Full opinion text
Opinion CHIN, J. Defendant murdered Kellie Colleen O’Sullivan on September 14, 1993, and was arrested, tried, convicted of a number of crimes, and sentenced to death. The jury convicted defendant of the murder of O’Sullivan (Pen. Code, § 187), and of kidnapping her for robbery (§ 209, subd. (b)). It found true felony-murder special circumstances on the basis of robbery and kidnapping (§ 190.2, subd. (a)(17)(A), (B)). The jury also convicted defendant of robbery (§ 211), grand theft of an automobile and a firearm (§ 487, subd. (d)(1), (2)), kidnapping (§ 207, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), receiving stolen property (§ 496, subd. (a)), petty theft (§ 484, subd. (a)), three counts of forgery (§ 470, subd. (a)), and uttering a check with insufficient funds (§ 476a, subd. (a)). The jury found true allegations, tied to the murder, kidnapping, grand theft of an automobile, robbery, kidnapping for robbery, and assault with a firearm charges, that defendant personally used a firearm (§ 12022.5, subd. (a)), and with regard to the murder, kidnapping for robbery, grand theft of an automobile, and robbery charges, that he inflicted great bodily injury (§ 12022.7, subd. (a)). The penalty phase was tried by jury. The jury returned a verdict of death, and the trial court entered judgment accordingly. The appeal to this court is automatic. (§ 1239, subd. (b).) We will modify the judgment regarding the sentence on a noncapital crime and affirm it as so modified. I. The Facts A. Guilt Phase 1. Overview On September 26, 1993, searchers located the decomposed body of Kellie Colleen O’Sullivan, concealed by heavy brush, alongside a remote section of Mulholland Drive in Los Angeles County. She and her vehicle had vanished on September 14, 1993. She had been shot three times in the chest. Defendant was arrested in Reno, Nevada, and charged with O’Sullivan’s murder and other crimes. Throughout the guilt phase proceedings defendant denied that he committed the first degree premeditated and deliberate murder of O’Sullivan and that the felony-murder special circumstances were true. He also maintained he did not kidnap Stephanie C., a minor. But in closing argument, without conceding the truth of the felony-murder special circumstances, he conceded he was guilty of murdering O’Sullivan under a theory of first degree felony murder. 2. Prosecution Case The prosecution presented a case that defendant selected O’Sullivan opportunistically for kidnapping, robbery, and, eventually, murder. Defendant, who was 19 years old, sought to steal a vehicle to use in his planned kidnap of 16-year-old Stephanie C., who had recently broken up with him. Defendant saw O’Sullivan in or near her Ford Explorer in a parking lot, abducted her and stole her vehicle at gunpoint, and murdered her on a remote part of Mulholland Drive. After killing O’Sullivan, he used her vehicle in his kidnapping of Stephanie. Eventually he brought Stephanie to a casino in Reno, Nevada, where she alerted security personnel that defendant had abducted her. Prosecution witnesses testified as follows: ' In July of 1993, during a stay at a motel in Thousand Oaks, defendant met Stephanie C., whose family was moving from Fresno to the area. They began to date. On July 10, 1993, defendant, accompanied by a friend, Darren Dewaele, stole a gun from a motor home parked near the motel in Thousand Oaks where he was staying. The relationship between Stephanie C. and defendant soon became stormy, and Stephanie refused to answer his phone calls. She wanted him to leave her alone and was trying to find a way to tell him she did not want to continue the relationship. At one point defendant threatened to commit suicide. On September 10, 1993, defendant showed up at Stephanie C.’s workplace, a yogurt shop, and pushed her to the ground; she ran inside, locked the store’s front door, and called the police. Defendant, who had little money and for some time had been relying on a bicycle for transportation, told Dewaele that he was planning to kidnap Stephanie and would steal a car to head north with her. On September 12, 1993, two days before kidnapping and murdering O’Sullivan and kidnapping Stephanie C., defendant uttered a bad check to obtain a high-quality police scanner from Radio Shack. Thereafter (apparently the next day) defendant asked a liquor store clerk how to program the scanner to receive police broadcasts. On the day of the murder and double kidnapping, defendant wrote another check to purchase, among other things, two toothbrushes and two types of deodorant, one commonly used by men and the other commonly used by women. On September 14, 1993, the last day she was seen alive, O’Sullivan called her fiancé, Kevin White, to say she was leaving work and would be home soon. On the way she stopped at a pet store to buy bird food and left. Eyewitness testimony established that about a mile from the pet store she may have been in the passenger seat of her vehicle, struggling with defendant. The witness to the struggle, Margaret Spalding, was driving in the left lane of a multilane road as a vehicle alongside her in the right lane swerved on the road. The vehicle’s two occupants were arguing and fighting. Spalding saw clearly into the vehicle, but because she was looking from the side, she saw the driver’s profile and not his face. She was, however, able to see the passenger’s face. The driver, an 18-to-20-year-old, struck the passenger, a pretty blonde, several times in her midriff as he tried to maintain control of the vehicle. The man appeared angry, the woman frightened. On two occasions the woman turned in her seat and dived toward an area between the driver’s lap and the steering column, as if trying to wrest something from him. She was unsuccessful; the driver fought her off as he struggled to control the vehicle. Spalding could not identify either individual during her testimony in court. At 3:20 p.m. that day Donna des Baillets, who lived on Mulholland Drive, heard a volley consisting of three loud gunshots. Des Baillets’s home was about a quarter-mile from the location where O’Sullivan’s body was recovered. After murdering O’Sullivan, defendant drove to a tattoo parlor. The tattoo artist testified that defendant arrived in the midaftemoon and had “Stephanie” emblazoned on his right shoulder blade. Defendant was calm during the procedure and described Stephanie C. as his girlfriend. He told the artist that he would pick Stephanie up after leaving the parlor and they would leave town and live together. Thereafter defendant went to the yogurt shop where Stephanie worked. Stephanie and her mother, Linda C., who was at the yogurt shop to take Stephanie home, both saw defendant standing outside the vehicle about 10:00 p.m. He immediately drove away. An hour later defendant confronted the two of them outside their home. He grabbed Stephanie and fired the gun at Linda, missing her. Defendant then forced Stephanie into O’Sullivan’s vehicle under threat of death and the two left, with defendant monitoring the fraudulently purchased Radio Shack police scanner as he drove toward Bakersfield. The next night defendant, still holding Stephanie C. captive, was in San Francisco, where a police officer stopped him for running a red light. As the officer was checking defendant’s identification, defendant asked