Full opinion text
Opinion MORENO, J. Defendant Charles Keith Richardson was convicted by a jury of the murder of April Holley (Pen. Code, § 187, subd. (a)), as to which the jury found true felony-murder special circumstances for burglary, rape, sodomy and lewd and lascivious acts on a child under the age of 14. (Pen. Code, § 190.2, subd. (a)(17).) The jury also convicted defendant of residential burglary (Pen. Code, § 459), forcible rape (Pen. Code, § 261, subd. (a)), lewd and lascivious acts on a child under 14 (Pen. Code, § 288, subd. (b)), and sodomy (Pen. Code, § 286, subd. (c)), all of these counts also involving the murder victim, April Holley. In a bifurcated proceeding, the trial court found true additional allegations that defendant had suffered prior convictions for a serious felony and a sex offense. (Pen. Code, §§ 667, 667.6, subd. (b).) The jury returned a death verdict for the murder. The trial court declined to modify the verdict (Pen. Code, § 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment but, for the reasons given below, remand the case on the issue of restitution. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306 [25 Cal.Rptr.3d 337, 106 P.3d 990].) I. FACTS A. Guilt Phase 1. Overview of Prosecution Guilt Phase Evidence The prosecution’s theory in this case was that defendant and another man, Steven Brown, raped and sodomized 11-year-old April Holley and then drowned her in the bathtub of the trailer where she lived with her mother and older sister, both of whom were absent the night of the murder. The evidence with which the prosecution sought to convict defendant consisted of the following: (1) defendant’s statement to a witness evincing awareness that the victim, whom he knew, was alone on the night she was murdered; (2) defendant’s statements in the immediate aftermath of the murder in which he either admitted killing the victim or revealed details about the murder that had not been released to the public; (3) defendant’s flight from the scene the day after the murder; (4) defendant’s shifting stories in statements he made to the police culminating in an admission—quickly retracted—that he had committed the murder; (5) defendant’s statement to a fellow inmate that he had murdered Holley; (6) evidence that pubic hairs found at the crime scene were consistent with defendant’s hair; and (7) Steven Brown’s subsequent attempt to commit a similar crime against another victim. The defense disputed each circumstance and statement that connected defendant to the murder and argued that Brown alone committed the crime. 2. The Events of December 2-3, 1988 On Friday, December 2, 1988, Naomi Holley took her 11-year-old daughter, April, to the home of a family friend, Melanie Lewis, to spend the weekend with Lewis, Lewis’s boyfriend, Richard Schnabel, and their children. Naomi, April, and Naomi’s older daughter, Tammy, lived on West Addie Avenue in a neighborhood just south of the City of Tulare called Matheny Tract. Tammy Holley was in jail that weekend. After dropping April off, Naomi spent the night at the home of friends. On Saturday afternoon, she decided to go to a party in Porterville where she spent Saturday night; she did not tell April of her plans. At Lewis’s residence, meanwhile, a $20 bill belonging to Tawny Schnabel, Richard’s daughter, went missing and was found in April’s coat pocket. On Saturday, December 3, after the theft was discovered, Lewis decided to take April back to her mother and she and April went looking for Naomi. They went to the Holley residence but no one was home. They also looked for Naomi at the house of the friend with whom she had stayed the previous night, but did not find her. Eventually, Lewis took April back to Lewis’s residence. She stopped on the way to pick up her sister, who was supposed to babysit while Lewis, Richard Schnabel, and Tawny Schnabel went Christmas shopping that night. After they returned, April hiked to the El Rancho Motel to visit her friend Barbara O’Heam. April arrived about 4:00 p.m. and stayed for an hour before returning to Lewis’s residence. From Lewis’s residence, April called her friend, 11-year-old Lisa Matthews, and asked her to come to the Holley residence to spend the night. April pretended that she was talking to her mother. Although Lisa’s grandmother refused to allow her to spend the night with April, Lisa agreed to come. Lisa started out for the Holley residence but turned back because it was too cold and foggy. April, meanwhile, got a ride home from Richard Schnabel’s two teenage daughters. April arrived at her house between 7:30 and 8:00 p.m. She went to the front door, but could not get in so she went around to the back of the house. Sometime after arriving at her home, April went to the house of a neighbor, Lorraine Hughes, and knocked on her door. Hughes was home but did not answer the door. She last saw April walking back in the direction of her own house. Defendant also lived in Matheny Tract with the Marshall family in the Marshalls’ trailer, not far from where April lived. Living in the Marshalls’ residence was Bob Marshall, Sr., his sister Linda Land, his sons, Michael and Bobby Joe Marshall, Jr., and Michael Marshall’s girlfriend, Carol Brouchard. Defendant was friendly with April’s older sister, Tammy, and had visited her at the Holley residence. Naomi Holley testified that defendant had only been at her house on two occasions and had never spent the night there. Her friends, Roger Rummerfield and Renee Bailey, who were almost daily visitors to her house, testified that defendant had only been in the house two or three times in November and December 1988. According to Naomi Holley, the last time defendant had been at the Holley residence was on November 11, 1988. On that date, April and another child, Kenny Maxwell, were drawing pictures, and April drew two pictures for defendant. Naomi Holley saw these pictures in her house on Saturday, December 3, before she left for Porterville. On that Saturday, defendant went back and forth between the Marshalls’ house and the nearby residence of Barney Hernandez. Defendant was friends with Barney Hernandez’s nephew, Robert Hernandez, who lived with his uncle. On one of these visits, around 7:30 p.m., defendant told Barney Hernandez that he had seen April Holley out walking by herself. Defendant left after a few minutes, but then returned about an hour later. He and Robert Hernandez took some tires upstairs and then defendant ate. While he was eating, he told Barney Hernandez that he had gone to the Holley residence and that April was there alone. Defendant also asked Robert Hernandez to inject him with cocaine. As defendant was leaving, Barney Hernandez told him to tell the Marshalls that April was by herself. Defendant said “he was gonna check her out, and he was gonna take care of it.” This conversation occurred about 9:10 p.m. Between 9:00 and 9:30 p.m., several individuals who lived near the Holley residence heard screams coming from the direction of that residence. One of them, an 11-year-old boy named Jeremy Johnson who knew April, testified that it was April who screamed. Two other witnesses testified the screams were