Full opinion text
Opinion MORENO, J. On November 26, 1985, defendant Michael Anthony Cox was sentenced to death for the 1984 first degree murders of three teenage girls—Denise Galston, her sister Debbie Galston, and Lynda Burrill—with the special circumstance of multiple murder. (Pen. Code, §§ 187, 190.2, subd. (a)(3).) This appeal is automatic. (Pen. Code, § 1239, subd. (b).) For the reasons stated below, the judgment is affirmed. I. Guilt Phase A. Overview Nona Chapman ran a foster home for teenage girls on Weswin Court in Placerville. Darlene S. (Darlene), age 17, moved into the home on December 14, 1983. Debbie Galston (Debbie), age 14, moved in on May 11, 1984, left two weeks later, and returned on July 10, 1984. Her sister, Denise Galston (Denise), also age 14 (they were two of a set of triplets), moved in on May 23, 1984. Joanna N. (Joanna), age 17, moved in on May 25, 1984. Joanna testified that she saw defendant stab Denise to death on June 12, 1984. Denise’s body was found in the El Dorado National Forest on July 31, 1984. Her clothes were found on April 30, 1985, near the location where her body had been found. Lynda Burrill (Lynda), age 18, lived with roommates in Placerville and was acquainted with the girls who lived in the foster home. She disappeared on June 29, 1984, and was last seen with defendant. Her body was found in the El Dorado National Forest on August 4, 1984. A week later, her clothes were recovered near the location where the body was found. Debbie disappeared from the foster home on August 8, 1984. Joanna, who was Debbie’s roommate at the home, found her clothes in the El Dorado National Forest on August 10, 1984. Debbie’s body was found on October 27, 1984, not far from where her clothes were found. Defendant, then age 27, worked at a convalescent hospital in Placerville. Although employed, he often slept in his car, which he would park in downtown Placerville. He met Darlene in January 1984 and immediately began dating her. They would often go camping in the areas where the victims’ bodies were later recovered. They married in September 1984, but defendant left Darlene in November of that year. Defendant knew all of the murdered girls, as he frequented an arcade called The Oz in downtown Placerville where they congregated, and he often picked up Darlene at the foster home. Testimony showed he had a low regard for the three victims. Darlene testified that defendant told her shortly after Debbie disappeared that he had killed all three girls. Defendant was arrested on November 10, 1984 for the three murders. B. Defendant’s Attitude Toward the Victims Several teenage girls testified that prior to Denise’s murder on June 12, 1984, defendant had made rude and threatening comments toward the three victims. For example, Michele D. (Michele), age 15, testified that she met defendant in April of 1984 and that defendant called Denise a slut, stated that Debbie was “turning out real bad,” and called Lynda a “hoser.” Michele further stated that defendant’s whole attitude changed in the spring and summer of 1984. “He became obscene and started listing people, labeling them, what they were and stuff.” Defendant told Michele that she “shouldn’t be like them.” Lynette H., age 16, testified that in early April of 1984 she was riding in defendant’s car when he told her “that some of the girls downtown had a bad reputation to him,” and that they were “sluts.” Lynne A., a high school student, testified that she knew Debbie, Denise, and Lynda from downtown Placerville. In May of 1984, she was with the three victims and two other girls near The Oz when defendant came by, called the girls “sluts,” and made a vulgar sexual reference toward them. On another occasion, Lynne A. testified that Lynda and two other girls were seated on a bench and defendant yelled from his car, “Does your mama know where you sluts are at?” Darlene testified that defendant called Denise a slut. She stated that in the spring of 1984, she and defendant were in his car and they saw Denise smoking a cigarette outside the foster home. Defendant told Darlene “three would be eliminated from the foster home and three more.” On cross-examination, however, Darlene stated that “eliminate” was her word. C. Murder of Denise Galston Denise was last seen on June 12, 1984, the day she was murdered. Joanna witnessed her murder, but did not come forward with this information until late October of 1984. On July 31, 1984, Denise’s remains were found. Loggers John Keyser and Todd Story were working off Ferrari Mill Road. They testified that they reached that spot by driving down Iron Mountain Road, also known as Mormon Emigrant Trail, crossing two dams and making a right turn onto Ferrari Mill Road. On Ferrari Mill Road, they traveled approximately three-quarters of a mile to an intersection known as “Four Comers,” turned right and traveled about one-half to three-quarters of a mile. There they found a human skull and other bones. They found no clothing. Through dental records, including X-rays, it was determined that the bones were the remains of Denise. The pathologist was unable to determine the cause of death; all she could state was that there was no observable trauma to any of the bones. On the evening of June 12, Joanna went to a church parking lot and began drinking. Thereafter, she went to downtown Placerville. She witnessed a commotion, during which Ron Burelco threw a cement block through the windshield of a patrol car. This incident took place between 9:10 and 9:30 p.m. At this time, she saw defendant by the Bell Tower (a local downtown landmark) in his car. He told Joanna that he wanted to talk to her. She got in his car and they drove to the city park. Defendant made a sexual overture to Joanna and grabbed her breast. Joanna returned downtown, where she saw Denise arguing with police officers. She pulled Denise aside and spoke with her. She then walked over to the Stancil’s Toyota dealership, where she again saw Denise, and the two spoke briefly. Denise left, and Joanna watched her walk under an overpass, toward the foster home. Joanna then saw defendant drive by and she made a rude gesture using her third finger, in response to the earlier incident in his car. Defendant stopped where Denise was walking. Joanna stated that it looked like they were arguing and Denise got into his car. The car turned around, approached Joanna, and stopped. Denise asked Joanna to get in the car. Joanna agreed, and sat in the front seat next to Denise. The three left Placerville and headed onto Highway 50. Defendant said they were going to a party. They got off at the Sly Park exit and drove onto Sly Park Road, and then onto Mormon Emigrant Trail. Soon thereafter, the car then turned onto a dirt road, which was Ferrari Mill Road. Joanna saw yellow letters on a tree stump and asked to stop to go to the bathroom. The car eventually stopped and Joanna got out, walked about 100 yards away from the car and vomited. She climbed up a wooded area and washed her face in a “little trickle of water, a stream,” which was “just barely enough to wash [her] face.” She could see by moonlight. She then heard Denise screaming her (Joanna’s) name, and went to the area where she heard Denise’s voice. She saw Denise running in the nude with defendant chasing her. It looked like Denise’s hands were tied behind her back. Defendant