Full opinion text
Opinion WERDEGAR, J. A jury convicted defendant Duane Holloway of first degree murder (Pen. Code, § 187, subd. (a)) in the deaths of Debra Ann Cimmino and Diane Renee Pencin, attempted rape (§§ 261, 664) of Cimmino, and burglary (§ 459) of the victims’ joint residence. The jury found true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), murder (of Cimmino) in the commission of attempted rape (§ 190.2, subd. (a)(17)), and murder (of Pencin) in the commission of burglary (ibid.). The jury also found defendant had personally used a knife (§ 12022, subd. (b)) in the murder of Pencin. After a penalty trial, the jury returned a verdict of death. The court denied the motion for modification of the penalty verdict and entered judgment accordingly. This appeal from the resulting judgment is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. Facts Guilt Phase Evidence Prosecution Debra Cimmino and Diane Pencin, half sisters who shared a Sacramento townhouse, were killed in the early morning hours of Sunday, March 20, 1983. Diane was found the next day in her bedroom, dead of stab wounds and strangulation. Debbie, also strangled, was found in her car, which was parked outside the townhouse. The principal evidence against defendant consisted of his fingerprints inside the townhouse and Debbie’s car; pubic and other hairs found at the crime scene that were consistent with defendant’s hairs and inconsistent with the victims’; defendant’s initial false exculpatory statements to police, including an attempt to manufacture an alibi; and his eventual partial admission to presence at the crimes. At the time of their deaths in 1983, Diane Pencin was 32 years old and Debbie Cimmino was 20. Both were single, Diane having been married and divorced, and they lived alone in the townhouse, which Diane owned. Lorie Cimmino, their mother, and Michael Cimmino, Debbie’s father and Diane’s stepfather, lived about a block away. A third sister, Janet Williams, also lived in Sacramento, and her 10-year-old daughter, Michelle, visited Diane and Debbie frequently, including on the weekend of their deaths. Diane and Debbie were security conscious, locking their front door even when they were home and setting their burglar alarm at night. On Saturday, March 19, Michelle Williams, who had spent Friday night at Diane and Debbie’s townhouse, helped Debbie wash her car. They cleaned the automobile thoroughly, inside and out, wiping the back window with Windex and the interior surfaces with Armor All. Diane took Michelle home around 3:00 p.m., then went to a movie with Michael Cimmino. Diane dropped Michael off after the film and spoke to him by telephone around 6:00 p.m., saying that instead of having dinner with him as planned, she would rather stay home and watch some videos. Sherilyn Hoye, a friend of Debbie’s, spent around two hours on Saturday, March 19, from 9:00 p.m. to 11:00 p.m., at the townhouse with Debbie, mostly in her bedroom. Debbie, who was wearing beige shorts and a red and white top, had just finished cleaning the bedroom before Hoye’s visit. About 11:30 p.m., Lorie Cimmino telephoned the townhouse and spoke with Debbie, who said she had polished her nails and cleaned the townhouse that evening, that she was tired and going to bed, and that Diane was already in bed; Lorie could also hear Diane’s voice in the background. On Sunday, March 20, Hoye and two other friends of Debbie’s tried repeatedly to reach Debbie at home by telephone, but no one answered the phone. Debbie’s body was discovered in her car, which was parked in a carport next to the townhouse, on the morning of Monday, March 21, by a concerned friend of both sisters who learned Debbie had not shown up at work and could not be reached by telephone. The friend also noticed two newspapers, including a Sunday paper, on the front doorstep. Police were called and dispatched about 10:00 a.m.; the first officer on the scene discovered Diane’s body inside the townhouse and saw Debbie’s in her car. Debbie Cimmino’s body lay on the backseat of her car, clothed only in a red and white top. Various other items, including a parka, a robe and a blanket, covered the body. Debbie’s purse and its contents were scattered on the front passenger floor. On the back floor were a pair of jogging shoes, a pair of socks, jeans, and black panties. Near the victim’s feet, a plastic piece of the seat structure was cracked through. According to the autopsy pathologist, the cause of Debbie’s death was manual strangulation. This was shown, inter alia, by petechiae on her eyelids and the whites of her eyes, external marks on her neck, and internal hemorrhaging in her neck and tongue. Though no sperm were detected in swabs taken from Debbie, there was a quarter-inch tear in the skin at the opening of her vagina and adjacent bruising, consistent with sexual assault and inconsistent with ordinary personal hygiene. The pathologist also found defensive wounds and a tom fingernail on Debbie’s hands and a braise on her forearm. Diane Pencin was found lying on her back on her unmade bed. She was nude, though her mother testified she always slept in a nightgown or long shirt. A bloodstained pillow, a tom pillowcase, and one part of a telephone without its cords lay on the bed as well. Under Diane’s body were several identification cards belonging to Debbie. A pair of red panties was tucked between the mattress and the bed frame. Elsewhere in the room were found another piece of the tom pillowcase, this one knotted; the remaining portion of the telephone, also without cords; two knives, one with visible blood on it; a damp bloodstained dishcloth; and blood spots on the wall. The pathologist opined Diane had died of both stabbing and strangulation. In Diane’s case, strangulation was with a ligature, which could have been a straight telephone cord. Ligature strangulation was shown by petechiae, her dark and puffy face, and the pattern of straight, narrow wounds to her neck. Apparent ligature marks were also on her wrists and ankles. Diane had been stabbed with a knife or similar weapon at least five times in the upper abdomen, including wounds to the heart and liver; some of the wounds were apparently aggravated by the weapon having been partially withdrawn and thrust back in at different angles in the same area. There was no physical evidence of sexual assault. The telephone in the townhouse kitchen was on the floor, missing its flat cord. In the bathroom, several wet towels were lying around the sink, a condition uncharacteristic of Debbie and Diane’s housekeeping. Debbie’s bedroom disclosed no sign of a straggle, though a knife was found under the pillow. The telephone was in working order. Two telephone cords were later found under the bottom sheet on Debbie’s bed: one a flat cord with a small amount of blood on it, the other coiled, with fibers matching those on the floorboard of Debbie’s car. The front door to the townhouse was unlocked, and there were no signs of forced entry. Defendant’s latent fingerprints were found on the telephone body and receiver in Diane Fencin’s bedroom, as well as on the doorjamb