Full opinion text
Opinion GEORGE, C. J. A jury convicted defendant Terrance Charles Page of the first degree murder of Tahisha Clay (Pen. Code, § 187, subd. (a)) and of the commission of a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The jury also found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of a lewd act upon a child. (§ 190.2, former subd. (a)(17)(v).) Following the penalty phase of the trial, the jury returned a verdict of death. Defendant moved for a new trial (§ 1181), to strike the special circumstance finding, and to reduce the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced defendant to death. The court also sentenced defendant to a prison term of eight years for the commission of a lewd act upon a child under the age of 14 years. (§ 288, subd. (a).) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. FACTS A. Guilt phase evidence 1. The prosecution case a. Summary Tahisha Clay, six years of age, disappeared on April 23, 1993, when she chased a ball down a hill to an area outside of defendant’s apartment. Her body was discovered the next day in a mine pit seven miles away. She had been brutally beaten, suffocated, sexually assaulted, and strangled to death. A swab taken from the outside of her vagina revealed saliva consistent with defendant’s genetic profile. Blood discovered on one of defendant’s shirts was consistent with Tahisha’s genetic profile. A plastic star found embedded in defendant’s carpet matched stick-on earrings Tahisha was wearing shortly before she disappeared. Soil on a pair of defendant’s pants, on a pair of his boots, and on a mat from one of his vehicles was consistent with the minerals in the mine where Tahisha’s body was dumped. There also was evidence establishing that defendant lied when he told the police he had stayed home the evening Tahisha disappeared, and that he had visited a restaurant that evening on the route between his home and the mine where Tahisha’s body was found. Defendant exhibited an attitude that evening that evoked suspicion, and he attempted to commit suicide the day after Tahisha’s body was discovered. Because defendant contends the police unreasonably focused upon him to the exclusion of other suspects, and planted evidence to implicate him in the crimes, we describe the evidence as it was developed by the police investigation. b. Tahisha’s disappearance Tahisha resided in the Rimrock Apartments in Barstow with her mother, Marianne Clay, her brother Stefan, nine years of age, and her mother’s boyfriend, Frank Mond. The apartment complex was surrounded on three sides by a solid block wall five to six feet high, and on the fourth and front side by an iron fence six feet high. An access code was required to open the gate that secured the entrance to the complex. Tahisha’s father, David Clay, served in the United States Army and was stationed at Fort Hunter Liggett, about 80 miles south of Monterey. During David’s last visit with Tahisha and Stefan in February 1993, he took the children to a mall in Bakersfield, where he purchased for Tahisha a card of “stick-on” earrings. At the conclusion of the visit, Tahisha returned with the earrings to Barstow. On the day Tahisha disappeared—Friday, April 23, 1993—her mother picked her up from kindergarten at 4:00 p.m., and they arrived home about five minutes later. On that particular day, Marianne found in her vehicle Tahisha’s card of stick-on earrings, and gave them to Tahisha. Marianne explained to Tahisha that on the card particular earrings were assigned to particular days, and that Tahisha should wear a pair of “Friday” earrings because it was Friday. The “Friday” earrings were star shaped. When they arrived home, Tahisha went upstairs to their apartment, taking the card of earrings with her. Her brother Stefan saw her put on star-shaped earrings in their room after she came home from school. Just prior to 5:00 p.m., Marianne drove Stefan to his piano lesson, and they returned at approximately 5:40 p.m. While Marianne and Stefan were away a neighbor, Ulrike Meyers, watched Tahisha. After they returned from the piano lesson, Tahisha came back to the apartment for about 10 minutes, and then went back outside. Her mother last saw her sometime after 6:00 p.m. when Tahisha was playing with other children at the playground located outside the apartment. Stefan soon joined Tahisha, and they began tossing a ball back and forth to each other. At some point, the ball rolled down a hill and toward two satellite dishes that were located on the grounds of the apartment complex. Tahisha went to retrieve the ball, and Stefan saw her for the last time when she walked down the hill toward the satellite dishes. As Stefan watched Tahisha head down the hill, he heard their mother call to them to come inside. Stefan then turned around to go back to their apartment. He went upstairs with his mother and told her Tahisha had gone to get the ball. Approximately 10 minutes later, about 7:00 p.m., Marianne told Stefan to find Tahisha, but he was unable to locate her. Marianne then checked at Meyers’s apartment and at the apartments of Tahisha’s friends, but Tahisha was not at these locations. Meyers estimated that Marianne came looking for Tahisha after 7:00 p.m., perhaps 7:30 p.m., and that it was starting to get dark. Marianne and other adults then walked around the entire apartment complex, yelling Tahisha’s name, but she was not