pushed Denise down, put a knife to her throat, and stabbed her. Joanna stated she ran away while Denise was still screaming. Joanna reached the road from which they had turned off to get onto Ferrari Mill Road (Mormon Emigrant Trail), saw a car coming, and hid. A second car drove toward her, and when she realized that it was not defendant’s, she ran out in front of the car. The driver turned out to be a person named Joe whom she previously had met at a place called Happy Trails. She got in his car, told him nothing, and he dropped her off at the Burger King in Placerville. Once in town, Joanna said she met Bruce Nesthus and stayed over at his house. Nesthus confirmed that he saw Joanna by the Bell Tower at approximately 3:30 a.m. Nesthus stated that Joanna was very jumpy and her mind seemed elsewhere; she would look over her shoulder and, when a car came by, she would try to hide; and, when she walked into his house, she sighed with relief. Nesthus stated that they had sexual relations and Joanna left the next morning, telling him she was going water-skiing. Adele Nelson, Joanna’s social worker, met with Joanna on June 13, 1984. She had spoken with her on seven to 10 occasions prior to that date. She said Joanna’s demeanor was substantially different on June 13. Nelson stated that it seemed that what they had discussed two days earlier “was completely out of her mind, and [Nelson] wondered what had happened to obliterate what had been important to her from her mind.” Joanna testified that she told no one of the murder, including the police, Nesthus, Chapman, her boyfriend Larry Wright, or Darlene because she thought she would get in trouble and be arrested for the murder. She added that she was ashamed that she had not helped Denise. Thereafter, she avoided defendant and the foster home, and often stayed with her boyfriend’s grandparents. She left Placerville the last week of August 1984 and moved to Renton, Washington, to live with her brother. Joanna “couldn’t live with herself’ and returned to Placerville by train on October 29, 1994 because “she had to come back and tell somebody.” The evening of her return, Joanna talked to Placerville Police Officer Phillip Dannaker. She was visibly shaking and crying at times. She said she knew something about the murders but was afraid the police might think she was involved. The next day, October 30, 1984, Joanna chanced upon Fay Hamage, the wife of El Dorado County Sheriffs Detective Erol Hamage. Fay Hamage testified that she and Joanna began talking after her dog barked at Joanna. It was the first time she had ever met Joanna. Joanna, she said, started talking about the murders and was on the verge of becoming hysterical. Fay Hamage informed her that she was a sheriffs wife and suggested that Joanna accompany her home and meet with her husband, Detective Hamage. Joanna agreed. Once at the residence, Joanna met Detective Hamage and agreed to speak with him and El Dorado County Sheriff Sergeant Bill Wilson about the murders. Joanna told the two sheriffs deputies that she had information about the case they were investigating and wanted to talk to them, but was hesitant because she was afraid she had done something wrong and would be arrested. She explained that she had gone to Washington to try to get away from “it,” but found she could not live with “it” and had returned to talk to them. She also said she was ashamed of herself. It was ultimately agreed that Joanna would talk with a psychologist, Dr. Frank Dougherty, who might be able to help her overcome her reluctance to tell the deputies what she knew about the case. On November 1, 1984, Joanna had her first session with Dr. Dougherty. She met with him again on November 2. She told him that on June 12, she went to Sly Park with defendant and Denise, and that defendant murdered Denise, but she offered no other information. She later testified that, at this juncture, she had just wanted defendant to get arrested, she was not yet ready to tell the whole truth about what she had witnessed, and that she had lied to Dr. Dougherty about certain details. On November 2, Dr. Dougherty and Sergeant Wilson conducted an interview with Joanna that was tape-recorded. That same evening, Sergeant Wilson suggested they “take Joanna in a vehicle to the location.” Joanna agreed to direct Detective Hamage, Sergeant Wilson and Dr. Dougherty along the route she took the night of the murder. They left at 9:00 p.m. Joanna directed them to Highway 50, then to the Sly Park Road turnoff. From Sly Park Road, they drove to the intersection of Mormon Emigrant Trail, crossing two dams. Whenever she told them to make a turn, they would stop after the turn. Joanna would tell them that she did not wish to go any further; she wanted to go back home. They kept reassuring her that everything was all right. As they passed the second dam, Joanna told them to drive slowly. After crossing the dam, they turned right on Ferrari Mill Road, finally reaching the intersection known as Four Comers. They stopped. Joanna “was sunk way down low” in her seat and did not respond when Sergeant Wilson suggested she get out of the car. They turned around and headed back to the sheriffs office. On November 5, 1984, Joanna and Dr. Dougherty had another session. The following day, November 6, Dr. Dougherty, Detective Hamage and Sergeant Wilson took Joanna in a vehicle and returned to Four Comers to see if Joanna could direct them any further. The closer they got to that location, the more fearful and reluctant Joanna became. Once on Ferrari Mill Road, as they approached Four Comers, Joanna said she remembered going further and started crying. At Four Comers, there was a stump with some yellow paint on it. Joanna told them to continue straight ahead, on Ferrari Mill Road. After about a half-mile, she told them to turn around because they were on the wrong road. Back at Four Comers, Joanna said, “We went further down that road,” pointing to the road where Denise’s remains had been located. Joanna became very quiet and sat there crying. They returned to Placerville. On November 7, Joanna had another session with Dr. Dougherty. After that session, Joanna gave a complete tape-recorded statement to the deputies describing the events of June 12. She said that when she saw the yellow paint on the stump she finally decided to tell the truth and leave out nothing. On cross-examination, Joanna admitted having told a different story on November 7, compared to what she had said on the 10-minute tape prepared on November 2. The November 2 tape was played to the jury. She also admitted drinking a pint of rum and a six-pack of beer the night Denise was murdered. She stated that she applied for a reward in this case, but there was no evidence that Joanna was aware of the reward when she came forward. Joanna stated she thought the moon was full that night. In fact, it was one night before a full moon. Joanna stated that she previously recalled saying that there was a “stream” in the area where she had washed her face. Whether water was actually present in the area where Joanna claimed she had washed her face was the subject of much testimony. Susan and Charles Greenwood, who lived at the end of the road where Denise’s remains were located, stated there was no standing water anywhere near where Denise’s body was found. However, Ronald Jones, Director