of that room. Defendant’s prints were also found at several places on the exterior of Debbie Cimmino’s car (along with latent prints belonging to others, identified and unidentified) and on the interior backseat surface, above the victim’s body, with the fingers of the print pointing towards the victim’s head, which was on the driver’s side of the seat. Three pubic hairs, one combed from Debbie’s pubic hair and two found on a robe found in her car, showed characteristics consistent with the microscopic appearance and structure of defendant’s pubic hairs but inconsistent with Debbie’s. Two scalp hairs the criminalist described as “Negro” were found on a blanket covering Debbie’s body; Debbie was excluded as the donor of these hairs, but defendant (who is African-American) could not be excluded. When arrested on March 22, 1983, defendant had several scratches on his abdomen, which he said he had incurred playing handball the previous day. On Monday, March 21, 1983, in the initial police investigation of the deaths, Debbie Cimmino’s friends and mother mentioned defendant as an acquaintance of Debbie’s. Officers Hash and Dean contacted defendant that evening. He was cooperative, giving the officers a taped interview and supplying them with fingerprint samples. According to defendant’s statement on March 21, he knew Debbie Cimmino from high school, where they had been friends. They corresponded during a period he spent away from Sacramento and on his return renewed their friendship. Defendant was not Debbie’s lover, though he would have liked to have been. He had been in Diane and Debbie’s townhouse many times, including both bedrooms. Defendant’s father lived very close to the townhouse, but defendant himself lived with his mother elsewhere in Sacramento. In the March 21 interview, defendant said that he spent Saturday night, March 19, with a friend, Robert Cruz, and Cruz’s friends, watching television at Cruz’s home, drinking (though defendant abstained), and driving around Sacramento. He slept on Cruz’s couch from around 4:00 a.m. to 6:30 a.m. Sunday, then Cruz dropped him off at his mother’s house around 7:00 a.m., where, after his mother let him in, he slept until about 2:00 p.m. that day. Questioned late on the night of March 21, Robert Cruz confirmed defendant’s alibi, telling officers he had dropped defendant at defendant’s mother’s house around 8:00 a.m. on Sunday, March 20. The following morning, however, Cruz, troubled, told the detectives he had provided defendant a false alibi at defendant’s direction; in fact, he had dropped defendant at his father’s home, near the crime scene, about 4:00 a.m. on Sunday. Defendant had called him later that morning and directed that if anyone were to ask, Cruz should say he left defendant at his mother’s at 8:00 a.m. After confessing his earlier falsehood, Cruz, at the detectives’ direction, made a monitored telephone call to defendant. When Cruz began to ask defendant about the false alibi, defendant cut him off and asked him to come by later so defendant could “show [him] something.” Cruz also contradicted defendant’s statement that he did not drink any alcohol Saturday night. On Tuesday, March 22, detectives detained defendant, who said he was on his way to see them, as he was leaving his house. At the station, defendant was advised of and waived his Miranda rights. He now admitted that Cruz had in fact dropped him at his father’s home between 3:00 and 4:00 a.m. He also admitted he had been drinking that night with Cruz and his friends, but claimed he was not drunk and was in control of himself. When defendant realized his father was not home, he walked to a nearby Circle K convenience store and telephoned his mother’s house for a ride home; defendant, however, also admitted that before Cruz dropped him off he noticed his father’s van was not in the driveway. No one answered at his mother’s house. He also called a friend who lived in the neighborhood, Lorenzo Chuidian, but got no answer there either. Defendant initially said he thought about calling Debbie, but knew she would be in bed; later he said he had called the Pencin-Cimmino home, but no one answered. While at the Circle K, defendant heard a scream and the sound of glass breaking. Afraid that he would be associated with a possible crime because of his proximity, he later told Cruz to say he had dropped defendant off at his mother’s house rather than his father’s. Defendant continued, despite extended questioning and confrontation with fingerprint evidence, to insist he had not gone to the townhouse on Sunday morning. Eventually, though, as the detectives purported to begin filling out an arrest report and booking him, defendant admitted he had drunk enough beer and tequila to get drunk, that from his father’s he “went over to [Debbie’s] house,” and that he remembers her “screaming” in the carport. He further said he “thinkfs]” both women answered the front door, he told them he was stranded, he may have used their telephone, and that although he did not know what happened next, “I remember being in the house. I remember being in the carport. I remember, I remember Debbie screaming.” Asked how he stopped her from screaming, defendant said he did not know. Defense Defendant testified in his own behalf, giving a version of events different from either of his statements to police. According to his testimony, defendant and Debbie had become lovers shortly after his return to Sacramento and remained so up until her death. They had made love in her bedroom and in her car. The last time was about a week before Debbie’s death, in her bedroom; she was wearing her robe (in which a pubic hair consistent with defendant’s was later found). He lied to the police in order to minimize their relationship. On the morning of March 20, after drinking and smoking marijuana with Roberto Cruz and his friends, defendant asked Cruz to take him home, but Cruz drove to defendant’s father’s house instead. About 4:30 a.m., defendant was walking to the Circle K store when he heard a scream. He telephoned Debbie’s house, but got no answer. He decided to go to Chuidian’s house, but first he looked over a fence into the carport by Diane and Debbie’s townhouse to see if Debbie’s car was there. It was, with the passenger door open. Defendant hopped the fence and looked in the car, discovering Debbie’s body under a pile of clothing in the backseat. After trying but failing to revive Debbie, defendant testified, he entered the townhouse through the unlocked front door and walked down the hallway to Diane’s room, calling her name. After turning on a light and finding Diane’s body on her bed, he picked up the phone to call for help, then realized the receiver was not connected to the phone. He tried the kitchen telephone, but its receiver was missing, so he left. He stopped back at the car to confirm what he had seen, then walked home to his mother’s house. On the way he stopped at a pay phone and considered calling the police, but decided it was better not to let them know he had been in the vicinity of the crimes at all. Arriving home around 8:00 a.m., he called Cruz