Full opinion text
Opinion CORRIGAN, J. A jury convicted Erik Sanford Chatman of first degree murder under the special circumstance of torture murder and with use of a knife. The jury acquitted him of robbery and rejected a related robbery-murder special-circumstance allegation. It did find defendant guilty of the lesser offense of grand theft. After the jury returned a death verdict, the court denied defendant’s motion to modify the verdict and imposed sentence. In this automatic appeal, we affirm the judgment. I. Facts A. Guilt Phase 1. Overview On October 7, 1987, defendant stabbed Rosellina Lo Bue to death at a Photo Drive Up store in San Jose. He stabbed Lo Bue 51 times and took cash from the store. The only eyewitness was defendant’s son, Mario, then two and a half years old. These facts are undisputed. Contested at trial was what specific crimes defendant had committed. While the prosecution alleged first degree murder, robbery, and attendant special circumstances, defendant contended he was guilty only of manslaughter or second degree murder and innocent of robbery. 2. Prosecution Evidence Lo Bue worked at the store along with defendant’s wife, Yvonne Chatman. Yvonne usually worked from 9:00 a.m. to 6:00 p.m., while Lo Bue worked from 2:00 or 3:00 p.m. until 6:00 p.m. On the day of the killing, Yvonne opened the store but falsely told her supervisor that she had to leave because her husband and son had been in an automobile accident. Yvonne returned home, and Lo Bue was called to take her place. Yvonne testified that around 3:00 p.m., defendant left their apartment with their son, Mario. Defendant said they were going to the park, but instead took the boy to the store. Independent witnesses saw defendant there with Lo Bue until the 6:00 p.m. closing time. Lo Bue did not appear to be afraid of defendant. Mario was seven years old at the time of trial, and testified he saw his father stab the victim. Mario remembered that the knife came from a yellow box, but did not recall when he first saw it. Defendant was the only person Mario saw handle the knife. After the stabbing, defendant ran home with Mario. Mario could not remember whether defendant carried him. At home, both defendant and Mario took a shower. Mario said he thought he took the shower because Mario had blood on his hands. Around 7:15 p.m., passerby Curtis Jones saw the store apparently unattended with the door ajar. On closer inspection, Jones saw Lo Bue’s body and called the police. The crime scene was in disarray, the walls spattered with blood. Most of the blood was less than three feet from the floor, indicating the victim had been stabbed while crouching or reclining. Carpeting behind the main counter was soaked with blood. The cash drawer lay empty on the counter. There was no blood on the cash register. A safe under the side counter was open. An envelope unmarked by blood and containing over $100 in cash, along with checks and deposit slips, remained in the safe. According to a notation on the envelope, it contained the store proceeds from October 6, minus $150. October 7 proceeds were missing. It appeared the safe had been opened after the stabbing, because the door was spattered with blood but the interior was not. The victim’s purse was found under the counter. It was covered in blood but still contained a wallet with about $27 in cash. An envelope containing less than $2 was recovered from one of the countertops. A telephone receiver had been tom from the wall. Defendant’s fingerprint was found on a photocopy machine. The store video surveillance camera was inoperable on the day of the stabbing. Yvonne knew the camera did not work. She might have told defendant this, but she could not recall. Yvonne heard defendant come home that evening. Shortly thereafter she saw her husband and son standing in bloody water in the tub. Defendant was flustered and had scratches on his chest. Something he said caused her to go to the store, where she saw Lo Bue’s body being removed. When she returned home, defendant was excited. She saw cash and checks in a moneybag like one used at the photo shop. Defendant’s finger was badly cut. He told Yvonne’s mother, Mary Irving, that he had gotten cut while either fighting or robbing someone. Later the same evening, at defendant’s insistence, defendant, Yvonne, Mario, and Irving went to East Palo Alto, where they purchased crack cocaine, using money defendant had taken from the store. The three adults smoked the dmgs in a motel room. The next day, when police came to the apartment, Yvonne spoke to them while defendant hid in the bathroom. Yvonne reported that she had not been to work because her “boyfriend” and son had been in an automobile accident, and she had spent the previous night at the boyfriend’s home. After the police left, defendant told Yvonne that if she “told that he did it, he would ... get me and my family, he would drag us all into it.” Yvonne and defendant separated shortly thereafter. Defendant lived with Tina Whaley for several months in 1988. She testified defendant told her he had killed a woman at the Photo Drive Up. He said the victim was acting as if she were high on drugs, and while they spoke she pulled a knife on him. Defendant disarmed the victim, and stabbed her “quite a few times” because “she kept coming back. He said she wouldn’t die.” He stabbed her “all over from the neck down, chest, stomach, everywhere.” The victim “went for the phone and he pulled it out of the wall.” After the stabbing he took about $500 from the cash register, ran home with his son, and showered. He also burned his clothes. He told his wife what happened, and threatened to kill her if she told anyone. That evening, along with his wife, son, and mother-in-law, defendant used money he took from the store to buy crack cocaine, which the adults smoked in a motel. Rosalind Wathel was defendant’s girlfriend in Houston, Texas, for about eight months in 1989. She testified that defendant described the incident and seemed to be bragging. He told Wathel he had gone to the shop with his son to collect some photographs. “[H]e wasn’t happy with the photos, and ... he had stabbed the girl that was there” repeatedly. After he stabbed her, “he robbed her to go get some more crack cocaine and alcohol.” He said the girl begged him to stop, and that “the more she asked him to stop the more he kept stabbing,” because “[i]t felt good.” He said that “[i]t just start[ed] feeling good and he just kept doing it even after she had got quiet.” He told his wife and “made her promise not to tell. . . . [S]he got afraid and left, and took the baby.” William Speed testified defendant told him that he had stabbed someone in a fight and he “kind of’ seemed to be bragging. He said he stabbed the person in the neck and “the person was gurgling, kind of choking on his own blood.” The murder weapon was never found. According to witnesses, no knives were kept in the store. Lo Bue’s sister testified that the victim never carried one. Shortly after the killing, Yvonne and her mother, Mary Irving, noticed that a distinctive kitchen knife was missing