Full opinion text
Opinion WERDEGAR, J. A jury in Los Angeles County Superior Court convicted Frank Manuel Abilez in 1997 of the first degree murder of his mother, Beatrice Abilez Loza (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), forcible sodomy (§ 286, subd. (c)), first degree robbery (§ 211), two counts of first degree burglary (§ 459) and grand theft of a vehicle (former § 487h, subd. (a); see now § 487, subd. (d)). The jury also sustained special circumstance allegations that Abilez committed a murder while engaged in the commission of a robbery, sodomy and burglary. (§ 190.2, former subd. (a)(17)(i), (iv) & (vii); see now subd. (a)(17)(A), (D) & (G).) In addition, the jury sustained an allegation that defendant caused great bodily injury to a person over 60 years of age. (§ 1203.09, subd. (a).) Defendant waived a jury for determination of his prior convictions, and the trial court sustained allegations that he had suffered two prior serious felony convictions (§ 667, subd. (a)(1)), had previously served four separate terms in prison for felony convictions (§ 667.5, subd. (b)), and had suffered two prior felony convictions within the meaning of the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). On October 16, 1997, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm. I. Guilt Phase A. Facts Beatrice Abilez Loza (Loza), 68 years old at the time of her murder, lived in La Puente. She had 10 children, including defendant, although he was raised by someone else. Two of her other children, Susie Carlon (Carlon) and John “Chachi” Loza (Chachi), lived with her, each in a separate bedroom. The victim often allowed family members to use her spare bedroom. On March 14, 1996, defendant and Loza’s nephew, Albert Vieyra (Vieyra), were staying in the spare bedroom, but Loza quarreled with them and told them to leave the next day. Carlon recalled that on March 15, defendant left the house around 8:30 or 9:00 a.m. She left the house around noon to go to Stateline, Nevada, with her friend Annette Jordan; at that time, she saw defendant returning to the house. Another of Loza’s children, Johnny Garcia, lived a short distance away, and on March 15 he came by the house around 5:00 p.m. to borrow some money from his mother. He stayed 15 or 20 minutes. At that time, he noticed Loza’s car was in the driveway, which was normal because his mother never put the car in the garage. When he left, Loza and Chachi were the only ones in the house. As he often did, Garcia called his mother that night around 10:45 p.m. to ensure she was “safe and okay.” Concerned when she did not answer her telephone, he went to her house. Her car was not in the driveway and the outside light was turned off, both of which were unusual. When no one responded to his knocking and ringing the doorbell, he entered the house through a window. Once in the house, Garcia noticed the door to Carton’s bedroom was broken. Finding the door to his mother’s room locked, he sought out his brother Chachi. Chachi, surprised on seeing his brother in the house, told Garcia their mother was in her room. Garcia then forced open a window to his mother’s bedroom and entered, finding her lying facedown in the room with a sock knotted around her neck. Her pants had been pulled down and her shirt pulled up. Garcia called the police from the bedroom; he later determined the telephone in the kitchen had been pulled from the wall and that Loza’s car was missing. ■ James Ribe, a medical examiner for Los Angeles County, conducted an autopsy on the victim and concluded she died of “asphyxia due to ligature strangulation.” In addition, Ribe found evidence of “forcible rectal insertion” occurring while she was still alive. A criminalist later determined the presence of spermatozoa in the victim’s rectum, but the amount was insufficient to conduct a DNA test. Leonard Mercado, apparently one of defendant’s acquaintances, testified that late in the evening of March 15, 1996, defendant and Vieyra drove up to a house in La Puente and asked whether anyone wanted to buy any of the electronic equipment they had in the car. Around 3:00 a.m. the morning of March 16, Colton Police Officer Kenneth Kiecolt stopped the car defendant was driving for having a broken license plate light. Vieyra was a passenger in the car. A license plate check indicated the car was wanted by the Los Angeles County Sheriff’s Department, so Officer Kiecolt arrested both defendant and Vieyra and had their car impounded. After Colton Police transferred custody of defendant and Vieyra to the Los Angeles Sheriff’s Department, Deputy Sean Harold secretly recorded them in the back of his car. Although much of the tape is unintelligible, one person could be heard to say in Spanish: “No, don’t say anything.” At another point, someone says: “Just say we were lost on the freeway.” Someone also says: “No, but we left and that’s it.” It could not be determined who said what. When arrested, Vieyra had scratches and abrasions on his face. A shirt, determined to belong to Vieyra, was recovered from the car; because it was stained, it was sent for analysis. A criminalist later determined the stain was from Vieyra’s blood. Police also found empty beer cans and a red pajama top in the car. Loza would not have left beer cans in her car and, in fact, did not drink. The red pajama top belonged to Carlon and had been taken from her room. Chachi, Loza’s son who resided with her, had previously suffered an accident and was physically disabled at the time of trial. He testified initially that on the night in question, both defendant and Vieyra were in the victim’s bedroom arguing with her. He later clarified that he heard only defendant in the room, which was consistent with his statement to the police who investigated the crime. From his bedroom, Chachi heard someone opening and closing drawers in his mother’s bedroom. When Carlon learned of her mother’s murder, she returned home. She found the lock on her bedroom door had been broken and her bedroom ransacked. Missing were a compact disc player, a case with about 60 discs inside, a cassette tape player and her wallet. Stereo equipment was also missing from Loza’s bedroom. Candína Bravo, defendant’s niece, testified defendant came to her home around 4:00 p.m. on March 15, 1996, to borrow money, but she had none to give him. She recalled that sometime in the two weeks before Loza’s death, defendant told her: “I hate that fucking bitch. She keeps fucking with me.” A couple of months before that, he told her: “I hate that fucking bitch. I want to kill her.” Bravo said defendant’s antipathy stemmed from the fact Loza raised her other nine children but “gave him up.” Bravo also testified that Loza kicked defendant and Vieyra out of her house because