Full opinion text
Opinion MORENO, J. A jury convicted defendant Phillip Carl Jablonski of the first degree murders of Carol Spadoni and Eva Petersen. (Pen. Code, § 187.) The jury also found true the special circumstance allegations that defendant murdered Petersen while engaged in the commission or attempted commission of rape (§ 190.2, subd. (a)(17)(C)) and sodomy (§ 190.2, subd. (a)(17)(D)). Additionally, the jury found true prior-murder and multiple-murder special-circumstance allegations (§ 190.2, subd. (a)(2), (3)). After a sanity trial at which the jury found that defendant was sane at the time of the commission of the offenses, the jury proceeded to the penalty phase and ultimately returned a death verdict as to each count. The trial court declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm. I. Facts A. Procedural History On June 14, 1991, defendant was charged by indictment with the murders of Carol Spadoni and Eva Petersen (§ 187) with the special circumstances that the murder of Petersen occurred while defendant was engaged in the commission or attempted commission of rape and sodomy (§ 190.2, subd. (a)(17) (C), (D)), in addition to prior-murder and multiple-murder special circumstances (§ 190.2, subd. (a)(2), (3)). It was further alleged that defendant had personally used a firearm in the commission of the offenses (§ 12022.5). Defendant was also alleged to have suffered prior serious felony convictions and to have served prior prison terms (§§ 667, subd. (a)(1), 667.5, subd. (b)). On September 25, 1991, the trial court entered a plea of not guilty and a denial of all special allegations on defendant’s behalf pursuant to section 1024. Subsequently, defendant also pled not guilty by reason of insanity. On June 3, 1993, criminal proceedings were suspended to determine whether defendant was competent to stand trial (§ 1368). On November 10, 1993, a jury found defendant competent and criminal proceedings were reinstated. On January 25, 1994, jury selection began for defendant’s criminal trial and, on April 25, the jury convicted defendant of both counts of first degree murder and found true all special allegations except the prior-murder special circumstance, which, in a bifurcated proceeding, was found true on April 26. On May 2, the sanity phase commenced and, on May 10, the jury found that defendant was sane at the time of the commission of the murders. On May 17, the penalty phase commenced and, on June 17, the jury returned death verdicts. On August 12, 1994, the trial court denied defendant’s automatic motion for reduction of the death verdict and modification of the verdict. (§ 190.4, subd. (e).) Defendant was sentenced to death on each count of murder. He was also sentenced to five years on each firearm use enhancement, but those sentences were stayed pending execution of the death sentences. B. Guilt Phase Evidence 1. Events Leading up to the Spadoni-Petersen Murders In April 1991, Carol Spadoni lived with her mother Eva Petersen on Sanchez Street in Burlingame, in San Mateo County. Spadoni was defendant’s wife. Their relationship had begun when Spadoni answered a personal ad defendant had placed in a newspaper. They were married in 1982 at San Quentin where defendant was an inmate. Eventually, Spadoni wanted to end her relationship with defendant whom she described to a friend as “weird.” She told the same friend she was afraid of defendant. In the summer of 1990, Petersen telephoned Richard Muniz in Sacramento. Muniz was a prison friend of defendant and through defendant had met Petersen and Spadoni. After his release from prison, Muniz maintained a friendship with the two women. Petersen asked Muniz to come to her house in Burlingame and pick up some belongings that defendant had sent to the women in anticipation of his release on parole. Petersen told Muniz she did not want defendant on her property because she was afraid of him and afraid that he might harm her. Muniz took the items and stored them in his own garage. Around the same time, Spadoni talked to Robert Paredes, who became defendant’s parole officer. Paredes was assigned to the Indio office in Riverside County. Defendant had asked to be allowed to live with Spadoni in Burlingame, but when Paredes informed Spadoni of this, she told Paredes she did not want defendant living with her because she was afraid of him. When defendant was released from the state prison at Vacaville in September 1990, Muniz picked him up. Muniz told him that Petersen had given Muniz the items defendant had sent to her and related Petersen’s statements. Defendant spent the weekend with Muniz in Sacramento, and then Muniz put him on a bus to Southern California to meet Paredes in Indio. When Paredes met with defendant, he informed defendant of various parole conditions, among them that defendant was forbidden to travel more than 50 miles from his residence without Paredes’s permission and was forbidden to go to Burlingame. Defendant was displeased about this latter condition. Paredes also required defendant to participate in a counseling program because of his history of psychiatric problems. Defendant was eventually able to get into a program at the Loma Linda Veterans Administration (hereafter VA) hospital. At Christmas, defendant asked Paredes for permission to go to Sacramento to visit Muniz and obtain a driver’s license. Paredes gave him permission but only after he called Spadoni and informed her of defendant’s request. She had no objection. Paredes told defendant not to go near San Mateo County. Defendant spent a week in Sacramento with Muniz. He complained to Muniz that Spadoni was listening to her mother and that Petersen was interfering with his plans to move to Sacramento where he felt there were more employment opportunities. Defendant seemed very upset about this situation. Muniz advised him to appeal his parole situation through the Department of Corrections. Defendant returned from Sacramento with a driver’s license and a 1965 Ford Fairlane. In January 1991, defendant enrolled in automotive classes at a local community college. While taking these classes, defendant befriended another student, Jim Lawrentz. Lawrentz testified that defendant tape-recorded class sessions. He described defendant as “very intelligent.” Sometime around April 18, defendant ascertained from Lawrentz that he owned a small gun and offered to buy it from him. Initially, Lawrentz declined, but two days later he changed his mind and sold defendant his R.G. 14 revolver and bullets. Defendant was aware that he was not permitted to possess a gun because he was a convicted felon. On April 22, defendant told his instructor, John Tamulonis, that he would not be in class the next day because he had a doctor’s appointment, but would be in class the following evening. Tamulonis saw defendant again on the evening of April 22 with another student, Fathyma Vann. Defendant did not return for his evening class on April 23, nor did Tamulonis ever see him again. 