from their home. Yvonne last saw the knife a couple of days before the killing. Its handle was about four inches long with a blade between seven and a half and 10 inches long. The blade was about an inch and a half wide at the hilt and narrowed to a point. It was the only sharp knife the family owned. Yvonne’s sister, Denise Taylor, also testified Mary Irving told her that defendant said he stabbed the victim, who was gasping and gagging for air. At trial, Irving denied that defendant had said this to her or that she had repeated such a statement to anyone. An autopsy revealed that Lo Bue died from exsanguination and asphyxiation due to a collapsed lung. Of the 51 separate knife wounds she sustained, seven were defensive wounds to the hands and forearms. On the front of the body, there were two life-threatening neck wounds. One severed the jugular vein; the other cut through the esophagus and trachea. While not immediately fatal, the latter wound would have caused labored breathing, accompanied by a gurgling sound. The frontal wounds cut through all layers of the skin and into the underlying tissue. They would have bled extensively. Three of the back wounds were quite serious. They penetrated the chest cavity and completely pierced the right lung. They caused significant bleeding, collapsing the lung and resulting in an inability to breathe. Eight other back wounds cut through the skin, fatty tissue, and perhaps into underlying muscle, but did not enter the chest cavity. Thus wounded, Lo Bue would have died after the lapse of several minutes. The injuries were inflicted by a single-blade knife of undetermined length and width. The wounds did not seem to follow a pattern and were inflicted from varying angles, with the assailant in varying positions. The victim had no alcohol or drugs in her system. The police arrested defendant in Houston, Texas, on April 24, 1990. He was found hiding in a closet. 3. Defense Evidence Defendant admitted stabbing Lo Bue. He testified that he went to the store around 3:00 p.m. to talk with her about his troubled marriage. He did not have a knife. After the store closed, Lo Bue told him that “Yvonne had confided in her that she wasn’t happy with the relationship as far as me not having a full-time job.” Lo Bue said that “she told [Yvonne] that she should go ahead and separate from me and find somebody . . . that she could be happy with.” These words “hit me like a ton of bricks and I became very upset, because at that time I didn’t know she was giving my wife advice.” He “started talking loud and said some things that I shouldn’t have said.” Lo Bue appeared frightened. At this point, Mario said something and defendant turned toward the boy. When he turned back toward Lo Bue, she had a knife in her hand and ordered him to leave. He took the knife from her, cutting his finger in the process. Once armed, “I guess you would say in a blind rage I started stabbing her with it.” He stabbed Lo Bue until she was dead. When Mario said something like, “Daddy, I want to go home,” defendant stopped stabbing Lo Bue. He left the store, taking the knife, some money, and a telephone with him. He “yanked [the phone] out of the wall.” He was “panicking,” and took the knife and phone because they contained his fingerprints. He did not decide to take any money until after the stabbing. He did so as an “afterthought” to give the appearance of robbery. He took the money from a counter and put it in a store bag with everything else. He ran home with his son as fast as he could. He went straight into the shower with his son, who had blood on him from being carried by defendant. He told Yvonne what had happened and she left the bathroom, taking the items he had brought from the business. Yvonne later burned checks taken from the business. She told him that she had thrown some of the other items away, including the knife and phone, but not the money. Defendant also told Mary Irving what had happened. Later they went to East Palo Alto, where they spent the night in a motel. Yvonne and Irving bought drugs. He did not go with them to make the purchase, but all three smoked the drugs. Defendant denied threatening Yvonne initially. Later, when she threatened to tell the police, he said that if she did, he would tell the police about her involvement. He told Tina Whaley what had happened, but denied saying he had threatened to kill Yvonne. He did not tell her that the stabbing took a long time, saying instead that “it happened all so fast.” Defendant denied telling Rosalind Wathel anything about the stabbing. They “never talked about it period. I left all that behind me when I went to Texas.” Although he admitted telling William Speed about the stabbing, he denied bragging or saying anything about a gurgling sound. Defendant knew the store had a camera, but denied that Yvonne told him it did not work. Defendant presented several other witnesses, some in an attempt to impeach Rosalind Wathel. Regina Pickens-West was Wathel’s friend. Although Wathel had testified that Pickens-West was present when defendant told her about the incident, Pickens-West testified she never heard defendant mention stabbing anyone. Wathel had testified that she reported defendant’s statements to a Houston police officer named Chris. Houston Police Officer A.G. Christal, known as Officer Chris, testified that he sometimes spoke with Wathel, but she never reported that her boyfriend confessed to a stabbing. Other witnesses testified that Wathel voluntarily submitted to a day of psychological testing in Houston. Additional defense evidence included testimony from an astronomer regarding the available light on the evening of the stabbing. Photos of the crime scene came in through the testimony of a defense investigator. A paramedic described the appearance of Lo Due’s body. Tina Whaley testified she had been convicted of embezzlement in 1988. Candy Howard testified that once around October 8, 1987, when she lived in East Palo Alto, Yvonne and her sister came to her home in the middle of the night to buy crack cocaine. No man was with them. Yvonne paid with a $100 bill. San Jose Police Sergeant George Padilla testified about previous statements some prosecution witnesses had made. B. Penalty Phase 1. Prosecution Evidence Yvonne testified that about three weeks after the stabbing, defendant choked her into unconsciousness. Tina Whaley testified that defendant told her that he had once “started strangling [Yvonne], and that she passed out.” He thought she had died. Whaley and others testified that in late December 1988, about two months after Whaley and defendant separated, defendant burned Whaley’s apartment after discovering her there with another man. The arson investigator testified that six separate fires were set throughout the apartment. According to Rosalind Wathel, defendant told her that he had found a former girlfriend in bed with someone else, and that “he set the place on fire.” He watched from a distance while firefighters fought the blaze. Wathel also testified that she and defendant once argued because she wanted to use food stamps to buy food while defendant wanted to “cash” them and buy crack cocaine. He struck her face with his fists and cut her forehead with a kitchen knife, leaving a scar. After she fell to the floor, “he literally took his boots and kicked me in the vagina constantly until I passed out.” When she regained consciousness, defendant was smoking cocaine. He told her that if she had not “come to, he wanted to know what he was going to do to dispose of my body.” A witness testified that around 1981, defendant assaulted him and another custodian at a high school. A police officer testified that in February 1981, defendant also assaulted him at the high school while the officer was off duty. Salvador Lo Bue, the victim’s father, testified about the killing’s impact on himself and his family. 