Full opinion text
Opinion KENNARD, J. A jury convicted defendant Eric Royce Leonard of six counts of murder (Pen. Code, § 187), and it found true two special circumstance allegations of robbery murder (§ 190.2, subd. (a)(17)) as well as one special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)). The jury also convicted defendant of two counts of robbery (§ 211), and it found that he had personally used a dangerous or deadly weapon in the commission of each offense (§ 12022.5, subd. (a)). At the penalty phase, the jury returned a verdict of death. Defendant’s appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase—Prosecution’s Case At 11:30 p.m. on the night of February 12, 1991, California Highway Patrol Officers James Young and Barry Hoover went to a Quik Stop convenience store on Auburn Boulevard in Sacramento. Young bought a pack of gum and spoke for a few minutes to the clerk, Zeid Obeid. At roughly the same time, Sallie Jane Thomas drove her flaneé, Stephen Anderson, to his new job as a clerk at Quik Stop. She saw a young White male wearing a black trenchcoat, black slacks, and black shoes, walking down the street about a block from the store. Thomas dropped Anderson off at Quik Stop and returned home. About 15 minutes thereafter, Lester Morris arrived at Quik Stop and saw a man lying on the pavement in the parking lot, near the front door of the store, with blood on his stomach. Morris felt the man’s pulse, realized he was still alive, and ran into the store seeking help. There he found two men lying on the floor in pools of blood. Morris, who was deaf and had impaired speech, tried to call 911 from a pay phone but he could not make himself understood. A pickup truck pulled into the parking lot soon after, and the driver, Joshua Reed, made the call for him. Highway Patrol Officers Young and Hoover, summoned back to the scene, found store clerks Anderson and Obeid lying near two open cash registers. Anderson was dead. Obeid, who was unconscious, was taken to the hospital, as was the man found lying outside the store, who was identified as Thor Johnson. Both men later died without regaining consciousness. Anderson and Obeid had each been shot twice in the head, once from more than 18 inches away and once at very close range (less than two inches). Johnson had been shot once in the back of the head at a distance of greater than 18 inches. Sacramento County Sheriff’s deputies found three expended shell casings inside the Quik Stop store. A fourth casing was found just outside the store, and a store employee later found a fifth casing inside the store. Five bullets were recovered from the bodies of the victims. Both the shell casings and the bullets were .25-caliber ammunition. The currency had been removed from both of the store’s cash registers, leaving only food stamps and coins. The deputies found a box of shredded beef jerky, several lids to plastic jerky containers, and a bottle of grapefruit juice on top of an ice cream cabinet inside the store; they also found additional beef jerky containers as well as several pieces of jerky on the pavement outside the rear of the store. At 9:00 p.m. on February 19, 1991, one week after the Quik Stop murders, John Connolly ordered and paid for a small pizza from the Round Table Pizza restaurant at the Country Club Center in Sacramento, six blocks from the Quik Stop store. He then went to the Glacier Lounge, a nearby bar, planning to pick up the pizza later. At 10:50 that night, Alexander Ting, a 17-year-old high school student, rode his bicycle to a market at the Country Club Center. After parking his bicycle, he walked in front of the Round Table Pizza restaurant, where he saw a man in a dark trenchcoat standing at the front counter. Ting bought a soda and ice cream at the market and returned to his bicycle about 10 minutes later. The man in the trenchcoat was standing on the sidewalk in front of the restaurant, looking from side to side. At 11:08 p.m., John Connolly returned to the Round Table Pizza restaurant for his pizza. He found the door open and the restaurant apparently empty. Connolly called out that he had returned for his pizza. When nobody answered, Connolly (a regular customer) took his pizza from the oven and left. At approximately 11:00 p.m. that same night, Andrew Keogh, the assistant manager of another Round Table Pizza restaurant, telephoned the Round Table Pizza restaurant at the Country Club Center. When no one answered, he asked employee Renee Bennett to make several additional calls between 11:05 and 11:20. When there was still no answer, Keogh asked Bennett to drive to the restaurant at the Country Club Center to make sure everything was all right. When Bennett arrived there, the door was open, although the restaurant should have closed at 11:00. In the scullery, she found the three restaurant employees lying motionless on the floor in pools of what appeared to be blood. She called Keogh. He drove over to the restaurant and immediately called 911. Sheriff’s deputies and paramedics arrived within minutes. They determined that two of the employees—Sarah Crook and Kyle Reynolds—were dead. The third employee, Andrea Coladangelo, was taken to a hospital, where she died without regaining consciousness. Each victim had been repeatedly shot in the head—Crook twice; Reynolds and Coladangelo three times each. Two of the restaurant’s three cash registers had been emptied. Eight cartridge casings and five expended bullets were found at the scene, and two others were retrieved from the victims’ bodies. All were .25-caliber ammunition. The Sacramento County Sheriff’s Department mounted a massive manhunt for the killer, interviewing hundreds of people. One of the persons they spoke to was defendant, who lived near the two crime scenes. He was interviewed at the sheriff’s department after he was spotted, two days after the Round Table killings, walking down a street not far from the Quik Stop store at night and wearing a trenchcoat. Defendant told Sheriff’s Deputy Robert Bell that he had been at Quik Stop on the night the murders were committed there, but he did not arrive until after the sheriff’s barricades were set up. He also said he went to the Country Club Center early on the evening of the Round Table murders, but did not enter the restaurant. Because defendant was quiet, timid, frightened, and confused, and he appeared to be mentally disabled as a result of epilepsy, Bell wrote in his report that defendant was not a likely suspect. Bell did, however, take defendant’s photograph. In May 1991, three months after the murders, sheriff’s deputies, still searching for the killer, interviewed Charlotte Henstra and Shane Whitcomb. Henstra worked at a small grocery one block from the Quik Stop store. She said that on the night of the Quik Stop murders, a young man in a trenchcoat and black dress shoes with tassels had come into her store and stayed for approximately 45 minutes, leaving about 10:00 p.m. That same night, between 9:45 and 10:00, Whitcomb, who worked at an office complex near the Quik Stop, saw a man in a trenchcoat and Italian loafers with tassels, who appeared to have come through a hole in a fence next to the office’s parking lot. When Whitcomb asked the man for a cigarette lighter, the man