2. The Spadoni-Petersen Murders Robert Galindau was a friend of Carol Spadoni and Eva Petersen. He and the two women met for coffee and doughnuts three times a week at a doughnut shop. On April 24, 1991, after not having heard from the women for several days, Galindau telephoned them. Two days later, on April 26, he drove to their house on Sanchez Street. He noticed there were three or four days of newspapers in the yard and a couple of packages on the hood of one of the two cars parked in the driveway. He went around back and saw a cage containing cats. The cats had no food or water and did not look well. Believing something was wrong, Galindau notified police. Burlingame Police Officer Frank Pickens arrived at the house around 7:20 a.m. There were newspapers and packages piled outside the house, and he heard dogs barking inside. He received no response when he knocked at the front door. He searched the house for signs of forced entry, but found none. He did, however, discover that a side door to the garage was unlocked. He entered the garage and saw that the door from the garage into the kitchen was open. The body of an elderly woman was lying on her back on the floor of the garage with her feet facing toward the kitchen. There was a gag in her mouth with what appeared to be a gunshot through it. Pickens and another officer entered the house together and found the body of a second woman who, like the first woman, had been gagged. The first body found was that of Eva Petersen. A towel had been folded over and pushed into her mouth and a bullet had been shot through the towel. Petersen was naked from her waist down; her sweatshirt and brassiere had been pulled up above her breasts and around her neck. There was another bullet hole above her right breast and a stab wound in her neck. There were also cuts around one of her nipples and around her right eye; the cut to her nipple could have been made with a knife, and the cut to her eye may also have been made by a knife. Blood smears on the kitchen floor indicated that she had been dragged across the kitchen. The stab wound to her throat had been made while she was still alive. The cause of death was the gunshot wounds to her head and chest. The second victim was Carol Spadoni. Her body was found in the living room, dressed in a nightgown. Her nose and mouth were covered with duct tape wrapped so tightly it would have cut off her breathing except that she had been stabbed in the throat creating a functional tracheotomy. She had a bullet wound behind her right ear and three stab marks in her abdomen. Additionally, half of her right breast was sliced off, exposing a silicone implant. There were also stab wounds to her vagina, and her intestines were protruding from her anus as the result of a laceration. The cause of her death was the gunshot wound with the stab wounds and duct tape suffocation as contributing factors. Because decomposition had begun to set in, the pathologist who examined the bodies could not determine if any sexual assault had occurred. A journal found on the kitchen table showed a final entry dated April 23, 1991. Envelopes addressed to the victims from defendant were found on the kitchen table and a letter addressed to “Mrs. Carol Jablonski” from defendant was found in a bedroom. A computer check revealed that defendant had received a traffic citation in Burlingame on the afternoon of April 23 for failing to yield the right-of-way. The officer who initiated the stop observed no signs of intoxication or nervousness during his brief encounter with defendant. Police obtained a search warrant for Eva Petersen’s bank records and discovered a check for $200 written to defendant and signed by Petersen. The signature on the check did not match Petersen’s signature on her bank signature card. A teller at the bank in Millbrae where the check was cashed later identified defendant as the person who had cashed it on the afternoon of April 23. In addition to cashing the check, defendant also withdrew $500 from his own savings account. Defendant was arrested in Kansas on April 28, 1991. In his wallet, police found $710, a $90 check drawn on Eva Petersen’s bank account and credit cards in her name. A small address book was also found in defendant’s wallet. It contained the names, address, and dates of birth of Eva Petersen and Carol Spadoni. Beneath each name were the words “Death, April 23rd, 1991.” The dates of the murders had not yet been made public. A search of defendant’s car revealed a loaded .22-caliber revolver beneath the driver’s side seat, and a box of .22-caliber cartridges in the ashtray. Bullets removed from Eva Petersen’s body matched the bullets in the revolver. The bullet recovered from Carol Spadoni’s brain matched the rifling characteristics of the revolver, but the bullet was too damaged for a conclusive finding. Duct tape found in the vehicle was consistent with the duct tape used on Spadoni. Also recovered from defendant’s car were homemade wire handcuffs and an electric taser. Police also found a knife sheath from which the knife was missing; the sheath tested presumptively positive for blood. A black leather belt was also recovered. On the back of the belt the names “Carol Jablonski 4-23-1991, Burlingame, California” and “Eva Petersen 4-23-1991, Burlingame, California” were written in ink. A handwriting expert determined that the writing on the belt was defendant’s, as was the writing in the address book found in his wallet. Blue pants found in a travel bag were stained with semen and human blood. Also found in defendant’s vehicle was a tape recording in his voice in which he described arriving at the victims’ residence, killing them, and sexually assaulting Eva Petersen. In the tape, defendant described shooting Spadoni through the brain, tying duct tape around her mouth and nose, stabbing her in the throat, slicing open her breast and stabbing “her ass and pussy.” He also described shooting Petersen, fondling her breasts, sodomizing her, having sexual intercourse with her, and attempting to “take her eyes out.” He also described stabbing her in her throat, and “in her stomach, ass and pussy.” After he killed the women, defendant described moving their bodies, eating, showering, and shooting Petersen through a towel he had placed in her mouth. C. Sanity Phase Evidence 1. Defense Evidence Dr. H.R. Kormos, a psychiatrist, conducted eight interviews with defendant, beginning in March 1993 and continuing up to about a month before trial. During his examination of defendant, he observed that defendant talked to himself, drooled, exhibited facial muscle twitching, claimed that he heard voices and displayed a lack of affect and flat facial expressions. Defendant also complained he was experiencing flashbacks of traumatic experiences he had had as a solider in Vietnam. Kormos diagnosed defendant as schizophrenic. According to Kormos, defendant manifested all the symptoms of schizophrenia, which he testified are known as the “four A’s”: association, affect, autism, and ambivalence. “Association” means “that the person is having trouble keeping their thoughts together in a logical fashion, and they continue to go off in different directions with the reason for their going off into these different directions not being very obvious to whatever witness is there.” “Affect” means “mood.” Kormos explained that, “in schizophrenia, with people having a flattened mood, there seems to be no change in their mood.” “Autism” denotes “a person who is very much by themselves, and is not really linked with anyone else and, importantly, doesn’t seem to be capable of linking up with anyone else.” “Ambivalence” “indicates that the person . . . never seems to be clear about what they want or how they want to go about it, and that kind of ambivalence can be paralyzing.” Kormos testified that certain factors