of the El Dorado County Irrigation District, testified that he maintained the rainfall records at Sly Park Dam. He stated that in 1984, it rained .19 inches on June 4, .74 inches on June 5, .24 inches on June 6, and .15 inches on June 7. Prior to June 4, the previous rainfall had occurred on May 3, 1984. Brian Morris, a registered professional forester with the United States Forest Service who studied soil hydrology and watershed management, testified that he viewed Denise’s remains on July 31, 1984, the day they were discovered. The body was on the uphill side of a log, 200 feet up the slope of the roadway, about 100 feet east of an ephemeral draw. He described such a draw as a swale with a rounded bottom that occasionally collected water. He also found culverts that would form shallow puddles during the time of a runoff. He stated that, given the rainfall in that first week of June 1984, he would reasonably expect that on June 12, 1984, water would pool and go down into the culvert. John Cleever, a logger, testified that he went to Four Comers on June 9, 1984 (three days before the murder) to report for work. He said that he drove up Ferrari Mill Road to Four Comers and wanted to make a right turn (onto the road where Denise’s remains were found), but there was a big mudhole with standing water, so he parked elsewhere. The Greenwoods testified that the yellow-painted stump that was identified by Joanna first appeared in August 1984, after the murder was committed. But Dennis Ringnes, a timber sale administrator with the United States Forest Service, testified that in a timber sale, trees to be cut are painted with a special “tracer” paint that is kept under lock and key in order to prevent individuals from painting additional trees not included in the timber sale. He stated that the yellow stump identified by Joanna was painted with that yellow tracer paint in 1979. John Cleever also testified that the trees in that area were painted yellow prior to June 1984. Darlene testified that she was with defendant the night Denise was murdered, and they had driven to Sports Kingdom Hall and McDonald’s in Placerville. She said defendant kept a knife above the car’s sun visor and handcuffs in the backseat. She stated that defendant was “cleaning his gun and sharpening his knife” and told her he was “going to take care of business.” On cross-examination she admitted that at the preliminary hearing, she said that petitioner had said, “Tonight is going to be a good night for business.” She said that defendant took her back to the foster home at 10:00 p.m. She ate a banana and went to the “top of the hill” near the foster home to smoke a cigarette. From that vantage point, she saw defendant pick up Denise underneath the overpass, turn around and stop. She never saw Denise again. She did not see defendant the following day. On April 30, 1985, James Stalford was scouting for wood 100 yards off Ferrari Mill Road by the Four Comers intersection when he came across a “reversible [jacket] either dark blue or black on one side and orange on the other.” He stated that underneath the coat was a purple sweatshirt, bra, tennis shoes, and denim pants. There was no blood on the clothes. Brace Nesthus stated that the reversible jacket belonged to him, and that he had loaned this jacket to Denise while they were standing by the Sports Kingdom Hall on June 12, the night Denise was murdered. Nesthus testified that he saw Joanna at that time as well, standing by the fence at the Stancil’s Toyota dealership. On June 22, 1985, during trial, Sergeant Wilson directed Joanna to take him to the spot where Denise had been killed. Joanna did not want to go, but Sergeant Wilson insisted. Once at Four Comers, he told her to direct him. Jbanna said to drive straight ahead. After about 75 yards, Joanna said that this was not the road, and to turn around. Once back at Four Comers, at Joanna’s direction, they next took the road to their right. After about 150 yards, she said that this was “not the road either,” and they returned to the intersection. When he asked her which was the correct road, Joanna pointed to the road to the west. They drove down that road. Joanna told Sergeant Wilson that it was the correct road but that it looked different. Wilson said it was possible it looked different because it had been logged. At the first landing, or wide spot in the road, Joanna said she did not recall this location, but to keep going. They next went directly into some trees and Joanna stated, “Now I remember this being this way.” At the second wide spot, Joanna said she remembered going this way, and said to keep driving. At the third wide spot in the road she asked Wilson to stop. He asked her why. “This is the spot,” she said, and she became very quiet and began to cry. Wilson stated that this was “almost the same spot” where the jury’s bus had stopped when the jurors viewed the area where Denise’s remains had been located. D. Disappearance of Lynda Burrill Lynda, Shane Daniels, Sher L. (Sher), Todd Baxter, and Bob Jacobs shared a home on Benham Street in Placerville. Lynda lived at this location until she disappeared on June 29, 1984. On August 4, 1984, William Hurley and his wife were camping just off Four Comers on Ferrari Mill Road. While walking through the woods with his dog, he and his wife found a human skull and other skeletal remains scattered over an area of about 25 square yards. Through dental records, including X-rays, it was determined that the bones were Lynda’s. The pathologist was unable to determine the cause of death; she could state only that there was no observable trauma to any of the bones. A week later, Hurley and his wife returned to the area where they found the skull. They were looking for clothes. About 150 yards from where they had found the skull, the Hurleys found clothing on the ground, including a bra, panties, a lavender knit top and a yellow shirt. The four pieces of clothing were in close proximity. Sher identified those items as the clothing Lynda was wearing the night she disappeared. Lynda’s mother, Sharon Burrill, also identified the clothing as belonging to Lynda. On June 29, Sher, Baxter, Jacobs, Daniels, and Lynda had dinner at their Benham Street house. Sher testified that after Daniels and Jacobs left, she and Lynda walked downtown. They met a friend, Darin McArthur, at the furniture store, and the three sat on a bench in front of the bakery. Sher saw Lynda go into The Oz. Lynda left The Oz with defendant and they headed toward the downtown parking lot. Sher knew defendant from The Oz and from around town. She testified that defendant and Lynda were talking. Sher asked Lynda where she and defendant were going, and Lynda told her she was going to the downtown parking lot and would be “right back.” McArthur also stated he saw Lynda pass by with defendant and that Lynda said she would be right back. Lynda never returned. Cheryl Hall, who worked for the Placerville News Company, a downtown newsstand, testified that she saw Lynda and defendant walk past her newsstand on a Friday or Saturday in late June, talking to each other. Hall recounted that Sher was across the street on a bench and Lynda crossed to talk to her while defendant waited. Hall did not see what happened thereafter. Hall stated that the following day, Sher told her that Lynda had not come home and Sher “was