made a strange grunting noise and kept walking. On June 4, 1991, with the investigation at a standstill, Sheriff’s Detective Stanley Reed learned of Deputy Bell’s February 1991 interview with defendant. Reed and Lieutenant Raymond Biondi found the photograph Bell had taken of defendant and showed it to Charlotte Henstra and Shane Whitcomb. Both said that defendant looked like the person they had seen the night of the Quik Stop murders. Reed and Biondi then showed the photograph to the manager of Zeke’s, a gun store located near the two crime scenes, who said he had seen defendant in the store. The next day, Reed and Biondi showed a photographic lineup containing defendant’s picture to Sallie Jane Thomas, who had seen a man in a trenchcoat walking near Quik Stop when she had driven her flaneé to work there less than half an hour before the killings. She picked out defendant’s photograph as being the “most familiar.” They showed the same lineup to Alex Ting, who had seen a man in a trenchcoat outside the Round Table Pizza restaurant on the night the killings occurred there. He picked out defendant’s photograph as “a possibility.” On June 6, 1991, Lieutenant Biondi and Detective Reed conducted a videotaped interview with defendant at the sheriff’s department. During the interview, which is described in greater detail in part III.B., post, defendant admitted that he had bought ammunition from Zeke’s. He also telephoned his father, Douglas Leonard, telling him he had put some of that ammunition into his father’s ammunition box. He also said that his father’s gun used the same kind of bullets as the gun used to commit the murders. After the interview, Biondi and Reed took defendant back to his apartment. There, defendant gave them an ammunition box and a baggie that between them contained 36 .25-caliber cartridges. With defendant’s permission, Biondi and Reed also took a trenchcoat and two pairs of shoes, one of which was a pair of dark dress shoes with tassels. Leaving defendant at his apartment, Lieutenant Biondi and Detective Reed then went to his father’s home and obtained his .25-caliber Beretta pistol and a box containing cartridges. Ballistics tests conducted that afternoon determined that the pistol had fired the bullets and casings found in the victims’ bodies and at the crime scenes. After learning this information, Biondi and Reed returned to the home of defendant’s father, where defendant had gone, and arrested him. When Detective Reed told defendant’s father that his gun was the murder weapon, the father’s eyes teared up and he said: “I know, he told me that he did it. I can’t believe he did it. I asked him why ... He said stress. ... I can’t believe he did it, he killed six people.” (At trial, defendant’s father denied that defendant had confessed to him, and his statement to Detective Reed was admitted as a prior inconsistent statement.) Lieutenant Biondi and Detective Reed took defendant to the sheriff’s department and handcuffed him to a table in an interview room. Defendant’s father came to the station and asked to speak to defendant. Biondi and Reed permitted this, but they videotaped the conversation, which lasted 20 minutes. The father repeatedly asked defendant whether anyone else was involved in the crimes, and defendant repeatedly said no one else was involved. In a lineup conducted after defendant’s arrest, Sallie Jane Thomas identified defendant as the person she had seen walking near the Quik Stop store on the night of February 12, 1991, and Alexander Ting identified defendant as the person he had seen outside the Round Table restaurant on the night of February 19, 1991. (They also later identified him at trial.) During a search of defendant’s apartment after his arrest, sheriff’s deputies seized a jar of beef jerky and an empty wooden crate with the word “jerky” printed on it. In September 1994, during pretrial proceedings on a motion for a change of venue, defendant raised his hand to speak and announced: “I am guilty.” B. Guilt Phase—Defense Case The defense argued that defendant was physically incapable of committing the murders because of severe mental and physical impairments that resulted from his uncontrolled epilepsy. Dr. Robert Pavy, a neurologist, explained at trial that defendant has epilepsy that affects both of his temporal lobes and that may have resulted from meningitis he suffered as a child. He has frequent complex partial seizures that cannot be prevented by surgery or medication and that affect his personality. Each seizure defendant experiences magnifies the damage to his brain. He is unable to work or drive a car. According to Dr. Pavy, if defendant had a seizure shortly before his brief encounter with Shane Whitcomb, he could not have committed the robbery and the murders at the Quik Stop two hours later. Pavy explained that the crimes required complex planning that defendant could not have performed until his brain’s recovery from the seizure, which would have taken several hours. He said that a man who suffers from complex partial seizures that are not controlled by medication would be incapable of going into a store, committing a robbery, and shooting three people in the head without missing, because such a robbery would cause the man to suffer anxiety, which in turn would bring on a seizure. Virginia Furlong, who worked at the California Department of Rehabilitation, testified that an intelligence quotient (IQ) test administered two years before the murders showed that defendant had a verbal IQ of 75, a performance IQ of 86, and a full-scale IQ of 78. Dr. William Lynch, a neuropsychologist, testified that an IQ test conducted after defendant’s arrest showed his verbal IQ as 75, his performance IQ was 94, and his full-scale IQ was 80. Dr. Lynch explained that defendant’s full-scale IQ placed him in the ninth percentile of the population, and that the wide disparity between his verbal IQ and his performance IQ indicated the presence of brain damage. Based on other tests, Dr. Lynch concluded that defendant has “mild to moderate” brain damage. Dr. John Thornton, a forensic scientist, reviewed the reports of the crime scenes, but he concluded there was insufficient physical evidence to permit a detailed reconstruction of the crimes, including the order in which the victims were shot and the relative positions of the killer and the victims. He testified that the gun used in the killings was not particularly accurate, and that the killer displayed remarkable accuracy because all of the shots hit the victims in the head and there was no evidence of misses or wild shots. He said that if the killer had been wearing defendant’s trenchcoat, gloves, and shoes, he would have expected to find blood on those items, and none was found. Virl Dunn testified that defendant became a friend of his son Antoine in the sixth grade, and that defendant lived at Dunn’s house during his senior year in high school and the next year. He said defendant had three to four epileptic seizures a week, and he described the seizures as well as the fatigue defendant experienced in their wake. He mentioned that defendant had continuous mild tremors (the defense theory was that this would have made it difficult for him to shoot accurately), and that defendant had