in defendant’s childhood were relevant to his diagnosis that defendant suffered from schizophrenia. Statements made by defendant’s sister indicated that defendant’s father was violent toward both defendant’s mother and defendant and that defendant had been sexually abused as a child. Kormos also considered whether defendant suffered from posttraumatic stress disorder as a result of his experiences in Vietnam, but, because defendant’s discharge papers did not indicate he had suffered any traumatic experiences while in Vietnam, he could not make this diagnosis. He testified, however, that his diagnosis of schizophrenia was well supported by his conversations with other psychiatrists who had treated or observed defendant, and by Kormos’s analysis of defendant’s prior criminal acts and the circumstances of the charged offenses. Dr. Fleurant, the jail psychiatrist at the San Mateo jail, where defendant was housed, told Kormos that when defendant first arrived at the jail he seemed psychotic, unable to care for himself, and spouted gibberish. Fleurant ascribed these behaviors to schizophrenia and prescribed high doses of antipsychotic medication, which seemed to help. Kormos believed some of defendant’s physical symptoms were consistent with the reactions of a schizophrenic to the medication. Kormos also spoke with Dr. Solon, a prison psychiatrist who had treated defendant while defendant was in prison for an earlier offense. Dr. Solon told Kormos he had no doubt defendant was suffering from schizophrenia and described an incident in which defendant came to him in a panicked and agitated state during which he was actively hallucinating. A third psychiatrist, Dr. Roudebush, who was a staff psychiatrist at San Quentin, wrote in a 1982 report that defendant was a schizophrenic and attributed his sexual impulses to schizophrenia. At the time, defendant was in prison for murdering Linda Kimball, a woman with whom he had lived, and was about to marry Carol Spadoni. Roudebush told Kormos that defendant had come to him and told him that, while massaging Spadoni’s neck during a visit, he had been disturbed by “weird feelings” and an impulse to wrap Spadoni’s hair around her neck. Kormos also reviewed a 1978 trial transcript from a civil trial in connection with Kimball’s murder in which a Dr. Thompson testified that defendant was a schizophrenic who was psychotic at the time of the homicide and should have been hospitalized. He also reviewed reports from a psychiatric group that treated defendant between 1968 and 1972 and diagnosed him as schizophrenic. Finally, he cited a 1968 diagnosis of schizophrenia made at a VA hospital in Texas. Kormos also testified about defendant’s history of violence towards women. In 1968, defendant was hospitalized and given psychiatric treatment after an incident during which he became so enraged with his first wife that he nearly drowned her in the bathtub. He also exhibited other violent behavior towards her, including smothering her with a pillow during sexual intercourse. When Kormos discussed defendant’s first wife with him, defendant complained that she was more involved in her profession as a dog trainer than in their marriage. Kormos believed this statement indicated an extreme sensitivity on defendant’s part to female rejection that played a part in “disorganizing” defendant and causing him to function in an irrational manner. Kormos opined that the decision of the military to hospitalize defendant for the attempted drowning incident, rather than discipline him, indicated that defendant was “genuinely disturbed.” Defendant also engaged in violence against Jane S., the woman with whom he lived after his first marriage ended. Defendant raped her on their first date, but she nonetheless remained with him for four years. He also battered her and continued his predilection for smothering his partner during sexual intercourse. After Jane S. left defendant, he committed another rape. Kormos attributed the rape of Jane S. and the later rape to defendant’s response to female rejection. In 1978, defendant murdered Linda Kimball after she told him she was leaving him with their child. He told a Dr. Flanagan that he strangled and sexually assaulted Kimball because he did not “want to lose her.” Kormos opined that by killing Kimball, defendant “took possession of her, and prevented her from being possessed by any other man.” He described this as psychotic. Kormos commented that the fact there was no evidence of sexual assault, notwithstanding defendant’s description of the murder, was a further indication of defendant’s “tenuous hold on reality” on “matters of violence, homicide, sex and so on.” With respect to the current offenses, Kormos testified that defendant’s primary purpose in killing and mutilating the victims was to express disdain and contempt and to “seek[] revenge” on them and to “solve ... his relationships with his mother and women in general.” According to Kormos, defendant’s intent was not so much to kill but “to destroy and to be totally in possession of’ his victims. Kormos ultimately opined that defendant “was not able to distinguish right from wrong in relation to the acts that we’re talking about.” He stated: “The behavior that I understand that took place was behavior that was completely and totally dominated by this psychotic desire to destroy and possess and get back for [the] unbearable rejections that he feels he has had. [f] And . . . this sexual organ mutilation that’s going on, this general destruction and humiliation that he’s involved in, this is beyond right or wrong, this is in furtherance only of some set of psychotic thoughts.” 2. Prosecution Evidence Vitali Rozynko, a clinical psychologist, was appointed by the court to examine defendant on the issue of legal sanity. He interviewed defendant on five occasions and conducted a review of extensive background material, including witness statements, statements by defendant’s sister and Jane S., school and military records and various psychiatric examinations and treatments dating back to 1968. Rozynko agreed with Dr. Kormos that defendant suffered from chronic schizophrenia and, in addition, sexual sadism and mixed personality disorder. He also agreed that defendant was psychotic when he murdered Petersen and Spadoni. Rozynko concluded, however, that defendant was legally sane at the time he committed the instant offenses. Rozynko’s conclusion was based, in part, on his observations of defendant during his interviews with him. Defendant was oriented as to time and place and, while he looked terrible, as if he were “tremendously overmedicated,” his answers to Rozynko’s questions were “logical and relevant. His long term memory was pretty good, he remembered things very well. Although, at times he tended to contradict himself.” Rozynko concluded that defendant had “very little insight” into why he had committed the crimes but also “that he really was only telling me what he felt he had to say, that he wasn’t really telling me everything.” Rozynko administered a Rorschach inkblot test to defendant and reviewed the results of a previous inkblot test supplied by defense counsel. While on the earlier test, defendant supplied unusual responses, the results of the test Rozynko administered to defendant revealed that, while he had poor impulse control and problems relating to people and dealing with anger, “he knew what other people