Stephanie whether he should shoot him. She told him not to do it, and he did not. Instead he fled; the police officer gave chase but was unable to apprehend him. Minutes later defendant became involved in a road rage incident with another driver, which culminated in defendant’s firing a shot out of his car window. Defendant then took Stephanie C. to parts of California north of San Francisco. Since being abducted, Stephanie had played along with defendant, keeping him calm so that he would not hurt her, and she continued to do so. Hoping to find a way to escape, she encouraged defendant to take them to the Circus Circus Casino in Reno, Nevada, where she hoped to summon help. “I knew that there was a lot of people there. A lot of security at the casino.” Defendant agreed and they drove to the casino and made their way to the gaming floor. As defendant gambled he stopped paying attention to Stephanie, and she slipped away and located a security guard, telling the guard that she had been abducted. The Reno police arrived and found defendant on the casino premises. After briefly providing armed resistance, defendant submitted to arrest. Defendant tried to escape from police custody in Reno. He struggled with Reno police officers, lunging forward and trying to pull free of them. Eventually, police placed him in a van they use for combative prisoners. Ventura County investigators interviewed him in Reno on September 20, 1993. At this point, O’Sullivan’s body had not been found. In the interview, a videotape of which was played to the jury, defendant told the police that he stole the vehicle belonging to O’Sullivan when he saw it in the parking lot of a pet store, unattended, with the keys in the ignition. He denied murdering O’Sullivan. He also said that even though he had brandished a gun when he came to collect Stephanie C., she had accompanied him willingly. He claimed she left him only because she caught him looking at another woman at the casino. A police search of O’Sullivan’s Ford Explorer found the Radio Shack police scanner and a box of .38-caliber bullets located in a purse that was recovered from under a seat. On September 26, 1993, a friend of O’Sullivan’s who was searching for her found her body in thick brush near the 6.44-mile marker on Mulhofland Drive. The body was significantly decomposed. O’Sullivan’s body was located in a thick, low canopy of brush with an even lower entrance. A person could not stand up inside, and crawling through the entrance was difficult. There was no evidence that O’Sullivan’s body had been dragged into the grotto, suggesting that defendant forced O’Sullivan to enter it while alive, where he shot her three times at close range. Her body was located by smell, not by sight. Shortly after O’Sullivan’s body was found, the police arranged for defendant’s grandmother, Lois Thornton, to speak with him at the police station in hopes of obtaining incriminating statements from him. They recorded and transcribed the interview. The police told her they had just located a body that appeared to be O’Sullivan’s. But they did not know the cause of O’Sullivan’s death and therefore did not describe it to her. In the midst of the conversation between defendant and his grandmother, however, they cautioned her out of defendant’s hearing that if forensic evidence linked him to the body that had been found he probably would be arrested for murder. During the conversation, which was played to the jury, defendant repeatedly told his grandmother that he had committed no violent crimes. Defendant denied murdering O’Sullivan, although he commented to his grandmother, “I don’t care about her, I’m just tired.” He also made a number of comments that showed consciousness of guilt of serious crimes, including fears of never leaving prison. A forensic pathologist conducted an autopsy and concluded that O’Sullivan died of multiple gunshot wounds. She would have died within minutes of being shot. He recovered three bullets from her body. A criminalist and firearms specialist examined those bullets and compared them with a bullet test-fired from a gun that was found on defendant when he was arrested in Nevada. He concluded that the bullets used to kill O’Sullivan had been fired from that gun. In support of its theory that defendant had previously contemplated taking victims to remote hilly areas and murdering them, and that Stephanie C. did not willingly accompany defendant to Northern California and Nevada, the prosecution introduced evidence of defendant’s tumultuous relationship with Erika S., which began when she was 15 years old. On October 10, 1992, Erika, who by then was 17 years old, and defendant attended a homecoming dance at Thousand Oaks High School. They left shortly after arriving and drove to a beach in Malibu, where they argued and he struck her on her hip. They returned to the car and defendant drove recklessly through the Santa Monica Mountains, telling Erika that he was contemplating murder-suicide and would never let her date anyone else; if she started to date someone else, he would kill that person. The next day, defendant and his friend Dewaele waited for Erika in a car outside a church and followed her home. Defendant hid behind Erika’s house and, as she drove up, used a key he had stolen from her earlier to open the locked driver’s door. He ordered her to drive her car back to where his car was parked, and moved her into the passenger seat of her car, which he used to transport her, against her will, into the hills above Glendale. Defendant hit her, threatened to kill them both by driving off the road and wrecking the car, and said he could cause her to disappear in the hills and never be found. Thereafter he drove to a parking lot, parked against a wall so that Erika could not open her door, climbed on top of her in the backseat, and announced that he was going to commit suicide and would “get” anyone else she might date. Erika was able to forcibly kick him off her, and, after about an hour’s conversation, defendant drove himself and Erika back to his car, where Dewaele was still waiting. He banged his head violently against his car as if attempting suicide, and appeared to be depressed. Later defendant told Dewaele he had overreacted with Erika and should not have sought her out that day. Also to show that defendant’s taking O’Sullivan to a remote hilly area to kill her was not impulsive, the prosecution introduced evidence that defendant was familiar with the isolated stretch of Mulholland Drive where she was found and with its opportunities for concealing a crime. An acquaintance testified that on occasions between November 1992 and February 1993 defendant socialized in the vicinity of the murder site, drinking and listening to music with others. 