difficulty planning and making quick decisions. Agnes Dunn, Virl’s wife, corroborated his testimony. Their son, Antoine Dunn, testified that he and defendant occasionally practiced target shooting with BB guns and a pellet rifle, and that once on a camping trip they took turns firing two guns owned by a friend. He described defendant as a very poor marksman who was “[t]otally uncoordinated” and did not improve with practice. C. Penalty Phase—Prosecution’s Case . The prosecution called six witnesses to present victim impact evidence. They briefly outlined the life histories of the victims and described the devastating impact of the murders on the witnesses themselves and on other family members. Mark Hariri testified that his cousin, victim Zeid Obeid, emigrated from Kuwait. He initially worked at Quik Stop but quit after the store was robbed. When he later decided to return to work there Hariri told him angrily over the telephone that he should not take the job because it was dangerous. Hariri hung up after saying he hoped something bad would happen to Obeid. When Obeid was murdered a few days later, Hariri experienced great guilt and underwent therapy. The Kuwaiti government refused to allow Obeid’s body to be returned to Kuwait, where his parents lived, for burial because he was a Lebanese citizen, although he had spent most of his life in Kuwait. After a delay of three months, his body was shipped to Lebanon, where he was buried. Aaron Johnson, the teenage son of victim Thor Johnson, testified that his father “was always there for us,” and expressed sadness that his father would be unable to see him graduate from high school or to attend the wedding of Aaron’s brother. Sallie Jane Thomas, Stephen Anderson’s fiancée, testified that she was four months pregnant with Anderson’s child when he was murdered. Since the murder, she had been taking antidepressant medication. She said Anderson’s family was devastated by his death. Kimberly Nabours, the sister of murder victim Sarah Crook, testified that Crook was a student at American River College in Sacramento at the time of her death. Since Crook’s death, Nabours had begun to use drugs, and the loss “affected [her] mother to such a degree that she ultimately lost her house.” Donna Coladangelo, mother of murder victim Andrea Coladangelo, testified that Andrea had moved from Ohio to California to start a new life. The family learned of Andrea’s death by a telephone call at 4:30 a.m., and four years later, she and her husband would still wake up every morning at that time. Andrea’s four brothers all had difficulty coping with her death, and Andrea’s father was afraid to be alone. Judith Reynolds, mother of victim Kyle Reynolds, testified that Kyle had just turned 20 when he was murdered and that he was attending Sierra Junior College. She and her family were crushed by Kyle’s death, which left a “void . . . that nothing can fill.” D. Penalty Phase—Defense Case The defense called various family members, teachers, psychologists and psychiatrists to present an extensive social and psychiatric history of defendant. Defendant’s father was an alcoholic who physically abused defendant’s mother, and the couple separated shortly after defendant’s birth. Defendant had a seizure when he was eight months old, when he had a high fever and possibly meningitis, and he had another seizure, again brought on by a high fever, about four months later. When he was four years old, he was diagnosed as epileptic after having a third seizure that was not caused by fever. He was treated with Dilantin, which controlled the seizures but left him “slowed down” mentally. His second grade teacher believed he had a learning disability, and in fourth grade he was placed in a special education class. In the fifth grade, defendant’s doctor took him off Dilantin, which caused him to become more alert, but six months later his seizures returned. He was prescribed several medications, which reduced the frequency of his seizures but did not prevent them from occurring. About this time, defendant’s mother became involved with Richard Bullock, a heavy drinker who disliked children. Defendant’s mother began drinking more heavily. When she married Bullock, defendant went to live with his father, with whom he had little previous involvement. Bullock and defendant’s mother moved to a small town in Missouri and bought a tavern. After living with his father for two years, defendant called his mother and asked to live with her, saying his father beat him. Defendant joined his mother and stepfather in Missouri, where he lived for two years, but after the stepfather’s son moved out, defendant became lonely and returned to California, where he became very fat. He first lived with his father and later with the Dunn family. He graduated from high school in June of 1988. The next year he moved into his own apartment. In 1990, he enrolled in classes at a junior college and began losing weight rapidly. In January of 1991 he was arrested for stealing a bathroom scale. He pled guilty to this crime on February 11, 1991, the day before committing the murders at Quik Stop. Julie Sidwell, a special education teacher at a junior college, first met defendant when he was 17 years old. She helped him apply for supplemental security income (SSI) and subsidized housing. She said that defendant, who was very immature, was determined to lead a normal life—to live on his own and go to college—but he did not understand that these goals were unrealistic because of his disability. He would study for hours but then have a seizure that caused him to forget everything he had learned. According to Carl Curtis, an expert in forensic accounting who examined defendant’s checkbook and checking account, defendant managed his money reasonably well from June 1988, when he graduated from high school and began receiving SSI checks, until the fall of 1989. He then moved out of the Dunn family’s home and into a small apartment, which he could not afford on his SSI payments of $630 per month. He exhausted his savings in January 1991, a month before the murders, and he began writing overdraft checks to meet his expenses. In February 1991, the month he committed the six murders, he spent $29.60 (approximately a dollar a day) on food. Dr. Peter Valk, an expert in positron emission tomography (PET) scans, testified that he performed a PET scan of defendant’s brain, which showed a significant abnormality in the left temporal lobe and a lesser degree of impairment in the right lobe. Dr. Bruce Reed, a neuropsychologist, agreed with Dr. Valk’s testimony. Based on the PET scan and on defendant’s medical history, Dr. Reed concluded that not only defendant’s temporal lobes were damaged, but also his limbic system, which includes his amygdalae and hippocampi, parts of the brain that affect emotions and control basic urges such as fear and aggression. Dr. Alfred Fricke, a psychologist, diagnosed defendant as psychotic, with organic brain damage and a schizoid personality disorder. He testified that defendant suffered from very basic cognitive impairments, such as his inability to figure out in which direction the sun rose in the morning and to determine his location on a map. Defendant expressed to him remorse for the killings, and