knew was right and was wrong, he knew what was appropriate, and was able to conform to that.” Rozynko concluded that defendant’s control of his thoughts depended on stress. If the level of stress was high, he would have less control over his thoughts, but if things calmed down, he would be in control of his thoughts and able to respond like other people. Rozynko explained that schizophrenia alone would not necessarily prevent someone from understanding the nature and quality of his acts, or knowing the difference between right and wrong, unless he was so delusional and disorganized in his thinking that “he cannot form an intention and literally cannot go across the room without being distracted, [then] we might talk about not knowing right from wrong.” Rozynko testified that defendant was not suffering from such “severe delusions and severe disorganization” when he examined him nor, based on his review of materials relating to the murders, did he believe defendant was suffering from them at the time of the crimes. He described defendant’s behavior at the time of the murders as “goal directed,” indicating he was in touch with reality when he committed the crimes. Examples of this goal-directed behavior included defendant’s acquisition of a gun before committing the murders, driving from Indio to Burlingame, equipping himself with homemade wire handcuffs, a taser, and extra clothing, and entering the victims’ home surreptitiously. Additionally, after committing the crimes, defendant “took a shower, shaved, . . . went to a bank and cashed a check, then he drove to Utah.” Rozynko commented, “if he was trying to getaway [sz'c], he certainly knew what he did was wrong.” Rozynko concluded that there was no question in his mind that defendant knew that society disapproved of what he had done “and it was wrong.” Dr. George Wilkinson, a court-appointed psychiatrist, also interviewed defendant on five occasions and reviewed extensive background material. Wilkinson did not believe defendant was schizophrenic. Instead, Wilkinson diagnosed defendant as suffering from posttraumatic stress disorder, “transient” psychotic episodes triggered by “overpowering aggressive or sexual feelings” that “cannot be expressed,” and had a passive/aggressive personality with “intense feelings of inadequacy” and was a sexual sadist. Wilkinson also concluded that defendant engaged in malingering behavior. As evidence that defendant was not schizophrenic, Wilkinson observed that defendant’s history did not show social isolation, a characteristic of schizophrenia. Defendant was able to befriend people, meet and establish relationships with women and had formed a close relationship with another inmate while he was in prison. Moreover, despite mental illness and periodic psychosis, defendant functioned well enough most of the time, also indicating that the diagnosis of schizophrenia was incorrect. Wilkinson attributed defendant’s posttraumatic stress disorder to his childhood and military experiences. He testified that this disorder could cause someone to have temporary episodes of psychosis. He explained that a “passive/aggressive” personality is a person who is not assertive and whose built-up aggressive energies are expressed passively. A sexual sadist is an individual who derives sexual pleasure from inflicting pain on an unwilling victim. Wilkinson concluded that defendant also engaged in malingering, by which he meant that defendant exaggerated his symptoms in order to “fool” Wilkinson with the possible motive of saving his own life by presenting himself as insane. A series of psychiatric tests indicated to Wilkinson that it was “very, very likely that defendant was malingering.” His conclusion was further supported by a statement made by defendant to another psychiatrist in connection with a 1972 rape charge. Defendant told the psychiatrist he had decided to plead not guilty by reason of insanity to the charge because he hoped to “beat the case” with a psychiatric defense. Wilkinson testified that, based on his evaluation of over 300 murderers, defendant qualified as a serial killer. A serial killer is someone who has the need to kill repeatedly to release internal tensions. Defendant’s behavior in making the tape recording of his crimes, inscribing the murders on his belt and writing the death dates of the victims beneath their names in his address book fit the pattern of a serial killer. Serial killers keep mementos or reminders of their crimes to help them relive the experience and “retouch some of the gratification that they gained by doing the acts.” They also frequently use these mementos to enhance masturbation fantasies. Wilkinson testified that serial killer behavior might or might not be an indication of legal insanity. Ultimately, Wilkinson opined that defendant understood the nature and quality of his conduct. He also concluded that defendant was aware of the difference between right and wrong at the time of the crimes. As evidence of this, Wilkinson pointed to defendant’s awareness that he had to be alone when he confronted the victims and his flight after the crime. Moreover, there was nothing to indicate that, even though he knew his conduct was legally wrong, defendant believed he was morally justified in murdering the victims. D. Penally Phase Evidence 1. Prosecution Evidence The prosecution presented extensive evidence of prior violent criminal conduct by defendant as well as evidence of two other murders defendant committed in the same timeframe as the charged offenses. a. Patsy Jablonski. Patsy Jablonski, defendant’s younger sister, testified that when she was 14 years old and he was 16 years old, defendant came up behind her, put a rope around her neck, threw her on the bed, and said, “I’m going to get some of that off of you.” Defendant had an erection and she thought he was going to rape her. He suddenly stopped, apologized and began to cry. When she told their parents about the incident, their father beat defendant. b. Alice McGowan. Alice McGowan was defendant’s first wife; they had met in high school. After high school, defendant joined the military and was sent overseas. They married upon his return in 1968. McGowan lived for two months with defendant’s parents in California until she joined him in Texas, where he was posted. In Texas, defendant became violent during sex. On one occasion, he put a pillow over her face while they were having intercourse and tried to suffocate her. On other occasions, he grabbed her throat and strangled her until she became unconscious. Once, he came into the bathroom while she was bathing and tried to drown her. On another occasion, while she was pregnant, he began to strangle her, until his mother convinced him to stop. c. Jane S. After McGowan left defendant, he became involved with Jane S., whom he met in November 1968. On their first date, defendant raped her. She did not report the rape because she was afraid and ashamed. In July 1969, with Jane S. pregnant, defendant left the military and the couple relocated to California where, after living with his parents, they moved into their own house. Their sex life was marked by defendant’s violent behavior. On one occasion, when they were having intercourse and Jane S. wanted to stop, defendant pulled out a pistol and threatened to shoot her if she did not continue. He struck her with the butt of the gun, rendering her unconscious and, when