3. Defense Case As mentioned, the defense’s approach to the case changed as the trial proceeded. In his opening statement, defendant maintained that he stole an unoccupied vehicle on impulse, and did so because he thought he should leave town to avoid revocation of probation and prosecution for uttering checks with insufficient funds. In his closing argument, however, he conceded his guilt of the felony murder of O’Sullivan. Thus, the parties’ primary dispute centered on the truth of the special circumstance allegations. Throughout the trial, defendant consistently presented a defense that he did not commit premeditated and deliberate murder and that he did not commit murder in furtherance of robbery or kidnapping, thus negating the felony-murder special-circumstance allegations. Before eventually conceding that defendant was guilty of the felony murder of O’Sullivan, the defense presented evidence that defendant was not socializing in the vicinity of the murder scene between November 1992 and February 1993, implying that he was not familiar with the area where O’Sullivan’s body was found. The evidence consisted of testimony that his car was physically repossessed on November 9, 1992, and that he was living in Océano, approximately 140 miles distant, on December 2, 1992, and remained there until February of 1993. The operator of a store in the same shopping center as the pet store from which defendant abducted O’Sullivan testified that he heard no commotion or screams. And Nancy L. Briscoe testified that she believed she saw O’Sullivan alive and alone in her vehicle late on the afternoon of September 14, after the time that Donna des Baillets, who lived on Mulholland Drive near the murder scene, heard the gunshots that, in the prosecution’s view, marked the execution of O’Sullivan. Defendant also presented evidence that his actions against O’Sullivan and Stephanie C. were spontaneous and impulsive rather than the product of deliberation and premeditation, and that in the days preceding the crimes he took actions inconsistent with an intention to leave Southern California. For example, in the days before murdering O’Sullivan, defendant bought a 60-gallon fish tank and a pager that would not work outside of Southern California, and hence would be useless in the northern part of the state to which defendant later took Stephanie. In addition, defendant presented evidence to counter the prosecution’s theory that he forced O’Sullivan into the brushy grotto and shot her execution-style. The forensic ballistics evidence was inconclusive and it could not be ruled out that both defendant and O’Sullivan were standing outside the grotto when she was shot and that she crawled or was moved into the grotto only afterward. Cross-examining a prosecution witness, defendant had previously adduced evidence that O’Sullivan’s pantyhose showed no residue at the knees, suggesting that she was not kneeling when shot. Defendant maintained the prosecution had not proved that the felony-murder special circumstances were true: defendant and O’Sullivan might have struggled and he shot her impulsively and defensively. As for the kidnapping of Stephanie C., defendant introduced evidence that she went with him willingly and was not kidnapped. An employee of a privately operated San Francisco amusement site that the two had visited testified that several uniformed security guards regularly patrol the premises and Stephanie could have sought their help. A camper at a campsite the two used testified that he talked with defendant at the men’s bathroom, not within sight of Stephanie, who was nearby, evidently using the women’s bathroom. The camper saw defendant and Stephanie laughing and testified that she teased defendant about getting lost and causing her to look for him. B. Penally Phase 1. Overview The prosecution presented evidence of “criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” (§ 190.3, factor (b).) The defense presented evidence that defendant had learning disabilities and was emotionally disturbed. It also presented evidence bearing on defendant’s birth, background (including a difficult childhood and adolescence), and character. On rebuttal, the prosecution presented evidence that defendant’s birth was essentially normal, he did not have serious learning disabilities or low intelligence, and he was antisocial in high school. 2. Prosecution Case a. Victim Impact Evidence O’Sullivan’s mother, Sharlene Cunningham, presented victim impact evidence. O’Sullivan was her only daughter. O’Sullivan’s murder left her young son, Clifford, without a mother to raise him. b. Factor (b) Evidence Erika S. testified further at the penalty phase. It will be recalled that at the guilt phase there was testimony that on October 10, 1992, Erika, who was 17 years old, and defendant attended a high school dance. They left shortly after arriving and drove to a beach in Malibu, where they argued. At the penalty phase, the jury learned that defendant committed a sexual battery on Erika on the beach, running his hand under her dress and touching her vaginal area. The next night, after Erika left the church event about which there also was guilt phase testimony, defendant forced her into the backseat of a car, told her he wanted to have sexual intercourse with her, ignored her crying and her refusal, inserted a finger in her vagina, and told her that he “could rip out [her] insides.” After Erika kicked him in the head, he removed his finger and apologized. Erika obtained a restraining order against defendant but, because she did not want her mother to know about the sexual assaults, did not describe them on the application form. The prosecution also presented evidence of defendant’s violent or menacing acts in county jail while awaiting trial. On October 6, 1993, a deputy sheriff searched defendant’s cell and found a paper clip, a toothbrush, and two razor blades that had been turned into one or more potential weapons. On January 14, 1994, following a search of defendant’s cell that again produced contraband, defendant had to be subdued by sheriff’s deputies, saying it was lucky there were three of them, because otherwise he would have tried to stab them. As one of the deputies described defendant’s threat, he told them, “I was looking to stick your ass.” On February 8, 1994, more contraband was discovered in defendant’s cell. A blade that had been removed from a disposable razor was found taped underneath his bed. 3. Defense Case a. Defendant’s Biological Family Background Defendant’s mother, Markita Thornton, was a habitual substance abuser before and after defendant’s birth. She drank and used drugs before learning she was pregnant with defendant, and her mother testified that she saw Markita drunk during the pregnancy, though Markita denied it on the witness stand. Defendant’s biological father, Steve Miller, beat Markita during her pregnancy with defendant, including delivering a blow to her abdomen during her seventh or eighth month. Miller died when defendant was four years old. Markita Thornton testified that Miller saw defendant only about seven times. Markita Thornton testified that defendant’s aunt was mentally “a little slow” and, as far as she knew, had never attended school. A doctor had diagnosed her as being cognitively impaired. Markita Thornton repeated the third grade, was expelled from one junior high school, and attended but did not graduate from high school. She had a history of minor crimes dating back to her teenage years. b. Defendant’s Stepfather Pierre Sarrazin, a Montreal native who was a prolific car thief as an adolescent before moving to California, met Markita Thornton in Los Angeles when defendant was about two years old. Sarrazin later became defendant’s stepfather. c. Defendant’s Birth and Early Childhood Defendant was bom on July 16, 1974. Lawrence William Scott, M.D., the gynecologist and obstetrician who delivered him, testified that his birth