those of a young girl. About 11:00 p.m., defendant appeared at the bus that served as Jimmy Rousanvall’s residence. The bus was parked behind Rousanvall’s father’s house. Rousanvall and his friend, 17-year-old Tammy Petrea, were watching television when defendant arrived. Petrea was an admitted drug addict and prostitute. Defendant asked whether they wanted to use cocaine and Petrea said yes. Rousanvall left and went into his father’s house, leaving defendant alone with Petrea. After defendant and Petrea shared defendant’s cocaine, defendant made a pass at her by putting his hand on her leg. Petrea, however, was frightened by defendant, who looked “scary,” and she went outside. Defendant followed her and asked her whether she had heard about April being killed. Petrea said she had not. Defendant said that “they did it.” He told her that April “had something on him, and he didn’t want her to get on the witness stand and testify against them . . . [bjecause then he’d go to jail or something like that.” He told her that he “f—ked her, and he drowned her . . . [i]n the bathtub.” He told her that he plugged the bathtub with a rag and then drowned her. Defendant told Petrea that “if [she] told anybody, that he’d take care of [her], or someone else will.” Petrea was frightened by the threat. Then, as he was leaving, defendant also told her that “[playback was a mother!—ker.” Initially, Petrea did not tell police about defendant’s statement because she was afraid. Johnny Donald, who was walking in the vicinity of the Holley residence about 11:30 p.m., testified that he saw defendant and another man, who fit the description of Steven Brown, out walking, though not together, in that area. Bobby Joe Marshall, Jr., testified that, after an evening of driving around and using drugs with his friend Joe Mills, and Steven Brown, he and Mills returned to the Marshall residence about 2:00 a.m. According to Marshall, defendant called him into the bedroom where he was sleeping and told Marshall that he had raped and killed April Holley. Defendant then warned him not to say anything to anyone. 3. The Events of December 4 a. The Discovery of April Holley’s Body On the morning of Sunday, December 4, Orville Bailey and Roger Rummerfield—who lived with Bailey’s daughter at Bailey’s house—went to the site of a burned down house that Bailey owned to tear it down. About noon, Rummerfield, who was a friend of Naomi Holley’s, went to the Holley residence to use the bathroom. Finding the front door padlocked, he went around to the back door and entered the residence. After calling out and getting no response, he went toward the bathroom. The bathroom door was cracked open. Rummerfield entered and found April lying in the bathtub. April’s head was beneath the spout at the drain end of the tub and she was in a fetal position, with her right hand between her legs and her left hand behind her back. She wore only a long white sweatshirt. Her face was partly covered with water. She had no pulse. Rummerfield ran out of the house toward Bailey and yelled at him to call an ambulance because “something’s happened to April.” Rummerfield also asked the Holleys’ next door neighbors to call a paramedic and then went back to the Holley residence and kicked in the front door to give the paramedics access. Bailey, meanwhile, went to a number of houses to look for a phone. He spoke to Mrs. Gore, who directed him to a blue house, but when he got there and asked to use the phone, a young man told him it had been taken care of. Bailey then went into the Holley residence. He saw April and was able to confirm Rummerfield’s description of her. Paramedic Miguel Hernandez and his partner, Kathy Wojtasiewicz, were the first emergency personnel on the scene, arriving about 12:45 p.m. in response to a call about a possible drowning. At the Holley residence, Rummerfield told Hernandez, “she’s dead,” and led him into the bathroom. Hernandez saw that April was “in somewhat of a fetal position” with her face facing the back wall and her chest toward the bottom of the bathtub. The right side of her face was half covered in water. Hernandez estimated there were four to six inches of water in the tub. Hernandez lifted April’s body from the bathtub and laid her on the kitchen floor. Both he and his partner observed blood around the area of April’s buttocks and discussed whether she had been sexually assaulted, but did not discuss it with any civilians. Members of the volunteer fire department and the Tulare County Sheriff’s Department also arrived on the scene. Sergeant Harold Jones of the sheriff’s department arrived about 2:00 p.m. Based on his observations of the blood around April’s buttocks, he discussed with other officers whether she may have been sodomized, but none of the officers discussed this possibility with any civilians. Indeed, it was the policy of the sheriff’s department not to release any information to civilians about an investigation. Dr. Gary Walter, a pathologist, arrived at the Holley residence in the midaftemoon. Because of April’s submersion in the bathtub, Dr. Walter was unable to determine the time of death using body core temperature. Similarly, because the use of rigor mortis to determine time of death is temperature dependent, he was unable to use rigor mortis to establish time of death with any precision. In response to a hypothetical question from the prosecutor, Dr. Walter testified that the presence of rigor mortis was consistent with the murder’s having occurred around 9:00 p.m. the previous evening. He also testified, however, that April could have been murdered at any time from 24 to three hours before he examined her. Dr. Walter was unable to determine whether April had been sexually assaulted and he conveyed that opinion to the police at the scene. An autopsy performed on April’s body the Monday after her murder revealed injuries to her anus and vagina consistent with rape and sodomy; these acts were perpetrated on her while she was alive. Dr. McCann, a pediatrician with a subspecialty in childhood sexual abuse, who attended the autopsy, opined that it was unlikely the sexual assault was committed by a single individual. Dr. Leonard Miller, the pathologist who performed the autopsy, opined, based on the injuries he observed, that April was forcibly drowned by “[sjomeone . . . holding this individual down, presumably underneath water,” in the bathtub. Based on the presence of petechiae—small blood vessels that have ruptured—on April’s face and around her eyes and eyelids, Dr. McCann opined that she had struggled violently as she was being drowned. McCann, observed, however that there were no signs of injuries to her legs or feet that might have been expected if she were struggling. Dr. Miller also observed that the absence of roughening of the skin of her lower legs indicated that they may not have been immersed in water. b. Defendant’s Movements on December 4 On Sunday morning, December 4, between 9:30 and 10:00 a.m., Kim Fleeman arrived at the Marshall residence to give her cousin, Nancy Lee Marshall, a ride into town. Once there, she went to use the bathroom, walking past the room that defendant