she came to, he was having sex with her. On another occasion, over her objection, he tied her to the bed while they were having sex and left her there. As with McGowan, he smothered her with a pillow rendering her unconscious during intercourse. She became afraid that, if he actually smothered her, their children would be left alone with him. She left defendant in 1972. Shortly before she left, defendant became angry at her and threw a frying pan filled with hot grease at her. The pan missed. She hit him with the pan, knocked him out, and fled with their children. d. Marsha S. Marsha S. and her husband became acquainted with defendant when they obtained dogs from a company for which defendant worked that trained security guard dogs. Defendant had delivered the dogs to the S.’s and taught them how to handle them. On the evening of December 17, 1972, defendant came to their residence, even though Mr. S. had asked him not to, because he would be at work. Defendant and Marsha S. discussed problems with one of the dogs. Defendant told her to watch from the bedroom window while he worked with the dog outside. When she got to the bedroom defendant was not outside. Instead, he came up behind her, put a knife to her throat and ordered her to undress, threatening to kill her children unless she complied. Defendant raped Marsha S. at knifepoint. During the rape he struck her face with the blunt end of the knife, fracturing her orbital bone. Later, with her eight-month-old baby in the room, he tied her arms and sodomized her. Defendant told her his wife had just left him and he did not know why he was “doing” this but he had “already started” and she could “identify” him. The dog outside started barking, and defendant told her to bring the dog inside the house, threatening to kill her children if she did not return. She went outside and ran to a neighbor’s house. The neighbor grabbed his gun and encountered defendant as he was coming out of the victim’s house. The neighbor held defendant at gunpoint until the sheriff arrived. Upon being arrested, defendant told police, “I don’t know why I did it,” and “My wife just left me.” Later, defendant told a detective that “I didn’t know what I was doing at the time. Everything was blanked out for me and I just wasn’t myself. I figure to myself[,] under a doctor’s care and supervision that it would never happen again.” The detective to whom he made these statements did not observe anything abnormal about defendant’s mental functioning. e. Mary M. Mary M. became acquainted with defendant through her participation in a letter-writing program to prisoners organized by her prayer group in Zionville, Indiana. She corresponded with defendant, who was in prison for the rape of Marsha S. After defendant was released, he invited Mary M. to come to visit him and she eventually agreed. She made it clear to defendant she was not coming to have sex. On the third day of her visit, defendant told her that because she was sincere about helping him, he was going to be honest with her. He then told her that a week before she arrived he had dug a grave for her, and offered to show her. She declined. He told her that he had planned to kill her but, because she was so sincere, had decided against going through with his plan. On the fourth day of her visit, defendant came into her room, woke her up and asked her to have sex with him. She refused. Eventually, to placate him, she let him tie her hands and feet with knitting yam, thinking she could break the string if necessary. After he tied her up, he left the room and returned with a straight razor. She thought he was going to kill her. Instead, he shaved her pubic area. Afterwards, he took a photograph of the area. Then, he put a pillow over her face. She “played dead” and he stopped and left the room. The next day, on a pretext that there was an emergency at her daughter’s home, she left. f Isobel Pahls/Linda Kimball. In February 1977, defendant met Linda Kimball and by August they were living together. Kimball gave birth to their daughter in December 1977. Kimball’s mother, Isobel Pahls, lived nearby. On the evening of July 6, 1978, Pahls was awakened by defendant, who was on top of her, clad only in undershorts, holding a knife to her throat. He told her he had come to rape her but did not go through with it because when he looked at her face “all he could see was Linda’s face.” Pahls managed to escape to a neighbor’s house. Pahls did not report the incident to the police out of concern for her daughter. Kimball promised that defendant would obtain treatment at the VA hospital at Loma Linda. A few days after the incident, Kimball left defendant and she and their child moved in with Pahls. On July 16, about 11:00 a.m., Kimball returned to the apartment she had shared with defendant to pick up some things for the baby. Early that afternoon, Kimball’s body was found at the apartment. Her wrists were bound. She had been beaten, stabbed and strangled with a man’s belt. Her blouse had been pulled up and her pants and underwear pulled down. Her bra had been ripped apart. The cause of death was asphyxiation. Defendant was arrested in Arizona 11 days later. Police found a note in his handwriting that read, “Killed to date, Linda Kimball, commonlaw wife. I told her she would never raise Meghan alone or leave me alive. She begged me not to kill her. You screamed but it was cut short.” g. Eileen Millsap. After he killed Linda Kimball, but before he was arrested, defendant assaulted Eileen Millsap at her home in Highland, California. On the pretext of responding to an advertisement Millsap had put into a local paper offering a stove for sale, defendant came to her house while she was alone with her small children. He put a knife to the throat of her three-year-old son and forced her into the bedroom where he ordered her to undress. With her two children in the room, he got on top of her and began to choke her. She lost consciousness. When she woke up, defendant was gone. Her wallet and purse were missing. Defendant later used one of her credit cards to buy gasoline. h. Nettie Jablonski. In July 1985, while defendant was incarcerated at the California Men’s Colony, he attacked his mother while she and his father were on a 72-hour family visit. Defendant was angry because Carol Spadoni, whom he had married in 1982, had not come with his parents. He grabbed his mother, choked her, covered her mouth, and dragged her into the bedroom of the family visiting trailer. She yelled for help and his father came to his mother’s aid. i. Fathyma Vann. In April 1991, Fathyma Vann, also known as Fanny Hansen, was a fellow student with defendant in the automotive course at the College of the Desert. On Monday, April 22, defendant gave her a ride home from class. The next day, her body was found off the road in the desert outside of Indio. The cause of death was a gunshot wound but her body was mutilated. Stab wounds perforated her neck, abdomen, vagina and rectal area; her ears and nipples were amputated and there were wounds to her eyes. Abrasions on her back appeared to state “I love Jesus,” with a heart-shaped incision in place of the word “love.” The belt found in defendant’s car after he was arrested for the Petersen-Spadoni murders, on which he had written their names and death dates, also contained the name “Fathyma N. Hansen, 4-22-91,” and “Palm Desert.” Her military identification