really worried about her.” On Saturday, June 30, at 10:00 a.m., defendant went to Joe and Linda Crespin’s house. He spoke to Linda Crespin. She remembered the date because it was her 17th wedding anniversary. She asked defendant if he was dating anyone. He replied, “Yes, I’m seeing a girl named Lynda.” She was not sure if he used the word “seeing” or “dating.” Crespin remarked on the coincidence that her own name was Linda. Defendant replied, “Yes, but she’s not like you.” He added, “girls like that should be eliminated.” Crespin was sure defendant used the word “eliminated.” Crespin stated that defendant had a scratch on his forehead and when she pointed it out, he said he got the scratch “cutting wood.” She later observed him put some medicine on the scratch. A few days after Lynda’s disappearance, Sher was using a pay telephone in the downtown parking lot, talking to Lynda’s father, Donald Burrill. Sher saw defendant park his car, exit the vehicle, and walk with Darlene out of the parking lot. As they passed her, Sher asked defendant where Lynda had gone “that night.” Defendant replied, “Lynda who?” Sher then specified to defendant Lynda’s last name (Burrill). When defendant said he “didn’t know if he knew her,” Sher described Lynda. Defendant then said he did not know Lynda and he was not in town that night. Sher told defendant she had seen him with Lynda that night. Defendant replied, “Well, whatever.” Upon learning that his daughter was last seen with defendant, Donald Burrill called defendant’s place of employment, the El Dorado Convalescent Hospital, and spoke to defendant on July 5 by telephone. He asked defendant: “What did you do with my daughter?” Defendant replied, “Darlene and I do not know your daughter.” Burrill described Lynda to defendant as a young girl acting as a counselor, helping people downtown who were on drugs. Defendant replied, “Darlene and I are not on drugs. We don’t take drugs.” Defendant stated that he would talk to Darlene when he got off work and he would call Burrill back. About 15 to 20 minutes later, defendant telephoned Burrill and said: “Darlene and I do not know Lynda. Besides, I wasn’t even in town that night.” Burrill testified that he had specifically told defendant the night he was concerned about was the Friday before July 5, which was June 29. On July 20, 1984, El Dorado County Sheriff’s Detective William White interviewed defendant about Lynda. At the time, all Detective White knew was that Lynda was missing under suspicious circumstances, and that defendant had been seen with her on June 29. Detective White showed him a photograph of Lynda and asked him if he knew her. Defendant said “that he may have seen her, may have known her, but his girlfriend Darlene knew her better.” When asked if he had been with Lynda on the night of June 29, defendant said that “he could have but he didn’t recall, wasn’t sure.” When asked if he might have accompanied Lynda to the downtown parking lot, defendant replied that “he may have seen her at The Oz, or may have seen her at the Bell Tower, but he didn’t recall walking with her to the parking lot.” Defendant then said he might have walked her to the parking lot, but he was not sure. Darlene testified that on one occasion at the downtown parking lot, Lynda was on the phone and defendant told Darlene that “he knew her parents.” In addition, in early November 1984, defendant told Linda Crespin that “[he] and Darlene gave Lynda a ride from one comer to the next . . . close to where Lynda lives, and then [defendant] went in and told Lynda’s mother that he did just that.” But Lynda’s mother, Sharon Burrill, testified that she did not know defendant, had never met defendant, and had never spoken to him in person or by telephone. Lynette H. testified that she was friends with Lynda, and that she knew defendant. Lynette H. stated she would often see him at the downtown parking lot, The Oz, and the Bell Tower. In the spring of 1984, she observed Lynda and defendant together “five or six times.” They would be walking together or talking, and they were usually alone. They frequented the area between the downtown parking lot and The Oz. E. Disappearance of Debbie Galston Debbie disappeared on August 8, 1984. On October 27, 1984, Thomas Whisenhunt was deer hunting in the area of Baltic Ridge Road and North South Road. About a quarter-mile from the intersection of North South Road and Baltic Ridge Road and about 150 feet off the road, Whisenhunt found the remains of a young girl. The body was about 10 feet from an oil spot and looked as if it had been dragged. No other items were found at the location. Through dental records, including X-rays, it was determined that the remains were those of Debbie. The pathologist was unable to determine the cause of death because the decomposition of the mummified remains destroyed all such evidence. The pathologist further stated that she was unable to find trauma to any of the bones. Brenda Hartman worked with defendant at the El Dorado Convalescent Hospital. She believed that he was a judgmental person who would label young women as “loose.” In the middle of July of 1984, defendant offered Hartman a ride home after her car had broken down. On the way, defendant drove to the foster home to pick up Darlene. Hartman stated that Debbie was sitting on an open windowsill and said, “Darlene, better watch out, Mike has a girl in the car, and he’s going out on you again.” Darlene came outside and called Debbie a “bitch.” Hartman testified that defendant told Darlene, “Well, you don’t have to worry about her much longer.” Joanna testified that several days before Debbie’s disappearance, while inside the foster home, Darlene and Debbie were having an ongoing argument about defendant. When the argument moved outside, Joanna followed Darlene and Debbie because defendant was there. Joanna testified that defendant told Debbie, “I’m going to get you.” Joanna further stated that after June 12, the date Denise disappeared, Debbie became afraid of defendant. Whenever he was around, she would leave. As Joanna explained, “Wherever he was at, we were not there.” Shawn Philpott also testified that Debbie was afraid of defendant. He stated that he had been acquainted with Debbie and had struck up a friendship with her in the weeks prior to her disappearance. On one occasion, while driving with Debbie in his truck, they saw defendant driving towards them from the opposite direction and Debbie “tucked down below the front dash” until defendant passed. On a second occasion, Debbie was with Philpott in front of The Oz when defendant approached in an automobile and Debbie, said Philpott, “pushed me in front of her and then she proceeded to .walk behind the rest of the crowd of people.” On a third occasion, by the Bell Tower, defendant approached in his car and Debbie, said Philpott, “tucked behind me.” On August 8, 1984, while at a birthday party for Larry Vorce at Benham Park that Debbie attended, Michael Nuss saw defendant’s car drive by the park. The driver “drove by real slow looking through the park.” All Nuss could see was that the window was down, the driver was a male with short hair and the car was traveling “five miles an hour, or slower.” No one else was in the car. Nuss thought the time was about 8:00 or 8:30 p.m. Nuss had seen defendant’s car earlier in the day at the AM-PM