and told him to say he had dropped defendant at his mother’s house. He lied to the police because he thought it would increase their suspicion of him if he admitted having found the bodies. He told the police, on March 22, that he heard Debbie screaming because by then he knew it had been she who screamed; he had said both women came to the door because “that’s how I wanted them to be last time I seen them alive.” The defense also presented evidence of third party culpability. Zelma Cureton, who in 1983 was working as a prostitute in Reno, Nevada, testified that one night in March she encountered two Black men, acquaintances of Cureton’s friend Marfield “Sweeper” Davis, who boasted about having killed two women in Sacramento. One man was short and muscular, the other taller; both were wearing trench coats. While in the bar of the Cal-Neva casino, Cureton heard the shorter one say, “She almost got away,” and “It’s a good thing we took showers afterwards.” The taller man did not respond. Later, the men came to Davis’s apartment, where Cureton was spending the night. Cureton learned the shorter man was called “Booker” and the taller was “The Frisco Kid.” Booker, who was wearing a blood-splattered T-shirt under his coat, said they had killed two half sisters in Sacramento, that the victims “preferred females,” that one of them “had the door of the car almost locked” and he “got there just in the nick of time,” and that one woman was stabbed while the other was strangled in the bedroom. The Frisco Kid was mostly quiet. The men stayed at Davis’s apartment for a day and a half, leaving early Tuesday morning. Cureton testified she reported the conversations to Detective Soristo of the Reno Police Department on Monday morning. Soristo wrote a report of her information, but she never heard anything more from the Reno or Sacramento police about the matter. Soristo did not testify, but another Reno Police Department detective, Gary Eubanks, testified that sometime in March 1983 he relayed information the swing shift detectives had received from Cureton to Harry Machen at the Sacramento County Sheriff’s Department. Eubanks was asked to follow up and amplify or clarify this “vague” information; he subsequently conveyed to Sacramento the further information, which came from a male informant, that the supposed Sacramento killing involved only one victim, a cocktail waitress. The Sacramento Sheriff’s Office then told Eubanks they had resolved their case by an arrest and that no further investigation would be needed in Reno. Eubanks also testified that he considered Cureton an unreliable informant and that in a recent homicide case she had voluntarily come forward with information later discredited by a suspect’s arrest and confession. Another Reno homicide detective testified that in 1990 Cureton had come forward with information on an investigation, but had later admitted lying about it. In 1991 interviews with a defense investigator, Cureton twice identified photographs of one Izear Bookman as showing the short, muscular man she had known as Booker. In 1983, Izear Bookman lived across the street from the Pencin-Cimmino townhouse. He was interviewed by police in their initial canvass of the neighborhood on Monday, March 21, 1983, about 3:00 p.m. Traci Bradley and Sherilyn Hoye, both friends of Debbie Cimmino, testified they had seen two or three African-American men across from Diane and Debbie’s townhouse, in the period before the killings. Bradley remembered they were wearing trench coats. Bradley, herself African-American, also testified she was Debbie’s lover at the time of her death and had been so for several months. They last made love on Friday, March 18, at Debbie’s home. Shari Drago testified she had been defendant’s girlfriend in high school, but broke up with him after he left town. Debbie Cimmino later told her that she and defendant had been corresponding and would be seeing each other when defendant returned to Sacramento. The latent fingerprint of one Lance Reedy was found on the doorjamb of Debbie’s bedroom. Reedy’s parents had lived nearby in the 1970’s. Prosecution Rebuttal Juanita Seibel testified she was a longtime, close friend of Debbie Cimmino, continuing to Debbie’s death. While Debbie typically was physically affectionate with her boyfriends, Seibel observed no such affectionate behavior between Debbie and defendant. About two months before her death, Debbie told Seibel she and defendant were just friends. In June 1992 (about two weeks before her trial testimony), Zelma Cureton told a district attorney’s investigator that the men she met in Reno had arrived on a Friday evening and left on Monday or Tuesday. Penalty Phase Evidence Prosecution The prosecution introduced evidence of two prior assaults by defendant on women. Linda Carter, who in 1976 lived in the same apartment complex as defendant’s family, testified that she awoke one morning that year to find defendant standing in her kitchen. When Carter, angry, ran toward defendant, he hit her in the head with his fist. As they struggled, defendant struck her twice more with a wooden club about a foot long, causing serious wounds to her face and the back of her head. Eventually defendant ran out the front door. Roxie Bianchi testified that around 7:30 p.m. one evening in 1979, defendant, a childhood friend of her son Greg (who no longer lived in Sacramento with her), unexpectedly visited her at her home. They talked about Greg for a while, and defendant left. He returned later that night, around 9:30 or 10:00 p.m., saying he did not feel well and asking to use her bathroom. Later he said he had a headache, and Bianchi gave him some aspirin. They talked and watched television for a while more in her living room. Finally Bianchi suggested he leave, as it was getting late. As she led defendant to the door, she felt a heavy blow to the back of her head, then a second blow. As she turned, defendant struck her twice more on the head. Bianchi was bleeding profusely and screaming. She exclaimed that defendant was trying to kill her and said she was calling the police. Defendant asked her not to and left. In the hallway, Bianchi found a claw hammer that did not belong to her. In 1980, defendant suffered a conviction for assault with a deadly weapon as a result of this incident. Finally, a Sacramento police officer testified that, in 1979, he and his partner had detained defendant while investigating a possible warehouse burglary. Defendant, who was inebriated, cursed at the officers, tried to kick the windows out of their squad car, and kicked the testifying officer in the leg; he was then subdued with Mace and taken to county jail. Defense Dorothea Holloway, defendant’s mother, testified she ran away with Walter Holloway when she was 17 years old. They had four children together, defendant being the eldest. Walter did not provide for his family, had many affairs with other women, and physically abused Dorothea and the children. Defendant, given alcohol by his father, began drinking when he was about 10 years old. Defendant’s brother and two sisters testified defendant was a loving