was also found in defendant’s car. On the same tape on which defendant described the PetersenSpadoni murders, he also described in graphic detail his sexual assault upon, and murder and mutilation of, Fathyma Vann. j. Yvette Shelby. On April 25, 1991, while defendant was in flight after the Vann, Petersen and Spadoni murders, he stopped at a rest stop in Wyoming and brandished a gun at Yvette Shelby (also known as Yvette Russell) who had pulled into the rest stop to do some paperwork and let her dog out. Shelby was able to escape when defendant lost his grip on the gun and dropped it. She drove to the next truck stop where she called police. Police questioned defendant about the incident but he claimed the gun, which he carried for his protection, had fallen out of his car as he was getting out. The officer who questioned defendant accepted his explanation and let him go. At defendant’s trial, however, the prosecution played the tape that was found in defendant’s car in which he described seeing a woman and a child at a rest stop—the woman was apparently not Shelby, who did not have a child with her—and expressed his desire to rape and kill the woman. The purpose of playing the tape was to show defendant’s criminal intent when he pointed the gun at Shelby. k. Margie Rogers. Defendant’s tape also narrated how he had shot an elderly woman working at a truck stop and then opened her blouse, pulled off her bra and fondled her breasts. The body of the victim, Margie Rogers, was found on April 27, at the convenience store/gas station where she worked. Her shirt had been opened and her brassiere was lifted over her breasts. She had been shot twice in the head. 2. Defense Evidence Defendant’s sister, Patsy, testified that their father was an abusive alcoholic who beat his wife and children. He called his wife and daughter “whores,” and grabbed his daughters’ breasts and those of their girlfriends. When he and his wife had sex, he would beat her or try to strangle or suffocate her. Defendant was the most frequently beaten child because he would try to come between his father and his mother to prevent him from hitting her. Defendant and his siblings often ran away and hid from their father; their mother would signal them when it was safe to return. The violence within the family was an almost daily occurrence and the police frequently were called to the house, but refused to intercede. Defendant’s father was also cruel to animals. He always carried a gun with him that he would brandish at his children as he scolded them for their worthlessness, telling them they had not deserved to be bom and did not deserve to live. According to Patsy, defendant was sexually molested by a neighbor when he was four or five years old. The same neighbor molested her. She said two neighborhood children, Dale and Janice Rearick, were present when the molestation occurred. Patsy described defendant as quiet. She and another brother, Albert, called defendant “Goody-Two-Shoes.” However, defendant would take out his aggression on Patsy and Albert, and hit them when their parents were gone. Defendant would get upset when his parents were gone for a long time. He told Patsy, “They never loved me. They always hate me.” He “cried about everything.” Defendant presented other witnesses who had known him and his family when he was a child. The Jablonskis were among the poorest of the poor in a lower middle class and poor neighborhood. The witnesses generally corroborated the portrait of defendant’s father as a brutal, gun-carrying alcoholic who regularly abused his wife and his children and was cruel to animals. One witness testified that defendant’s father was the meanest man he ever knew. Another witness testified that, when he was a child, defendant’s father had run over his puppy and did not even bother to stop. He slaughtered chickens in a “sadistic” manner and once killed the family pet, a pig, for dinner. He also shot neighbors’ cats if they strayed onto his property. A former daughter-in-law testified that defendant’s father grabbed her month-old infant from her and fed the baby hot sauce. Witnesses remembered the Jablonksi children and sometimes their mother hiding from their father. Defendant would try to protect his mother and he would be beaten for it. The defense witnesses also testified that as a child and teenager, defendant was a nice person who was quiet and kept to himself. The witnesses testified that defendant was a very anxious child. One witness testified he was “scared all the time.” Other witnesses testified that he was a thin, pale, ill-looking and lonely child who cried all the time. However, one witness testified that he saw defendant and his sister Patsy have consensual sex on two occasions when they were teenagers. The two bragged about it and thought it was “funny.” In high school, defendant belonged to the cadet corps and in 1966 he enlisted in the army. His military records are unclear as to whether he served in Vietnam, but he claimed he had, and his discharge papers listed the Vietnam Service Medal. According to his first wife, Alice McGowan, when defendant returned from overseas to Fort Bliss, Texas, he was a changed man. Before, he had been a quiet person, but now he was “really mean” to McGowan and she “wasn’t sure all the time whether he was really with it or not.” During his relationship with Jane S., defendant was seeing VA psychiatrists and taking daily medication. However, he exhibited odd behavior, including forgetting his children at a shopping mall. Isobel Pahls testified that, after defendant attacked her, she called the Loma Linda VA and spoke to Dr. Kopiloff and reported the attack. Kopiloff told her not to call the police and assured her that the VA would take care of defendant. She testified that her daughter, Linda Kimball, was upset because, on the Monday after the attack on Pahls, she had driven defendant to the Loma Linda VA hospital and hospital personnel had declined to hospitalize him. Two days before defendant killed her, Kimball took defendant to a second appointment at the VA hospital and hospital personnel again declined to hospitalize him. After Kimball’s death, Pahls obtained custody of the child Kimball and defendant had had together. Defendant’s parents also sought custody but, according to Pahls, the judge hearing the case said he would not send a child to the environment from which defendant had come. In connection with defendant’s release on parole in September 1990, the Department of Corrections prepared a release program study report in which it was noted that defendant was a “Category J” psychiatric inmate who received treatment, including medication. The report noted that a staff psychologist was concerned about defendant’s parole and warned that, although in remission, he could become actively psychotic at any time. His original parole plan required him to seek mental health counseling. Ultimately, defendant sought such counseling from the Loma Linda VA hospital. On November 30, 1990, Dr. Sylvia Winters, a psychiatrist at the VA hospital, conducted an intake examination of defendant. He told her that in the previous month and a half he had been hearing voices and seeing faces just as he had before he killed Linda Kimball. He reported that he had stopped taking the medication prescribed for him in prison. He complained that helicopters flying above the motel where he lived were making him