they stole from her. Annette Jordan, Carlon’s friend, testified she had been to the victim’s home hundreds of times and confirmed that defendant and the victim argued about his eviction from the house during the two weeks leading up to the murder. She also reported hearing defendant attempt to borrow Loza’s car, but she never saw Loza agree to lend it. Gabriel Arce, the teenage son of defendant’s girlfriend, testified that sometime before the murder, he heard defendant say that when Loza would not give him money, defendant would just take money from her purse, and that he wanted to kill her. Rachel Arce, defendant’s sometime girlfriend, also testified defendant hated his mother. Codefendant Vieyra testified in his own defense. He testified that on the day in question he ran into defendant, his cousin, in the parking lot of a shopping center. Defendant appeared to be under the influence of heroin and was holding a quart bottle of beer, which he proceeded to drink that afternoon. Defendant told Vieyra he was angry at his mother. They went together, first to a friend’s house and then to the victim’s home, arriving around 3:40 p.m. After staying a short time, they went to a comer store where they bought and consumed two 12-ounce beers. After running some errands in the neighborhood, the two returned to Loza’s house. At that time, only Loza and Chachi were home. Vieyra noticed defendant was having an argument with Loza. Vieyra convinced defendant to leave, and they went to a bar, although they did not have anything to drink. The two then returned to Loza’s house sometime after 5:00 p.m. Defendant went to his mother’s bedroom, and Vieyra went to the bathroom to shave; at that time, he saw defendant in Loza’s room and they were talking. When Vieyra was finished shaving, he heard Chachi come out of his room. Chachi called out his mother’s name. Defendant came out of Loza’s room and told Chachi to go back into his room. Defendant then reentered Loza’s bedroom and closed the door. Vieyra went to wait in the living room. When defendant did not emerge from Loza’s room for some time, Vieyra went and opened the door. He saw Loza lying on the floor on her stomach, with defendant sitting on her, straddling her “like on a horse.” Defendant held a white cloth in his hands and it was around her neck; Vieyra heard a noise from her throat. Vieyra stood there a few seconds and then returned to the living room because he was scared. Less than two minutes later, defendant emerged from Loza’s room and said “estuvo,” which is slang for “it is done.” Defendant then went to Carton’s room and, finding it locked, banged on the door until it opened. Vieyra helped defendant take items out of the house and toad them into Loza’s car. He did not know who pulled the telephone from the wall. After loading the car, they drove to a friend’s home and unsuccessfully tried to sell the stolen property. They then stopped at another house, which defendant entered and did not come out of for 20 minutes. When he emerged, they moved all the items taken from Loza’s home into the house. Defendant said he had received $120 for the stolen goods. They made a few more stops, but Vieyra fell asleep, possibly because he had snorted some heroin. Vieyra admitted that when he fell asleep, he urinated on himself. He took his shirt off because it had become soiled, and as they drove off, defendant began hitting him in the face as punishment for urinating in the car, causing the scratches on his face the police later observed. Vieyra testified that on the day of the murder, before he and defendant returned to Loza’s house, defendant told him he wanted to kill Loza because she had called his adoptive mother a “puta,” Spanish for “whore.” Vieyra did not think defendant was serious because he had made comments like that in the past. When he encountered defendant in jail after their arrests, he asked him if he felt remorse for what he had done; defendant replied: “No, what for?” Vieyra testified he had been “very close” to his aunt, was upset about what had happened to her, and had volunteered to take a blood or saliva test to clear himself of the sodomy charge. He conceded he did not do anything to help Loza and that he had lied to police when initially questioned. He decided to tell the truth because of his conscience. He admitted to having suffered convictions for crimes of moral turpitude in 1985 and 1991. In his defense, defendant called Dr. Martin Porcelli, who explained the effect chronic alcohol abuse and heroin use can have on cognitive function. Defendant did not testify at the guilt phase of his trial. For his participation in the crimes against Loza, the jury convicted codefendant Vieyra of robbery, two counts of burglary, and grand theft auto, but only second degree murder. The jury acquitted him of forcible sodomy. B. Pretrial Issues 1. Defendant’s Marsden Motion Defendant contends the trial court abused its discretion by failing to grant his motion to relieve his attorney and appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden).) As we explain, the trial court did not abuse its discretion. a. Facts Defendant moved on September 18, 1997, to relieve his appointed trial attorney, Antonio Bestard, and have new counsel appointed. After closing the hearing, the trial court heard defendant’s motion, which consisted primarily of four complaints: (1) Counsel was overly concerned with convincing defendant to accept a plea bargain of life without the possibility of parole and dismissal of the sex crime charges. According to defendant, “for the last 17 months” that is all counsel talked about. (2) Counsel discussed the case with his (counsel’s) teenage son. (3) Counsel was disrespectful and sarcastic. According to defendant, counsel “doesn’t talk with me; he talks at me.” (4) Counsel had not discussed the defense witnesses with him. Defendant admitted he did not believe counsel had failed to do anything that should have been done. After listening to defendant’s complaints, the trial court asked counsel for a response. Regarding his urging defendant to take the plea bargain offered by the prosecutor, Bestard said he thought the prosecutor’s offer was “not the most generous” but that it had the advantage of striking charges related to the sexual assault on the victim, which would inure to defendant’s benefit in prison as other prisoners “don’t take too kindly about prisoners sodomizing women.” Bestard suggested that if defendant had a “sexual jacket in state prison,” he would be victimized by fellow prisoners. Although he did not say so explicitly, implicit in Bestard’s discussion was that he thought defendant’s prospects at trial were dim, noting that people with whom he had discussed the case were all “appalled” at the