and protective brother, that Walter Holloway gave him alcohol and drugs at a young age, that Walter struck defendant and abused Dorothea in front of defendant, and that Walter took defendant, as a youth, to the homes of women with whom he was having affairs. A former classmate of defendant’s testified to defendant’s early drug and alcohol use, to Walter Holloway having provided these substances to a group of girls defendant’s age, and to Walter’s practice of flirting with girls in defendant’s peer group in a domineering manner calculated to humiliate his son. Dorothy Walton, with whom Walter had a daughter, similarly testified to seeing Walter take over a conversation defendant was having with girls his age. A local park worker and counselor who knew both defendant and his father confirmed that Walter’s philandering was well known in the neighborhood and that Walter was involved with teenage girlfriends of defendant’s. A former neighbor of defendant’s, Sylvia Wesner, remembered him as reserved, quiet and inquisitive. At one point, when there was a rash of break-ins in the apartment complex, defendant volunteered to stay up all night watching her apartment. He stood guard for several nights, until Wesner felt the danger had passed. Psychologist Shawn Johnston, who conducted interviews and testing on defendant, reviewed background reports, and interviewed defendant’s family members, opined that Walter Holloway “should have never had children,” and that his behavior had a very negative impact on defendant’s personality development, causing problems including depression, suppression of intelligence, and impaired impulse control. Johnston noted a “dramatic” increase in defendant’s intelligence quotient (from 100 to 112) over the 15 months he had conducted testing while defendant was in county jail. Defendant had begun, to crave knowledge and to read books on history, politics and religion. He expressed the feeling that he had wasted his Ufe by doing bad things and expressed remorse for those he had hurt. He successfully took on responsibilities as a trusty at the jail. Because of this intellectual and psychological growth, Johnston believed, defendant would adjust well to prison if sentenced to life imprisonment without possibility of parole. A correctional consultant, James Park, described the high security and confined living conditions of a California prisoner serving a life sentence without possibility of parole. In Park’s experience, long-term prisoners are in demand for work assignment and can be a stabilizing influence in the prison, and many people who were bad citizens in the outside community become more productive and useful people in the highly structured prison community. Based on his review of defendant’s Department of Corrections file and the testimony of the two jail sheriffs who had employed defendant as an inmate worker, defendant would make a very good life prisoner and would contribute positively to the prison community. Discussion Guilt Phase Issues I. Failure to Suppress Admissions in Defendant’s March 22 Statement In his statement to police on March 22, 1983, defendant admitted he went to the Pencin-Cimmino residence early on the morning of March 20, that he was drunk at the time, that both women answered the door, that he told them he was stranded, that he may have used their telephone, and that all he remembers after that is “Debbie screaming” in the carport. Defendant contends those admissions should have been suppressed as involuntary because they were induced by an implied threat of capital prosecution if he did not admit the killings and a corresponding promise of leniency if he did. We find no such improper threat or promise. In the March 22 interview, defendant readily admitted that, contrary to his previous day’s statement, he was in the neighborhood of the Pencin-Cimmino residence on the morning of the crimes, but denied that he went to the townhouse or saw the victims that morning. He persisted in that denial despite long and vigorous questioning by Sacramento Sheriff’s Detectives Michael Hash and Joseph Dean, who repeatedly accused him of lying, confronted him with evidence contrary to his story, and suggested that he may have gone over to the townhouse without malicious intent, just to see Debbie and get a ride home, and that he might have killed Debbie accidentally. Detective Hash warned defendant he was, by denying any involvement, “digging a hole so deep that you’re never gonna see your way out of it” and suggested again that defendant went to see Debbie without any intent to harm her, but “something happened,” she started struggling, perhaps yelling, and “you got her around the throat. Tried to get her to stop. She wouldn’t stop.” Detective Dean then began asking defendant routine booking questions, which Hash interrupted by once more suggesting that the killings may have been accidental but that if defendant did not say so, “with the evidence we got, you’re gonna be found guilty.” Defendant argued, “Even if it was an accident, it’s still murder.” Hash said, “No, not really.” The exchange continued as follows: “Hash: What I’m talking about is 1 wanta, I want you to understand something. We ’re talking about a death penalty case here. “Holloway: I know. “Hash: No ifs, ands or buts. The truth cannot hurt you, if it’s known. The longer you sit there and not say anything and you just ride with it, and you’re just, you’re gone. [<fl] Was it an accident? “Holloway: I didn’t kill Deb and Diane.” (Italics added.) Hash again warned defendant that with the evidence they had and were acquiring, “[yjou’re biting the bull for the whole thing,” but defendant once more answered, “I didn’t do it.” The detectives then continued with the booking process, beginning their arrest report and having defendant empty his pockets. Finally, Hash made another appeal: “Hash: For god’s sake man, if you blacked out and you didn’t realize what was happening. You lost control of your temper, whatever. . . . “Holloway: What difference would that make? “Hash: It makes a lot of difference. Makes a lot of difference. Difference between someone gone, going over to do something intentionally before you can get that, I’ll go over and do this crime. There’s a hell of a difference. m... ffl “Hash: If that’s how it was, Duane, say so. . . . “Holloway: I didn’t say ah ... I did, I drank more than I said I did.” (Italics added.) Defendant then went on to make the other admissions previously noted. The trial court denied defendant’s suppression motion regarding the challenged admissions in his March 22 statement, finding the statement voluntary: “Defendant made a voluntary, knowing and intelligent Miranda Waiver before questioning began. [][] Although the questioning was extended, it does not appear to the Court from listening to the tape that any psychological impact on defendant was such as to overbear his will to resist .... [ft] Defendant sounded relaxed and cooperative. The questioning was not overly aggressive or accusatory, [ft] Again, it appears that defendant was attempting to use the interview as much as the