2. Defense Evidence Defendant testified at length about his life, including his unhappy childhood. His father was African-American and his mother Caucasian. His father, an alcoholic, beat him with a belt throughout his childhood. Other than the beatings, he had little interaction with his father. He testified about meeting Yvonne and the birth of his son. The day Mario was bom was “the happiest day of my life.” One day, when defendant and Yvonne took Mario to meet defendant’s father, his three younger siblings told him their father had been beating them. The father appeared and started beating his sister with a belt. The father saw defendant, went into the bedroom and got a gun. He had pointed a gun at defendant once before. Defendant called the police and never saw his father again. Regarding the choking of Yvonne, defendant said he simply grabbed her by the coat collar and she passed out. He said she “had the look of smoking crack,” and denied squeezing her neck. He admitted the incident to Tina Whaley, but insisted he described it just as he had done at trial. He admitted the arson at Tina’s apartment. He had been drinking, and intended to leave her with nothing, “like I was being left with nothing.” As to the Rosalind Wathel assault, he maintained that certain injuries she attributed to him preexisted their acquaintance. He said she would drink a great deal and would sometimes pass out in the apartment. Defendant said he could not ask for forgiveness because what he had done was so terrible, but he hoped the jury could understand why he did it. “Violence became a part of my life and as I grew older I used violence to solve problems which wasn’t right, but that’s what I did.” He said he wanted to live. There was testimony about defendant’s family, school record, and employment history. Witnesses included two of his boyhood neighbors, two teachers, and several employers at various jobs predating and following the murder. He was generally a good worker. Defendant’s younger brother, Jason, testified about living with their father and about the time their father pulled a gun. A former Palo Alto police officer also testified about that event. One of defendant’s high school friends and two of his cousins testified about the high school incidents, largely exonerating defendant. 3. Rebuttal and Surrebuttal In rebuttal, one of defendant’s former employers testified that once, when he confronted defendant with complaints, defendant tried to punch him in the face. A juvenile probation officer impeached portions of defendant’s testimony. He testified that while defendant was living with his mother in 1980, a petition against him was sustained in juvenile court and he was placed on formal probation. In surrebuttal, a boys ranch counselor testified about defendant’s good behavior there. A juvenile probation officer testified about his report regarding the assault on the off-duty officer. II. Discussion A. Denial of Motions to Disqualify Trial Judge and Related Misconduct Claim Defendant twice moved to disqualify the trial judge, John T. Ball. Both times, another superior court judge heard and denied the motion under Code of Civil Procedure sections 170.1 and 170.3. Defendant challenges these .rulings as erroneous, and contends the facts underlying the second motion demonstrate judicial misconduct. We disagree. 1. Facts Before jury selection began, Judge Ball told the parties that 14 or 15 years previously, his daughter had been robbed at knifepoint while working at a photo shop. The judge accompanied his daughter to a live lineup and to the preliminary hearing where she testified and identified the robber. Defendant moved for Judge Ball’s disqualification. The judge filed an answer reaffirming these facts and adding that the “incident in question is dim and distant in my mind.” His daughter was an adult at the time, had not lived with him for about five or six years, and had not been injured. They had not discussed the incident in over 10 years. He went on to attest, “I did not make nor do I presently have the slightest connection with the event occurring to my daughter and the pending matter before me. I in no way feel bias, prejudice regarding the defendant nor for that matter any person charged with a crime as a result of my daughter’s victimization.” The motion was assigned by stipulation to another judge and denied. After return of the penalty verdict but before rulings on postverdict motions, defendant again moved to disqualify Judge Ball. In his motion he cited the previous grounds, and added allegations that: “[0]n December 14, 1992, after the death verdict, Judge Ball approached the rail dividing the well of the courtroom from the spectators and spoke to the victim’s father [who had testified at the penalty phase]. The Judge mentioned how he (the Judge) knew it has been very hard. Mr. Lo Bue responded about the fact that he (the defendant) took his baby’s life, and that his (the defendant’s) life should be taken.” Defendant supplied a supporting declaration by John Aaron, who had been in the courtroom. Aaron said that he could not “remember what was said verbatim or what else was said but the encounter lasted about forty seconds. I do not recall who spoke first.” In Judge Ball’s answer, he stated: “During the trial there were various times wherein Mrs. Lo Bue, mother of the victim, would lose her composure and speak out. Concern was expressed on the occasions and, upon request and I believe without request, admonishments were given to the jury. On these occasions, when present, Mr. Lo Bue, father of the victim, would attempt to control and console his wife. On December 14, 1992, . . . after the jury reached its verdict, Mr. Lo Bue accosted me in the courtroom when I returned to the courtroom to deliver items to my clerk, and attempted to apologize for his wife’s conduct. My best recollection is that I merely acknowledged his concern and indicated it was understandable and that he should not concern himself with the matter. I extended the same courtesy to him that I would have extended to anyone expressing anxiety. I specifically cut short his statements, and by my conduct indicated my inability to discuss the matter further with him. The comments regarding the Defendant’s punishment and the loss of his daughter were addressed to my Deputy and not to me. The only comment I heard related to the apology for his wife’s conduct.” He denied that his daughter’s experience or his feelings or statements to the victim’s father affected his feelings toward defendant or the charges. By stipulation, the motion was assigned to a different judge from the one who had heard the first disqualification motion. The second motion was denied. The judge concluded an evidentiary hearing was unnecessary: “[T]he second incident was handled appropriately by Judge Ball . . . [H]e still maintains and maintained throughout that incident the appearance of impartiality.” 