was medically complicated and difficult, and he may have been bom brain-damaged, though Dr. Scott was not concerned about defendant’s neurological status at birth. Nor, according to the testimony of other witnesses, including Carter R. Wright, M.D., a pediatrician, was defendant’s first year of life auspicious. He would not breast-feed and failed to gain weight normally. Markita Thornton was distracted during defendant’s early years by a chaotic lifestyle that included multiple boyfriends and alcohol and dmg abuse. She turned defendant over to his maternal grandmother, Lois Thornton, for substantial amounts of parenting, including when she went to scavenge garbage cans in the neighborhood when defendant was young. Defendant was called unmanageable in kindergarten and had to repeat the school year for academic reasons. Just before starting kindergarten, he was bitten by a dog, and he saw a psychiatrist to deal with the incident. The psychiatrist, Brian Paul Jacks, M.D., saw defendant beginning in January of 1980, treated him for a year and a half, and diagnosed him with depression, neurological problems, and attention deficit hyperactivity disorder (ADHD). School records showed that at about age six defendant was diagnosed as having a behavioral disorder that resulted in recommendations that he be put in a special classroom and see the school psychologist once a week. Dr. Jacks saw defendant again in 1985, when he was about 10 or 11 years old, and reconfirmed his diagnoses of depression and ADHD. d. Defendant’s Formative Years Before the Crimes Witnesses testified that Pierre Sarrazin preferred defendant’s younger sister Chantal to him, which angered defendant. One witness described defendant’s role in the family as akin to “a piece of lint on a suit.” Sydnie Goldfarb, who was then pursuing a master’s degree in marriage and family counseling, became acquainted with defendant’s family through a social connection in the spring of 1992, about a year and a half before defendant’s crimes. She testified that Sarrazin basically ignored defendant, but when he spoke to him it was in a demeaning tone. Markita Thornton showed no affection toward defendant and ignored him. Sarrazin and Markita Thornton bickered regularly and did not seem to have a close relationship. In general, defendant seemed to be a particularly unhappy adolescent. When defendant was 16 years old and in 10th grade, he lived with the family of Berta Siy from Monday through Friday of each week in order to be eligible to spend the 1990-1991 academic year at Hoover High School. He liked the Siys and asked the Siy family to adopt him. Siy testified at trial that defendant “is very nice” and was nice when he was in the 10th grade as well. Defendant’s academic performance at Hoover High School, however, mirrored his experiences with schoolwork elsewhere, which were problematic. He was classified as learning-disabled during his school years, struggled to learn, had attendance and behavioral problems, and dropped out of high school in 1992. At Thousand Oaks High School, he was placed in a class for the emotionally disturbed. In 1992, just before defendant dropped out of high school, school records noted that he was contemplating suicide, would cry, had no money or food, was experiencing problems with his mother and stepfather, and was living in a car. An educational consultant, Carol Horwich Luber, testified that the school system failed to provide early intervention, during elementary school, with the type of specialized services that would have made him “a much more successful student in elementary, junior high and high school.” In April of 1993, about five months before defendant committed his crimes, his mother attempted suicide. During that time, Sydnie Goldfarb went to defendant’s house and found defendant crying and his sister distraught. Defendant had no bed or bedroom at his house and slept on the floor. At other times, when Sarrazin and Markka Thornton could not tolerate his presence, he slept in his car or at friends’ houses and was emotionally overwrought. He held a job at an automobile oil-change establishment for only 11 days. During this time, Pierre Sarrazin and Markka Thornton attempted to evict him after Sarrazin caught him siphoning gasoline out of his truck, but the police informed defendant’s parents that they could not force him to leave the house before age 18. So defendant stayed for a short time before being taken to Bakersfield to live in a trailer with his maternal grandmother, Lois Thornton, and her boyfriend. He soon returned home; his mother again asked him to leave but eventually relented and let him live in a tent in the backyard. At the time defendant assaulted Erika S. in October 1992, he was suffering emotional stress and contemplating suicide. He again went to live with Lois Thornton, this time in Océano, in San Luis Obispo County, where he was depressed and could not sleep. When he returned home to Ventura County, police arrested him on a charge of automobile burglary. Defendant found work at an automotive repair shop and remained employed about a month, until his stepfather, who also worked there, fired him because he disapproved of defendant’s spending his money on radio-controlled model racing cars. e. Medical Evidence A pediatric neurologist, William David Goldie, M.D., reviewed defendant’s medical records from birth and his school records, and performed an electroencephalogram (EEG) on him. He identified significant pediatric neurological difficulties, eating and walking problems, a low intelligence quotient (though, as will appear, there was other penalty phase testimony that defendant’s intelligence was average, and Dr. Goldie ultimately conceded the point on cross-examination), and the need to repeat kindergarten. Defendant’s EEG revealed a mild to moderate degree of abnormal brain function. Marc Roman Nuwer, M.D., a professor of neurology at the University of California, Los Angeles medical school, testified that defendant’s EEG was mildly, though not moderately, abnormal and suggested brain abnormalities that could result in mild retardation, hyperactivity, and behavioral problems. In Dr. Nuwer’s opinion, defendant’s condition could not be attributed to drowsiness or to medications he was taking. C. Prosecution’s Rebuttal Case The prosecution presented the testimony of Alex Soffici, M.D., director of maternal fetal medicine at Santa Barbara Cottage Hospital. He reviewed defendant’s delivery and pediatric records and the testimony of Dr. Scott. On the basis of that review, he testified that defendant’s birth was essentially routine, with no significant complications either to him or Markka Thornton. Based on the records he reviewed, he doubted that defendant’s birth caused him any brain damage. There was testimony from defendant’s high school teachers and other school officials regarding his viciousness and his propensity to squander his potential. Anita Dacles, one of defendant’s teachers in special education classes, testified that he was regularly absent, but when present he would bully her and other students, mock her foreign accent, and refuse to do schoolwork. He was generally a disruptive presence in the class, and was too intelligent to be in special education classes. He refused to consider applying for outside employment that she located for him. Another