officers.” “The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession. [Citation.] [These provisions] require]] the prosecution to establish, by a preponderance of the evidence, that a defendant’s confession was voluntary. . . . [ft] Under both state and federal law, courts apply a ‘totality of circumstances’ test to determine the voluntariness of a confession. ... On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ ” (People v. Massie (1998) 19 Cal.4th 550, 576 [79 Cal.Rptr.2d 816, 967 P.2d 29].) Here, there is no dispute as to the historical facts, no claim of physical intimidation or deprivation, and no assertion of coercive tactics other than the contents of the interrogation itself. When detained at his house, defendant was in the process of seeking out the detectives. Aware his alibi had collapsed, he wanted to tell the detectives why he had asked Cruz to lie about his whereabouts. Before being interviewed, defendant was fully advised of his rights and voluntarily waived them; at no point in the challenged portion of the interview did he indicate any reluctance to cooperate with the investigation or any desire to end the interview. The only question, which this court must answer independently, is whether the detectives’ mention of a possible death penalty and suggestions that defendant would benefit from giving a truthful, mitigated version of the crimes—passages italicized in the transcript quotes reproduced above—constituted implied threats and promises of leniency sufficient to render the subsequent admissions involuntary. “It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, ‘[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, ‘if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible ....’” (People v. Jimenez (1978) 21 Cal.3d 595, 611-612 [147 Cal.Rptr. 172, 580 P.2d 672], overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) “Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect’s failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession. . . . [The police] are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.” (People v. Andersen (1980) 101 Cal.App.3d 563, 576 [161 Cal.Rptr. 707].) We conclude the detectives in this case did not cross the fine from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency. In telling defendant that “[w]e’re talking about a death penalty case here,” Detective Hash said nothing beyond the obvious, for the crime—the murder of two young women, in their home, with signs of sexual assault—was a clear candidate for capital prosecution. This was not news to defendant, who responded, “I know.” As we have explained, moreover, “a confession will not be invalidated simply because the possibility of a death sentence was discussed beforehand” (People v. Ray (1996) 13 Cal.4th 313, 340 [52 Cal.Rptr.2d 296, 914 P.2d 846]), but only where the confession results directly from the threat such punishment will be imposed if the suspect is uncooperative, coupled with a “promise [of] leniency in exchange for the suspect’s cooperation” (ibid.). Hash’s further suggestions that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could “make[] a lot of difference,” fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent Hash’s remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might “ ‘flow[] naturally from a truthful and honest course of conduct’ ” (People v. Jimenez, supra, 21 Cal.3d at p. 612), for such circumstances can reduce the degree of a homicide or, at the least, serve as arguments for mitigation in the penalty decision. As the appellate court explained in People v. Andersen, supra, 101 Cal.App.3d at page 583, “Homicide does possess degrees of culpability, and when evidence of guilt is strong, confession and avoidance is a better defense tactic than denial.” Defendant began the March 22 interview with the intent merely of explaining why he had asked Cruz to provide him with a false alibi. In the course of their interview, the detectives made defendant aware of some of the evidence they possessed against him, particularly fingerprints indicating defendant’s recent use of a telephone in the townhouse and recent presence in Debbie Cimmino’s car. By beginning the booking process, they also made clear to defendant that his complete denial would not save him from arrest and probable prosecution for the killings. At that point, defendant made limited admissions to his presence at the scene at the time of the crimes, while laying the groundwork for a possible claim of mitigation based on intoxication. As the trial court remarked, “it appears that defendant was attempting to use the interview as much as the officers.” The interview in this case is better characterized as a “dialogue or debate between suspect and police in which the police commented on the realities of [his] position and the courses of conduct open to [him]” (People v. Andersen, supra, 101 Cal.App.3d at p. 583) than as a coercive interrogation. The decisions upon which defendant principally relies, People v. McClary (1977) 20 Cal.3d 218 [142 Cal.Rptr. 163, 571 P.2d 620] (overruled on other grounds in People v. Cahill, supra, 5 Cal.4th at p. 510, fn. 17), People v. Johnson (1969) 70 Cal.2d 469 [74 Cal.Rptr. 889, 450 P.2d 265], and People v. Cahill (1994) 22 Cal.App.4th 296 [28 Cal.Rptr.2d 1], are all distinguishable factually: In People v. McClary, the officers ignored repeated requests from the 16-year-old suspect for assistance of counsel, falsely told her she would face the death penalty unless she changed her statement, and strongly implied she would be charged only as an accessory if she admitted mere “ ‘knowledge’ ” of the murder. (People v. McClary, supra, 20 Cal.3d at p. 229 [142 Cal.Rptr. 163, 571 P.2d 620].) Here, we have no such insistent overriding of a defendant’s invocation of rights, no false representation regarding the death penalty, and no promise of a particular charge or other particular lenient treatment in exchange for cooperation. In People v. Johnson, the defendant was advised by one interrogator that any information he gave would only be an investigative aid and “was not admissible in court”; another interviewer neglected to include the right to remain silent in his advisements, the defendant was never asked if he waived the right to counsel, and the record did not contain an affirmative showing he agreed to waive any of his rights. (People v. Johnson, supra, 70 Cal.2d at p. 474.) No such circumstances are present in this case. At the outset of the taped interview, defendant was fully advised of, and expressly waived, his rights to counsel and against self-incrimination. Finally, in People v. Cahill, the interrogator gave the defendant a detailed but “materially deceptive” (People v. Cahill, supra, 22 Cal.App.4th at p. 315) account of the law of homicide. In particular, the detective led the defendant to believe he could avoid a first degree murder charge, in a burglary-murder case, by admitting to an unpremeditated role in the killing. (Id. at pp. 306, 314-315.) Here, the detectives gave defendant no such misleading assurances. No specific benefit in terms of lesser charges was promised or even discussed, and