2. Analysis Defendant asserts the motions to disqualify should have been granted. At trial, he relied primarily on Code of Civil Procedure section 170.1, subdivision (a)(6)(C), which provided that a judge is disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. . . .” He also argued that “[a] biased decision maker is constitutionally unacceptable,” citing Withrow v. Larkin (1975) 421 U.S. 35 [43 L.Ed.2d 712, 95 S.Ct. 1456]. That case stated that “ ‘a fair trial in a fair tribunal is a basic requirement of due process.’ ” (Id. at p. 46.) a. Preservation of the Claim The Attorney General urges defendant did not challenge these rulings by a pretrial writ, thus forfeiting the right to complain on appeal. He is partially correct. Code of Civil Procedure section 170.3, subdivision (d), provides: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding.” This provision governs both peremptory challenges and those made for cause. (People v. Hull (1991) 1 Cal.4th 266, 272-275 [2 Cal.Rptr.2d 526, 820 P.2d 1036].) In People v. Brown (1993) 6 Cal.4th 322, 335 [24 Cal.Rptr.2d 710, 862 P.2d 710] (Brown), we held a claim based on the statute was barred, but that a constitutionally based challenge asserting judicial bias could be raised on appeal. In Brown, the defendant did file a pretrial writ. We noted that a defendant “may, and should, seek to resolve such issues by statutory means, and that his negligent failure to do so may constitute a forfeiture of his constitutional claim.” (Brown, supra, 6 Cal.4th at p. 336.) We have subsequently indicated, however, that a defendant who raised the claim at trial may always “assert on appeal a claim of denial of the due process right to an impartial judge.” (People v. Mayfield (1997) 14 Cal.4th 668, 811 [60 Cal.Rptr.2d 1, 928 P.2d 485] (Mayfield).) While defendant may not raise the statutory claim on appeal, he may assert a constitutionally based challenge of judicial bias. (Brown, at p. 335.) b. Merits of the Constitutional Claim As noted, the statute requires the disqualification of a judge whenever “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ. Proc., § 170.1, former subd. (a)(6)(C), see now subd. (a)(6)(A)(iii).) The Attorney General argues the constitutional standard is narrower. He cites Bracy v. Gramley (1997) 520 U.S. 899 [138 L.Ed.2d 97, 117 S.Ct. 1793], where the high court explained that “most questions concerning a judge’s qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard. [Citation.] Instead, these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar. [Citations.] But the floor established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ [citation], before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” (Id. at pp. 904-905, italics added.) Accordingly, the Attorney General argues that the due process claim requires a showing of actual bias, whereas the statute requires only the appearance of bias. We need not further address the distinction because defendant has failed to show even the appearance of bias. Potential bias and prejudice must clearly be established by an objective standard. (In re Scott (2003) 29 Cal.4th 783, 817 [129 Cal.Rptr.2d 605, 61 P.3d 402].) “Courts must apply with restraint statutes authorizing disqualification of a judge due to bias.” (ibid.) Under this standard, there was no error. Defendant’s allegations in support of his disqualification motions “simply do not support a doubt regarding [the trial judge’s] ability to remain impartial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 50 [17 Cal.Rptr.3d 710, 96 P.3d 30], fn. omitted.) The mere fact that Judge Ball’s daughter had been the victim of a knifepoint robbery at a photograph store many years before does not disqualify him. Judges, like all human beings, have widely varying experiences and backgrounds. Except perhaps in extreme circumstances, those not directly related to the case or the parties do not disqualify them. In this case, the judge stated unequivocally that he made no connection between the earlier robbery and the present case. “ ‘[W]e of course presume the honesty and integrity of those serving as judges.’ ” (Mann v. Thalacker, supra, 246 F.3d at p. 1097.) The judge’s brief encounter with the victim’s father shortly after the jury’s penalty verdict likewise did not require his disqualification. Judge Ball did not seek out the encounter. The victim’s father approached him to apologize for his wife’s behavior. The judge merely listened briefly and expressed sympathy, extending “the same courtesy to him that I would have extended to anyone expressing anxiety.” While a judge in any case must ensure that every litigant receives a fair trial, no rule precludes a judge from treating members of the public with courtesy. To require that the judge here simply turn his back on the father would do nothing to make the proceedings fairer to defendant. The entitlement of a criminal defendant to a fair trial must never be compromised. Yet the criminal justice system does not exist for the benefit of criminal defendants alone. Parents of murder victims also have a stake in the criminal justice system. Courts may also consider, and be sensitive to, the needs and concerns of crime victims and their families. Defendant contends the judge ruling on the second motion should have taken testimony to resolve asserted factual discrepancies between Judge Ball’s account and that of the witness, John Aaron. A hearing was unnecessary. Judge Ball’s account was more complete than Aaron’s, but it was not inconsistent. Aaron acknowledged he was recounting only part of the conversation, and could not remember who spoke first. Thus, Aaron’s observations were fragmentary, and contained nothing to cast doubt on Judge Ball’s more inclusive statement. Given the circumstances, Judge Ball handled the impromptu incident with the victim’s father appropriately. Defendant argues that, standing alone, the father’s statement that defendant’s life should be taken requires the judge’s disqualification. The argument fails. It is immaterial whether the comment was directed to the bailiff or the judge, and whether the judge heard it directly, through staff, or in connection with defendant’s motion. It is clear that the judge did not solicit the comment. During a trial any number of things come to a judge’s attention beyond the strict confines of the written record. Among these are the reactions of spectators manifested by their facial expressions and other behavior, before, during, and after court