said he did not deserve to live. Defendant described the killings to Dr. Fricke in a very detached manner, as if he was watching them on television. Dr. Maxine Junge, an expert in art therapy, testified that defendant’s artwork showed him to be severely and chronically depressed. According to Dr. Timen Cermak, a psychiatrist, the serious damage to defendant’s amygdalae and temporal lobes—parts of the brain that are essential for normal personality development—caused him to develop a schizoid-schizotypal personality, characteristics of which include social detachment, flat emotions, inability to perceive the moods and needs of others, magical thinking, and eccentric behavior. Dr. Cermak explained that because of defendant’s serious disorder, he needed more attention than the average child while growing up, but that he actually received less because of the inadequacies of defendant’s parents. According to Dr. Cermak, when defendant became an adult he should have been placed in a structured setting such as a therapeutic board and care facility. Instead, he was left on his own, and his inability to manage his finances, perhaps abetted by hormonal changes resulting from his drastic loss of weight, caused him to decompensate into a psychotic state. He began stealing food and small items from neighborhood stores, which resulted in his arrest and conviction for shoplifting. The day after his conviction, angered by his belief that other shoplifters he had seen in court were given preferential treatment, he went into the Quik Stop store to steal beef jerky and committed the three murders there. A minister at the Sacramento County Jail and two county jail inmates testified that defendant actively participated in Bible study classes while he was in custody before and during the trial, that his religious beliefs seemed sincere, that he was a positive influence on other inmates, and that he had expressed remorse for the murders. A retired administrator who had worked at the California Department of Corrections for 30 years described the conditions experienced by inmates sentenced to life imprisonment without possibility of parole, and said that if defendant received such a sentence he would adjust well in prison. II. Competency Issues After defendant unexpectedly announced in open court, “I am guilty,” the defense asked Dr. George Wilkinson, a psychiatrist, to evaluate his competence to stand trial. In Dr. Wilkinson’s view, defendant suffered from “a delusion: ‘a Christian path to speak the truth whenever the Holy Spirit touches’ ” him, that had “more strength, validity and urgency than his rational understanding of the proceedings.” He concluded that defendant was incompetent to stand trial because he could not cooperate with his attorneys as a result of “a Psychotic Disorder with Delusions due to Chronic Severe Epilepsy.” Based on Dr. Wilkinson’s findings, the trial court declared a doubt as to defendant’s competence to stand trial. It appointed two psychiatrists, Dr. Kourosh Lashi and Dr. Charles Schaffer, to examine defendant. Both sides waived a jury, and the question of competence was decided at a court trial. At the court trial, Drs. Lashi and Schaffer both testified that the competency determination was difficult because of defendant’s low intelligence, his seizure disorder, and his mental impairment. They agreed that defendant had become intensely religious while awaiting trial, and that he was not malingering or faking his symptoms. But they disagreed as to whether defendant’s claimed observations of demons and angels showed that he was delusional and unable to cooperate with his attorneys. Dr. Lashi explained that defendant’s seizure disorder is known to sometimes cause “hyper-religiosity.” In Dr. Lashi’s view, defendant suffered not only from a seizure disorder but also from an unspecified psychosis. These caused him to experience religiously oriented delusions that made it impossible to cooperate with his attorneys. Defendant told Dr. Lashi he observed angels and demons and that he saw ghosts in the courtroom. Dr. Lashi concluded that defendant believed “he received signs from God that tell[] him how to behave ... in court,” and these signs “supersede whatever his lawyers would recommend him to do.” Dr. Schaffer, on the other hand, testified that defendant was competent to stand trial. His findings are also described in his 38-page, single-spaced written evaluation, which was admitted as an exhibit at the competency trial. Dr. Schaffer viewed defendant as suffering from possible bipolar disorder, possible schizophrenia, cannabis abuse in remission, a learning disorder, and a complex partial seizure disorder. Defendant told him that he had announced his guilt in court because “[t]he spirit of God had influenced him, and he wanted to accept the spirit of God and go to heaven.” Dr. Schaffer expressed uncertainty with regard to whether defendant’s deep religious beliefs “were of delusional proportions as opposed to strong non-psychotic feelings about religion.” He acknowledged that defendant had difficulty responding to his questions: Some of defendant’s sentences were disjointed and had no subject at the beginning, and he sometimes engaged in the tangential reasoning typical of those suffering from schizophrenia. But Dr. Schaffer concluded that defendant had “a marginal, but adequate understanding of the nature of the current legal proceeding and of the legal process in general,” and he had “a positive relationship with his attorney.” The defense called as an expert witness Dr. William Lynch, a neuropsychologist and the director of the brain injury rehabilitation unit for the Veterans Health Administration hospital in Menlo Park. Based on a series of tests he administered to defendant, Dr. Lynch described that defendant as having “mild to moderate neuropsychological impairment,” poor verbal memory, and problems with reading, spelling, and general verbal expression. The tests showed no “clear indication” of “an acute, major psychosis,” but he diagnosed defendant as having a schizoid personality, which he described as “not necessarily a person who is completely out of touch with reality . . . and grossly delusional and all that,” but rather a person “off center.” His tests revealed no evidence of delusions. Dr. Lynch did not say whether he believed defendant was competent to stand trial. The defense also called as a witness Paula Thomas, defendant’s mother. She testified that defendant had a seizure disorder that she first observed when he was four years old. The disorder was initially controlled by medication, but as defendant grew older the drugs were no longer able to prevent him from having seizures. When he was six years old, defendant said he saw spirits, but at the time she considered it simply a childish fantasy. When he was 19 years old, he again told her he was hearing voices. Defendant did not attend church as a child, but since his arrest religion had become “all consuming.” Another defense witness, Michael Singer, a social worker who worked at the Sacramento County Jail, said that while awaiting trial defendant had complained of hearing voices, and said he was unsure whether the voices were in his head, outside his cell, or in the plumbing. Carolyn Lange, defendant’s