found. By this time, at approximately 9:00 p.m., Frank Mond, Marianne’s boyfriend, returned home. Mond contacted the Barstow Police Department and reported that Tahisha was missing. In the meantime, as it was getting dark on Friday evening, Michael Elston, another child who lived at the apartment complex, found Tahisha’s ball inside a fence surrounding the satellite dishes. c. The first week of the police investigation i. The search of the apartment complex Shortly after 9:00 p.m. on April 23, the first police officers arrived at the large apartment complex and coordinated efforts among officers and private citizens to check all the apartments and areas of the complex. Detective Mark Franey of the Barstow Police Department arrived at the apartment complex at approximately midnight. Franey was informed that efforts had been made to telephone or visit every apartment in the complex, and that someone had been contacted at all but four or five of the units. According to the information received by Franey, one of the apartments at which there had been no response was defendant’s apartment. Another belonged to the manager of the apartment complex, who was out of town. The other apartments were vacant. Defendant’s apartment was located directly across from the satellite dishes where Tahisha’s ball was found. The apartment had a sliding glass door that faced the satellite dishes. Stefan and his friends sometimes played in the area in front of defendant’s apartment, and on occasion defendant emerged from his apartment and yelled at them. Approximately two weeks prior to Tahisha’s disappearance, she and her friend, Carrie Pizzo, 11 years of age, were riding their bicycles in front of defendant’s apartment when defendant exited through his sliding glass door and told the girls to “get the hell out of there.” Eight or nine months earlier, defendant had approached Ashley Cook, one of Tahisha’s kindergarten classmates who also resided at the Rimrock Apartments. Ashley was riding her bicycle in circles and singing when defendant attempted to grab her and told her she was being too noisy. Between 1:00 and 1:15 a.m. on Saturday as the search continued, Tahisha’s mother told Detective Franey about the incident involving Ashley Cook, and Louis Jannsen, the maintenance man for the apartment complex, told Franey that defendant was “kind of weird.” Franey also learned at this time that defendant’s apartment was located near the satellite dishes. Jannsen and Barstow Police Detective Leo Griego then went to the apartment manager’s office to obtain information concerning defendant, and Franey walked to the area of the satellite dishes. By this time, officers had expanded their search outside of the apartment complex and had found a ball similar to Tahisha’s ball in a nearby park. Franey traveled to the park, recovered the ball, and returned to the Clay apartment at approximately 1:55 a.m., but Marianne informed Franey that the recovered ball was not Tahisha’s ball. ii. First contacts with defendant The police first contacted defendant at 2:35 a.m. on Saturday, April 24. Defendant answered the door and invited Detectives Franey and Griego inside. They informed defendant they were conducting an investigation concerning a missing child, and Griego asked him the general questions the police had been asking all the tenants. Defendant stated that he had not seen Tahisha and that he did not recognize her photograph. They soon were interrupted by a third officer who called away Griego. Detective Franey then assumed charge of the interview. Because Franey believed that defendant had been seen earlier at the apartment complex but had not answered his door, Franey asked defendant about his whereabouts earlier that evening. Defendant responded that he had returned home at approximately 4:00 or 4:30 that afternoon from Fort Irwin, where he worked for DynCorp, supervising the maintenance of firing ranges, and had been in and out all evening. At this point in the interview, Franey was called away. Griego completed the interview and briefly searched defendant’s apartment for Tahisha. The officers’ initial contact with defendant was approximately seven minutes in duration, from the time they entered his apartment until they departed. Franey and Griego returned to question defendant on Saturday, April 24, because of a discrepancy in the account he had provided earlier that morning—defendant had informed Franey that he had been in and out of the apartment all evening, but had told Griego that he had been at home from the time he returned from work. Also, Griego had learned that defendant had been seen leaving his apartment at approximately 9:30 Friday evening. Shortly before noon on Saturday, Griego spotted defendant in the apartment complex’s laundry room. As Griego and Franey followed him back to his apartment, they noticed he was carrying a laundry basket that appeared to contain bedding. When Franey and Griego described to defendant the discrepancy in the information he had provided, defendant explained that he had been in and out of his apartment, going back and forth to his car and his garage, but had not left the apartment complex all evening. Defendant also stated that someone had telephoned him Friday evening and asked him whether there was a little girl playing in his apartment, and he had told them there was not. The officers asked whether they could search defendant’s