sessions. Indeed, judges must be aware of these things as part of their diligent trial management and their responsibility to ensure that jurors remain unaffected by them. Likewise, judges are often asked to rule on the admissibility of evidence they ultimately exclude. Judges are required to set this information aside, just as jurors are instructed to do when evidence is stricken. In this case, given the father’s testimony during the penalty phase, it was hardly a revelation that he favored the death penalty. Certainly the father should not have approached the judge. Such conduct is inappropriate, as would be a plea from a defendant’s family to spare their loved one. Yet events of this nature do happen. Capital cases unfold in a crucible of strong emotions. Courts cannot expect that families will always conform their behavior to the standards of trained professionals. However, the court system must function in the face of occasionally imperfect behavior from the public. The record contains no evidence that the father’s comment influenced the court’s rulings. No reasonable person would doubt that a judge could remain impartial merely because of a brief encounter that the murder victim’s father initiated after the penalty verdict. B. Jury Selection Defendant contends the court erred in excluding two prospective jurors because of their views on the death penalty. “The applicable law is settled. The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of that juror’s duties. (People v. Mayfield (1997) 14 Cal.4th 668, 727 [60 Cal.Rptr.2d 1, 928 P.2d 485].) ‘On appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ (Ibid.)” (People v. Smith (2003) 30 Cal.4th 581, 601-602 [134 Cal.Rptr.2d 1, 68 P.3d 302] (Smith); see also Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844].) This record reveals no basis to overturn the court’s rulings. The first prospective juror responded to the jury questionnaire that she opposed the death penalty. During voir dire, she was equivocal whether her views would affect her ability to perform her duties, and was questioned extensively. When asked whether she could impose the death penalty, she vacillated, and often expressed considerable uncertainty. Ultimately, she said she could not honestly say whether she could consider voting for a death sentence. In excusing her, the court explained, “I think in grasping the totality of her responses, I think it’s clear to the court that her views would prevent or substantially impair her performance [of] her duty as a juror .... I think she had a clear and adequate opportunity to express the ability to state she could choose and her inability to state that choice is highly probative to the court, and I’m going to excuse her on that basis.” Under these circumstances, we defer to the trial court’s determination. The second prospective juror stated in the questionnaire that he strongly opposed the death penalty, and would not set aside his personal feelings to follow the law as the court explained it. During voir dire, he agreed that his views would substantially impair his ability to make the sentencing choice. He said it would be “incredibly” hard for him not to have a reasonable doubt if the death penalty were involved. When asked whether he still felt that he could not set aside his feelings and follow the law, he responded, “I would certainly try to, but in something like that it’s very difficult how I feel about it would not enter into my decisions.” These statements support the trial court’s ruling. C. Guilt Phase Issues 1. Alleged Misconduct by the Victim’s Mother Defendant contends that certain actions by the victim’s mother require reversal. a. Facts During jury selection, defense counsel stated that Mrs. Lo Bue was speaking loudly and emotionally to the prosecutor’s wife in the presence of some prospective jurors. At defense counsel’s request, the wife was sworn and testified in limine. She related that Mrs. Lo Bue had said “this was very difficult for her,” but said nothing about the case. Defense counsel stated he did not want any of the prospective jurors who might have heard Mrs. Lo Bue to be excused. He also withdrew an earlier request that the prospective jurors be questioned about what they might have heard. The court admonished Mrs. Lo Bue to keep her voice “well modulated.” During defendant’s guilt phase testimony, Mrs. Lo Bue stated, “Excuse me, can you put the microphone close, please?” A short time later, when defendant testified that he had repeatedly stabbed the victim “in a blind rage,” Mrs. Lo Bue interrupted by saying, “Are you satisfied now?” The prosecutor asked the court whether it wanted to take a recess. At that point, Mrs. Lo Bue said, “No, no I promise. I’m sorry.” The court told her, “I’m going to have to admonish you . . . that you have to refrain from speaking in any way or you will have to leave the courtroom,” and “Any more outbursts and I’ll have to ask you to leave.” She repeated that she was “sorry.” Defense counsel submitted a proposed instruction telling the jury it “must decide this case solely on the evidence presented here in the courtroom” and “completely disregard any display of emotion, words spoken, or feelings received from the presence of spectators including the mother of Ms. Lo Bue.” Not wanting to single out any individual, the court agreed to give the requested instruction omitting the reference to Mrs. Lo Bue. Defense counsel sought no further admonition. Before the guilt phase argument, at defense counsel’s request and outside the presence of the jury, the court “admonish[ed] all individuals present in the courtroom that during these proceedings any type of conduct that can be noticed by the jury, any sounds or motions or direction is entirely inappropriate and would cause serious concern by the Court. And I certainly don’t want to exercise my authority in excluding any individual from the proceedings, but if there’s any form of outburst or disruption, conduct that is inappropriate, I will be forced to take that action.” During a break in defense counsel’s argument, outside the presence of the jury, defense counsel stated that two or three times during his argument, Mrs. Lo Bue had made some “sounds,” and at least one or two jurors looked at her each time. He requested that the court “ask her not to whisper or make any sounds until we’re finished.” The district attorney, who sat between her and the jury, expressed the opinion that she had spoken only very softly, and that “her conduct has been appropriate and exemplary at this point.” Defense counsel said that he merely wanted the court to restate the admonition. The court stated that it had “informally asked my staff at the break, my deputy, clerk and reporter, and each have indicated to me, and the Court will indicate that it has not noticed any commotion or conduct that I would consider justifying exclusion or further restraint by the Court.” Nevertheless, at defense counsel’s request, it admonished Mrs. Lo Bue “to try and contain yourself as much as humanly possible during these proceedings.” She said, “I’ll try.” During guilt phase instructions, the