lead counsel, testified that defendant had been cooperative with her before his sudden declaration of guilt in court, that he had begun carrying a Bible with him, and that he had sent her religious artwork. She said her view about his ability to cooperate with her “changed drastically” as a result of defendant’s interview with Dr. Wilkinson in the wake of his outburst. The trial court found defendant competent to stand trial. It acknowledged that defendant was suffering from a thought disorder and that he was not faking his symptoms, but it was persuaded by Dr. Schaffer’s report that defendant was nonetheless competent. A. Trial Court’s Failure to Appoint the Regional Director for the Developmentally Disabled to Examine Defendant When the trial court declared a doubt as to defendant’s competence to stand trial, it appointed two psychiatrists to examine him. But it did not appoint the director of the regional center for the developmentally disabled to examine defendant, although it was aware that he suffered from epilepsy. Defendant contends that the court’s failure to do so is a jurisdictional error requiring reversal of his convictions and death sentence. Subdivision (a) of section 1369 describes the procedures to be followed when a trial court declares a doubt as to a defendant’s competence to stand trial: “The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. ... If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled ... to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital. [][] The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment.” (Italics added.) And at the time of defendant’s trial, former subdivision (a)(1) (now subd. (a)(1)(H)) of section 1370.1 provided: “ ‘[Developmental disability’ means a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for such individual .... [T]his term shall include mental retardation, cerebral palsy, epilepsy, and autism.” (Italics added.) Defendant suffers from epilepsy, a disability that originated well before his 18th birthday, is expected to continue indefinitely, and has constituted a substantial handicap for him. Thus, his epilepsy falls within the definition of “developmental disability” in section 1370.1, and the trial court erred when it did not appoint the director of the regional center for the developmentally disabled to examine him as part of the competency proceedings, as required by section 1369. In contending that the trial court’s noncompliance with section 1369 requires reversal, defendant relies on People v. Castro (2000) 78 Cal.App.4th 1402 [93 Cal.Rptr.2d 770] (Castro). In Castro, the defendant was charged with child abuse and murder of her infant child. After a court-appointed psychiatrist reported that the defendant was developmentally disabled, the trial court suspended proceedings to determine her competence, but it refused to appoint the director of the regional center to examine her, and instead appointed a psychiatrist to perform that task. The psychiatrist concluded that the defendant had no psychiatric disease but suffered from an unspecified learning disability. Based on this report the trial court found the defendant competent. Later court proceedings revealed that the defendant was mentally retarded, with an IQ of 61 and the intelligence of a six-to-seven-year-old child. The Court of Appeal in Castro held that the trial court exceeded its jurisdiction when it failed to appoint the director of the regional center to examine the defendant, and that this failure required reversal of her conviction for second degree murder. The court explained: “When the relevant statutes set forth a specific procedure to be followed in determining whether a defendant is competent to stand trial, and those procedures have not been adhered to, the fundamental integrity of the court’s proceedings have been compromised. Due process requires that any doubt regarding the defendant’s competency be properly evaluated by experts prior to proceeding with trial.” (Castro, supra, 78 Cal.App.4th at p. 1419.) The Attorney General here argues that Castro, supra, 78 Cal.App.4th 1402, was wrongly decided and that reversal in this case is not required. As explained below, we conclude that although the result in Castro may well be correct, Castro is wrong to the extent it holds that a trial court’s erroneous failure to appoint the director of the regional center to examine a developmentally disabled defendant whose competence is in question is a jurisdictional error that necessarily requires reversal of any ensuing conviction. To determine whether defendant here was prejudiced by the trial court’s failure to appoint the director of the regional center to evaluate him because of his developmental disability (§ 1369), we must first consider why the Legislature required the evaluation. The statutory requirement appears to serve three functions. First, the evaluation assists the trial court in determining where the defendant should be confined pending the competency determination. Subdivision (a) of section 1369 permits the trial court to confine a developmentally disabled defendant “for examination in a residential facility or state hospital.” If the court chooses to do so, “[t]he regional center director shall recommend to the court a suitable residential facility or state hospital” and before issuing a confinement order “the court shall consider the recommendation of the regional center director.” (Ibid.) Second, the regional director assists the trial court in selecting an appropriate placement for the defendant if the defendant is found incompetent. Subdivision (a)(l)(B)(i) of section 1370.1 provides that if a defendant found to be incompetent is developmentally disabled, criminal proceedings are suspended until the defendant becomes competent, and “the court shall consider a recommendation for placement, which recommendation shall be made to the court by the director of a regional center or designee.” The third purpose of section 1369’s requirement of an evaluation by the regional director, and the only one relevant here, is to ensure that a developmentally disabled defendant’s competence to stand trial is assessed by those having expertise with such disability. In the words of the California Department of Developmental Services (DDS), the state agency that oversees the regional centers: “A valid assessment of a criminal defendant’s ability to stand trial requires a[] comprehensive, individualized examination of the defendant’s ability to function in a court proceeding. A reliable assessment is achieved through thorough examinations of each individual by experts experienced in developmental disabilities.” A regional center, the DDS explains, is “the primary agency to provide expert advice relating to the assessment, needs, and abilities of a criminal defendant with developmental disabilities.” Court-appointed psychiatrists and psychologists may not have this expertise, because their experience may pertain to mental illness rather than developmental disability. This was the case in Castro, where the two psychiatrists who evaluated the defendant’s competence made no “attempt to determine [the defendant’s] intelligence level or assess the extent of her developmental disability.” (Castro, supra, 78 Cal.App.4th