special education teacher who taught defendant, Richard W. Saunders, also described him as disruptive and, in essence, mean-spirited. Defendant attended class about two-thirds of the time, and when present he taunted, and encouraged others to taunt, a student who used a wheelchair and another student with hygiene problems. Like Dacles, Saunders testified that defendant was overqualified to be placed in special education classes. Defendant’s basic math teacher at Hoover High School, Joyce Borgman, characterized him as defiant, angry, dishonest, and unwilling to dedicate himself adequately to his schoolwork. Kevin Welsh, a vice-principal at Hoover High School, confirmed in his testimony that defendant was unruly, defiant, dishonest, belligerent, and generally antisocial. A special education teacher and educational therapist who taught defendant at Conejo Valley Continuation School, A1 Frankfurter, testified that defendant was a “con artist” and dishonest. Frankfurter agreed with the prosecutor that defendant could be characterized as someone who “was always trying to get away with things.” He taunted a student he believed to be gay and, on learning that Frankfurter was Jewish, tauntingly asked the meaning of the slur “kike.” He suggested that if sent to the vice-principal’s office for disciplining, he would like to sodomize that official. He said he would kill Frankfurter for calling his mother to report his frequent unauthorized absences from class, although his tone of voice indicated playfulness rather than a considered threat. Defendant had no specific discernible learning disability. On cross-examination, Frankfurter testified that defendant lacked self-esteem and seemed emotionally starved and financially deprived. He agreed with defense counsel that defendant had to be “his own parent.” Ellen Walley, the attendance officer at Hoover High School, testified that defendant was regularly absent without authorization, and that when she would contact defendant’s stepfather and Berta Siy, about the problem, both told her, either explicitly or in essence, that defendant was uncontrollable. Linda Calvin, who holds a doctorate in educational psychology with an emphasis in child growth and development, reviewed a number of defendant’s records and other documentary evidence, and testified there was no conclusive evidence that defendant suffered from attention deficit or attention deficit hyperactivity disorders. Nor was it likely that he had another learning disorder, or if he did, it was mild to moderate. She also testified that defendant showed average intelligence. To counter the evidence of Dr. Goldie, the defense witness who testified that defendant had an abnormal EEG, the prosecution called William Sutherling, M.D., a neurologist, who testified that the EEG results, though abnormal, should be attributed to defendant’s being maintained on two “neuroleptic medications” that generate abnormalities on EEG examinations. Defendant had anticipated this testimony, and in his case-in-chief adduced testimony from Dr. Nuwer that Dr. Sutherling’s conclusion was incorrect. In turn, Dr. Sutherling testified that he disagreed with the conclusions of Drs. Goldie and Nuwer. II. Discussion A. Guilt Phase Issues 1. Denial of Motion to Dismiss the Indictment The case against defendant began by grand jury indictment. Before trial, defendant moved to quash the indictment on the ground that the district attorney’s office had helped to select the grand jurors, in violation of the separation of powers clause of the California Constitution (art. Ill, § 3) and the due process guaranties contained in the California and federal Constitutions. The trial court conducted a hearing on the motion and denied it. The Court of Appeal subsequently denied defendant’s petition for writ of prohibition, and we denied review. The trial court entertained the motion on the basis of defendant’s points and authorities and an answer submitted by the prosecution, which contained declarations. Prosecution declarations made by an investigator for the district attorney averred that the district attorney’s office performs a criminal history check on prospective grand jurors who have applied to serve on the grand jury, and interviews the applicants’ neighbors, acquaintances, employers, and other references. Once the district attorney’s office completes its investigative work, it sends a memorandum to the presiding judge of the superior court, summarizing the results of its background checks. The prospective grand juror applications remain confidential within the district attorney’s office, and individual deputy district attorneys are not asked to give an opinion on individual prospective grand jurors unless the applicant lists a deputy district attorney as a reference. Another declaration, from the manager of the Ventura County Jury Commissioner’s Office, explained: “All applications received by Jury Services are forwarded to the Office of the District Attorney for . . . background investigation and subsequent report to the Court. The District Attorney advises the Court of any potential individual exclusion based on the statutory qualifications for service and other information (such as reputation for honesty and integrity) that bears on a prospective grand juror’s ability and suitability for service.” “Three judges . . . analyze the prospective grand juror questionnaires in light of . . . the results of juror interviews . . . and background reports from the District Attorney. The [judges] . . . recommend[] 30 persons for a proposed Grand Jury panel to the full complement of Superior Court judges, [f] . . . [T]he Superior Court judges review the proposal . . . and finally select 30 persons, including any jurors held over from the previous grand jury .... From that pool, the Grand Jury is finally impaneled, by the Clerk’s drawing of 19 names.” Defendant relied on a letter dated November 12, 1993, and sent from the district attorney to the presiding judge of the superior court, in which the district attorney observed that he had heard three grand jurors felt they were free to disregard the evidence and the law in one case and thus improperly blocked an indictment of a criminal defendant. In denying the motion, the trial court stated, “I disagree with what’s been characterized as the District Attorney’s office giving the Court advice [on selecting grand jurors]. I don’t believe they give the Court advice. I think they give us information which the Court needs in order to have a—an adequate and law-abiding grand jury.” Defendant contends the court erred in denying his motion to quash the indictment. He contends that the district attorney’s investigative role usurped the function of the judiciary in selecting grand jurors. “[T]he District Attorney crossed the line from merely assisting the Superior Court by providing preexisting information on prospective [grand] jurors to conducting its own investigation [by means of information gleaned from] neighbors and employers[,] with the power to shape the information provided to the court.” Defendant objects to what he views as the ultra vires “power of the prosecutor to make discretionary judgments about what information the court will get. . . .” In light of the November 12, 1993, letter, defendant maintains, “the record suggests that the District Attorney’s decision