Mini-Market, when they were getting ready for the party. About 8:30 p.m., Debbie mentioned to Vorce that she had to leave the party as she had to be back at the foster home by 9:00 p.m. Debbie asked Keith B., Katrina M., and a third person, identified only as Logan, to walk “her some of the way.” The three walked with her for a short distance and returned. Darlene testified that on August 8, she and defendant spent the early evening drinking with defendant’s mother and his mother’s boyfriend at the mother’s trailer on Big Cut Road. Upon leaving, they drove to Benham Park where Darlene used the restroom. They stayed at the park for about 15 minutes. Darlene saw Debbie at the park drinking with other people. Defendant then took Darlene home. Darlene testified that during that evening, defendant pulled a knife from his car’s sun visor, put it in his pants and told Darlene “he had to take care of business.” Barbara Rugg, who worked at Nona Chapman’s foster home, testified that Darlene was the first foster child to arrive home that evening. Rugg believed that Darlene returned between 7:45 and 8:00 p.m. Rugg testified that she recalled thinking this was unusual,, because Darlene usually did not return home until 11:00 p.m. or midnight. That same day, August 8, Joanna and her boyfriend, Larry Wright, were together. They returned to the foster home about 8:30 p.m. They wanted to talk to Debbie, but she was not there. They waited until 9:00 p.m., Debbie’s curfew, and then went out looking for her. They did not find her. Debbie did not return home. On August 10, 1984, Joanna and Wright went on a picnic, intending to drive to Anderson Ridge in Wright’s grandparents’ truck. They took Wright’s dog with them. Wright stated the purpose of the picnic was to calm Joanna down and get her away from town because Debbie was still missing and Joanna was upset. They eventually reached North South Road and the “bridge to nowhere.” Wright insisted that Joanna did not give him any directions as to where to drive. At the bridge, Joanna noticed a tennis shoe lying by the creek and pointed it out to Wright. They also saw some clothing in a bush on a small island in the creek. They found pants, a shirt, undergarments, another shoe and a sock. Joanna recognized the clothes as belonging to Debbie and became hysterical; she began to cry “and just became unglued.” They gathered the clothes and put them in the back of the truck. On the way to the sheriffs office, they met Deputy Sheriff Paul Odlin at the Sly Park Dam. They led Odlin back to the “bridge to nowhere,” and showed him where they had found the clothing. Odlin noted that Joanna was shaky and nervous, with tears in her eyes. She kept talking about “how it was Debbie’s clothes and [she] was hoping [Odlin] would find her.” F. Defendant’s Statements to Darlene Darlene testified under a grant of immunity. She stated that a day or two after Debbie disappeared, she was at the Exxon station in Placerville with defendant, cleaning defendant’s car, when she discovered a unicorn key chain. She recognized the key chain as Debbie’s. She stated that defendant asked her to “put it back into Debbie’s belongings.” However, on two other occasions during her testimony, she said the key chain belonged to Denise. Then she corrected herself and said the key chain was Debbie’s and that she put the key chain into Debbie’s drawer at the foster home. Darlene claimed that at the Exxon station, defendant told her “[h]e had strangled [Denise], stabbed her [and] had sexual intercourse with her.” She said defendant told her “[h]e had strangled [Lynda], stabbed her and had sexual intercourse with her.” She said defendant told her “[h]e strangled [Debbie], stabbed her and had sexual intercourse with her.” She responded, “I don’t know” when asked whether defendant had sexual relations before or after he killed the girls. She said defendant was able to do this to the girls because he “handcuffed their hands and tied their feet.” She was not asked, nor did she offer any further details about the murders other than to say that defendant’s statements “kind of upset [her] [a]n awful lot.” On cross-examination, she stated that prior to testifying, she had spoken to Ron Tepper, the trial prosecutor, and Sergeant Wilson each about 50 times. She asserted that the only time defendant talked to her about the murders was that one time at the Exxon station. She said defendant told her he stabbed Denise “in the stomach.” Shortly thereafter, however, she changed her testimony and stated defendant stabbed Denise “in the chest.” She reiterated that defendant told her he tied Denise’s feet, but when confronted with the fact that Denise ran away, she immediately said, “No, he didn’t have time to tie up her feet.” She insisted that defendant told her both Denise and Lynda were killed near North South Road. Both girls’ bodies, however, were found near Ferrari Mill Road. Defendant married Darlene on September 15, 1984, but he ended the relationship less than two months later, on November 7 or 8, 1984. Darlene admitted that she and defendant were no longer together as of November 7, 1984, and that defendant left her for another woman. On November 9, 1984, Joanna and Darlene were together at the sheriff’s station. Sergeant Wilson and Joanna told Darlene that Joanna witnessed Denise’s murder. Sergeant Wilson provided Darlene with the details of Denise’s murder. Defendant was arrested for the murders on November 10, 1984. Darlene admitted she first told police about the Exxon conversation after her conversation with Joanna and about two weeks after defendant was arrested. G. Darlene’s Behavior After August 8, 1984 Immediately after Debbie’s disappearance and the conversation at the Exxon station, Darlene began to act strangely. She also began to accuse defendant of committing the murders. For example, Barbara Rugg, who was in charge of the foster home during Nona Chapman’s vacation, testified that on August 11, 1984, Darlene “started talking about guts and whatnot” and was acting “strange.” Darlene, stated Rugg, had a knife and was “singing a chant.” Rugg called the police at 4:00 a.m. on Sunday, August 12. Placerville Police Officer Dannaker arrived. Darlene told him she thought Denise and Debbie were dead. She added, “I have visions about them being murdered. I see Denise being strangled and Debbie having her head bashed in.” Officer Dannaker asked Darlene if defendant had anything to do with the disappearance of Denise or Debbie. She replied, “I don’t know, he might have.” When he asked her why, Darlene said, “I have these feelings. That’s all I know.” Darlene “was afraid that if [defendant] found out she had been talking to the Placerville Police about him that she might be hurt by him.” On August 12, Darlene directed Officer Dannaker and other police officers to North South Road by Camps Crossing. They were “going to search for graves.” Darlene told Rugg before she went out to look for the bodies, “It’s all going to be over with, Mike’s going to be arrested.” Darlene directed them to the Camp Creek Bridge. Once there, however, Darlene stated she had no idea where any bodies were buried. At that point, Officer Dannaker drove her back to the foster home. Shirley W., Darlene’s mother, testified that when Debbie was missing, she received several calls from her daughter, who was “very upset, crying.” She