at p. 1418.) When a trial court suspends criminal proceedings based on a doubt that a criminal defendant is competent to stand trial, and the court thereafter fails to hold a competency hearing, the trial court “acts in excess of jurisdiction by depriving the defendant of a fair trial” (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70 [2 Cal.Rptr.2d 389, 820 P.2d 613]), and any ensuing criminal conviction must be set aside (People v. Marks (1988) 45 Cal.3d 1335, 1340 [248 Cal.Rptr. 874, 756 P.2d 260]; People v. Hale (1988) 44 Cal.3d 531, 541 [244 Cal.Rptr. 114, 749 P.2d 769]). But here, the trial court’s error was less egregious: it failed to appoint the director of the regional center for the developmentally disabled to evaluate defendant. Given the three statutory purposes of this evaluation that we have just described, defendant’s ensuing murder convictions and death sentence need not be reversed unless the error deprived him of a fair trial to determine his competency. As we explain, the error was harmless. Unlike Castro, supra, 78 Cal.App.4th 1402, the trial court’s competency determination was based on evidence from experts who were familiar with defendant’s developmental disability and who considered it in evaluating his competence. Dr. Schaffer, the court-appointed psychiatrist who testified that defendant was competent to stand trial, was a professor at the University of California at Davis School of Medicine and a diplómate of the American Board of Psychiatry and Neurology. Even though he did not specialize in epileptic patients, he had observed patients who had seizures similar to those of defendant. Similarly, Dr. Lynch, the neuropsychologist who testified for the defense, had treated many epileptic patients, although his primary area of expertise pertained to head injuries, not epilepsy. Unlike the court-appointed psychiatrists in Castro, supra, 78 Cal.App.4th 1402, neither of whom evaluated the developmental disability of the defendant in that case, Drs. Schaffer, Lynch, and Lashi testified at length about defendant’s developmental disability, epilepsy. In addition, Dr. Schaffer’s report extensively discussed defendant’s epilepsy, and an appendix to his report Usted eight articles in scholarly journals that Dr. Schaffer used as references in preparing his report, all of which dealt with epilepsy. In summary, appointment of the director of the regional center for the developmentally disabled (§ 1369, subd. (a)) is intended to ensure that a developmentally disabled defendant is evaluated by experts experienced in the field, which will enable the trier of fact to make an informed determination of the defendant’s competence to stand trial. Here, defendant was evaluated by doctors who possessed these qualifications, and their testimony provided a basis for the trial court’s ruling that defendant was competent to stand trial. Thus, the court’s failure to appoint the director of the regional center to examine defendant did not prejudice defendant. Defendant asserts that the trial court’s failure to appoint the regional director to evaluate him violated his rights under the federal Constitution to due process and a fair trial, as well as his Eighth Amendment right to a reliable guilt and penalty proceeding. Not so. The federal Constitution requires the states to “observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.” (Drope v. Missouri (1975) 420 U.S. 162, 172 [43 L.Ed.2d 103, 95 S.Ct. 896].) Here, notwithstanding the trial court’s failure to obtain an evaluation from the director of the regional center for the developmentally disabled, defendant’s competency trial protected his right not to be tried or convicted while incompetent. B. Sufficiency of Evidence of Defendant’s Competency Defendant argues the evidence was insufficient to support the trial court’s ruling that he was competent to stand trial. The court based its ruling on the testimony and report of Dr. Charles Schaffer, one of the two court-appointed psychiatrists, who examined defendant and concluded that defendant was competent. Defendant argues that Dr. Schaffer’s testimony was fatally flawed in several respects. For the reasons explained below, we disagree. Defendant asserts that although Dr. Schaffer concluded that defendant was not incompetent as a result of a psychiatric disorder, he never considered whether defendant was incompetent as a result of his seizure disorder, which is not a psychiatric disorder but a developmental disability. According to defendant, a competency inquiry under section 1369 involves two distinct questions: (1) whether the accused is incompetent as a result of a psychiatric disorder, and (2) whether the accused is incompetent as a result of a developmental disability. To the contrary, these are not two separate questions, but one: whether, based on a combination of all factors, including both psychiatric disorders and developmental disabilities, the defendant is competent to stand trial. Defendant bases his argument that Dr. Schaffer considered only his psychiatric disorders on one sentence in Dr. Schaffer’s 38-page report: Dr. Schaffer’s conclusion that “[t]here is insufficient evidence to conclude that Mr. Leonard is unable to assist his counsel in the conduct of a defense in a rational manner as a result of a psychiatric disorder.” But the rest of Dr. Schaffer’s report and his testimony at the competency trial demonstrate that Dr. Schaffer considered not only defendant’s psychiatric disorder, but also his seizure disorder, when he concluded that defendant was competent. Defendant contends that Dr. Schaffer based his competency determination on the mistaken belief that defendant was incompetent only if (1) he could not understand the nature of the proceedings and (2) he was unable to assist defense counsel in a rational manner, whereas a defendant is incompetent if either of these statements are true. (§ 1369.) Although Dr. Schaffer initially misstated the statutory test, in response to cross-examination by defense counsel he corrected himself, thereby demonstrating an accurate understanding of the correct legal standard. Dr. Schaffer’s report stated that defendant was “sufficiently able to understand the nature of the criminal proceedings” and there was “insufficient evidence to conclude that [defendant] is unable to assist his counsel in the conduct of a defense in a rational manner . . . .” (Italics added.) Based on the italicized language, defendant claims that Dr. Schaffer never actually decided whether defendant could rationally assist his attorneys. Rather, he asserts, Dr. Schaffer believed defendant had the burden of proving to Dr. Schaffer that he was unable to do so, and Dr. Schaffer found defendant competent because he had not satisfied this burden. As defendant points out, although he had the burden of proving his incompetence to the trier of fact (§ 1369, subd. (f)), he did not have the burden of proving it to Dr. Schaffer. Dr. Schaffer testified, however, that defendant had told him that he had a “positive relationship” with Defense Attorney Caroline Lang, that he trusted her, that he could communicate with her, and that he considered her a competent attorney. Dr. Schaffer also mentioned that defendant appeared to interact appropriately with