facts. The trial court made the point explicit for counsel, informing defendant: “I think what Mr. Bestard is saying to you is, look, there are significant risks in this case. There is a high danger if you take the case to trial.” Defendant replied that he understood. Regarding having discussed the case with his teenage son, counsel explained: “One night... I was preparing for this case and my son happened to be in my study and looked at the charges, particularly the sodomy charges, and asked about them and I said this is a guy who is being accused of sodomizing his mother and then killing her, and my son said, ‘God, dad, that is really ugly’ and I just shared that with [defendant] ... to tell him that the reaction to this case particularly is one of shock.” Counsel used this example to bolster his argument to defendant that the case in defense was not a strong one, explaining that he had discussed the case (without giving defendant’s name) with “other lawyers, judges, public defenders, [and] probation officers,” “[a]nd they are appalled at the charges, they are appalled at the factual situation.” Regarding defendant’s allegation that counsel was disrespectful and sarcastic, counsel explained: “I don’t believe so, but then everyone has their own sensitivity levels. I have talked to Mr. Abilez in a very straightforward, brusque manner at times and that is my personality. I told him at the beginning of this case, which I tell most defendants, is that I am not here to tell you you have got a great case. I am your sparring partner, and if I am going to be your sparring partner, I am going to take my best shots at you, because the district attorney is going to be twice as hard on you and I want to make sure that you understand, so I am very critical of things that Mr. Abilez has said.” Counsel’s assertion that he was “very critical of things” was an apparent reference to defendant’s claim that he had been an altar boy at St. Margaret’s Catholic Church and had been in the Cub Scouts. Counsel told the court that he had investigated both claims for potential mitigating evidence and found no evidence to support either one. Finally, regarding defendant’s claim that counsel had failed to discuss the defense witnesses with him, counsel admitted that defendant “has mentioned witnesses to me and I told him to talk to Mr. Royce who is the investigator. [Defendant] asked me to talk to witnesses. I don’t talk to witnesses and the reason for that is that I don’t like to be called to the stand [by the prosecutor], so I . . . have Mr. Royce talk to them and then we—we take it from there.” Counsel continued: “I mentioned all these witnesses. If [defendant] has any others that we haven’t gotten to, I would like to know who they are.” Counsel averred that defendant “knows of the witnesses that we have been talking to. In fact, not only did I see him last night, but Mr. Royce saw him last night, too, to discuss this case.” When the trial court asked defendant whether he had had an opportunity to discuss the witnesses with the defense investigator and whether “he provided you with information regarding what he has learned from the witnesses,” defendant answered in the affirmative. After hearing from both defendant and defense counsel, the trial court denied the Marsden motion, explaining to defendant: “Well, it does appear to me that there are some conflicts which have developed between counsel and the defendant, but frankly, in the court’s view, they are the sort of conflicts that I would expect in a situation which is high-tension, high-stress, high-anxiety, and not the sort of thing that I believe would warrant granting the motion, [f] . . . I don’t think that Mr. Bestard has done anything that would be detrimental to your case. On the contrary, I think he has very aggressively pursued your defense in all aspects. H] I think that there may be some tension as a result of the communication, but I think ultimately you are better off with a lawyer that tells you like it is than one who tells you what you want to hear until it is too late.” Also: “I don’t see that there has been a breakdown in the relationship between the two of you of such a kind that would make it impossible for [counsel] to represent you in this case.” The court then denied defendant’s Marsden motion. b. Marsden “Defendants in capital cases often express dissatisfaction with their appointed counsel, affording us ample opportunity to address the contours of the rule set forth in Marsden, supra, 2 Cal.3d 118. The rule is well settled. ‘ “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ (People v. Fierro (1991) 1 Cal.4th 173, 204 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant’s right to effective assistance of counsel.” (People v. Roldan (2005) 35 Cal.4th 646, 681 [27 Cal.Rptr.3d 360, 110 P.3d 289].) Defendant presents no issue that counsel was failing to provide adequate legal representation. Indeed, there was considerable evidence that counsel’s investigator had been active on the job and that counsel had prepared three full binders of trial material, including a 110-page synopsis of his investigator’s work. Although defendant now argues there was no “verification” counsel had in fact completed such work, the trial court was entitled to accept counsel’s description of the amount of work he had completed. (People v. Jones (2003) 29 Cal.4th 1229, 1245 [131 Cal.Rptr.2d 468, 64 P.3d 762].) Moreover, although defendant disputed counsel’s claim they had met for one hour and 35 minutes in the week preceding the hearing on the Marsden motion, claiming they had met for only 45 minutes, the discrepancy is de minimis. Defendant similarly fails to establish that the trial court’s inquiry into his complaint was deficient. The record demonstrates the court allowed defendant to explain the reasons for his dissatisfaction with counsel and permitted counsel to respond. Nor has defendant demonstrated an irreconcilable conflict had developed. Counsel had adequate explanations for all of defendant’s complaints, and “ ‘[t]o the extent there was a credibility question between defendant and counsel at the hearing, the court was “entitled to accept counsel’s explanation.” ’ ” (People v. Jones, supra, 29 Cal.4th at p. 1245.) Defendant was given “full opportunity to air all of his complaints, and counsel to respond to them.” (People v. Smith (2003) 30 Cal.4th 581, 606 [134 Cal.Rptr.2d 1, 68 P.3d 302].) We perceive no abuse of discretion. Defendant now raises several additional reasons to support his claim that the trial court abused its discretion by denying his Marsden motion, but none has merit. He first argues the trial court improperly denied his motion by relying solely on its courtroom observations of defense counsel, without permitting