court told the jury, at defendant’s request, that it “must decide this case solely on the evidence presented here in the courtroom” and “must also completely disregard any display of emotion, words spoken, or feelings received from the presence of spectators.” During Mr. Lo Bue’s penalty phase testimony he described going to the morgue and seeing his daughter’s body. Mrs. Lo Bue spoke up and said, “I do too. I did too.” Later, outside the jury’s presence, defense counsel claimed that before and during Mr. Lo Bue’s testimony, counsel had also heard “some audible sobbing from that area where the Lo Bue family” was sitting. He moved for a penalty mistrial. The prosecutor agreed that “the fact that she was tearful is apparent,” but he argued that “even if she weren’t here, every juror would assume that she would be acting precisely in that fashion.” The court denied the mistrial motion. It did not “believe the jury is unduly prejudiced as a result of the conduct as it would be something that would be assumed by the jury, and I believe the instructions are sufficient to cure any prejudice occurring.” It readmonished the jury that it “must decide this case solely upon the evidence presented here in the courtroom” and “must also completely disregard any display of emotion, words spoken or feelings received from the presence of spectators. And you’re reminded of this instruction and admonished to follow it closely.” The trial then proceeded without further interruptions, b. Analysis Defendant contends Mrs. Lo Bue’s behavior requires reversal. The Attorney General initially responds that this claim is not cognizable on appeal. He is partially correct. At the guilt phase, the court did everything defendant asked of it regarding Mrs. Lo Bue’s behavior. It investigated the facts and admonished Mrs. Lo Bue both upon request and sua sponte. It gave defendant’s requested jury admonitions. Defendant did not move for a guilt phase mistrial. “A defendant’s failure to object to and request a curative admonition for alleged spectator misconduct waives the issue for appeal if the objection and admonition would have cured the misconduct.” (People v. Hill (1992) 3 Cal.4th 959, 1000 [13 Cal.Rptr.2d 475, 839 P.2d 984] (Hill).) Similarly, a defendant who receives a curative admonition, but who makes no other objection and seeks no other action, may not complain on appeal. Defendant may not argue that the court should have granted a mistrial he did not request, and the strictures of double jeopardy could, in any event, severely restrict such an action. (See generally People v. Upshaw (1974) 13 Cal.3d 29, 33, [117 Cal.Rptr. 668, 528 P.2d 756].) At the penalty phase defendant unsuccessfully sought a mistrial, and his challenge to the denial of that motion is therefore cognizable. (See Hill, supra, 3 Cal.4th at p. 1000, and cases cited therein.) There are no grounds for reversal here. The trial court intervened correctly to demand appropriate behavior and to cure any impropriety. Spectator misconduct is a ground for mistrial if it is “of such a character as to prejudice the defendant or influence the verdict.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022 [245 Cal.Rptr. 185, 750 P.2d 1342] (Lucero).) In Holbrook v. Flynn (1986) 475 U.S. 560, 572 [89 L.Ed.2d 525, 106 S.Ct. 1340], the Supreme Court framed the federal constitutional question as whether what the jury “saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial. . . .” The trial court is entrusted with broad discretion to determine whether spectator conduct is prejudicial. (Lucero, at p. 1022.) Here, several incidents cited as misconduct are easily disposed of. Having investigated defendant’s complaints of loud speech or other sounds, the court essentially found no conduct perceptible to the jury. The remaining challenges involve two incidents: (1) Mrs. Lo Bue’s interruption of defendant’s testimony to say, “Are you satisfied now?” and (2) her interjection that she too had viewed her daughter’s body. A trial is the recreation of a human event. When the event involves fife and death, the aftermath for all those affected is profound and emotions run high. Courts must be vigilant to ensure that the proper legal resolution is untainted by extraneous influence. Anticipatory rulings and directions are appropriate, as are curative admonitions. Different people manage grief, anger, loving support, and other human feelings in different ways. Surely, we would not say that the mother of either the victim or the accused should be excluded from the courtroom simply because she might act beyond the strictures of accepted legal deportment. Courts have a responsibility to manage this reality but they cannot ignore it. “[B]ecause a spectator does not wear the same cloak of official authority as a prosecutor, most instances of spectator misconduct will likely be more easily curable than those of a prosecutor.” (Hill, supra, 3 Cal.4th at p. 1000.) Mrs. Lo Bue’s outbursts “were unrelated to defendant’s guilt or innocence . . . .” (Id. at p. 999; cf. Lucero, supra, 44 Cal.3d at pp. 1022-1023 [no prejudice even though the outburst at issue “may have informed the jury of facts outside of the record”].) They provided the jury with no significant information it did not already know or might not readily surmise. Even without observing Mrs. Lo Bue in person, any reasonable juror would know that the crime had caused the victim’s family anguish. Under the circumstances, “ ‘prejudice is not presumed. Indeed, it is generally assumed that such errors are cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice.’ ” (Hill, at p. 1002, quoting Lucero, at p. 1023, fn. 9.) This particular record establishes no prejudice. The trial court acted within its discretion in denying the mistrial motion. (Lucero, supra, 44 Cal.3d at p. 1024.) Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis. The trial court is entrusted with broad discretion in ruling on mistrial motions. (People v. Haskett (1982) 30 Cal.3d 841, 854 [180 Cal.Rptr. 640, 640 P.2d 776].) Here, there was no abuse of discretion, and no unmet “special ' “need for reliability” ’ ” in the penalty decision. (Johnson v. Mississippi (1988) 486 U.S. 578, 584 [100 L.Ed.2d 575, 108 S.Ct. 1981].) We are confident that these outbursts did not yield a verdict based on caprice, or on impermissible or irrelevant factors. (Id. at p. 584.) 