told her mother, “Momma, I did not kill Debbie, Mike killed Debbie.” She would not tell her mother how she knew the information. Nona Chapman testified that when she returned to the foster home from her vacation on August 13, Darlene was an “entirely different person.” For example, Darlene was chopping a piece of binder paper with scissors. After Chapman told her to put down the scissors, Darlene took out her knife and jabbed another piece of paper. When Chapman asked her to put the knife down, Darlene said, “What’s the matter, are you afraid I’ll stab you?” On August 14, because Darlene was acting so strangely, she was taken from the foster home and spent 48 hours in a psychiatric facility. H. Defendant’s August 12, 1984, Encounter with Police On August 12, 1984, Officer Dannaker located defendant asleep in his car. He observed a gun handle protruding from under the driver’s seat and recovered from the vehicle a fully loaded .357-caliber Smith and Wesson revolver, a small, fully loaded Ruger 10/22 rifle, and a .380-caliber Armi Tanfoglio semiautomatic pistol and matching ammunition. Handcuffs were also located in the rear floorboard area. A knife and scabbard were found in the trunk. That same day, Placerville Police Sergeant William Scholtz took a tape-recorded statement from defendant. The tape was transcribed and most parts were read verbatim to the jury. Sergeant Scholtz told defendant he wanted to talk about the disappearance of Darlene’s roommate. Defendant stated: “I knew her. She used to live with Darlene. Her name was Debbie. I don’t know her last name.” Defendant was asked when he last saw Debbie. He replied: “Well, when I went to pick up Darlene the other day—I don’t remember what day it was. If you ask Darlene, she will tell you.” When asked if this was the day she disappeared, defendant stated: “I didn’t even know she was missing until a couple of days ago when she said—when Darlene said that the girl didn’t come home. I don’t have anything to do with the girls there period.” Later in the interview, defendant again was asked about his activities on Wednesday, August 8. He stated, “Yeah, Darlene told me the girl was missing that day. We went to my mother’s.” He claimed not to have seen Debbie at Benham Park. Other than visiting his mother, defendant had no specific recollection of Wednesday night, August 8, four days earlier. When asked if he stayed at the park for a while, defendant stated: “We usually stay [at my mother’s] until dark or just before dark.” “Then we go down just by Stancil’s Toyota for maybe an hour unless I’m tired and take her home.” After finding out that defendant usually slept in his car in one of two places, the officer asked: “Do you recall what you did on Wednesday night?” Defendant replied, “I just told you.” The officer said, “No, I mean after you dropped off Darlene.” Defendant said, “Yes, I went to the church parking lot and went to sleep. I don’t remember that night specifically—before I was sleeping more at the gym.” Defendant also admitted that he was familiar with Sly Park and North South Roads, He stated that he went camping there with Darlene “as often as we can.” When asked if he knew the Sly Park area very well, defendant stated, “Well, I know the lake and I know the campground I’ve camped at.” The officer asked, “What about other than Sly Park?” Defendant replied, “North South Road .... There’s a place called Camp Creek which I don’t know is how many miles out but it was full so we came back and parked at the bridge where Darlene said that they found the girl’s clothes.” I. Other Evidence In early September 1984, Patricia Kelly worked at the front desk and was a salesperson for Diamond Springs Racquet Fitness Center. Defendant was a member and would be there “just about every single morning” when the club opened. Kelly suspected her husband of seeing another woman who was only 18 years old and discussed her suspicions with defendant. She stated she was upset because she was much older than the girl and the situation “really bothered her.” Defendant replied, “Whores like that should be eliminated.” Shirley W. testified that in late September 1984, Darlene and defendant were visiting, and Darlene wanted to show her newspaper clippings about Debbie and Denise. Shirley W. stated that she told Darlene that she did not want to read the articles. Defendant then volunteered that they “were whores and tramps and they should have been killed.” Joe Crespin met defendant through cutting his hair at his barbershop. He stated they were good friends. He would see defendant with some regularity and they would talk. Crespin testified that on a Sunday in late August 1984, he and defendant were driving south on North South Road by the Camp Creek Bridge, and defendant, pointing to the left-hand side of the bridge, told Crespin that was where Debbie’s clothes were found. (That was the side of the bridge underneath which Debbie’s clothes were located.) Because it “kind of shocked [him] a little bit,” Crespin asked defendant how he knew this information, and defendant replied that Darlene told him. In early November 1984, defendant spoke with Joe and Linda Crespin and the subject of how the girls were killed came up. Defendant said, “If I had stabbed the three girls would I be sitting here talking to you now?” It never occurred to Linda Crespin to ask defendant how he knew the three girls had met their deaths by stabbing. Joe Crespin also remembered the stabbing reference. On November 21, 1984, Sergeant Wilson obtained a search warrant to search defendant’s car, which had been impounded on the day of his arrest, November 10. Inside the car, Sergeant Wilson found a hunting knife and sheath “up in the passenger side sun visor,” and a buck knife and sheath on the backseat. He found a pair of handcuffs underneath the driver’s seat and some nylon rope and rock pitons in the trunk area. There was no blood on either the knife or the sheath. However, a blood expert testified that if a knife had been wiped clean before being placed in the sheath, it would not be expected that blood would be found inside the sheath. It was stipulated that no human blood was found on Debbie’s or Lynda’s clothing. No fingerprints of any of the victims were found in defendant’s car or on items recovered as part of the investigation. No blood evidence linking defendant to the victims was introduced during the trial. The jury visited the various locations about which witnesses testified. The black jacket found on April 30, 1985, with Denise’s clothes was originally thought to be defendant’s. Testimony was elicited to that effect from defendant’s mother, Joe Crespin, and Sergeant Wilson. However, during trial, Bruce Nesthus positively identified the jacket as his, saying he lent it to Denise the night she was murdered. This disclosure prompted Sergeant Wilson to insist that Joanna take him to the location of Denise’s murder on June 22, 1985, while the jury trial was in progress. J. Joanna’s and Defendant’s Knowledge of Undisclosed Facts Sergeant Wilson testified that in a homicide investigation, he did not release to the public all the information in his possession “just in case someone came forward to give information, [he] would use that piece of [withheld] information and check their story.” To his knowledge, there was no specific newspaper article that stated that the