his attorneys during the competency hearing itself. Viewing Dr. Schaffer’s testimony as a whole, we conclude that he based his determination that defendant could cooperate with his attorneys on his interview with, and observations of, defendant, not on a misguided view of the burden of proof. Defendant contends that Dr. Schaffer “really was not sure whether [defendant] was competent” and his “responses on all the most critical questions were completely equivocal.” We disagree. Although Dr. Schaffer expressed uncertainty as to whether defendant had experienced religious hallucinations and said it “wasn’t easy to try to assess” whether defendant’s behavior resulted from a “severe delusional disturbance driven by a psychiatric disorder” or whether he was merely “very religious,” he unequivocally expressed his view that defendant “is competent to stand trial.” For all of these reasons, Dr. Schaffer’s testimony and report provide substantial evidence supporting the trial court’s competency determination. C. Events Occurring After Trial Defendant argues that certain events after his trial demonstrate that he was incompetent at the time of trial and remains incompetent today. He asserts that in November 2002 he was transferred from death row to the California Medical Facility at Vacaville and placed on psychotropic medication without his consent after he engaged in bizarre behavior, which included placing his hand in scalding water because he believed Jesus had commanded him to do so, and he relies on testimony at the hearing to involuntarily medicate him as evidence that he was incompetent at the time of trial. On appeal, however, we review the appellate record for error, without considering matters not presented to the trial court. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [2 Cal.Rptr.3d 683, 73 P.3d 541].) The testimony cited by defendant might conceivably be relevant in a habeas corpus petition, but we do not consider it on this appeal. III. Pretrial and Guilt Phase Issues A. Denial of Motion for Change of Venue Defendant contends the trial court erred in denying his motion for change of venue. “A trial court should grant a change of venue when the defendant demonstrates a reasonable likelihood that in the absence of such relief, he cannot obtain a fair trial.” (People v. Weaver (2001) 26 Cal.4th 876, 905 [111 Cal.Rptr.2d 2, 29 P.3d 103].) On appeal, we independently examine the record to determine whether a fair trial was obtainable. (People v. Panah (2005) 35 Cal.4th 395, 447 [25 Cal.Rptr.3d 672, 107 P.3d 790].) Both the trial court’s initial venue determination and our independent evaluation are based on a consideration of five factors: “(1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.” (People v. Sully (1991) 53 Cal.3d 1195, 1237 [283 Cal.Rptr. 144, 812 P.2d 163]; see also Panah, supra, at p. 447.) Defendant asserts that neither the trial court nor this court should apply this five-factor test here; instead, he argues that the appropriate standard is what he describes as the “presumed prejudice rule.” He claims the United States Supreme Court articulated this rule in Murphy v. Florida (1975) 421 U.S. 794 [44 L.Ed.2d 589, 95 S.Ct. 2031], when it explained the basis for its holdings in three previous cases in which the high court held that the trial court had erred by denying the defendant’s motion for change of venue: Rideau v. Louisiana (1963) 373 U.S. 723 [10 L.Ed.2d 663, 83 S.Ct. 1417] (Rideau); Estes v. Texas (1965) 381 U.S. 532 [14 L.Ed.2d 543, 85 S.Ct. 1628] (Estes), and Sheppard v. Maxwell (1966) 384 U.S. 333 [16 L.Ed.2d 600, 86 S.Ct. 1507] (Sheppard). In the words of the high court in Murphy. “Prejudice was presumed in the circumstances under which the trials in Rideau, Estes, and Sheppard were held. In those cases the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings. In Rideau, the defendant had ‘confessed’ under police interrogation to the murder of which he stood convicted. A 20-minute film of his confession was broadcast three times by a television station in the community where the crime and the trial took place. In reversing, the Court did not examine the voir dire for evidence of actual prejudice because it considered the trial under review ‘but a hollow formality’—the real trial had occurred when tens of thousands of people, in a community of 150,000, had seen and heard the defendant admit his guilt before the cameras. [][] The trial in Estes had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.” (Murphy v. Florida, supra, 421 U.S. at pp. 798-799.) We question defendant’s assertion that in Murphy v. Florida, supra, 421 U.S. 794, the United States Supreme Court articulated a test for determining when a trial court should grant a motion for change of venue. Rather, Murphy appears to describe a standard by which an appellate court assesses prejudice when a trial court has erroneously denied a motion for change of venue. That is, it holds that when the influence of the news media has so completely “pervaded the proceedings” (id. at p. 799) in a criminal case that the trial is conducted in a “circus atmosphere” (ibid.) or becomes a “ ‘hollow formality’ ” (ibid.), the trial is so fundamentally unfair that the ensuing conviction must be reversed without regard to the strength of the prosecution’s case or the prospective jurors’ protestations of neutrality during voir dire. For the same reason, we reject the Attorney General’s argument that defendant forfeited his right to rely on Murphy by not citing it in the trial court: Because Murphy articulates a standard for appellate court review, it has little relevance at trial. In any event, this case does not resemble Rideau, supra, 373 U.S. 723, Estes, supra, 381 U.S. 532, or Sheppard, supra, 384 U.S. 333. Unlike the “circus atmosphere” (Murphy, supra, 421 U.S. at p. 799) of the trials in Estes and Sheppard, here the trial court carefully limited media coverage of the trial. And unlike Rideau, where the trial was held in a small community, where many had seen the defendant’s televised confession, here the trial was held in a large metropolitan area, and defendant did not make a televised confession. Therefore, the presumption of prejudice does not apply, and we here apply our standard five-part test, described at the beginning of this part, to determine whether there was a reasonable likelihood that, as a result of the pretrial publicity, defendant could not have a fair trial. As the trial court acknowledged, the first factor—the nature and gravity of the offense—weighed heavily in favor of a change of venue. Defendant was charged with not just one capital murder; he was charged with six murders. In short, “[t]he ‘nature and gravity’ of the present offenses could not have been more serious.” (People v. Ramirez (2006) 39 Cal.4th 398, 434 [46 Cal.Rptr.3d 677, 139 P.3d 64].) The second factor pertains to the nature and extent of the media coverage. The media’s coverage of the case was sensational and extensive. Early in the investigation a homicide detective described the murders as “thrill killings” committed by a man who “likes to kill,” and thereafter the media consistently described the perpetrator, both before and after defendant became a suspect, as the “Thrill Killer,” a highly