Hash’s general assertion that the circumstances of a killing could “make[] a lot of difference” to the punishment, while perhaps optimistic, was not materially deceptive. The line “can be a fine one” (People v. Thompson (1990) 50 Cal.3d 134, 169 [266 Cal.Rptr. 309, 785 P.2d 857]) between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not. But considering all the circumstances of this case, we do not believe the detectives crossed that line by mentioning a possible capital charge or suggesting that defendant might benefit in an unspecified manner from giving a truthful, mitigated account of events. II. Lack of Miranda Advisements Prior to March 21 Interview Defendant contends he was held in custody during his interview at the police station on Monday, March 21, 1983, and should therefore have received Miranda advisements prior to the interview. He also argues the lack of advisements and what he characterizes as the accusatory content of the interview rendered his March 21 statement (consisting primarily of his false alibi) involuntary, and that both that statement and the following day’s statement (assertedly a product of the false alibi’s collapse) should be suppressed on that ground as well. Having learned through neighborhood canvassing and contact with the victims’ mother that defendant was a possible boyfriend or would-be boyfriend of Debbie and discovering that he was on parole for an assault, Sheriff’s Detectives Dean and Hash attempted, on the evening of March 21, to contact defendant through the Sacramento area pa role offices. From a central office, the fact that sheriff’s detectives wanted to talk to defendant was relayed to Willard Stinnett, the lone parole agent on duty at the local office where defendant was scheduled that evening for drug and alcohol testing. When defendant arrived about 6:00 p.m., Stinnett handcuffed him to avoid any possible violence, then telephoned the detectives and talked with Dean. According to Dean, he told Stinnett that he and Hash wanted to talk to defendant and would leave their office for the parole office immediately. He asked if defendant would still be there when they arrived, and Stinnett assured him he would. Stinnett testified he told Dean he had defendant in his office and would remain with him until the detectives got there. Dean said it would take them 15 or 20 minutes and asked if Stinnett would wait; Stinnett said he would. He did not think he told the detectives he had handcuffed defendant. Hash remembers Dean asking Stinnett if there were some way he could delay defendant’s testing so he would still be at the parole office when the detectives got there. Arriving at the parole office, the detectives were surprised to find defendant in handcuffs. According to Hash and Stinnett, Stinnett immediately released defendant at the request or suggestion of one of the detectives; according to Dean, he himself uncuffed defendant, announcing there had been a mistake: they were there only to talk to defendant, not to arrest him. The detectives then asked defendant if he knew why they wanted to talk to him; defendant said he thought it was about the death of his friend Debbie, which he had heard about that afternoon. They said they would like him to come to the station for an interview; he could drive himself over or ride with them. Defendant said the friend who had driven him to the parole office could take him to the police station, but the friend, who was waiting in the lobby, said he had somewhere else to be. The detectives then assured defendant he could ride with them and they would get him a ride home when the interview was completed. Defendant agreed. Defendant was, according to Hash, patted down before entering the detectives’ unmarked car. Defendant sat in the backseat, which had no cage or other divider from the front seat area; the backseat’s doors and windows could be operated by the occupant in the ordinary way. At the station the detectives took defendant to an interview room, offering him coffee and the use of a restroom before the interview began. In the ensuing taped interview, a detective told defendant they were looking for the person responsible for the deaths of Debbie and Diane and were collecting as much information as they could about the victims and their associates. The officer stated defendant was not under arrest, that he had volunteered to come down to the station, and he was not handcuffed. Asked if that was correct, defendant responded, “Yeah.” The detective further explained defendant was not “per se, the person we feel [is] responsible for the murder,” that in talking to him they hoped to “eliminate you as a possible suspect,” and that if at some point they believed he was “definitely a suspect, that you are the person we should be focusing on,” they would then advise him of his rights. In his suppression hearing testimony, Detective Hash confirmed that at this point in their investigation the police “had no idea who the perpetrator or perpetrators” were, that they treated everyone as a possible suspect, and that their investigation was not focused on defendant. The detectives questioned defendant, among other things, about his prior offenses, about whether Cruz would confirm his alibi, and about whether he had told Debbie she should have sex with him to “let a real man show her what it’s like.” The interview ended about 9:00 p.m., after which defendant, at the detectives’ request, took a polygraph examination, was photographed, and gave a set of fingerprint exemplars. Another officer drove defendant home about 1:00 a.m. The trial court, denying defendant’s motion to suppress the March 21 statement, found “defendant was not in custody, was not illegally detained, was not otherwise deprived of his freedom of action in any significant way, and his statements on that date were made voluntarily. A Miranda warning was not required.” The court specifically found that “the sheriff officers did not direct or otherwise request that [defendant] be handcuffed by the parole officer” and that “when the sheriff officers saw the handcuffs they immediately had them removed.” Further, “the objective indicia of an arrest were not present. . . [as] defendant could have been driven to the police station by his friend, if his friend had been willing to take him,” and defendant was assured of, and actually given, a ride home after the interview. Finally, the officers “had not focused on defendant as a suspect . . . [and] were merely gathering information and making an investigation,” and “[t]he tape shows that the interview was not confrontational.” The court concluded that defendant accompanied the detectives to the station and gave them a self-exculpatory statement not because he felt compelled to do so, but “because he thought it was in his best interest” to do so. On both the questions of custody and voluntariness of the statement, we review the trial court’s findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently. (People v. Ochoa, supra, 19 Cal.4th at pp. 401-402; People v. Massie, supra, 19 Cal.4th at p. 576.) Taking the custody question first, we conclude the