spot where Denise’s body was found was reached by driving down Ferrari Mill Road to Four Comers and turning right. The prosecutor brought in representatives from the relevant newspapers (the Mountain Democrat, the Sacramento Bee, the El Dorado Gazette and Foothill Times), radio stations (KAHEKHYL), and television stations (channels 3, 10, 13, 31 and 40) to prove that the media had never disclosed (1) the precise location where Debbie’s clothes were found; (2) the location where Denise’s remains were found; or (3) that Denise was stabbed to death. For example, an article in the Sacramento Bee, dated August 21, 1984, stated, “Galton’s [sic: Galston’s] 14-year-old sister, Debbie, is missing and some other clothing has been found in a forest at Camp Creek where the two girls’ bodies were found.” An article dated August 30, 1984 stated, “[Debbie’s] clothes were found August 10th, at North South Road at Camp Creek about 10 miles west of where the two dead girls were found.” An October 30, 1984 article in the Sacramento Union stated: “The remains of the three teenagers have been found since July 31st in a forest near Camp Creek off North South Road east of Placerville. Skeletal remains found in the El Dorado National Forest were identified Monday as those of 14-year-old Debbie Galston.” The article continued: “Two days later, her roommate and her boyfriend found Debbie’s folded clothing, underwear, shoes and socks by a Camp Creek bridge while on a picnic, sheriffs deputies said.” One radio broadcast, airing August 4, 1984, stated only that Denise Galston’s body was found “approximately one-half mile west of Ferrari Mill Road.” And an article in the Mountain Democrat, dated August 22, 1984, quoted Lieutenant Howard Wilson as saying: “ ‘Whether the victims were strangled, poisoned, stabbed . . . may never be known unless someone decides to talk about it.’ ” II. Penalty Phase A. The Prosecution Case The People put on no new evidence, relying solely on the circumstances of the three murders of which defendant was found guilty. B. The Defense Case Lloyd Kelley supervised defendant’s forestry work for five months in 1978. Defendant took charge of the crew and acted as the leader in Kelley’s absence. Defendant was a “very, very dependable” worker, and Kelley would hire him again. Defendant never used abusive language toward the female members of the crew. Godfried German supervised defendant on a youth forestry conservation crew for three terms of 90 days each around 1975. Defendant was lead man for the crew part of the time. He was trustworthy and dependable. German stated he would hire defendant again. Defendant worked for Maijorie Comer as a student aide in the library at El Dorado High School in 1974 or 1975. Defendant’s picture was hung on the library’s bulletin board as a “special kid” because of his good work. Comer stated that she gave defendant an A-plus for his work, which is unusual for her. Jean Stokes, defendant’s mother, stated that she did not live with or marry his father. When defendant was about one year old, she married Forest Jayne. From the time defendant was 14 months old until he left home at age 16, defendant would often be disciplined and beaten by Jayne. Defendant was the oldest of six children. When he was about six years old, he swallowed gasoline and became ill. He shook all over. He was put in the hospital for a week. Phenobarbital was administered to calm him. He was not taken off this medication until he was about 10 years old. Stokes suspected Jayne was molesting defendant. On one occasion, Jayne and defendant, then age 14, were alone together in Carmel (at Jayne’s home/office). Stokes said she drove to Carmel, and tried to enter the location but the door was locked. When Jayne and defendant finally opened the door, she felt “something very bad was going on.” When defendant was 12, the family had to move because Jayne got three neighborhood boys drunk and molested one of them. Defendant, she said, took care of his younger siblings. He got them up for school, helped fix their dinners and tried to keep his family together. Once, during a snowstorm, Jayne drove the family car off a cliff and the car rolled over four or five times. Defendant rescued the baby and his mother, fearing the car would roll over again. He ran two miles in the snow to get help for his mother, who had broken her ribs. When she got home from the hospital, defendant helped and took care of the children. Defendant had been married and had three children. He helped deliver his son. Stokes testified that this period occurred four or five years prior to the trial. Defendant, at the time, was very happy. Then, while he was back east in the Army, defendant learned from his grandfather that his wife had moved another man into their home. Defendant was upset. He was able to get out of the Army to address this situation. Defendant changed after he came home and his family was broken up. He was “hurting very badly.” He would take long walks. He drank. He was quiet. He seemed unable to “get it together,” and wanted to be alone. This is when he began to judge and classify people. On cross-examination, Stokes said that after divorcing Jayne, she remarried and had a sixth child at age 40, when defendant was over 18. Defendant did not like his new sister and thought she was a “brat.” When she was about two and a half to three years old, the child fell into some water. Defendant, who had been drinking, made no effort to save her, and another person pulled her out of the water. Carolyn Jayne, defendant’s half sister, testified on his behalf. She corroborated prior testimony that her father beat defendant and sexually abused him, and that defendant was instrumental in raising the other children. She corroborated prior testimony that they had to move one time because their father had molested some young boys in the area. Albert Globus, a psychiatrist, testified on defendant’s behalf. He first examined defendant on December 12, 1984. He had read all the police and sheriffs reports about the case. He reviewed a neurological evaluation by Dr. A.T. Vogt, a clinical psychologist; the medical records of defendant’s physician, Dr. Talcott Bates; the records of two electroencephalograms conducted on defendant in May 1963 and June 1962; the progress notes Dr. Bates made when treating defendant for a seizure disorder; a telephone conversation with defendant’s attorney about defendant’s biological father; psychological tests of defendant performed on July 19, 1985, by Dr. Edwards, a psychologist; an electroencephalographic report on defendant dated July 19, 1985; and a psychological evaluation by Dr. William G. Danton. Dr. Globus diagnosed defendant as having alcohol abuse in remission and organic brain syndrome, which he described as “some damage or deficit in function of nerve cells of the brain,” which he characterized, in defendant’s case, as mild. It was stipulated that defendant had suffered no prior felony convictions. C. Rebuttal Joseph Chandler said that defendant was his foreman during the nine months he worked for the forestry service in 1979 or 1980. Defendant generally supervised nine people, including three women. Chandler stated that defendant “enjoyed the power he had as foreman and really tended to push it around quite heavily. He would make work extremely hard for some of the people he didn’t