2. Admission of Prosecution Evidence Defendant contends the court erroneously admitted three items of evidence, a. The Victim’s Purse The victim’s purse was recovered at the crime scene. Defendant objected to admission of its contents, which included personal items he considered irrelevant and unduly prejudicial. The prosecutor argued the contents were relevant in light of defendant’s theory. In opening statement, his counsel urged that defendant did not take money from the purse, thus indicating that robbery was not a motive. The prosecutor argued that the large number of other items in the purse might have deterred defendant from taking the time to rifle through it for money. The court initially overruled the objection. Defense counsel then argued that the record did not indicate exactly where the money had been kept in the purse. At that point, the court withheld a final ruling pending any further testimony, on the question. There was no additional evidence. The purse and contents were admitted. Defendant particularly challenges admission of various items, including the victim’s driver’s license and picture as well as other photographs with personal messages written on the back. The Attorney General concedes that the court erred in admitting the contents, and we accept that concession without further comment. We conclude that the conceded error, if any, was harmless. There is no indication that the jurors searched through the purse’s contents. Even had they done so, there is no reasonable probability that the presence of some personal items in the purse affected the guilt verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) The jury acquitted defendant of robbery and rejected the related robbery-murder special-circumstance allegation, demonstrating that it “considered the evidence dispassionately in reaching its verdict.” (Smith, supra, 30 Cal.4th at p. 613.) The jury quite properly received extensive evidence that a young woman was repeatedly and fatally stabbed. It viewed her autopsy photographs. The admission of her driver’s license and a few personally annotated pictures could not conceivably have rendered the trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 439 [35 Cal.Rptr.3d 644, 122 P.3d 765].) b. Defendant’s Drug Use Before trial, defendant moved to exclude evidence that he used crack cocaine. The court ruled that the prosecution could not present generalized evidence that defendant used drugs. It did allow testimony that defendant used money stolen from the store to buy and use drugs in order to show that he had a motive for robbery. Relying on People v. Holt (1984) 37 Cal.3d 436, 449-450 [208 Cal.Rptr. 547, 690 P.2d 1207], and People v. Cardenas (1982) 31 Cal.3d 897, 906-907 [184 Cal.Rptr. 165, 647 P.2d 569], defendant assigns error. There was none. The rule from those cases “is that evidence of an accused’s narcotics addiction is inadmissible where it ‘tends only remotely or to an insignificant degree to prove a material fact in the case . . . .’ ” (Cardenas, at p. 906.) Whether defendant went to the store intending to steal or only decided to take the money after the murder was an issue hotly contested. Evidence that, shortly after the incident, defendant wanted to acquire and consume cocaine was directly relevant on the question of whether he had a preexisting motive to steal. The court properly admitted this limited evidence of drug use while excluding more generalized evidence not directly connected with the crime. (See also People v. Felix (1994) 23 Cal.App.4th 1385, 1392-1396 [28 Cal.Rptr.2d 860] [holding evidence of heroin use admissible to show burglary motive].) c. Mario’s Nightmares Over defense objection, the court permitted Yvonne to testify that after the stabbing, Mario had nightmares and would wake up screaming. Defendant contends the evidence was irrelevant. The contention fails. The trial court has wide discretion in determining relevance. (People v. Green (1980) 27 Cal.3d 1, 19 [164 Cal.Rptr. 1, 609 P.2d 468].) The very brief testimony was not the lynchpin of the case, but did have a “tendency in reason to prove .. . any disputed fact... of consequence to the determination of the action.” (Evid. Code, § 210.) Mario, who was two and a half years old at the time of the crime, testified at trial. The jury might well have considered whether he saw and understood the events in question when determining what weight to give his testimony. The nightmare evidence was germane to the evaluation of Mario’s testimony. 3. Exclusion of Impeachment Evidence Defendant contends the trial court violated his right to confront witnesses by excluding proffered impeachment of his wife and sister-in-law. The applicable law is settled. “ ‘[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” ’ (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 106 S.Ct. 1431] (Van Arsdall), quoting Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2d 347, 94 S.Ct. 1105].) However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at pp. 678-679 . . . .) California law is in accord. (See People v. Belmontes (1988) 45 Cal.3d 744, 780 [248 Cal.Rptr. 126, 755 P.2d 310].) Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ (Van Arsdall, supra, 475 U.S. at p. 680), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946 [77 Cal.Rptr.2d 25, 959 P.2d 183] (Frye).) We examine defendant’s specific contentions in this legal context. a. Yvonne’s Welfare History Based on Yvonne’s welfare records, defendant asserted that she had committed perjury. She received welfare while working and living with defendant, but falsely represented under oath to the contrary. Although Yvonne had never been charged with such an offense, he sought to confront her with this evidence. The court excluded the inquiry to the extent defendant offered it as general impeachment. It indicated, however, that the evidence might be admissible if defendant could show that when talking to police Yvonne might have been concerned about being prosecuted for welfare fraud. It offered to hold an in limine hearing, but none was requested. Evidence Code section 352 “empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (People v. Wheeler (1992) 4 Cal.4th 284, 296 [14 Cal.Rptr.2d 418, 841 P.2d 938] (Wheeler).) Yvonne did not come before the court as a model of rectitude. The jury learned, among other things, that she lied to her employer and to the police. Coming home to find her husband and son washing off blood in the family tub, she went to her place of employment to find a coworker’s body being removed. She returned to find cash and checks, apparently from the store, in her apartment. She did not report these facts to authorities. Instead she accompanied her mother, husband, and child on an excursion to purchase narcotics. While additional evidence of any welfare malfeasance might have been relevant, it is most unlikely to have cast Yvonne in a much more negative light. “[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296-297, fn. omitted.) The court acted within its discretion by refusing to permit defendant, in effect, to prosecute Yvonne for welfare fraud, particularly in the absence of any evidence directly connecting the alleged fraud with her testimony. b. Taylor’s Misdemeanor Conviction Defendant sought to impeach Denise Taylor with a misdemeanor conviction for giving false information to a peace officer. The court excluded the evidence “after weighing [its] probative versus [its] prejudicial value.” Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion. (Wheeler, supra, 4 Cal.4th at pp. 297-300.) The court’s ruling was proper. Although defendant argues here that the court should have admitted evidence of the underlying conduct, he made no such argument at trial, did not ask to present any such evidence, and made no offer of proof. Accordingly, we do not know what the underlying conduct was, whether or how it would have been significant, how defendant would have attempted to prove it, or whether he could have done so. Normally, this circumstance would make the claim noncognizable. (Evid. Code, § 354, subd. (a); People v. Valdez (2004) 32 Cal.4th 73, 108 [8 Cal.Rptr.3d 271, 82 P.3d 296] (Valdez.) Interestingly, the Attorney General concedes cognizability, and we accept the concession. (See People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6 [39 Cal.Rptr.2d 547, 891 P.2d 93] (Champion).) Turning to the merits, it is difficult to judge the correctness of a ruling the court was never asked to make. However, the Attorney General’s concession of cognizability, which defendant joins, assumes that the court would have excluded the evidence, so we will operate on that assumption. It is also difficult to judge whether the court would have erred in excluding the evidence when the record does not disclose what that evidence would have been—other than involving a false statement to a peace officer under unknown circumstances for an unknown purpose. However, the record presents no basis to conclude that excluding the evidence would have been an abuse of the court’s broad discretion. (See Wheeler, supra, 4 Cal.4th at pp. 296-297.) c. Taylor’s Probation Status During recross-examination, defendant sought to impeach Taylor with a felony conviction for welfare fraud and evidence that “a couple of weeks ago,” she had been placed on probation for drug possession in Santa Clara County. He argued that her probation status was relevant because of differences between her redirect testimony, and her previous statements. The prosecutor responded that there was no evidence Taylor was attempting to curry favor with the prosecution. Until he questioned Taylor at trial, he had not spoken with her since the preliminary hearing. The court admitted Taylor’s conviction but excluded her probation status as more prejudicial than probative. The ruling was within the court’s discretion. There was neither evidence nor offer of proof that Taylor had spoken with anyone in law enforcement about the case around the time of her placement on probation or thereafter. The court did not bar defendant from seeking to show that Taylor had received benefits or promises for her testimony; it only prohibited evidence of her probationary status untethered to any specific showing that it could have affected her testimony. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051 [90 Cal.Rptr.2d 607, 988 P.2d 531].) In short, defendant has failed to demonstrate that “the prohibited cross-examination would have produced ‘a significantly different impression of [the witness’s] credibility . . . .’ [Citation.] Accordingly, we find no abuse of discretion.” (Id. at p. 1051.) 4. Exclusion of Expert Testimony Prosecution witness Rosalind Wathel, a resident of Houston, Texas, testified on October 20, 1992. Five days earlier, she had submitted to psychological testing at the Houston office of defense psychologist, Dr. Kit Harrison. Wathel testified that the day before the testing, two defense investigators “came and told me that the following day I had to take a psychological test.” The investigators picked her up the next day and took her to Dr. Harrison’s office, where, according to Wathel, they “gave me all types of psychological tests.” These included “playing with blocks, looking at these plat tests,” and two written tests, one with about 600 questions. The testing lasted all day. Dr. Harrison and three defense investigators testified that Wathel voluntarily agreed to the testing. Over the prosecutor’s objection, defendant sought admission of the test results along with Dr. Harrison’s expert opinion to impeach Wathel’s credibility. As an offer of proof, Dr. Harrison testified in limine. Under his supervision, his staff administered a battery of psychological tests. Some evaluated “brain function,” while others were “more psychological.” Dr. Harrison said the testing showed that Wathel is “moderately impaired” in a variety of ways, including “intellectual memory, language, learning, sensory perceptual and motor areas.” “She has memory problems primarily with visual memory as opposed to auditory or visual memory. Visual memory was markedly impaired.” “Her actual auditory processing of information was okay,” but she “demonstrates confabulations in her memory and she perseverates.” “Confabulation is filling in of details when you have a memory disease.” “Perseveration means you keep applying ... the same solution to a different problem.” She is moderately impaired “in terms of understanding speech.” “She basically demonstrated signs of a character disorder, chemical dependency, marked inability to cope with life, some not lucid touch with reality, particularly under stress, where it’s moderately out of touch with reality.” After hearing argument and consulting existing case law, the court excluded the test results and Dr. Harrison’s opinion, but permitted him to testify that he administered the tests. The court noted that the authorities have generally not permitted witness impeachment by psychiatric testimony, at least in cases not involving sex offenses. The court found that “most of what Dr. Harrison testifies [to] is clearly within the province of proper cross-examination which could demonstrate all of these characteristics for the jury so that they could be able to determine the credibility of this witness.” It also found that any probative value the evidence might have was outweighed by its prejudicial effect “in terms of what would be involved if we were to in effect enter into expert testimony as to the various components of this alleged impairment or her ability to recall the specific probative parts of her testimony. And I believe it is . . . appropriate for the jury to determine her credibility, not any expert witness.” Defendant assigns error. Similar issues have been raised in the context of a defense motion for an order of psychiatric examination. In that context, we have explained that there is a “judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony. [Citations.] California courts have viewed such examinations with disfavor because ‘ “[a] psychiatrist’s testimony on the credibility of a witness may involve many dangers: the psychiatrist’s testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify the issues; the testimony may be distracting, time-consuming and costly.” ’ ” (People v. Alcala (1992) 4 Cal.4th 742, 781 [15 Cal.Rptr.2d 432, 842 P.2d 1192]; see also People v. Manson (1976) 61 Cal.App.3d 102, 137 [132 Cal.Rptr. 265] [“The nature of the charges in this case is such that psychiatric testimony for purposes of impeachment would be extraordinary”].) These concerns are magnified here, where a defense psychologist simply undertook the examination without notice, involvement, or even awareness, on the part of the court or opposing counsel. Here there were no “partisan psychiatrists” who might cloud the issues, but a single psychologist hired for the sole purpose of seeking impeaching evidence. Moreo