nervous. He also told her he was having nightmares about a friend who had died in Vietnam in the crash of a helicopter on which defendant was a door gunner. He blamed having a flashback to his service in Vietnam for his attack on his mother at the California Men’s Colony. He also blamed his experience in Vietnam for his murder of Linda Kimball, telling Dr. Winters that he “thought [his] wife was Vietnamese when [he] strangled her.” Dr. Winters was aware of the circumstances surrounding defendant’s killing of Linda Kimball. She knew that, two days prior to the murder, defendant had been evaluated at the Loma Linda VA and found to be neither homicidal nor suicidal. Nonetheless, she accepted his assurance that he did not feel like hurting anyone and would inform his parole officer if he did. She tentatively diagnosed defendant as schizophrenic and made an additional, provisional diagnosis of posttraumatic stress disorder. She prescribed medications for him and referred him to a special posttraumatic stress disorder team at the hospital for combat veterans. She advised Nancy Whitney, a clinical social worker attached to the posttraumatic stress disorder team, that she might take some precaution for her security when defendant arrived for his appointment. She also later wrote his parole officer and told him to be sure defendant did not sleep in the same room with others because of the possibility of Vietnam flashback. Whitney saw defendant for the next four months every two to three weeks. Her working diagnosis was posttraumatic stress syndrome. When she last saw him on April 4, 1991, he complained about an increase in his nightmares. A later search of his apartment revealed medicine bottles full of psychiatric medication, indicating that defendant was not properly taking his medication. Rosser Donley, a classmate of defendant and Fathyma Vann, testified that on Monday, April 22, he and defendant were supposed to watch a videotape on alternators and generators after class ended that evening. The tape machine was not working, however, and defendant drove Donley to a restaurant, dropping him off about 7:30 p.m. Donley testified that had the machine not broken down, he would have been in the car with defendant and Vann. He opined, therefore, that defendant did not plan to murder Vann. Alex Martinez, who had been an inmate with defendant at San Quentin, testified that when he and another inmate found two homemade prison knives in the chapel they took them to defendant, who worked as a clerk to the chaplain. Martinez and the other inmate had hesitated in turning in the knives because they knew that doing so might invite retaliation. Defendant, however, immediately and without hesitation turned them over to the chaplain. 3. Prosecution Rebuttal Janice Rearick had grown up in defendant’s neighborhood and knew his family. She had never seen defendant’s father beat defendant or his sister, Patsy, although she heard screaming coming from the Jablonski house on occasion. She testified further that Harold Boies, who Patsy said had molested defendant, did not have a reputation as a child molester and, contrary to Patsy’s testimony, she had not witnessed the incident of molestation described by her. Albert Jablonski, defendant’s younger brother, testified that defendant’s father did not abuse him or defendant although he did use a belt on him as punishment. His father drank beer and was abusive toward his mother. Albert knew Harold Boies and testified that Boies never tried to molest him, nor had he heard that Boies had tried to molest defendant. Janet Flenniken and her husband managed the hotel where defendant lived in the spring of 1991. Defendant acted like a normal person and never showed signs of being mentally ill. In March 1991, he said he had plans to move “up north.” He told Flenniken he was going to get his wife to write a “lying letter” saying she would move with him to Sacramento and he would then start a new life. Dr. Charles Sprague, a psychiatrist at the Loma Linda VA hospital, met with defendant in February 1991 for a medication check. Defendant said his mood was “okay,” and Sprague’s observations were consistent with this self-description. Defendant told Sprague he was not experiencing symptoms consistent with posttraumatic stress syndrome. He denied wanting to hurt anyone and reported no problems with anger or irritability. He claimed he was taking his medication as prescribed. Dr. Sprague had read Dr. Winters’s report and had a “higher level of suspicion” than he ordinarily would have had in assessing defendant’s dangerousness. Dr. Sprague looked for anything that might call for involuntary commitment, but found nothing to justify such action. II. Discussion A. Pretrial Issues 1. Presence of Unauthorized Individuals at Grand Jury Proceedings Present at some part of the grand jury proceedings that returned the indictment against defendant were several deputy district attorneys who were apparently observing the proceeding for training purposes. Subsequently, defendant moved to dismiss the indictment under section 995 alleging, as one ground of the motion, that the presence of these prosecutors violated section 939. Section 939 provides in pertinent part: “No person other than those specified in Article 3 (commencing with Section 934), and in Sections 939.1, 939.11, and 939.21, and the officer having custody of a prisoner witness while the prisoner is testifying, is permitted to be present during the criminal sessions of the grand jury except the members and witnesses actually under examination.” Although the district attorney is allowed to be present at grand jury proceedings to serve particular functions in aid of the proceedings (§ 935), the trial court agreed with defendant that the presence of deputy district attorneys who are not fulfilling this function was a violation of section 939. Nonetheless, the trial court concluded that defendant had failed to establish prejudice arising from the violation and dismissal of the indictment was not required. On appeal, defendant contends the violation of section 939 amounted to a violation of his state and federal due process rights as well as the requirement in article I, section 14 of the state Constitution that felonies be prosecuted either by indictment or information and the Eighth Amendment’s requirement of heightened scrutiny in capital cases. He further asserts that these violations constituted a structural error in the grand jury proceedings that requires reversal without reference to prejudice. We reject the argument. Although section 939 does not preclude the presence of deputy district attorneys actively involved in assisting the district attorney in fulfilling his or her statutory function in grand jury proceedings (see Stern v. Superior Court (1947) 78 Cal.App.2d 9, 13 [77 P.2d 308], in this case, evidently, the deputy district attorneys were not rendering such assistance. We assume, therefore, that the trial court correctly concluded their presence was a technical violation of section 939. (See People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 415 [2 Cal.Rptr.2d 829] [“Apart from necessary and authorized appearances, as specified by statute, no person is permitted to be present during criminal sessions of the grand jury except the members of the jury and witnesses actually under examination”].) Where, as here, irregularities in the grand jury proceedings are