defendant to relate the basis for his unhappiness. (People v. Barnett (1998) 17 Cal.4th 1044, 1091 [74 Cal.Rptr.2d 121, 954 P.2d 384]; People v. Hill (1983) 148 Cal.App.3d 744, 753 [196 Cal.Rptr. 382].) The record belies this claim. The trial court gave defendant ample opportunity to explain the basis of his unhappiness and then denied the motion based in part on counsel’s explanations of his conduct. Second, defendant argues he could no longer trust Bestard, noting he had breached confidentiality by discussing the case with his son and by discussing a plea offer with defendant while the prosecutor was on the speakerphone listening in; he had suggested he thought defendant was untruthful; and he had prejudiced the court by characterizing defendant as a gang member. We disagree. Counsel adequately explained the circumstances concerning his son, and the incident with the prosecutor on the speakerphone was also aired, revealing it to be an apparently routine plea negotiation and not a breach of lawyer-client confidentiality. Counsel’s suggestion that defendant was untruthful came when he told the court he had been working hard on the case but that defendant had sent him off on two fruitless investigations (involving defendant’s alleged participation as an altar boy and as a Cub Scout). The mention of defendant’s gang affiliation came during counsel’s explanation that the prosecutor’s offer to drop the sodomy charge was in defendant’s best interest, noting that defendant’s familiarity with the Mexican Mafia should confirm counsel’s belief that other gang members would not look kindly on defendant’s sex crime. In short, none of defendant’s complaints is substantial. Defendant’s mere allegation that he did not trust his defense attorney, without more, was insufficient to compel the trial court to replace him. “If a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.” (People v. Jones, supra, 29 Cal.4th at p. 1246.) Defendant’s effort to support his loss of trust in Bestard by citing counsel’s attempt to have him placed in solitary confinement is unavailing. Because this issue was not raised until after the trial court had denied defendant’s Marsden motion, it cannot be used to undermine the trial court’s exercise of discretion in denying the motion. Moreover, counsel’s actions were justifiable. Counsel informed the court that defendant was addicted to “pruno,” an alcoholic drink brewed illicitly in county jail by inmates, and previously had come to court so intoxicated that he was unable to assist counsel. Bestard raised the possibility that defendant could be held in solitary confinement to prevent him from gaining access to any more pruno. The court declined the suggestion but ordered the bailiff to examine defendant for intoxication each time he appeared in court. As is apparent, counsel was not irrational in exploring the possibility of having defendant held in solitary confinement nor was he trying to punish him; he was merely attempting to ensure defendant maintained sobriety so as to permit him to assist in his own defense. Third, defendant contends three cases compel the conclusion the trial court abused its discretion by failing to grant his Marsden motion, but all three are distinguishable. In People v. Groce (1971) 18 Cal.App.3d 292 [95 Cal.Rptr. 688], the defendant complained that his defense attorney had failed to obtain the hospital records that might show the extent of the victim’s injuries. The appellate court reversed for Marsden error because the trial court had failed to inquire “into counsel’s reason for not producing the physician or his hospital records.” (Id. at p. 297.) In People v. Hill, supra, 148 Cal.App.3d 744, the appellate court reversed for Marsden error because the trial judge had failed to question counsel regarding the defendant’s complaints but instead undertook its own off-the-record investigation. (Id. at pp. 754-755.) In People v. Cruz (1978) 83 Cal.App.3d 308 [147 Cal.Rptr. 740], the trial court similarly failed to ask the defense counsel to address the defendant’s complaints. (Id. at p. 317.) In contrast to these cases, the trial court in the instant case questioned defendant about his reasons for desiring substitute counsel, asked counsel for his response and denied the motion based on the court’s assessment that grounds for substitution did not exist. In sum, we conclude the trial court did not abuse its discretion in denying defendant’s Marsden motion. (People v. Roldan, supra, 35 Cal.4th at p. 681.) c. Asserted federal claim Defendant also contends denial of his Marsden motion violated his right to counsel under the Sixth Amendment to the United States Constitution. Of course, the denial of a defendant’s motion to substitute counsel implicates the Sixth Amendment. (People v. Hart (1999) 20 Cal.4th 546, 603 [85 Cal.Rptr.2d 132, 976 P.2d 683].) Although it is unclear whether defendant preserved this federal constitutional claim at trial, we assume for purposes of argument that he did. (Cf. People v. Partida (2005) 37 Cal.4th 428, 435-436 [35 Cal.Rptr.3d 644, 122 P.3d 765].) “On direct review of the refusal to substitute counsel, the Ninth Circuit Court of Appeals considers ‘the following three factors: “(1) timeliness of the motion; (2) adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.” ’ [Citations.] It found, and we agree, that these elements are consistent with California law under People v. Marsden, supra, 2 Cal. [3d] 118, and its progeny.” (People v. Smith, supra, 30 Cal.4th at pp. 606-607.) Defendant’s Marsden motion was timely made, and as we explained, ante, the trial court’s inquiry into the grounds of defendant’s dissatisfaction with counsel was more than adequate. More importantly, the alleged conflict between defendant and his defense counsel was not so serious that we must conclude communication between them had become so poisoned defendant was effectively denied his right to counsel. These facts distinguish defendant’s cited legal authority. For example, in U.S. v. Walker (9th Cir. 1990) 915 F.2d 480, “the district court made virtually no attempt to discover the causes underlying [the defendant’s] dissatisfaction with his attorney” (Walker, at p. 483), although the defendant “ ‘made a prima facie showing of an irreconcilable conflict between himself and his appointed attorney’ ” (id. at p. 484). Similarly, in U.S. v. Adelzo-Gonzalez (9th Cir. 2001) 268 F.3d 772, there were “striking signs of a serious conflict” {id. at p. 778), yet the district court did not “ascertain the extent of a breakdown in communication by asking specific and targeted questions” (id. at p. 111). Finally, in Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, the federal appellate court concluded the state court that entertained the defendant’s Marsden motion made “no adequate inquiry into the cause of [the defendant’s] dissatisfaction with his counsel” (id. at p. 1169). Because the trial court here undertook a sufficiently searching inquiry into the bases of defendant’s dissatisfaction with counsel, and defendant’s relationship with counsel was not so irreparably damaged that he was denied the right to counsel, we reject defendant’s claim the trial court’s denial of his Marsden motion violated his federal constitutional right to counsel. 