to expand his office’s role in the process of selecting grand jurors was a policy decision made at the highest levels and motivated in part by dissatisfaction with the decision by the grand jury not to indict in a particular case.” The Penal Code contains a number of statutes governing the selection of grand jurors (see, e.g., §§ 893, 896, 900, 902, 903.1, 903.2, 908.2, 909), and it is evident that the jury commissioner followed the relevant statutory directives. Respondent argues that the statutes require preliminary determinations of the basic qualifications of potential grand jurors and that the district attorney’s office, with its investigative capacity, is ideally suited to gather this basic information. Performing this task, respondent maintains, does not violate the state or federal Constitution. We find no evidence in the record that the grand jury that indicted defendant was formed by an unconstitutional process. Plainly, the superior court judges selected the grand jurors, relying on their own inquiries and routine background checks performed by the investigative staff of the district attorney’s office. Except insofar as a finding by the investigative staff would result in statutory disqualification, the judges enjoyed unfettered discretion in their use of the staff’s findings, and the district attorney’s office’s role was limited to providing the investigative services requested by the jury commissioner, a judicial officer (Code Civ. Proc., § 195; Adams v. Superior Court (1974) 12 Cal.3d 55, 59 [115 Cal.Rptr. 247, 524 P.2d 375]; Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, 262 [198 Cal.Rptr. 489]). The judges were free to give any weight they wished to the results of the district attorney’s staff’s interviews of prospective grand jurors’ neighbors, employers, and acquaintances, and to disregard the results entirely if they wished. It cannot be said that the district attorney’s office played any role beyond the limited functions the superior court delegated to it in shaping the constitution of the grand jury. The district attorney’s complaint about the conduct of three seated grand jurors, defendant contends, is a significant indication of overreaching by the district attorney’s office. The complaint, however, has no bearing on the procedures used to constitute the grand jury. The trial court properly denied the motion to quash the indictment. 2. Excusing Prospective Jurors for Cause over Defense Objections Defendant contends the court erred in excluding for cause four prospective jurors because of their views on the death penalty, in violation of his state and federal constitutional rights. 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) “Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) 551 U.S. 1,_ [167 L.Ed.2d 1014, 1022, 127 S.Ct. 2218, 2224].) As we explain, we have reviewed the record as to each of the four prospective jurors and find no basis on which to overturn the trial court’s rulings. All gave conflicting and sometimes ambiguous statements, but all also made statements supporting the court’s findings that their views would at least substantially impair their performance of their duties. The fact that these jurors also gave statements that might have warranted keeping them as jurors does not change this conclusion. “The question before us as a reviewing court ... is whether the evidence supports the actual rulings, not whether it would have supported different rulings.” (People v. Smith (2003) 30 Cal.4th 581, 602 [134 Cal.Rptr.2d 1, 68 P.3d 302].) a. Prospective Juror No. 4 of October 17, 1994 On his written juror questionnaire, when asked to rate himself on a scale of 1 to 10, with 1 being strongly against the death penalty and 10 strongly in favor of it, Prospective Juror No. 4 of October 17, 1994, marked that he was a 2. He answered the questionnaire’s inquiry, “Briefly describe your general feelings about the death penalty,” with “I would really not want to be confronted with the decision to apply the death penalty.” The questionnaire also asked, “assuming a defendant was convicted of a premeditated murder during the course of a kidnapping and robbery and a special circumstance, would you: [|] (a) No matter what the evidence was, always vote for the death penalty, [f] (b) Always vote for life without possibility of parole. [IQ (c) I would not automatically vote for either life without possibility of parole or the death penalty. I would consider all the evidence and vote my conscience.” The prospective juror checked choice (c). At jury voir dire, this prospective juror stated that he might be an unsuitable juror from the perspective of both parties. Defendant might find him undesirable to serve on the jury because defendant had lived next door to the prospective juror briefly and the victim could have been his wife or daughter. The prosecution might find him undesirable because “[i]t would be with great trepidation that I would vote for the death penalty.” Both parties questioned this prospective juror extensively regarding his attitude toward the death penalty He gave conflicting and equivocal responses. He told defense counsel “I would find it quite difficult to . . . rule [on] the . . . death penalty,” but “I would not say it is impossible.” This was the first of three times that the prospective juror told defense counsel that he would find it difficult to decide the question of penalty. Asked by defense counsel, “You feel that there are some murder cases w[h]ere you would consider the death penalty as a possible sentence?” the prospective juror replied, “Right now without hearing it I would probably say no. But if I heard all of the details, I may be convinced.” He told defense counsel that he thought he would consider both sentencing options. But when defense counsel asked the same question in a different way, “Do you feel you would be able to consider all of the aggravating and mitigating evidence?” he replied, “With difficulty . . . .” Thereafter the prosecutor questioned the prospective juror. The prosecutor explained, “If your conscience tells you that [the lesser sentence] is the appropriate penalty you could have a feeling that the aggravating circumstances . . . overwhelmingly outweigh the . . . ‘mitigating circumstances,’ and yet the law does not require you to vote for the death penalty.” The prospective juror responded, “You are making it easier for me. [][] I would not feel so guilty about, you know, religiously or any other reason about voting for the death penalty. . . .” The prosecutor sought clarification: “Could you explain that a little bit now? ‘It makes it easier?’ ” The prospective juror answered, “Because you just said that there is no circumstance that would make me—there is no circumstance unless—in other words, you would not back me into that situation.” The prosecutor queried, “using the words that you yourself used a few minutes ago, you said ‘When it comes right down to the wire,’ you are not sure if you could vote for the death penalty, [f] Knowing that there is no circumstance where you have to, when it comes right down to the wire do you feel that... if you had the option between either the death penalty or life in prison without possibility of parole[,] .. . you would always vote for life in prison without possibility of parole?” He answered, “I feel like saying ‘yes,’ but, you know, then again it depends on the—probably the information. [|] Right now I—it’s like saying I can’t think of any scenario that would, you know, like information that would lead me to say nothing but death penalty, but, you know, we all learn.” The prosecutor asked him about his juror questionnaire response that he was a 2 on a scale of 1 to 10 of favoring the death penalty. The prospective juror affirmed his view. The prosecutor then asked, “When I consider that combined with what you have told us about how you expect your conscience would bother you if you voted for the death penalty . . . , I get the impression . . . that as long as you were not backed into a comer where you were required to vote for the death penalty, that you always had an option, that you would always vote for life in prison. Is that impression correct?” The prospective juror replied, “Not—not completely, no.” The prosecutor asked, “Can you tell me how it is wrong?” and the prospective juror replied, “I am not sure I know how to answer that, [][] Just like I said to the lady on the Defense there, ... it is similar to if you were being attacked or felt that strongly that you would in fact kill someone else, you know, that you could rise to that occasion. ... [H ... H] That I could essentially, personally, be judge, jury and executioner if somebody was attacking me, which is actually going no further than what I would be asked to do, you know, serving on a jury where I am only asked to be the juror.” The prosecutor asked, “with your attitude toward the death penalty ... do you think you would be a fair juror to the Prosecution, considering your attitudes toward the death penalty, and considering [that] the Prosecution will be asking you to vote for the death penalty?” The prospective juror replied, “you should judge that up front, the fact that I marked ‘2’ on the scale of l-to-10.” He soon added, “when you say ‘fair to the Prosecution,’ I would be certainly on the biased side against the Prosecution in that case, certainly. Certainly I would, [f] I would not be to your advantage. It would be with great trepidation that I would vote for the death penalty, that’s obvious.” Finally, the prosecutor asked, “Well, is it true that to vote for the death penalty you would have to go against your conscience and how you feel about the death penalty?” He responded, “I would say I would really have to. That would be pretty much it. I have to go against my conscience.” The trial court excused him, stating, “The gentleman is an enigma. He said a lot of things that were inconsistent and a lot of things I, frankly, did not understand, but I’m not convinced that he could be fair to the People.” In light of this prospective juror’s conflicting and equivocal statements, we must defer to the trial court’s ruling. b. Prospective Juror No. 3 of October 6, 1994 Substantial evidence also supports the trial court’s ruling that Prospective Juror No. 3 of October 6, 1994, was substantially impaired in her ability to impose capital punishment in a proper case. She gave conflicting answers throughout voir dire. At times she stated that she could follow the law. But at other times she expressed either doubt about her willingness to impose the death penalty or an inability at all to do so. For example, she stated, “I can’t conceive of taking somebody’s life,” and “I couldn’t take the life of a cat or [a] dog.” Defendant argues that the trial court granted the challenge for cause of this prospective juror on the assertedly incorrect ground that “I don’t think she quite understands the area of discretion that remains” in deciding sentence. He maintains that the court could have educated the prospective juror with additional comments or questions. But the court also said, “I think she’s prejudiced against the death penalty.” The court was stating, in a shorthand form, its conclusion that she could not follow her oath or the law. Substantial evidence supports that conclusion. c. Prospective Juror No. 4 of October 11, 1994 Prospective Juror No. 4 of October 11, 1994, stated that because of her strongly felt opposition to the death penalty she would find it “difficult . . . even if the aggravating circumstances were overwhelming in comparison to the mitigating” to follow the sentencing instructions. To be sure, she gave conflicting answers, including an ability to keep an open mind until all of the evidence had been presented. But the prospective juror stated that her openmindedness amounted only to a “shred.” She acknowledged stating on her questionnaire and reaffirmed her belief that, as the prosecutor quoted from her questionnaire, “I do not think I believe in the death penalty. I feel it’s ultimately wrong for a human to decide that another must die.” “[I]t’s too arbitrary,” she explained. The prospective juror also expressed doubt that she could convict defendant of crimes that could lead to a death sentence. She alerted the trial court and parties to her fear that her attitudes could lead to a mistrial at the penalty phase. The court implicitly concluded that the prospective juror was substantially impaired, and granted the challenge. Substantial evidence supports its decision. d. Prospective Juror No. 5 of October 18, 1994 Prospective Juror No. 5 of October 18, 1994, made a number of conflicting oral and written statements. She wrote on her questionnaire, “As a Catholic I was brought up not to judge anyone. God was the only one with that right.” She checked that she would always vote for life imprisonment without possibility of parole. In response to questions by defense counsel, this prospective juror stated that she could set aside her religious beliefs and vote to impose the death penalty on defendant if persuaded it was warranted. In stating that she could vote for the death penalty, she expressly retracted the choice she had made on her juror questionnaire that she would always vote for life imprisonment without possibility of parole. On further voir dire by defense counsel, this prospective juror said that, contrary to her responses to some of the prosecutor’s questions, she could vote for the death penalty in a proper case even if it meant, in counsel’s words, that she “would go against your own personally held beliefs.” Presented with a followup question by the trial court, she responded, after a pause of unknown length, that it would not be a sin to vote to impose a death sentence on defendant. Defense counsel conceded that this prospective juror had “gone back and forth just like many jurors have . . . .” But he argued that made her no different from other prospective jurors whom the trial court had passed for cause. The court pronounced her “another enigma .... I really don’t know what she is going to do.” But he concluded that she would have to choose between her religious beliefs and the law, and “I just don’t have enough confidence that she is going to follow the law.” We must also defer to this ruling. e. Conclusion The record here is similar to that in People v. Griffin (2004) 33 Cal.4th 536 [15 Cal.Rptr.3d 743, 93 P.3d 344], where we also rejected the defendant’s claim that four prospective jurors who had been excused on the ground of substantial impairment in their ability to impose capital punishment were improperly excused. Here as there, “the trial court had the opportunity to observe the demeanor and to assess the degree of uncertainty and reluctance of each prospective juror and resolved any equivocal and conflicting responses in a manner that caused the court to conclude that each of these jurors’ views . . . would substantially impair the juror’s ability to make a penalty determination in accordance with the court’s instructions. On this record, we have no reason or basis for second-guessing that finding. Contrary to defendant’s suggestion, the fact that at some point each of these prospective jurors may have stated or implied that she would perform her duties as a juror did not prevent the trial court from finding, on the entire record, that each nevertheless held views . . . that substantially impaired her ability to serve.” (Id. at p. 561.) Defendant’s claim is without merit. 