like and made it great for those that he did, preferably the women.” In the absence of the women, he talked about specific body parts and told the men “what he would like to do [to the women], and when he would offer to do that to them and they would turn him down, and he joked around about it to us.” Most of the crew found defendant’s behavior highly offensive. Wayne Rice, like Chandler, worked under defendant for about nine months in 1977 or 1978. With women, defendant “would mention sexual things he would like to do to [the women members of the crew] and what he would like to have them do to him.” Rice, who was 16 years old at the time, was so angered by defendant’s words that he hit defendant with a tire iron in the presence of the other crew members. Rice admitted that he had suffered a prior felony conviction. III. Discussion—Guilt Phase A. Prior Representation of Prosecution Witnesses by Defense Counsel Defendant contends that he was deprived of effective assistance of counsel due to conflicts of interest arising from his attorneys’ prior representation of four prosecution witnesses. We disagree. 1. Factual Background Prior to the preliminary hearing, Defense Counsel Patrick Forester, an assistant public defender, informed the court that a year earlier his office had represented Darlene’s mother, Shirley W., who was then a prospective witness in a separate case in which the state sought to have Darlene declared a ward of the court on the basis of alleged sexual molestation by Gerald W., her stepfather. John Sudman, a deputy public defender in the same office as Forester, appeared as Shirley W.’s counsel at the detention, jurisdictional, dispositional, and review hearings. The petition was found true on January 27, 1984, and Darlene was made a ward of the court. On October 2, 1984, the public defender’s office ceased its representation of Shirley W. In light of this information, the trial court appointed John Olson as counsel for Shirley W. in order to advise her of her attorney-client privileges arising from that earlier representation. After consulting with Olson, Shirley W. agreed in open court to waive any privileges she may have had, and agreed that she could be cross-examined as to any discussions she had with Sudman. On March 1, 1985, Forester declared a conflict of interest in a case involving James Carter, a potential prosecution witness. Forester never represented Carter. Attorney Stephen Tapson was appointed to represent Carter. On March 6, Tapson was replaced by another attorney, in anticipation of his appointment in the Cox case as second attorney. On March 7, Tapson was appointed as second attorney in the Cox case. Tapson represented that “at no time” had he talked to Carter. Forester informed the court that he explained the situation to defendant. Defendant then indicated to the court that despite this “possible conflict of interest,” he still wanted Tapson appointed. Defendant specifically agreed to waive any possible conflict of interest. Another potential witness, Darin McArthur, had previously been represented by Tapson’s firm. Tapson informed all parties that he had had no contact with McArthur. Defendant again agreed to waive any possible conflict of interest arising from that case. Forester indicated for the record that he fully discussed this situation with defendant, including the nature of the cases in which witnesses Carter and McArthur were involved, and defendant still wanted Tapson appointed. Defendant confirmed this statement to the court. During trial, Lisa D. was called as a prosecution witness. Tapson indicated that the witness had previously been represented in juvenile court by another member of his firm. Tapson also indicated that his firm did not currently represent Lisa D. Tapson told the court that he was unsure if these facts constituted a conflict of interest. Forester indicated the defense would seek to impeach Lisa D. with her juvenile grand theft “conviction.” The prosecutor thereafter agreed to raise this issue on direct examination. The court ruled there was no conflict of interest. Defendant never objected to his continued representation by counsel in light of any of these alleged conflicts of interest. 2. Legal Principles The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest. (People v. Bonin (1989) 47 Cal.3d 808, 833 [254 Cal.Rptr. 298, 765 P.2d 460] (Bonin).) To establish a federal constitutional violation, a defendant who fails to object at trial “must establish that an actual conflict of interest adversely affected his lawyer’s performance.” (Cuyler v. Sullivan (1980) 446 U.S. 335, 350 [100 S.Ct. 1708, 1719, 64 L.Ed.2d 333].) The Sullivan court made clear “that the possibility of conflict is insufficient to impugn a criminal conviction.” (Ibid.) “To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an ‘informed speculation’ that the asserted conflict adversely affected counsel’s performance. [Citations].” (People v. Frye (1998) 18 Cal.4th 894, 998 [77 Cal.Rptr.2d 25, 959 P.2d 183].) “But ‘[permissible speculation giving rise to a conflict of interest may be deemed an informed speculation . . . only when such is grounded on a factual basis that can be found in the record.’ ” (People v. Belmontes (1988) 45 Cal.3d 744, 776 [248 Cal.Rptr. 126, 755 P.2d 310] (Belmontes), quoting People v. Cook (1975) 13 Cal.3d 663, 670-671 [119 Cal.Rptr. 500, 532 P.2d 148].) To determine whether counsel’s performance was “adversely affected,” we have suggested that Sullivan requires an inquiry into whether counsel “pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. (People v. Easley (1988) 46 Cal.3d 712, 725 [250 Cal.Rptr. 855, 759 P.2d 490].) In undertaking such an inquiry, we are, as stated, bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission. (Id. at p. 727.) In any event, a defendant may properly waive his right, to the assistance of an attorney unhindered by a conflict of interest. (Holloway v. Arkansas (1978) 435 U.S. 475, 483, fn. 5 [98 S.Ct. 1173, 1178, 55 L.Ed.2d 426]; Bonin, supra, 47 Cal.3d at p. 837.) 3. Discussion This is not a case in which defense counsel has undertaken multiple representation of defendants with competing interests. (See, e.g., Holloway v. Arkansas, supra, 435 U.S. 475.) Nor is it a case in which a former client was called as a witness, and was alleged to have “masterminded” the crime in which the current client was presently on trial. (Leversen v. Superior Court (1983) 34 Cal.3d 530 [194 Cal.Rptr. 448, 668 P.2d 755].) Instead, this is a case where three of four witnesses were previously represented by other attorneys in counsel’s firm in matters that were unrelated to the current trial, and where counsel was appointed to represent the fourth witness, but never spoke to the witness before being replaced. (See, e.g., Belmontes, supra, 45 Cal.3d at p. 776.) A conflict may arise if a former client is a witness in a new case because the attorney is forbidden to use against a former client any confidential information acquired during that attorney-client relationship. (Bonin, supra, 47 Cal.3d at p. 835; Leversen v. Superior Court, supra, 34 Cal.3d at p. 538.) But if the attorney possesses no such confidential information, courts have routinely held that no actual or potential conflict of interest exists. For example, in People v. Lawley (2002) 27 Cal.4th 102, 145-146 [115 Cal.Rptr