circumstances of the March 21 interview did not create any restraint on defendant’s movement of the degree associated with a formal arrest; a reasonable person in defendant’s circumstances would not have felt compelled to accompany the detectives to the station for an interview or to remain there once the interview began. (People v. Ochoa, supra, at p. 402.) The undisputed facts are that the detectives did not themselves arrest or physically restrain defendant, that they requested he come to the station for an interview but did not demand that he accompany them, and that at the interview’s outset they confirmed with him that he was being interviewed voluntarily and told him he was not under arrest or the focus of their suspicion. Substantial evidence, in the testimony of the detectives and the parole officer, supports the trial court’s findings that the detectives did not ask for defendant to be handcuffed and did have him released as soon as they arrived, as well as the findings that defendant was told he could have his friend drive him to the station if he liked and that he was promised, and given, a ride home after the interview. This set of facts is objectively inconsistent with a degree of restraint equivalent to arrest; no reasonable person would believe under these circumstances that he was compelled to accompany the officers or to remain with them during the interview. Defendant argues that as a parolee he would reasonably consider himself a target for suspicion in the deaths of his acquaintances Debbie Cimmino and Diane Pencin and would understand his handcuffing by the parole officer as motivated by police suspicion of him and therefore reasonably believe himself compelled to accompany the detectives and give them an interview. He further argues the detectives’ assurance that he was not “per se” a suspect in the killings, and that if he became such they would advise him of his rights, was reasonably calculated only to reinforce the sense of compulsion. In these circumstances, he maintains, any reasonable person, but especially a parolee, would believe that his rights were suspended until he could prove his innocence to the detectives’ satisfaction. We disagree that a reasonable person in defendant’s circumstances, whether or not a parolee, would believe, once he had been uncuffed and the detectives had made their request for a station house interview, he was not free to go his own way. If the detectives intended to keep him in custody until he answered their questions satisfactorily, a reasonable person would assume, they would have left him handcuffed and demanded he ride to the station in their car. Nor was the advisement that defendant was not “per se” a focus of suspicion, that police hoped to rule him out, and that he would be told if he became a suspect, calculated to make a reasonable person think he was not free to leave. Rather, a reasonable person would understand the advisement as indicating an opportunity to be cleared, at the early stages of an investigation, as a possible perpetrator. Defendant apparently so understood it, for he cooperated fully and, without hesitation, proffered the alibi he had fabricated. (See Oregon v. Mathiason (1977) 429 U.S. 492, 493-495 [50 L.Ed.2d 714, 97 S.Ct. 711] [where defendant voluntarily came to station house for interview, he was not in custody even though interview took place alone in closed room and officer told defendant he was suspected of crime]; In re Joseph R. (1998) 65 Cal.App.4th 954, 956-961 [76 Cal.Rptr.2d 887] [minor suspected of crime, who was advised he did not have to speak with officer, then briefly handcuffed and placed in patrol car while officer conducted another part of investigation, then released from handcuffs and removed from car before being questioned, was not in custody].) Nor, turning to the voluntariness question, does the combination of temporary restraint by the parole officer and the content of the later questioning support a conclusion that defendant’s will was overborne and his exculpatory statement coerced. (People v. Massie, supra, 19 Cal.4th at p. 576.) Defendant’s words and behavior both indicate he voluntarily accompanied the officers to the station house for an interview, and the detectives’ questions regarding his past offenses and his supposed sexual remark to Debbie, even coupled with the acknowledgement he might at some point become a focus of the detectives’ suspicions, were not so accusatory or definitive as to convey a threat of arrest if defendant declined to give a statement. III. Effect of this Court’s Prior Decision on Custody Determination Although, in People v. Holloway, supra, 50 Cal.3d at page 1112, we reversed defendant’s first conviction for the present crimes on grounds of juror misconduct, in that decision we also addressed the custody issue regarding the March 21 statement because “the issue will arise on retrial” (ibid.); we concluded defendant was not in custody (id. at p. 1115). The parties dispute whether this portion of our prior decision is law of the case in the present appeal. As the trial court on retrial reached the same conclusion without reliance on that doctrine, and as we now do the same, we need not decide whether the law of the case doctrine applies in these circumstances. Defendant contends our discussion and conclusion on the custody issue in People v. Holloway, supra, 50 Cal.3d at pages 1112-1115, deprived him, in violation of due process principles, of a fair and reliable determination of the issue on retrial, in that it presented the trial court with an irresistible incentive, in order to avoid reversal by this court, to make findings of fact and legal conclusions that accorded with those reflected in our prior decision. The record does not support this claim. The trial court conducted a full hearing on defendant’s motion to suppress, at which the testimony of three officers and defendant himself was heard. After written and oral argument, the court ruled, making detailed findings regarding the credibility of the witnesses and the facts surrounding the March 21 interview, and drawing from those facts the conclusion defendant was not in custody at the time of that interview. We reject defendant’s claim as entirely speculative, for he cites nothing, and we have found nothing in the record, suggesting the trial court’s findings or decision were influenced by our prior decision. Citing some purported differences between the detectives’ testimony in the first suppression motion hearing and that conducted on retrial, defendant also argues our prior discussion of the custody issue may have improperly influenced the testimony itself. Again, nothing in the record suggests such an effect. For a witness to testify somewhat differently on the same topic at sequential hearings is not uncommon. The remedy for a litigant who believes a witness is trying to “improve” his or her testimony is, of course, to question the witness about and, if necessary, impeach the witness with the prior testimony. (See Evid. Code, §§ 770, 780, subd. (h), 1235.) Defendant, who had a full opportunity to cross-examine the prosecution