occupied. She saw defendant and Bobby Joe Marshall, Jr., in the bedroom and heard a voice she recognized as Steven Brown, who was her sister’s boyfriend. Bobby Joe Marshall, Jr., said, “we’ve gotta get our stories straight.” Defendant said, “Where are we gonna say we were the rest of the night?” She also heard Brown say, “The little bitch deserved everything she got.” While she was in the bathroom, the bedroom door was shut and she was unable to hear what else was said. Barney Hernandez saw defendant around 8:00 that morning and noticed he had blood on his shirt and that he had shaved his goatee. Defendant left after unsuccessfully attempting to call someone in Oakland. Hernandez saw defendant again around 11:00 a.m. when he gave defendant a ride. Defendant told him that he was leaving town and going to Oakland. Sometime after noon, defendant appeared at the bus where Jimmy Rousanvall lived. There were a number of people present, including Karen Gore and Martha Delgado. Karen Gore testified that defendant said April had been found in the bathtub and had drowned. Martha Delgado testified that defendant said Roger Rummerfield had told him that April had been raped and killed. Rummerfield, however, did not see or speak to defendant that day. Delgado asked him why he was not at the Holley residence and he said “he didn’t think the cops would want him down there.” When she asked, “why not,” he said, “I just don’t think they’d want me down there, so I just left.” Rafael del Real testified that he saw defendant sometime between 1:00 and 1:30 p.m. in the vicinity of the Holley residence. According to del Real, defendant looked back and forth nervously at the Holley residence. His behavior was odd enough that del Real said to the friend he was with, “Hey, look, what if it was that guy. Look, he looks scared.” Sometime between 3:00 and 4:00 p.m., defendant’s friend Brian Pounds came to the Marshall residence looking for defendant, but defendant was not there. Pounds returned that evening, when defendant was present, and defendant packed some clothes and left with Pounds to go to San Leandro. 4. The Ensuing Investigation a. April’s Drawings and Defendant’s Statements About the Murder On December 7, police recovered the drawings April had made for defendant—and which Naomi Holley said she saw at her residence on the day April was murdered—from defendant’s bedroom at the Marshall residence. On Friday, December 9, while defendant was in San Leandro or Hayward, he talked to an acquaintance named Pamela Anderson. Defendant told her that a little girl he knew had been raped and killed. He told her that “they broke her arm,” and “that her vagina was so mutilated, you couldn’t tell she had one.” Defendant told her that the girl “was put in the bathtub, or strangled and drowned in the bathtub.” He also told her the girl was supposed to have spent the night at a friend’s house but “something had [gone] wrong and she came home.” He did not tell her that he had been speaking to people in Tulare about the crime. He did say, however, that “the police would be looking for him . . . because he was there that day, and because of his past history, his background . . . but he said that he didn’t do it.” b. Defendant’s Statements to Police On December 11, a week after April’s murder, two members of the Tulare County Sheriff’s Department, Lieutenant Gary Harris and Sergeant Harold Jones, interviewed defendant in the parking lot of a Denny’s restaurant in San Leandro. Defendant was advised of, and waived, his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) (Miranda) and appeared alert, responsive, and eager to cooperate. He was not under arrest. The interview was conducted in the backseat of an unmarked police car. The interview was taped and the tape was played at defendant’s trial. Initially, defendant told police that on the night of Saturday, December 3, he went into the City of Tulare to pay off debts he owed to someone named Steve and then he went riding around in a brown Monte Carlo that he borrowed from someone named Steve Lynch. He did not see April Holley that night but he acknowledged that he knew her because of his friendship with her sister, Tammy. The last time he had been at the Holley residence was a week before the murder, when April had drawn him pictures which he left at the Marshalls’ residence. Later in the interview he said that, after he left Tulare, he had called the Marshalls specifically to make sure that the drawings were still in his room. Defendant said he heard about April’s death from someone named Tanya, whose last name and age he could not remember. She did not provide any details, nor were any details provided by a second person named Harvey who confirmed the news. A little later in the interview he said he had heard from Bob Marshall that April was found dead in the bathtub and from a “couple of people” that she was strangled and drowned. He told the officers he had not gone to the Holley residence on Saturday night. Defendant told the police that he did not expect Brian Pounds and Donald Pounds when they turned up at the Marshalls’ residence on Sunday evening and asked him to come with them. He said he was “like part of their family [and] me and Brian are like blood brothers.” He later said he wanted to return to Tulare County because he had left behind some of his clothes. Under further questioning, defendant changed his story regarding his whereabouts on Saturday night. He admitted lying about riding around in a brown Monte Carlo, and instead told the police he had been out selling drugs with a man named Robert Cinsenio. Defendant said Cinsenio picked him up and they drove to different towns and cities in Kings County. Defendant said he had no phone number for Cinsenio for the officers to verify his alibi. Defendant volunteered his opinion that whoever killed April was “a sick mother f—ker,” and, having just been paroled out of San Quentin, he hated “a child molester.” He added, “I love kids. Always have.” Following this first interview, defendant agreed to return to Tulare to answer more questions. Once he arrived there, on Monday, December 12, he was arrested on the misdemeanor arrest warrant for violating the sex offender registration statute. Defendant became angry until it was explained to him that he was not being arrested for April’s murder. That afternoon he agreed to a second interview because he wanted to explain some of his earlier statements. In his second interview, defendant retracted his statement that he had not seen April the day she was killed. He told police he had seen her with Bobby Joe Marshall, Jr., that afternoon and she waved at him. After the police falsely told defendant that someone had seen him at the Holley residence on Saturday night, defendant admitted he had gone up to the door that night and knocked but left when no one answered. After police falsely told him that he had been seen exiting the back door of the Holley residence, he said he was “loaded on cocaine when I went over there,” and was looking for Tammy Holley but left after he heard a noise like a window being broken and heavy breathing. When police confronted him with Barney