d 1].) In both cases, the defendant argued that the instructions were erroneous. We disagreed and concluded that the “definitions of aggravation and mitigation provided a helpful framework within which the jury could consider the specific circumstances in aggravation and mitigation set forth in section 190.3. We find no error in the presentation of both definitions to the jury, and we find no prejudice in light of the instruction limiting the jury’s consideration to ‘the applicable factors of aggravation].’ ” (People v. Dyer, supra, 45 Cal.3d at p. 78; see also People v. Adcox, supra, 47 Cal.3d at pp. 269-270 [citing Dyer].) In light of these decisions, the Committee revised CALJIC No. 8.88 to add a paragraph defining “aggravating” and “mitigating” derived from the instructions given in those cases. Although trial in this case occurred shortly after this paragraph was added to CALJIC No. 8.88, the trial court did not give it; instead, it gave the previous version of the instruction. (See fn. 6, ante.) Defendant contends the court erred. We disagree. Although we have found that giving the instruction was neither error nor prejudicial to defendants, we have never suggested that the instruction was required or that not giving it prejudiced defendants. The standard instructions predating the 1989 revision were not erroneous. “Although giving the instructions may have provided a ‘helpful framework’ for the jury’s consideration of the statutory circumstances in aggravation and mitigation (People v. Dyer, supra, 45 Cal.3d at p. 82), the court’s refusal [to give such instructions] was not error.” (People v. Malone (1988) 47 Cal.3d 1, 54-55 [252 Cal.Rptr. 525, 762 P.2d 1249]; see also People v. Barnett (1998) 17 Cal.4th 1044, 1175 [74 Cal.Rptr.2d 121, 954 P.2d 384].) In this case, the special instructions the court gave made these definitions particularly unnecessary. At defense request, the court gave a special instruction pinpointing the defense mitigating evidence the jury could consider, while making clear that the wide range of possible mitigation was not limited to that evidence. (Cf. People v. Benson (1990) 52 Cal.3d 754, 805-806 [276 Cal.Rptr. 827, 802 P.2d 330] [trial court not required to give such pinpoint instructions].) Moreover, the court itemized the other crimes evidence and evidence of convictions that the jury could consider—the only aggravating evidence the prosecution presented—and specifically told the jury it could not consider any other criminal activity or convictions in aggravation. In light of these instructions, it is hard to imagine how defendant could have desired, or benefited from, any other instruction defining mitigation and aggravation in general terms. The actual instructions fully protected defendant’s interests. 3. Other Instructional Issues Defendant makes two other instructional contentions that we have repeatedly rejected and continue to do so. The trial court need not (1) instruct the jury that it may impose the death penalty only if it finds beyond a reasonable doubt that death is the appropriate penalty or (2) impose on the prosecution the burden of persuasion. (People v. Samayoa (1997) 15 Cal.4th 795, 852-853, 862 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Hayes (1990) 52 Cal.3d 577, 643 [276 Cal.Rptr. 874, 802 P.2d 376].) D. New Trial Motion Based on Jury Misconduct Defendant moved for a new trial due to jury misconduct. In support of the motion, he presented the declarations of two jurors, which were quite similar. Both jurors stated that they had listened to the trial court’s instruction on life without the possibility of parole but did not believe it to be true, and they thought that someday defendant might be released on parole. They said that if they had really thought life without possibility of parole meant what it said, they would not have voted for the death penalty and would have held out against a vote for death. Both also said that four men on the jury with experience in the military and Vietnam “drew upon their experience in the service and determined that the military records that we reviewed and heard testimony about did not show that Mr. Steele” either served in Vietnam at a time when he might have been exposed to combat (one juror) or “served as a Seal and learned how to kill from the counterinsurgency schools because they had attended the same schools and did not learn how to kill in them” (the other juror). Both jurors said that “[t]heir input about this subject was very helpful in establishing the validity of Mr. Steele’s [Vietnam] experience.” One added that it helped her “to determine that he was not suffering from P.T.S.D.” Finally, both jurors said the jury had two persons “with medical experience who told the rest of us that the criteria that the Doctor’s \sic\ used to establish the validity of the B.E.A.M. Test” was “inadequate” based on “what they have learned in their own experience in the medical field.” Regarding this inadequacy, one of the jurors specifically referred to “something like 17 control people.” One of the jurors said that this input helped her “to determine that Mr. Steele was not suffering from any problem with his brain.” The other said that this input “helped me because I have no experience when it comes to that type of thing.” After a hearing, but without taking evidence, the trial court denied the new trial motion. It concluded that it could not consider the statements in the declarations regarding the jurors’ “subjective state of mind,” but it did consider the declarations regarding what it characterized as “the expertise of other jurors.” On this point, the court said that “there was a morass here of military and medical evidence, all of it subjected to reasonable and logical analysis from lay people of various backgrounds and varying experiences. The only thing I have in these affidavits is a conclusionary assumption, no factual allegation at all—it would almost take a definitive transcript of the deliberation conversation to know at what point a juror is relying on . . . expertise and at what point he is just reasonably analyzing this vast amount of material that has been input into the deliberation system.” Defendant contends the court erred in denying the new trial motion. He divides his jury misconduct argument into two categories: (1) the two jurors who signed the declarations committed misconduct by not following the court’s instructions on the legal significance of a sentence of life without parole; and (2) some of the nondeclarant jurors committed misconduct by “the offering of expertise . . . , during deliberations, to help the jury as a whole to resolve key factual issues the case presented.” Both contentions lack merit. 1. Refusing to Follow the Trial Court’s Instructions The two declarant jurors said they believed that, given a life without parole sentence, defendant might someday be released and that, had they believed otherwise, they would have held out for a life sentence. The trial court properly refused to consider these statements regarding the jurors’ thought processes. Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent or to dissent from the verdict or concerning the mental processes by which it was determined.” (Italics added.) This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .” (People v. Hutchinson (1969) 71 Cal.2d 342, 349 [78 Cal.Rptr. 196, 455 P.2d 132].) “This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” (People v. Hutchinson, supra, at p. 350; see also In re Hamilton (1999) 20 Cal.4th 273, 294 [84 Cal.Rptr.2d 403, 975 P.2d 600]; Ballard v. Uribe (1986) 41 Cal.3d 564, 575-578 [224 Cal.Rptr. 664, 715 P.2d 624] (conc. opn. of Mosk, J.).) The statements of the jurors regarding their understanding of the meaning of a life sentence and what they would have done had they believed differently come squarely within the prohibition against impeaching a verdict with evidence of the jurors’ mental processes. “ ‘[A] verdict may not be impeached by inquiry into the juror’s mental or subjective reasoning processes, and evidence of what the juror “fel