3. Treating Death- and Life-leaning Prospective Jurors Differently Defendant claims that the trial court violated the federal constitutional guaranties of due process of law, trial before an impartial jury, and equal protection of the laws by applying different standards in ruling on motions to excuse for cause jurors who seemed to favor the death penalty and those who seemed opposed to it. He maintains that the court applied different standards in determining whether the two groups of jurors were substantially impaired in their ability to follow the law and that it used different procedures in evaluating them. According to defendant, the trial court focused on whether the death penalty adherents were committed to following his instructions regarding aggravating and mitigating evidence and did not examine critically whether they could be fair on the issue of sentence, whereas with death penalty skeptics, the court did the reverse, not concerning itself with whether prospective jurors would commit to following its instructions, but examining critically whether they could be fair to the People. This differential inquiry, he maintains, raised the barrier for the death penalty skeptics to serve on the jury vis-a-vis that faced by the death penalty adherents. Procedurally, defendant asserts, the court asked fewer questions of the prospective jurors the prosecution challenged for cause than of those defendant challenged, thereby rehabilitating death penalty adherents without attempting to rehabilitate skeptics. The contentions are without merit. As stated, “the qualifications of [prospective] jurors challenged for cause are matters within the wide discretion of the trial court, seldom disturbed on appeal.” (People v. Jones (2003) 29 Cal.4th 1229, 1246 [131 Cal.Rptr.2d 468, 64 P.3d 762]; see Uttecht v. Brown, supra, 551 U.S. at p. _ [167 L.Ed.2d at p. 1022].) A trial court “possessed] discretion to conduct oral voir dire as necessary and to allow attorney participation and questioning as appropriate.” (People v. Robinson (2006) 37 Cal.4th 592, 614 [36 Cal.Rptr.3d 760, 124 P.3d 363]; see People v. Carter (2005) 36 Cal.4th 1215, 1250 [32 Cal.Rptr.3d 838, 117 P.3d 544] [manner of conducting voir dire not basis for reversal unless it makes resulting trial fundamentally unfair].) No abuse of discretion occurred in the court’s determination of the prospective jurors’ qualifications to serve or its manner of conducting voir dire. We have reviewed the voir dire of each prospective juror to which defendant refers in this claim, namely five challenged by the defense (Deborah P., Prospective Juror No. 10 of Oct. 4, 1994, Prospective Jurors Nos. 3 and 10 of Oct. 5, 1994, and John O.) and additional prospective jurors challenged by the prosecution (Veronica R. and Prospective Juror No. 10 of Oct. 6, 1994). In assessing defendant’s contention, we have also considered the trial court’s treatment of four other prospective jurors, discussed above (see, ante, at pp. 414-418), whom the prosecutor challenged. We see nothing suggesting the court applied different standards to the various jurors. Indeed, the court explained on the record that it was applying the same standards regardless of whether the prospective juror favored or opposed the death penalty. “The bottom line in my mind,” the court stated, “is whether they will follow the law no matter what their leanings are or what their inclinations are. [f] If I am convinced after I hear everything they have said that they will follow the law, then I will deny the challenge.” The court went on: “If I have a doubt as to whether they will follow the law or think they won’t, then I will grant the challenge, and that is what I have been ruling, basing the rulings on.” The court also advised counsel that “every time I have a doubt in my mind I’m going to resolve it in favor of the Defendant because he has got his life on the line and because I’m concerned about having to try this case over again.” We first address the five prospective jurors in question whom the defense challenged. In each case, the trial court denied a motion to excuse the prospective juror for cause. (1) Deborah P. stated generally during her voir dire that she would be openminded, follow the trial court’s instructions, and, at any eventual penalty phase, listen to the presentation of evidence without prejudging defendant’s deserved punishment. But she also stated initially that she would not consider evidence of parental neglect or abuse of defendant in childhood or his consumption of alcohol or drugs as mitigating evidence; she would base her decision solely on the circumstances of the crimes. Defense counsel then asked if Deborah P. would vote for the death penalty if it were proven that defendant had committed premeditated murder with special circumstances. The prosecutor objected to that question as calling for speculation. The trial court sustained the objection and proceeded to explain the bifurcated nature of a capital trial to Deborah P, asking whether at any eventual penalty phase she would consider all the evidence that the court directed her to evaluate. She answered that she would, and affirmed that view during further examination by defense counsel and the prosecutor. Deborah P. also stated that her best friend was murdered by her husband in 1987. She testified as a character witness for her deceased friend, in a case prosecuted by the prosecutor in defendant’s case. She stated that because she knew nothing about defendant, neither the murder of her friend nor the prosecutor’s involvement in that case would affect her ability to judge defendant fairly. Despite her connection with the decedent in that case, she had not followed the trial. In addition, less than three months before Deborah P.’s voir dire testimony, the father of her daughter (the two were never married) also was murdered. She considered him a friend. Her daughter had recovered from the experience. Deborah P. stated that despite a degree of similarity between the murder of her daughter’s father and of O’Sullivan, who had a child, she could remain impartial in passing sentence on defendant if the trial reached that stage. She felt that the death penalty should be imposed only for certain types of murders, not all of them. She maintained that she had no opinion about the propriety of the death penalty. Defendant predicated his challenge for cause on an assertion that Deborah P. would be biased because her friend had been murdered and the prosecutor trying the case against defendant had prosecuted the mu