witnesses at the retrial suppression hearing, was not denied due process by any changes in their testimony. IV. Failure to Discharge Juror During Trial During the guilt trial, Juror No. 3 three times asked, through the bailiff, if the jury could see photographs of the two victims while alive. After the third request, the juror was asked to appear before court and counsel, outside the presence of the other jurors. Asked by the court his reason for wanting such photographs, the juror responded, “It’s just because dreams and stuff. I have no faces to put on the girls. All I have is just blackened after she had been strangled, and the other one I have never seen her face because it’s in the back of the seat.” On further questioning, he explained that he had “had a few dreams since this trial started, and like I said, I have two girls without faces that are in there,” and “just for my own peace of mind” he wanted “something to put together” with the testimony about the victims and the crime scene and autopsy photos. The juror denied the dreams had any “adverse effect” on him, that he had any question whether he might be acquainted with the victims, or that the lack of live photos would have “any bearing which way I would vote or anything else.” He agreed with the court’s characterization of his desire as one for “completion of the entire picture involving this case.” The court told the juror, “I would assume that you haven’t discussed this desire on your part with any of the other jurors,” to which the juror answered, “No,” but the court did not at that time expressly instruct him not to do so. After this first interview, the prosecutor noted that he did have photographs of both victims when alive, but was not sure he would be offering them in evidence. The court said that all it could do was “to rule upon the admissibility at the time it arises.” Defense counsel made no comment and did not seek to discharge the juror. With agreement of both counsel, the court then instructed the entire jury that only evidence that is relevant and admissible under the Evidence Code could be presented to them; that the evidence is presented by the parties, subject to rulings by the court; and that in their eventual deliberations the jurors were not to discuss matters that had not been introduced into evidence. During the next court session, an alternate juror revealed that after his interview with court and counsel, Juror No. 3 had mentioned his request to her, saying, “I thought it was a reasonable request.” No other jurors or alternates were present, and the alternate ended the conversation by saying, “I think that would have to be submitted as evidence,” and walking away. Outside the alternate’s presence, the prosecutor remarked that even if Juror No. 3 had not been expressly admonished not to discuss the subject with other jurors, such a prohibition was implied by the court’s question at the end of the first interview. Defense counsel agreed, “One might have thought that would be implicit, but evidently not.” Again questioned by the court, Juror No. 3 said he understood he was not supposed to talk about the case with other jurors. He apologized, denied he was dissatisfied with the court’s previous ruling and instructions, and explained that after his first interview, “they asked me what I had asked for, and I just mentioned that I had asked to see pictures of the girls. I didn’t figure that was talking about it or anything else.” The court asked the juror whether “even though we may not . . . satisfy that desire on your part, whether you could put that out of your mind and still be a fair juror in this case and not let that affect you in any way in your decision mating.” The juror responded, “Yes.” Asked whether he had discussed his request with many of the jurors, Juror No. 3 said “it was three or four of them standing there when they asked me what I had come in for. I mentioned that I had asked to see pictures. It wasn’t no discussion on it.” He said he now understood he should “[s]ay nothing.” After Juror No. 3 left, defense counsel did not move for his discharge or make any comment on the just completed interview. When the entire jury reentered, the court, without any objection, admonished all of them that if, during trial, “it is necessary that the Court occasionally talk to an individual juror" alone, “please don’t ask that particular juror what it is that he or she is sharing with us at that point. That would be talking about this case, and it’s something that you’re not to.” Defendant contends the trial court abused its discretion and deprived him of his Sixth Amendment right to an impartial jury in failing to discharge Juror No. 3 after the second interview. We conclude, however, that defendant forfeited this issue by failing to seek the juror’s excusal or otherwise object to the court’s course of action. (People v. Majors (1998) 18 Cal.4th 385, 428 [75 Cal.Rptr.2d 684, 956 P.2d 1137]; People v. Gallego (1990) 52 Cal.3d 115, 188 [276 Cal.Rptr. 679, 802 P.2d 169]; People v. McIntyre (1981) 115 Cal.App.3d 899, 906 [176 Cal.Rptr. 3]; People v. Wilson (1965) 235 Cal.App.2d 266, 281 [45 Cal.Rptr. 267].) “[H]ad [defendant] made the request at this time [after the juror was examined] when there was a suggestion of misconduct on the record, the court could have formally ruled on the matter . . . and cured the problem,” if any, by excusing the juror and substituting an alternate. (People v. McIntyre, supra, at p. 906.) Having expressed no desire to have the juror discharged at the time, and indeed no concern the juror had engaged in prejudicial misconduct, defendant “is not privileged to make that argument now for the first time on appeal." (Ibid.) Nor does the record establish the court abused its discretion or deprived defendant of an impartial jury by leaving Juror No. 3 on the panel. (See § 1089 [juror may be discharged if “unable to perform his or her duty”].) The trial court’s decision whether or not to discharge a juror under section 1089 is reviewed for abuse of discretion and will be upheld if supported by substantial evidence; to warrant discharge, the juror’s bias or other disability must appear in the record as a demonstrable reality. (People v. Marshall (1996) 13 Cal.4th 799, 843 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; People v. Lucas (1995) 12 Cal.4th 415, 489 [48 Cal.Rptr.2d 525, 907 P.2d 373].) A juror’s misconduct creates a rebuttable presumption of prejudice, but reversal is required only if there is a substantial likelihood one or more jurors were improperly influenced by bias. (In re Hitchings (1993) 6 Cal.4th 97, 118-119 [24 Cal.Rptr.2d 74, 860 P.2d 466]; People v. Marshall (1990) 50 Cal.3d 907, 950-951 [269 Cal.Rptr. 269, 790 P.2d 676].) Defendant does not contend the juror’s experience of dreams about the victims, in itself, made him unable to serve; rather, he argues the juror exhibited two forms of misconduct: “First, in discussing the case with [the alternate juror], he violated his oath and the admonition not to so do. . . . Second[], [Juror No. 3] attempted to conceal his misconduct by asserting, completely co