Hernandez’s statement that defendant had told him he knew April was alone, defendant, after first denying having made the statement, admitted he had talked to April when he had gone looking for her sister. “April, she told me Tammy wasn’t there, Tammy was in jail, uh, didn’t know where her mom was.” Defendant said he had told her she should not be alone and walked out the back door. Defendant also admitted having told Hernandez that he knew April was alone. He then said, contradicting his earlier accounts of how he had spent Saturday night, that, after leaving the Hernandez residence he went back to the Marshalls’ residence, watched television and went to sleep. The police then falsely told defendant that his semen had been found in April. Defendant denied it was his and after an angry exchange said, “I was there .... But I didn’t kill that little girl.” Defendant said that April was already dead and in the bathtub when he saw her. Defendant said he saw a man running out of the Holley residence, and then he went inside and saw April in the bathtub. A moment later he retracted his statement that he had been inside the residence. The police then asked defendant why he had told one of them the day before that he had never thought of sodomizing little girls. Defendant said, “I don’t know, just something] of mine that came out ... I don’t know, why, was April sodomized?” The police then asked him how he knew April had been strangled because no one had that information. Defendant then said, “how did I know, well, I did it? Alright, I did it. Come on, I’m saying that I did it . . . You know what, I didn’t do it. I’m not saying I did it. I’m not saying nothing.” Defendant repeatedly denied he had killed April. He also retracted his statement that he had seen her in the bathtub and denied that he had taken the drawings she had made for him from the Holley residence the night she was killed. Defendant then began to request a lawyer, the interview was terminated, and he was arrested for April’s murder. c. Physical Evidence DNA in semen found on a rectal slide taken from April was found to be consistent with Steven Brown’s DNA. Various hair samples were collected from the crime scene. Two separate experts in hair analysis, Steven O’Clair and Charles Morton, analyzed the samples for the prosecution. O’Clair testified that three pubic hairs found in the bathtub were consistent with samples of defendant’s hairs. Morton agreed that two of the three pubic hairs were consistent with defendant’s hair, as was a third pubic hair found on April’s sweatshirt. d. Postarrest Evidence On Christmas Day, 1988, David Jurkovich, an inmate at Tulare County jail approached defendant and told him that “if you did that to that little girl,” then “you have no God because no God will have you.” Defendant replied, “she wasn’t the first and she won’t be the last, motherf—ker.” Evidence was also presented that in May, 1990, Steven Brown entered the home of 74-year-old Margaret A. while she was asleep and sexually assaulted and attempted to drown her. She survived. 5. Defendant’s Guilt Phase Evidence The defense consisted of impeaching the statements of prosecution witnesses as to the details of their testimony and their credibility. Additionally, defendant presented evidence to support the defense theory that Steven Brown acted alone in sexually assaulting and killing April Holley, although possibly in the presence of Bobby Joe Marshall, Jr. For example, the defense presented several witnesses who testified that Marshall and Brown were together the night that April was killed. The defense also sought to establish that April was not killed around 9:30 p.m. on Saturday night, as the prosecution claimed, but in the early morning hours of Sunday, December 4. The defense also presented evidence that there were numerous people inside and outside of the Holley residence on Sunday morning who might have speculated or gossiped about the circumstances of April’s death, to counter prosecution evidence that no details were released to the public. The defense also produced testimony to support its claim that Donald and Brian Pounds had planned to come to Tulare two or three days before December 4, to counter prosecution evidence that they had come that day specifically to take defendant with them. The defense also presented its own hair analysis expert, Stephan Schliebe, who disputed testimony from the prosecution experts that pubic hairs removed from the bathtub and April’s sweater were consistent with defendant’s hair. A second defense expert, Peter Barnett, also testified to this effect. B. Penalty Phase Evidence 1. Prosecution Evidence Gina I. testified that in 1982, when she was 16 years old, defendant, along with Donald Pounds and Brian Pounds, raped her at a party at Donald Pounds’s residence. She testified that, after Donald Pounds raped her, defendant came into the room and said “those guys told me that you said I was a faggot, and I’m gonna prove to you I’m not.” He struck her and as he raped her he said, “f—k you, c—t, I hate all you women,” and “you’re a bitch, you all get what you deserve, and I’m not a faggot.” Defendant pled guilty to forcible rape in 1982. Michael M. testified that, while he and defendant were in prison, defendant, after learning M. had been convicted of rape, forced M. to orally copulate him and then subsequently sexually assaulted him 10 to 20 times. Defendant, whom M. described as the “head white representative of the barracks,” also made M. perform sexual acts on other inmates. Julia Parnell, who dated defendant in 1984, and her son Chris O., testified that defendant once squeezed the genitals of Parnell’s other son, Richard, when he was an infant because he was crying. Defendant squeezed him with such force that he required hospitalization. Michael Montejano, the police officer who investigated defendant’s abuse of the infant, testified that defendant denied having injured the infant because he “loved Richard as if he was his own, and he would not abuse him, that he was not a child abuser.” Defendant also told Montejano that “the person who [was] responsible would be sorry if he ever found out who did this.” 2. Defendant’s Penalty Phase Evidence Defendant’s penalty phase evidence focused on his family history. Various family members, including two brothers, a sister, his mother, and maternal grandmother testified that defendant was raised in an atmosphere of neglect and violence. Defendant did not live with both his parents until he was eight years old. Until then he was sometimes raised by his maternal grandparents and sometimes by his mother alone in Arkansas. At one point, defendant and his siblings were removed from his mother’s custody because of her failure to provide proper care for them. In 1971, when defendant was eight, his mother moved with her children to California to rejoin defendant’s father. Defendant’s father was an alcoholic and he and defendant’s mother sometimes got into physical fights. Defendant tried to get between his parents when they fought, but he was pushed back or hit. When defendant’s father was sober he was hard on defendant. Defendant was described as a “bullheaded and stubborn” child who needed considerable attention and discipline, which he did not receive from his mother. Almost the only people able to control defendant were his maternal grandparents. However, even they were unable to handle defendant after he started using drugs. Dr. Yosef Gershuri, a psychologist, interviewed defendant over a three- or four-hour period to assess his mental status. He testified defendant had an IQ of 73 and suffered from attention deficit disorder as well as having borderline intellectual function and associated personality disorders. Dr. Gershuri explained that attention deficit disorder is “a disorder of attention, disordered impulsivity, and a disorder of hyperactivity, being very . . . overly active.” He also explained that individuals suffering from this disorder “eventually develop very aggressive behaviors towards others.” Dr. Gershuri testified that a child with this disorder would have difficulties in school and, as a result, would experience derogatory assessments of his performance that would contribute to low self-esteem. In the family, such a child might be punished, but punishment would do little except to make the child more upset. Gary Yates, a licensed marriage, family, and child counselor, reviewed interviews of defendant’s family members and information about defendant’s childhood, including probation reports, school records, and medical records. Based on that review, Yates testified that there were “severe family dysfunctions” in defendant’s family, including his father’s alcoholism, a pattern of spousal abuse, and physical neglect of defendant and his siblings. Yates testified that a father’s alcoholism was the “highest predictor” for alcoholism in male children as well as for other “poor outcomes.” Yates testified that defendant’s exposure to his father’s physical assaults on his mother, in addition to creating “school problems, truancy, [and] low self-esteem” might also correlate to the use of violence by defendant against women. Yates testified further that defendant evidenced attention deficit disorder that was undiagnosed and untreated. Children suffering with this disorder often become substance abusers in an attempt to self-medicate. Yates also testified that defendant showed signs of self-destructive behavior. Yates concluded that defendant’s adult behavior was predictable given his dysfunctional family and the unavailability of any help for him with his various problems when he was a child. II. ANALYSIS A. Jury Selection and Pretrial Issues 1. Prosecutor’s Use of Peremptory Challenges to Excuse Death Penalty Skeptics Defendant contends that the prosecutor improperly used his peremptory challenges to excuse any prospective juror who expressed reservations about the death penalty and, in a related argument, that the prosecutor improperly excused prospective jurors based on their religious affiliation. As a preliminary matter, defendant asserts that his “jurors were so death-primed that they could not act as the conscience of the community.” Defendant does not, however, contend that the trial court erred by denying a defense challenge for cause against any of these jurors based on their views about the death penalty. (See Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844] [prospective juror may be excused for cause if his or her views on the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ”]; People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250] [adopting Witt standard].) Moreover, defense counsel accepted the panel about which defendant now complains even though the defense had not exhausted its peremptory challenges. (People v. Cox (1991) 53 Cal.3d 618, 648, fn. 4 [280 Cal.Rptr. 692, 809 P.2d 351] [“defense acceptance of jury without exhausting peremptory challenges is ‘strong indicator[] that the jurors were fair, and that the defense itself so concluded’ ”], quoting People v. Balderas (1985) 41 Cal.3d 144, 180 [222 Cal.Rptr. 184, 711 P.2d 480].) Under these circumstances, we agree with the Attorney General that defendant’s retrospective characterization of his jury as “death-primed” does not, in and of itself, raise a cognizable issue on appeal. Defendant next argues that the prosecutor’s use of peremptory challenges to excuse any prospective juror who expressed any reservation about the death penalty violated his constitutional right to a representative jury. As defendant concedes, we have repeatedly rejected this argument. “[W]e see no . . . constitutional infirmity in permitting peremptory challenges by both sides on the basis of specific juror attitudes on the death penalty. While a statute requiring exclusion of all jurors with any feeling against the death penalty produces a jury biased in favor of death [citation], we have no proof that a similar bias arises, on either guilt or penalty issues, when both parties are allowed to exercise their equal, limited numbers of peremptory challenges . . . against jurors harboring specific attitudes they reasonably believe unfavorable.” (People v. Turner (1984) 37 Cal.3d 302, 315 [208 Cal.Rptr. 196, 690 P.2d 669]; see People v. Brown (2004) 33 Cal.4th 382,403 [15 Cal.Rptr.3d 624, 93 P.3d 244] [“The prosecution’s use of peremptory challenges to remove prospective jurors who express scruples about imposing the death penalty does not violate any constitutional guarantee.”].) We are unpersuaded by defendant’s arguments that invite us to reconsider our analysis of this claim. Defendant then contends that, in his effort to remove any prospective juror with reservations about the death penalty, the prosecutor systematically excluded prospective jurors based on their religious affiliation in violation of People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler). Counsel failed to make a Wheeler motion at trial. This omission forfeits the issue on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 316 [75 Cal.Rptr.2d 412, 956 P.2d 374].) Even if the claim were not forfeited, we would reject it on its merits. “We have previously stated that religious membership constitutes an identifiable group under Wheeler.” (In re Freeman (2006) 38 Cal.4th 630, 643 [42 Cal.Rptr.3d 850, 133 P.3d 1013].) “ ‘Such a practice [religious-based excusáis] also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.’ ” (People v. Bell (2007) 40 Cal.4th 582, 596 [54 Cal.Rptr.3d 453, 151 P.3d 292].) Here, however, the jurors were not excused based on their denominational affiliations because none of them said such affiliation would prevent them from imposing the death penalty. Thus, there is no basis in the record on which to conclude that they were excused because of their membership in a particular religious group. To the extent defendant is arguing it was improper to excuse them because any reluctance on their part to impose the death penalty was based on their religious belief—although there is nothing in the record to indicate this was the case—he is wrong. Prospective Juror PB. specifically told the court that she had no religious beliefs that would interfere with her ability to reach a judgment. In response to defense questioning, she reaffirmed the observation she made in her juror questionnaire that there are biblical accounts of imposing the death penalty and, in response to her feelings about the death penalty, stated, “I think it’s based on an individual basis, and I don’t think that currently I could say one way or the other how a decision should be made at this point.” Prospective Juror R.J., an Episcopal priest, while stating that he preferred not to sit on a death penalty case, said he could vote for the death penalty if he believed it was warranted, although this would be “extremely difficult.” Nowhere, however, did he state that his membership in the Episcopal Church would prevent him from imposing the death penalty. Indeed, in response to a prosecution question, he said that even if his church was opposed to the death penalty, that position “really wouldn’t affect me” because of the structure of the church. Moreover, his greatest concern was that the unexpected departure of his assistant had left him short-handed. Prospective Juror J.C. identified himself as a Catholic but said, notwithstanding his church’s opposition to the death penalty, he could impose the death penalty “[i]f that is the law.” Prospective Juror W.D. noted on his juror questionnaire that his religious organization did not consider the death penalty a solution, but also stated he did not feel an obligation to accept that view. W.D. stated that, notwithstanding his church’s position on the death penalty, he could vote for the death penalty in the appropriate case. Clearly, none of these prospective jurors took the position that their religious affiliations would prevent them from imposing the death penalty. Thus, we are not persuaded by defendant’s claim that their religious affiliations were the basis of the peremptory challenges. And even if their ambivalence toward the death penalty had some basis in their religious views, “[e]xcusing prospective jurors who have a religious bent or bias that would make it difficult for them to impose the death penalty is a proper, nondiscriminatory ground for a peremptory challenge.” (People v. Cash (2002) 28 Cal.4th 703, 725 [122 Cal.Rptr.2d 545, 50 P.3d 332].) 2. Excusal of Prospective Jurors for Cause Defendant contends that the trial court’s excusal for cause of eight prospective jurors who stated unequivocally they could not impose the death penalty violated his right to a representative jury because the court’s questioning was inadequate. Alternatively, he contends that the elimination of any prospective juror who would not impose the death penalty denied him an impartial jury drawn from a fair cross-section of the community. “A prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would '“prevent or substantially impair” ’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath. [Citations.] 1 “ ‘A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” [Citation.] In addition, “ ‘[o]n 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.’ [Citations.]” ’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 975 [108 Cal.Rptr.2d 291, 25 P.3d 519].) Six of the eight prospective jurors to whom defendant refers stated on their juror questionnaires that they would always vote against death while a seventh, I.R., stated that he was compelled to follow his church’s teaching “not to kill another human being.” In response to questioning by the court, each of these jurors confirmed that they would not impose the death penalty under any circumstance. The eighth prospective juror, E.I., gave equivocal answers on her questionnaire about whether she could impose the death penalty but, during extensive questioning by the court, indicated that stress caused her stomach problems that made her “have to go to the restroom a lot.” She indicated further that, notwithstanding her belief in the death penalty, she didn’t “know if [she] could condemn somebody to death,” and “I don’t know if I could live with myself if I did that.” In further colloquy, she told the court she believed she was “too emotional” to make the decision whether to impose death and being faced with the decision would aggravate her “nervous stomach.” The court excused her on the ground that her “opinions and feelings would substantially impair her ability to be fair in this case.” Although defendant criticizes the adequacy of the court’s questioning, he does not point to specific deficiencies. On this record, we conclude that the trial court’s questioning was adequate and that the court properly excused these prospective jurors for cause. Thus, this case is quite different from the cases on which defendant relies, in which one trial court improperly excused five jurors based solely on their juror questionnaire answers (People v. Stewart (2004) 33 Cal.4th 425, 445 [15 Cal.Rptr.3d 656, 93 P.3d 271]), and another court improperly excused a prospective juror even after the prospective juror indicated he would not automatically vote for life without possibility of parole, rather than impose death, no matter what the evidence showed (People v. Heard (2003) 31 Cal.4th 946, 963-966 [4 Cal.Rptr.3d 131, 75 P.3d 53]). We have repeatedly rejected defendant’s alternative claim, concluding that “[t]he exclusion of those categorically opposed to the death penalty at the guilt phase of the trial does not offend either the United States Constitution [citation] or the California Constitution [citation]. As the United States Supreme Court explained, death penalty opponents, ‘or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement.’ [Citations.] It is also well settled that this exclusion does not violate defendant’s right to an impartial jury.” (People v. Jackson (1996) 13 Cal.4th 1164, 1198 [56 Cal.Rptr.2d 49, 920 P.2d 1254], quoting Lockhart v. McCree (1986) 476 U.S. 162, 176-177 [90 L.Ed.2d 137, 106 S.Ct. 1758]; see People v. Lenart (2004) 32 Cal.4th 1107, 1120 [12 Cal.Rptr.3d 592, 88 P.3d 498]; People v. Steele (2002) 27 Cal.4th 1230, 1243 [120 Cal.Rptr.2d 432, 47 P.3d 225]; People v. Catlin (2001) 26 Cal.4th 81, 112 [109 Cal.Rptr.2d 31, 26 P.3d 357].) As in those cases, “[defendant here has likewise failed to make a compelling case for us to revisit this issue.” (People v. Lenart, supra, 32 Cal.4th at p. 1120.) 3. Denial of Defense Challenge for Cause Defendant contends that the trial court erroneously refused to excuse for cause Prospective Juror E.M., whom he claims gave answers on her jury questionnaire, and in response to the court’s examination, that revealed she would automatically vote for the death penalty. Following the court’s refusal to excuse E.M., defendant used a peremptory challenge to excuse her. Defendant did not, however, exhaust his peremptory challenges. Defendant’s claim fails for the simple reason that, even assuming E.M. was biased, she did not serve on the jury and therefore “could [not] possibly have affected the jury’s fairness . . . .” (People v. Yeoman (2003) 31 Cal.4th 93, 114 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) As we further explained in Yeoman, “[a]n erroneous ruling that forces a defendant to use a peremptory challenge, and thus leaves him unable to exclude a juror who actually sits on his case, provides grounds for reversal only if the defendant ‘can actually show that his right to an impartial jury was affected . . . .’ [Citation.] In other words, the loss of a peremptory challenge in this manner ‘ “provides grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.” ’ [Citations.]” (Ibid.) Here, where defendant did not exhaust all his peremptory challenges, he cannot even begin to demonstrate that his right to an impartial jury was impaired by the trial court’s refusal to excuse E.M. for cause, even assuming this was error. Defendant spills considerable ink urging that we not apply this principle to his claim but his arguments are not persuasive. 4. Suppression of Defendant’s Postarrest Statement to Police a. Illegality of Defendant’s Arrest Defendant contends that his arrest was illegal because the affidavit submitted in support of the arrest warrant designated the wrong subdivision of section 290 as the offense for which his arrest was sought. He argues therefore that his postarrest statement should have been suppressed. We disagree. Because of his 1982 conviction for forcible rape, defendant was required to register as a sex offender under section 290. The police report, incorporated by reference into the affidavit seeking an arrest warrant, cited both section “290(a) PC” and “fail[ure] to comply with 290 PC.” The body of the report stated that the investigating officer, Deputy Pinon, had ascertained from the Tulare Police Department that defendant had registered with that agency on November 24, 1986, at an address on West Merrit in the City of Tulare. As of September 1988, however, he had moved and was living on Canal Street in an unincorporated area of Tulare County. Pinon sought the warrant based on defendant’s failure to register with the sheriff’s department upon taking up residence in the county. Section 290, subdivision (a), as it existed in 1988, set forth the general requirement that individuals required to register as sex offenders shall “within 14 days of coming into any county or city ... in which he or she temporarily resides or is domiciled for that length of time register with the chief of police of the city in which he or she is domiciled or the sheriff of the county if he or she is domiciled in an unincorporated area.” (Stats. 1987, ch. 1418, § 3.1, pp. 5225-5228.) Section 290, former subdivision (f) provided that if a person required to register changed his or her address “the person shall inform, in writing within 10 days, the law enforcement agency with whom he or she last registered of the new address.” Defendant argues that, in essence, he had no obligation to register with the sheriff’s department upon moving to Canal Street, under subdivision (a), and that the only former section 290 offense he could have been arrested for in 1988 was under subdivision (f), based on his failure to notify the Tulare Police Department of his change of address. He reasons that because Pinon’s report did not establish probable cause to support his commission of that offense, the affidavit was fatally defective and the resulting arrest warrant invalid. “Probable cause to issue an arrest or search warrant must ... be based on information contained in an affidavit providing a substantial basis from which the magistrate can reasonably conclude there is a fair probability that a person has committed a crime or a place contains contraband or evidence of a crime.” (Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1111 [15 Cal.Rptr.2d 17].) As to the sufficiency of the affidavits, such “affidavits ‘are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.’ [Citation.]” (Illinois v. Gates (1982) 462 U.S. 213, 235 [76 L.Ed.2d 527, 103 S.Ct. 2317].) “Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed . . . and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner. . . . [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (United States v. Ventresca (1965) 380 U.S. 102, 109 [13 L.Ed.2d 684, 85 S.Ct. 741].) Furthermore, “[i]n cases where an officer had in mind facts which justified an arrest, and made an arrest upon those facts, the arrests have been held lawful despite the officer’s having cited some other closely related offense at the time of arrest or in testifying.” (People v. Howell (1973) 30 Cal.App.3d 228, 235 [105 Cal.Rptr. 748].) Applying these principles, we reject defendant’s claim for the following reasons. First, defendant provides no authority—nor has our research revealed any—to support his claim that a registrant who moved from one jurisdiction into another was not required both to report his change of address with the law enforcement agency in the old jurisdiction and to register with law enforcement in the new jurisdiction, even under section 290 as it existed in 1988. Nor is such a construction of the statute plausible because it would have left law enforcement in the new jurisdiction unaware that a sex offender had moved into the community. This would have been fundamentally inconsistent with the longstanding purpose of section 290 “ ‘ “ ‘to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.’ ” ’ ” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196 [39 Cal.Rptr.3d 821, 129 P.3d 29].) Thus, it is not at all clear that the affidavit did not correctly describe a violation of section 290, subdivision (a). Second, it is also not clear that the affidavit did not adequately describe a violation of section 290, former subdivision (f). The police report filed in connection with the affidavit related (1) that the affiant officer had “checked with the Tulare Pfolice] Department] and found that [defendant] had registered with Tulare Police Dept, [on] November 24, 1986” at “1781 W. Merrit, Tulare,” and (2) that, as of September 1988, defendant was living with the Marshall family on Canal Street in an unincorporated area of Tulare County. A teletype attached to the affidavit also confirmed that defendant had registered with the Tulare Police Department in 1986, but did not show that he had registered his change of address with any law enforcement agency. It can be inferred from these facts that defendant had failed to notify the Tulare Police Department of his change of address in 1988, thus violating section 290, former subdivision (f). Third, even assuming that the affiant officer designated the wrong subdivision of section 290, there is no question that interpreting the affidavit in a commonsense manner, as opposed to defendant’s hypertechnical reading, supports the magistrate’s finding that there was probable cause to believe defendant had violated some provision of section 290. The misdesignation may have provided defendant a defense at trial (cf. People v. McCleod (1997) 55 Cal.App.4th 1205, 1209, fn. 1 [64 Cal.Rptr.2d 545]), but it does not obviate probable cause for the purpose of the issuance of the arrest warrant. b. Delay in Defendant’s Arraignment on the Misdemeanor Charge Defendant also contends that his postarrest statement should have been suppressed because the police violated section 825 by unnecessarily delaying his arraignment on the misdemeanor section 290 charge. We reject his claim. At the time of defendant’s arrest, section 825, as relevant, provided; “The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any' event, within two days after his arrest, excluding Sundays and holidays . . . .” (As amended by Stats. 