2. Admonishments to Jurors During Voir Dire Invited to address the prospective jurors, the prosecutor, after some preliminary remarks, said: “My sole question is[,] are you sure that if we reach [a penalty phase] of this trial you can then give equal weight to the two separate penalties? That is going to be my question. [][]... [f] “Has anyone, during the time—even during this questioning since the time you filled out these questionnaires—there is nothing wrong with saying it. If you feel comfortable outside of the presence of this group, you can say it in that manner. If you want to just say it now, if you have changed your mind, do you all promise me that you will let the court know before you are sworn in as a juror, before we try this case and you hear all the evidence? “And then we reach a certain verdict and at the penalty phase as a prosecutor I am standing and talking to a group of jurors and someone says, you know, now that I am here at the door ... I don’t want it, I can’t, I have a conscientious objection to doing this. “Will all of you promise me if you change your mind before you are sworn in as a juror, if you decide you cannot make that decision, will you notify the court? Does everyone agree to that?” (Italics added.) All the prospective jurors answered in the affirmative. The prosecutor continued: “Has anyone changed their mind? Do they feel that if we get to the penalty phase of this trial and you have to go into that jury room and sit with people and you have to make two choices, you can’t say, well, my card says reserve, I could go for the lesser, I could go for that life without thing. You have to give the weight to the evidence as the penalty phase goes. “Does any [juror] here feel maybe that they cannot, they have a conscientious objection to voting for death? Does anyone?” (Italics added.) The jurors answered in the negative. “But everybody does promise me if you change your mind between now and the time you are actually sworn in, you will notify the court that you have given this some thought? Everybody promises that?” The jurors answered in the affirmative. The trial court then added: “Let me reiterate that last point and I want you to promise me if you change your mind and get to the point where you say I can’t be a juror who can choose, as I said at the beginning, let me know.” Defendant contends that, by these comments, the prosecutor improperly extracted a one-sided promise from the jurors to notify the trial court if, after being selected to serve, any juror decided he or she could not vote for the death penalty, but did not similarly ask the jurors to notify the court if anyone decided he or she could not vote for life imprisonment. Defendant further contends the trial court revealed its lack of impartiality by supporting the prosecutor’s statement. We disagree. “It is, of course, well settled that the examination of prospective jurors should not be used 1 “to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.” ’ ” (People v. Fierro, supra, 1 Cal.4th at p. 209, quoting People v. Williams (1981) 29 Cal.3d 392, 408 [174 Cal.Rptr. 317, 628 P.2d 869].) At the threshold, we find defendant forfeited this claim by failing to object. (People v. Visciotti (1992) 2 Cal.4th 1, 47-48 [5 Cal.Rptr.2d 495, 825 P.2d 388] [failure to object forfeited challenge to prosecutorial questioning during voir dire].) To the extent defendant characterizes his claim as one of prosecutorial misconduct, we reach the same conclusion. (People v. Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673],) Although defendant correctly argues this court retains inherent discretion to entertain the issue despite this forfeiture (see People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [69 Cal.Rptr.2d 917, 948 P.2d 429]), he presents no persuasive reason to do so. Were we to address the merits of the claim, we would find no error. The prosecutor merely asked the jurors to inform the trial court if, after having filled out the juror questionnaires and undergoing voir dire, they developed a conscientious objection to the death penalty or found they could not weigh the evidence of aggravating and mitigating circumstances. He did not attempt to indoctrinate the jury or slant its perception of the appropriate penalty for the case. The prosecutor’s comments were no different than defense counsel’s comments, asking each prospective juror to affirm that he or she could vote for life imprisonment if the juror found the mitigating evidence outweighed the aggravating evidence. We addressed a similar issue in People v. Carpenter (1997) 15 Cal.4th 312 [63 Cal.Rptr.2d 1, 935 P.2d 708]. In that case, “during final stages of jury selection, the court asked the entire remaining jury panel whether anyone’s ‘attitude has changed toward serving on a panel that may be called upon to assess a penalty in this case.’ One of the two jurors raised her hand. The second sent the court a note saying, ‘After long, careful thought, I know that I could not vote for the death penalty.’ Over defense objection, the court and parties requestioned both individually. The court excused them for cause because of their newly expressed views on the death penalty.” (Id. at p. 358.) We found no error, explaining that much time had passed from the initial voir dire and “it was reasonable to ask if anyone’s views had changed.” (Ibid.) We find the situation in this case similar to that in Carpenter and accordingly find the prosecutor did not improperly indoctrinate the jury. To the extent defendant contends the prosecutor’s pretrial address to the jury constituted misconduct, we reject that claim as well. “ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Hill, supra, 17 Cal.4th at p. 819; see People v. Stanley (2006) 39 Cal.4th 913, 951 [47 Cal.Rptr.3d 420, 140 P.3d 736].) Here, there was nothing deceptive, reprehensible or unfair about the prosecutor’s comments to the jury, nor did he attempt to get the jury to commit to vote for the death penalty before hearing all the evidence. We conclude the prosecutor did not commit misconduct when he addressed the jury before trial. Defendant also argues he was deprived of his constitutional rights to a fair trial, an impartial judge and “appropriate punishment” under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the court’s comment “reiterating]” the prosecutor’s comments betrayed the court’s bias in favor of the death penalty. Defendant failed to preserve a claim of judicial bias by making a timely objection (People v. Harris (2005) 37 Cal.4th.310, 346 [33 Cal.Rptr.3d 509, 118 P.3d 545]), nor was this the type of situation in which an objection would have been futile (People v. Hill, supra, 17 Cal.4th at p. 820), as the court could have clarified its remarks in response to a defense objection. In any event, as illustrated by our discussion of the issue in People v. Carpenter, supra, 15 Cal.4th at page 358, the claim is baseless because the trial court’s comments cannot reasonably be construed either as expressing a bias in favor of the death penalty or as expecting the jury to return a death verdict. 