challenged on appeal, a showing of actual prejudice is required. (People v. Towler (1982) 31 Cal.3d 105, 123 [81 Cal.Rptr. 391, 641 P.2d 1253].) Thus, defendant must show the “alleged errors before the grand jury deprived him of a fair trial or otherwise resulted in any actual prejudice relating to his conviction” before reversal on the ground of such irregularity is warranted. (Ibid.) Defendant asserts that the unauthorized presence of the deputy district attorneys had “an inherent tendency to be coercive and to compromise the grand jury’s independence.” This assertion, unsupported by any reference to the record, is purely speculative and fails to comport with Towlef s actual prejudice requirement. Undeterred, defendant argues that he is not required to show prejudice. In support of this claim, defendant relies on Vasquez v. Hillery (1986) 474 U.S. 254 [88 L.Ed.2d 598, 106 S.Ct. 617]. Under federal law, as under state law, irregularities in grand jury proceedings are generally subject to analysis for prejudice. (Bank of Nova Scotia v. United States (1988) 487 U.S. 250, 254-257 [101 L.Ed.2d 228, 108 S.Ct. 2369].) Nonetheless, the Supreme Court has acknowledged that there are “isolated exceptions to the harmless-error rule” involving cases where the error is of constitutional magnitude and “the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice.” (Id. at pp. 256-257.) In Vasquez, racial discrimination in the composition of the jury that indicted the defendant led the court to reverse his conviction without reference to prejudice. (Vasquez v. Hillery, supra, 474 U.S. at pp. 263-264.) As the court subsequently explained, Vasquez exemplified the rare case where “[t]he nature of the violation allowed a presumption that the defendant was prejudiced, and any inquiry into harmless error would have required unguided speculation.” (Bank of Nova Scotia v. United States, supra, 487 U.S. at p. 257; see United States v. Mechanik (1986) 475 U.S. 66, 70-71, fn. 1 [89 L.Ed.2d 50, 106 S.Ct. 938] [noting that the grounds for reversal in Vasquez “have little force outside the context of racial discrimination in the composition of the grand jury”].) Vasquez is inapposite. The presence of unauthorized individuals at grand jury proceedings does not have a structural impact on those proceedings comparable to that of discriminatory selection of grand jurors, nor is such error insusceptible of review for actual prejudice such that prejudice must be presumed. (Cf. Bank of Nova Scotia v. United States, supra, 487 U.S. at pp. 257-260 [unauthorized presence of two Internal Revenue Service agents at grand jury proceeding was not prejudicial and did not warrant dismissal of indictment]; United States v. Plesinski (9th Cir. 1990) 912 F.2d 1033, 1038-1039 [presence of unauthorized special prosecutor was not prejudicial].) Accordingly, we reject defendant’s claim that violation of section 939 resulted in any constitutional error, much less that automatic reversal of his conviction is warranted. 2. Competency Trial Issues a. Alleged Violation of Fifth and Sixth Amendment Rights by Requiring Defendant to Submit to Competency Examinations Prior to trial, defense counsel questioned defendant’s competence to stand trial. The trial court, in accordance with section 1368, suspended criminal proceedings and appointed Dr. Alfred Fricke, a psychologist, and Dr. Jeffrey Weiner, a psychiatrist—Fricke to assess defendant’s competence and Weiner to assess the effects on defendant of the psychotropic medications he was taking. Over defendant’s objections, the trial court also ordered him to submit to a competency examination by Dr. James Missett, who was retained by the prosecution. A total of four experts testified at defendant’s competency trial. The defense expert, Dr. Kormos, testified that defendant was suffering from schizophrenia and, as a result, was so impaired he was unable to assist rationally in his own defense. Kormos opined that defendant was not malingering. The two court-appointed experts, Drs. Fricke and Weiner, each testified that while they initially had believed that defendant was not competent to stand trial based on their first examinations of him, subsequent examinations changed their assessment. Dr. Fricke testified that, after his second examination of defendant, he concluded that defendant was competent to stand trial and that “without a doubt” defendant was malingering. Dr. Weiner testified that, after his subsequent examination of defendant, there was insufficient data as to whether defendant was competent. Weiner testified further that he had observed evidence that made him “strongly suspicious” that defendant was malingering. Finally, the prosecution’s expert, Dr. Missett, testified that defendant was competent to stand trial and was malingering. The jury found defendant competent. Defendant contends that the trial court violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to assistance of counsel by requiring him to submit to competency examinations by the two court appointed evaluators and by an evaluator designated by the prosecution. Alternatively, he contends that these rights were violated by requiring him to submit to examination by the prosecution’s evaluator alone. In general, the Fifth Amendment privilege against self-incrimination applies to competency examinations. (Estelle v. Smith (1981) 451 U.S. 454 [68 L.Ed.2d 359, 101 S.Ct. 1866].) In California, the “protection . . . afforded by application of the Fifth Amendment is in fact provided by a judicially declared rule of immunity applicable to all persons whose competency to stand trial is determined at a section 1368 hearing.” (Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 496 [122 Cal.Rptr.2d 673].) This rule of immunity was first declared in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465 [122 Cal.Rptr. 61]. In that case, the Court of Appeal concluded that a psychiatrist appointed to examine a defendant for competency could not testify later on the question of defendant’s sanity. The court reasoned that, because a defendant may not invoke his right against compelled self-incrimination in a competency examination, “neither the statements of [the defendant] to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of [the defendant’s] guilt, under either the plea of not guilty or that of not guilty by reason of insanity.” (Id. at p. 470.) We adopted the judicially declared rule of immunity in People v. Arcega (1982) 32 Cal.3d 504, 522 [186 Cal.Rptr. 94, 651 P.2d 338] (see People v. Weaver (2001) 26 Cal.4th 876, 959-960 [111 Cal.Rptr.2d 2, 29 P.3d 103] [noting the rule in Arcega]). Defendant argues that the immunity granted in Arcega inadequately protects a defendant’s Fifth Amendment interest against self-incrimination because it does not prevent “nonevidentiary derivative uses” of statements obtained from a defendant during the competency examination. Such derivative uses, he postulates, might include “gaining] insight into the relationship between the defendant and his attorneys, or insight into tactical decisions or considerations by the defense, or a myriad of other articulable and inarticulable matters that. . . could be helpful to the opponent in dictating his choice of actions or tactics.” We reject defendant’s argument for two reasons. First, the premise of defendant’s claim—that the immunity conferred in Arcega is not coextensive with Fifth Amen