1961, ch. 2209, § 1, p. 4554.) “Of course, section 825 does not ‘authorize a two-day detention in all cases. Instead, “a limit [is placed] upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute” and of the Constitution.’ ” (People v. Turner (1994) 8 Cal.4th 137, 175 [32 Cal.Rptr.2d 762, 878 P.2d 521].) Nonetheless, “[t]o justify exclusion of a statement, defendant must show that the delay produced his admissions or that there was an essential connection between the illegal detention and admissions of guilt.” (Id. at p. 176; see People v. Sapp (2003) 31 Cal.4th 240, 270 [2 Cal.Rptr.3d 554, 73 P.3d 433] [“delay in arraignment would justify suppressing a confession only upon a defendant’s showing that the confession was the product of an illegal detention”].) Here, the evidence produced at defendant’s motion to suppress his statement demonstrated that he was arraigned within two days of his arrest and, further, at his own request was not arraigned the day after his arrest. Defendant was arrested on the misdemeanor section 290 charge about 11:40 p.m. on Sunday, December 11, 1988, and arraigned on that charge in the early afternoon of Tuesday, December 13, 1988. The reason he was not arraigned on Monday, December 12, was because he wanted to rest in order to take a second polygraph examination regarding his involvement in the Holley murder after the first test proved inconclusive because he was fatigued. On this record it is clear that defendant was arraigned on the misdemeanor charge within the two-day outer limit set forth in section 825 and that the failure to have arraigned him on the day after his arrest did not constitute unnecessary delay because it was at his request. (See People v. Thompson (1980) 27 Cal.3d 303, 328, 330 [165 Cal.Rptr. 289, 611 P.2d 883] [where defendant was arrested on Sunday night and not arraigned until Tuesday, and the purpose for the delay was to allow defendant and arresting officer to sleep, “even if section 825 were violated, that would not render [defendant’s] confession inadmissible”].) Thus, this case is distinguishable from People v. Jenkins (2004) 122 Cal.App.4th 1160 [19 Cal.Rptr.3d 386], cited by defendant, because in Jenkins the delay in arraignment on a misdemeanor arrest was “used solely to question defendant” about the offenses for which he was ultimately convicted, first degree murder and attempted murder. (Id. at pp. 1175-1176.) Moreover, “even if a confession occurs during a period of illegal detention under section 825, that fact does not render it inadmissible. A delay in arraignment is treated ‘as only one of the factors to be considered in determining whether the statement was voluntarily made.’ ” (People v. Thompson, supra, 27 Cal.3d at p. 329.) Other than the bare fact that defendant made the challenged statement before he was arraigned, defendant points us to nothing in the record that demonstrates a connection between the claimed illegal delay and the statement that would justify suppression. c. Voluntariness Lastly, defendant contends his postarrest statement should have been excluded because it was involuntary. Defendant deploys a number of arguments in support of this claim, among them that his statement was the result of police deception, that the questioning was overly aggressive, that his low IQ made him particularly vulnerable to the questioning, and a suggestion that his statement was obtained in violation of Miranda. Based on our review of defendant’s statement, we conclude that neither singularly nor collectively are these claims persuasive. After defendant was interviewed in San Leandro on December 10, he voluntarily agreed to return to Tulare County the following day. When he arrived, on Sunday, December 11, he was arrested on the misdemeanor arrest warrant and became'angry until it was explained to him that he was not being arrested for the Holley murder. Defendant requested a polygraph examination that evening. He was re-advised of his rights, waived them, and the polygraph examination was administered. The results of the first examination were inconclusive and defendant requested a second one. He also wanted to rest before it was administered, so he was placed in an area of the jail where “he could get plenty of sleep and not be bothered.” The second polygraph was administered in the early afternoon. He was then interrogated that afternoon in the office of the violent crimes unit beginning about 3:55 p.m. He was again advised of, and waived, his rights, before the interrogation. The interrogation lasted about an hour and 40 minutes. During the course of the interview, as defendant shifted and changed his story, he became agitated, “putting] his forehead down on the desk and . . . whining and moaning,” “jumping] up, and . . . rant[ing] and rav[ing.]” At the end of the questioning he “suddenly jumped up,” and tried to kick Lieutenant Harris. Defendant, however, was restrained by leg irons and a “belly chain.” During the course of the interrogation, the police gave him false information, telling him, for example, that witnesses had seen him leaving the Holley residence the night of the murder and that his semen had been found in the victim. When defendant requested a lawyer, the interrogation was ended. “A statement is involuntary when ‘among other circumstances, it “was ‘ “extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight[Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the “totality of [the] circumstances.” ’ (People v. Neal (2003) 31 Cal.4th 63, 79 [1 Cal.Rptr.3d 650, 72 P.3d 280].) . . . [][] ‘In reviewing the trial court’s determinations of voluntariness, we apply an independent standard of review, doing so “in light of the record in its entirety, including ‘all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter].’ ” ’ (People v. Neal, supra, 31 Cal.4th at p. 80.) But ‘ “we accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence.” [Citation.]’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 813-814 [38 Cal.Rptr.3d 98, 126 P.3d 938].) Applying these principles, we reject defendant’s argument that police deception rendered his statement involuntary. “ ‘Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.’ ” (People v. Farnam (2002) 28 Cal.4th 107, 182 [121 Cal.Rptr.2d 106, 47 P.3d 988].) Here, the police deceived defendant only about his having been seen by two witnesses leaving the Holley residence—which ultimately led him to admit he was in the residence, a statement he then retracted—and that his semen was found in the victim—a fact he vehemently denied. Viewing police statements under the totality of the circumstances test, we cannot say they rendered defendant’s statement involuntary. Defendant also claims that, as the interrogation progressed, the questioning became increasingly aggressive, leading him to become confused and hysterical. Our review of the transcript, however, indicates not that the police engaged in overly aggressive behavior but, rather, that defendant became increasingly agitated as he was