3. Excusal of Juror No. 21 for Cause Defendant contends the trial court’s decision to excuse Juror No. 21 for cause violated his constitutional rights to an impartial jury, to due process of law and to a reliable penalty determination under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as sections 7, 15, 16 and 17 of article I of the California Constitution. a. Facts Prior to trial, the prospective jurors filled out detailed questionnaires and the trial court and the parties conducted voir dire, questioning the prospective jurors about their views. When questioned, Juror No. 21 affirmed he would not automatically vote for life or death, would listen to the evidence and would weigh the aggravating and mitigating evidence. He apparently hesitated in answering the questions, however, prompting this exchange between the juror and the trial court: “The Court: You are hesitating. I need to know why you are hesitating[.] “[Juror No. 21]: Well, I have to be kind of honest, the death penalty, that is kind of a gray issue with me I guess. “The Court: What do you mean by that? “[Juror No. 21]: (No audible response.) “The Court: When you say it is a gray issue, what do you mean? “[Juror No. 21]: Well, you know, I know the state—I am not against the state law and everything like that, but I guess with me it would—you know, it would just have to be with my own—I mean, my own convictions, I guess.” The court then asked: “I need to know ... if you are sitting on this jury making the decision in the penalty phase, do you have some conscientious objection to imposing the death penalty that might impair your ability to be fair and impartial at that stage, that might cause you not to want to vote for the death penalty no matter what the evidence showed?” Juror No. 21 answered: “Umm, that is just kind of a hard thing for me to answer, you know.” The court then asked: “Do you believe that you could, under any set of circumstances, along with a group of eleven other people, vote to impose the penalty of death on another human being if the evidence showed that that was the appropriate penalty?” Juror No. 21 answered: “I guess I would have to say no.” The court then declared a recess. After the recess, the trial court spoke to the attorneys before the prospective jurors were recalled to the courtroom, explaining: “The Court: ...[][] This last juror who I was questioning ... I am less concerned with the specifics of what he is saying, although I mean what he is saying is material, but I am concerned about his mental state, his competency. “I mean, we are talking about twenty-, thirty-second lapses in responding to questions and then I am not even sure that he is being responsive. “I don’t know how counsel feel about him, but I am not sure—it seems to me he may be somebody that we should consider for cause at this point before we go any further.” Defendant’s counsel objected to removing Juror No. 21 for cause. The court responded: “Well, he has had a questionnaire which is in some ways incomprehensible. It is filled with discussions of quasi-religious statements, man’s sinful nature and rebellious [ness] towards God’s commands as the cause of crime and so forth and on and on.” The court then brought the prospective jurors back into the courtroom and questioned Juror No. 21 further: “The Court: Juror [No.] 21, anything further—have you thought—given any further thought to the subjects we were discussing prior to the break and do you have anything further that you would like to add regarding your feelings about the death penalty? “[Juror No. 21]: No, I—I guess I will just say, you know, I just have a problem with it. “The Court: Okay.” Later in the hearing, outside the jury’s presence, the prosecutor challenged Juror No. 21 for cause, explaining: “I think [Juror No.] 21 . . . made a comment about his uncertainty on the death penalty or his failure—his unwillingness to impose the death penalty, but he said [he] did . . . have a problem with it and I interpret that to be that would prevent him or substantially impair him from returning a verdict of death in this case. “The court had noted something about his delayed answers. I don’t know if the record will reflect that, that every time every death question he was asked he hesitated, not just slow of speech, but has hesitation, because I think he was reluctant to answer, and as I get the sum and substance of him, he would not follow, if he gets in that jury room he would not be willing to impose the death penalty.” Defense counsel opposed the challenge, explaining: “[Juror No. 21] is a Christian, but he does—he doesn’t have any feelings about the death penalty. He says it is not much—when he is asked about the death penalty: []Q T don’t have a good answer on this issue. What is important, that the condemned person receives Jesus Christ.’ [f] He may be more of a religious fanatic but he certainly doesn’t say he is against the death penalty. I think his problem is he is slow. He is a lower I.Q. probably of the majority of the population that we have here in our jurors. I don’t think that disqualifies him. I think he answered each and every one of the questions. There is a lot of misspelling in here which reflects probably his low education level, but I don’t think that is enough to disqualify him.” The trial court granted the prosecutor’s challenge for cause, explaining: “My view is that [Juror No. 21’s] questionnaire was . . . evasive. I think he is slow to answer because he doesn’t want to answer. I think that perhaps there may be some embarrassment, I don’t know what the motive is, I can’t peer into his mind, but it appears to me that from his answers that he has views that would substantially impair his ability to judge the question of the penalty and to apply the legal standard that he must apply, [f] And therefore I am going to grant the motion to excuse him for cause.” b. Discussion In Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], the United States Supreme Court set forth the applicable law for excusing jurors in capital cases due to their views on capital punishment. “That case ‘requires a trial court to determine “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” [Citation.] “Under Witt, therefore, our duty is to ‘examine the context surrounding [the juror’s] exclusion to determine whether the trial court’s decision that [the juror’s] beliefs would “substantially impair the performance of [the juror’s] duties . . .” was fairly supported by the record.’ ” [Citations.] [f] In many cases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under such circumstances, we defer to the trial court’s evaluation of a prospective juror’s state of mind, and such evaluation is binding on appellate courts.’ ” (People v. Roldan, supra, 35 Cal.4th at p. 696; see Uttecht v. Brown (2007) 551 U.S. _, _ [167 L.Ed.2d 1014, 127 S.Ct. 2218] [emphasizing the deference owed to the trial court’s ruling in this context].) “ ‘There is no requirement that a prospective juror’s bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.’ [Citation.] ‘Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court.’ ” (People v. Gray, supra, 37 Cal.4th at pp. 192-193.) No abuse of discretion appears. Although Juror No. 21 initially answered the general questions about capital punishment appropriately, that changed when he was questioned more specifically, and he stated he could not vote to sentence someone to death. He affirmed that opinion after a recess had given him some time to think about his views about capital punishment. More significantly, Juror No. 21 hesitated 20 to 30 seconds before answering each question about the death penalty, which the trial court reasonably concluded was due to the juror’s desire not to answer the question at all. This assessment of the juror’s state of mind is binding on this court. (People v. Roldan, supra, 35 Cal.4th at p. 696.) In short, we find the trial court was well within its broad discretion in granting the challenge to Juror No. 21 for cause. 4. Cumulative Effect of Alleged Juror Selection Errors We further reject defendant’s claim that the cumulative effect of errors committed during jury selection prejudiced him, on the ground that the trial court did not err in admonishing the jurors or granting the for-cause challenge of Juror No. 21. C. Trial Issues 1. Exclusion ofVieyra’s Prior Sex Crimes On learning that codefendant Vieyra intended to testify, defendant moved to admit evidence ofVieyra’s prior contacts with law enforcement, characterizing them as: (1) a 1973 juvenile adjudication for forcible rape; (2) a 1977 arrest for unlawful sexual intercourse with a minor; (3) 1986 arrests for unlawful intercourse and sexual battery, apparently for the same incident, which charges were dismissed; and (4) a 1991 conviction for petty theft with a prior for an incident that may have involved indecent exposure. Defense Counsel Bestard asserted that these prior incidents were admissible to prove identity, that is, that Vieyra and not defendant was more likely to have been the one to sodomize the victim. The court took the matter under advisement and then issued a tentative ruling, explaining that defendant’s characterization of Vieyra’s prior contacts with the judicial system was inaccurate. The court stated it had “reviewed the Probation Department’s pre-plea report regarding defendant Vieyra” and found only one prior conviction for a sex crime: a 1973 juvenile adjudication for attempted unlawful intercourse with a minor. There was no indication in the record this offense involved force. Further, the court found “no evidence of any other sex crime charges, let alone convictions, against defendant Vieyra.” The court tentatively ruled this 1973 incident was too remote to be admissible to prove identity pursuant to People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757] and People v. Balcom (1994) 7 Cal.4th 414 [27 Cal.Rptr.2d 666, 867 P.2d 777] and noted that, although it need not reach the question whether the evidence should be excluded under Evidence Code section 352, the prior juvenile adjudication bore little resemblance to the crime in this case and “is of very little if any probative value and would create a risk of substantial prejudice to defendant Vieyra.” The parties addressed the trial court’s tentative ruling at a hearing held on September 30, 1997. The court noted it “went back to the probation pre-plea report and went through their history with ... a fine tooth comb and found only one sex crime, 1973.” Defense Counsel Bestard asserted that he had “indicated to the court that most of these were arrests and police reports on the subject”; he did not, at that time, seek to introduce any evidence suggesting any other law enforcement contacts Vieyra may have had that involved sexual crimes. Bestard then argued the evidence was nevertheless admissible to rebut Vieyra’s evidence of good character, as impeachment and to prove identity. The trial court explained: “We have got a single conviction which is not enough under [Evidence Code section 1101, subdivision (b)] to establish any of the grounds for admissibility that would be permitted by the California Supreme Court, and as I indicated, I don’t think it even gets to [Evidence Code section] 352 [because] I don’t think ... it is enough to show intent, common scheme or plan, certainly not identity, and under Evidence Code section 1108, you still have to do [an Evidence Code section] 352 analysis even though you can now use it to prove propensity, and that just isn’t there, so we are really down to the question of what can we use to impeach.” The court then ruled that Vieyra could be impeached with his 1985 conviction for violating Penal Code section 273.5 (corporal injury to a spouse), as well as a 1991 prior felony conviction for theft, finding both were crimes involving moral turpitude. The trial court later affirmed its tentative ruling. Defendant contends the trial court erred under state law by excluding Vieyra’s prior contacts with law enforcement and also characterizes the error as one of federal constitutional magnitude, contending he was denied his constitutional right to present a defense. At the threshold, he argues the trial court was wrong in finding Vieyra’s only contact with law enforcement was the 1973 juvenile adjudication, claiming “defense attorney Bestard was correct and the court was wrong regarding the extent of multiple sex crime contacts.” In support, defendant cites several certified documents with which the appellate record has been augmented. The augmented documents reveal that Vieyra had multiple police contacts through the years, including several for drug abuse, spousal abuse, obstruction of justice, vehicle tampering and misdemeanor burglary. Other than his 1973 juvenile adjudication for attempted unlawful sexual intercourse with a minor, however, none of the other offenses of a sexual nature for which he was arrested led to a conviction or other disposition. More to the point, nothing indicates these records were available to the trial court or were provided by defense counsel. We thus cannot conclude the trial court erred in finding Vieyra had only the one 1973 adjudication for a crime of a sexual nature. Although defendant offered codefendant Vieyra’s adjudication of a prior sex crime as evidence of identity, i.e., to show that it was Vieyra who sodomized and killed the victim, the trial court did not abuse its discretion in excluding the evidence under Evidence Code section 1101. The law is clear and well settled. “Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant’s] disposition to commit such an act.’ ‘ “Evidence of the defendant’s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]” [Citation.] In cases in which [a party] seeks to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility “depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.” ’ [Citation.] ‘A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. (People v. Ewoldt[, supra,] 7 Cal.4th [at pp.] 402-403.) On appeal, we review a trial court’s ruling under Evidence Code section 1101 for abuse of discretion.’ ” (People v. Gray, supra, 37 Cal.4th at p. 202.) Given that Vieyra’s sole sex-related conviction was a juvenile adjudication for attempted unlawful intercourse with a minor occurring more than 20 years before the trial, the trial court was rightly concerned about the remoteness of the offense. (People v. Branch (2001) 91 Cal.App.4th 274, 282 [109 Cal.Rptr.2d 870] [court should evaluate the “remoteness in time of the uncharged offenses”].) Although defendant argues the remoteness of the 1973 adjudication was mitigated by the fact Vieyra was incarcerated for much of his adult life, the records actually show he was in and out of custody often enough to accumulate an impressive number of arrests and other police contacts through the intervening years. Thus, despite Vieyra’s time in custody, the trial court was legitimately concerned with the remoteness of the adjudication. Apart from the age of the prior adjudication, another more compelling reason exists to support the trial court’s decision: Vieyra’s prior juvenile offense appears completely different from those of the crime here, namely, the sodomizing and murder of an older woman. “ ‘For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] “The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” ’ (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) ‘The highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense.’ (People v. Balcom[, supra,] 7 Cal.4th [at p.] 425.)” (People v. Gray, supra, 37 Cal.4th at p. 203, italics added.) Because the prior crime, though sexual in nature, was so different from the present crime, the inference that the person who attempted to have sex with a minor more than 20 years earlier was likely to be the person who sodomized and killed the 68-year-old victim here is weak. We would reach the same conclusion even if we considered Vieyra’s past arrests for attempting to have sex with minors and indecent exposure. Accordingly, the trial court did not abuse its discretion under Evidence Code section 1101 by excluding evidence of Vieyra’s past sex-related criminal activity, which defendant offered to prove identity. We reach a similar conclusion with regard to Evidence Code section 1108. Subdivision (a) of that section provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Regarding the purpose of this section, we explained in People v. Falsetta (1999) 21 Cal.4th 903, 911 [89 Cal.Rptr.2d 847, 986 P.2d 182], that “the Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases.” Moreover, “[available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” 0Ibid.) Addressing Evidence Code section 1108, Falsetta explained; “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917, italics added.) As the trial court found when ruling on the Evidence Code section 1101 question, the lack of similarity between Vieyra’s 1973 adjudication and the present crimes justified exclusion of the evidence. This conclusion is bolstered by the remoteness of the 1973 adjudication. We cannot say the trial court abused its discretion in excluding the 1973 juvenile adjudication as proof of Vieyra’s propensity, especially when we consider the court permitted his impeachment with two prior crimes of moral turpitude. The jury was thus not unaware of his checkered past. We also reject defendant’s subsidiary claim that the trial court erred in excluding the evidence because it comprised evidence of third party culpability. Although defendant is correct that he has a right to present evidence that some other person committed the crime for which he is charged, he overlooks that such evidence must be otherwise admissible. He cites no authority, and we have found none, holding that the right to present evidence of third party culpability allows admission of otherwise inadmissible evidence. As we have concluded the trial court did not abuse its discretion in excluding the evidence under Evidence Code sections 1101 and 1108, we reject the claim defendant was entitled to present inadmissible evidence suggesting Vieyra sodomized and killed the victim. Having found no state law error, we also reject defendant’s federal constitutional claim. Citing Washington v. Texas (1967) 388 U.S. 14 [18 L.Ed.2d 1019, 87 S.Ct. 1920], Webb v. Texas (1972) 409 U.S. 95 [34 L.Ed.2d 330, 93 S.Ct. 351], Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297, 93 S.Ct. 1038], and other cases from the high court, defendant contends the exclusion of Vieyra’s past sex-related juvenile adjudication and arrests for similar crimes violated his federal constitutional right to present a defense. Defendant’s argument fails to account for the general rule that the application of the ordinary rules of evidence under state law does not violate a criminal defendant’s federal constitutional right to present a defense, because trial courts retain the intrinsic power under state law to exercise discretion to control the admission of evidence at trial. (People v. Lawley (2002) 27 Cal.4th 102, 155 [115 Cal.Rptr.2d 614, 38 P.3d 461].) As one appellate court observed: “Preventing and dealing with crime is more the business of the states than of the federal government. Accordingly, the state has power to regulate the procedures under which its laws are carried out, and a rule of evidence in this regard ‘is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as