pejorative moniker that was potentially prejudicial to defendant. In his motion to change venue, defendant cited 556 television segments on the killings that appeared on local stations, as well as 130 newspaper articles, most of them in the Sacramento Bee, the area’s largest newspaper. Many of the television news segments and newspaper articles were the lead story. As a result, public awareness of the case was very high: According to two public opinion surveys conducted by the defense, approximately 85 percent of the public had heard of the case. The second survey, conducted after defendant suddenly announced in the courtroom that he was guilty, revealed that more than half of the public were aware of the incident. But even the survey conducted after defendant’s in-court outburst showed that of those familiar with the case, only 22 percent considered him “definitely guilty” while an additional 36 percent believed he was “probably guilty.” Thus, much of the community was keeping an open mind on the question of defendant’s guilt. The passage of time also reduced the likelihood that the media reports would prejudice defendant: Most of the stories appeared in 1991 (when the crimes were committed and defendant was arrested), four years before defendant’s trial. Furthermore, the media did not mention any significant facts that would be inadmissible at trial, such as a criminal record or evidence obtained in an illegal search or interrogation. For these reasons, we agree with the trial court that “[w]hile the extent of publicity and its nature are in favor of a change of venue . . . proper voir dire can overcome the potential prejudice.” The third factor—size of the community—weighed against a change of venue. Sacramento County is, and was at the time of defendant’s trial, a large metropolitan area, with a population of over a million, including approximately 850,000 potential jurors. Based on these statistics, and defendant’s surveys of the public’s awareness of and attitude toward the case, the trial court concluded there were 425,000 people in the county who had not formed an opinion adverse to defendant, and 110,000 who had not heard of the case. This suggested that a panel of unbiased jurors could be found to try the case. Indeed, in People v. Pride (1992) 3 Cal.4th 195, 224 [10 Cal.Rptr.2d 636, 833 P.2d 643], we upheld the trial court’s finding that Sacramento County’s size “weighed heavily against a change of venue,” even though in that case the trial occurred roughly a decade before the trial here, at a time when the county’s population was significantly smaller. The jurors selected to try this case bear out the trial court’s conclusion that an unbiased jury could be found. Four jurors (Jurors Nos. 2, 4, 7, and 11) wrote in their questionnaires that they had no recollection of the case. Six others (Jurors Nos. 1, 3, 5, 8, 9, and 12) had minimal recollections of the matter: they said either that their memory of the case was vague, that they had read about it only in 1991 (four years before trial), or that they remembered the case but could not recall any details. Two other jurors (Jurors Nos. 6 and 10) had somewhat more extensive memories of the case, but apparently this was not of great concern to the defense, which did not exercise a peremptory challenge against either juror even though it used only 13 of its 20 peremptory challenges. (See People v. Daniels (1991) 52 Cal.3d 815, 854 [277 Cal.Rptr. 122, 802 P.2d 906] [“In the absence of some explanation for counsel’s failure to utilize his remaining peremptory challenges, or any objection to the jury as finally composed, we conclude that counsel’s inaction signifies his recognition that the jury as selected was fair and impartial.”].) The fourth factor—community status of the defendant—did not weigh heavily for or against a change of venue. Although, as defendant points out, newspaper reports described him as a troubled “loner” with emotional and psychological problems, he had spent much of his childhood and all of his adult years in the Sacramento area, and he was not a member of any racial or ethnic group that could be subject to discrimination. (See Odle v. Superior Court (1982) 32 Cal.3d 932, 940, 942 [187 Cal.Rptr. 455, 654 P.2d 225] [the status of the defendant, a longtime resident of the county but a parolee described by the media as having mental problems, was a “neutral” venue factor].) The fifth, and final, factor examines the prominence of the murder victims. Although, as defendant points out, media accounts of the victims portrayed them in a sympathetic light, they were not well known in the community. Thus, this factor weighed against a change of venue. (See People v. Webb (1993) 6 Cal.4th 494, 514 [24 Cal.Rptr.2d 779, 862 P.2d 779].) In sum, after independently weighing the five factors described above, we conclude that defendant could, and did, obtain a fair trial in Sacramento County. Although the seriousness of the charges, the number of victims, and the media’s heavy coverage and description of defendant as the “Thrill Killer” make this a close case, we agree with the trial court that defendant failed to show a reasonable likelihood that he could not have a fair trial without a change of venue. B. Admission of Defendant’s Statements to Sheriff’s Detectives and to Defendant’s Father Before defendant was arrested, he was taken to the Sacramento County Sheriff’s Department headquarters, where he made several damaging admissions. Later that evening, after he was placed under arrest, he made additional admissions to his father, who was permitted to have a recorded conversation with defendant in an interview room. The trial court denied defendant’s motion to suppress these statements. Defendant now challenges that denial. These are the pertinent facts: On June 5, 1991, Lieutenant Raymond Biondi and Detective Stanley Reed went to defendant’s home and asked him to come to the sheriff’s department to give fingerprints and answer some questions about the murders. Defendant said he was busy, but he agreed to come the next day. Because defendant was unable to drive as a result of his epilepsy, Reed and Biondi picked him up the next day and drove him to the sheriff’s station. Defendant, who was not handcuffed, sat in the back of the car. Defendant was fingerprinted and led to an interview room, where he was seated. The room contained a partially concealed video camera. Detective Reed then conducted a videotaped interview with defendant that lasted three and a half hours, during parts of which Lieutenant Biondi was also present. At the beginning of the interview, Detective Reed told defendant he was not under arrest, he did not have to answer any questions, and he was free to leave anytime. Reed then asked defendant to take a lie detector test. Defendant said he would not do so without consulting an attorney, but he agreed to answer questions. Reed questioned defendant extensively about his activities on the two nights on which the murders occurred, and then asked permission to search defendant’s apartment. Defendant refused, saying he would not do so without speaking to an attorney. Reed then asked him about his familiarity with and use of firearms. After initially denying that he had a gun or bullets, defendant said he