vehicles and apartment, and he agreed, also giving them access to locked areas of his garage. That was the final contact the police had with defendant on Saturday, April 24. iii. Tahisha’s body is discovered On Saturday afternoon, April 24, Ramiro Perez completed his work shift at Fort Irwin, and obtained a ride home with a friend at approximately 3:00 p.m. After they left Fort Irwin, Perez said he needed to relieve himself. The driver stopped her vehicle on Fort Irwin Road, and Perez walked away from the car and over a hill so that he would not be visible to his friend. When he walked over the hill, Perez saw a body later identified as Tahisha’s at the bottom of the slope, about 15 feet away. It appeared that she had been thrown over the hill and had rolled to the bottom. Perez reported his discovery to the police. In response to Perez’s report, law enforcement officers fanned out along Fort Irwin Road. After traveling approximately one mile down that road from its intersection with Interstate Highway 15 without locating anything, Deputy Sheriff Robert Durbin of the San Bernardino County Sheriff’s Department drove back and decided to check near a mine excavation site that borders the road approximately one-tenth of a mile from the intersection. Durbin parked in a pullout area next to the site and walked into the excavation, which had hills and gullies. At 5:50 p.m., Durbin looked down from an embankment and observed a small body in the pit of the mine. The body was clothed in a dress that was up over the torso, had no underclothing, and had white socks and a single tennis shoe. When Durbin returned to his patrol vehicle, he found the other tennis shoe on the ground in front of his car. Tahisha’s body was not visible from the road; it was necessary to walk over a hill and look down into the pit of the mine to see her. Detective Franey was familiar with the excavation and the surrounding desert, and testified that the area was used for “four-wheeling,” motorcycle riding, and target shooting. On the day Tahisha’s body was found, a group of 14 campers was nearby and had driven approximately seven vehicles on the dirt stretch of Fort Irwin Road that borders the excavation. The pullout area on Fort Irwin Road where Durbin parked was used to load trucks with material from the mine, could be used as a turnaround for vehicles, and appeared to Franey to be well traveled, with many tire tracks. While Franey was present at the scene, numerous drivers attempted to drive down the dirt road, but were turned back because of the police investigation. The material on the ground was of a type that would reveal footsteps, but was of a nature that generally would not retain details permitting identification of a shoe print. The only shoe print that could be identified was from Perez’s shoe. The police photographed the tire tracks adjacent to the mine and checked the tire treads of all vehicles at the apartment complex that were outside or in garages that had open doors, as well as the tire treads of police vehicles. The police were able to identify tire tracks of the vehicle in which Perez had ridden, and could see where the sheriff’s car had driven over that vehicle’s tire tracks, but were unable to distinguish any other particular vehicle’s tire tracks in the numerous tire tracks that had been made over one another. In the course of examining tire treads at the apartment complex, the police asked defendant for permission to inspect his vehicles’ tires, and defendant agreed. According to Detective Franey, this contact with defendant occurred at approximately 6:30 p.m. on Sunday, April 25. iv. Defendant’s suicide attempt At approximately 11:30 p.m. on Sunday, April 25, Police Officer Michael Hayhurst was dispatched to defendant’s apartment in response to a report from a suicide hotline that an individual at that apartment had taken an overdose of pills. He found defendant, apparently unconscious, holding a large knife in his hand. Hayhurst removed the knife, and defendant appeared to regain consciousness. Hayhurst asked defendant what the problem was, and defendant told him that he had had a lot of stress at work the prior Friday, and that detectives had placed additional stress on him over the weekend regarding the case of a missing girl. Defendant stated that he could not take it anymore and wanted to kill himself. The police arranged for him to be transported by paramedics to Barstow Community Hospital. The knife apparently was left at the apartment. At the emergency room, defendant repeated that he had suffered stress at work, and stated he was upset because the police detectives considered him a suspect. Blood tests confirmed that defendant had taken an overdose of medication containing acetaminophen in a quantity sufficient to cause fatal liver toxicity. Hayhurst had defendant placed on a 72-hour hold to allow a mental health evaluation. (Welf. & Inst. Code, § 5150.) After spending approximately one day at Barstow Community Hospital, defendant was transferred to the behavioral health ward at Victor Valley Community Hospital, where the police allowed him to check himself in. v. Search of defendant’s apartment On Wednesday, April 28, Franey served a search warrant on defendant’s apartment. He was accompanied by criminalist Patricia Lough, who entered the apartment first to vacuum before anyone walked on the floor. She proceeded methodically on her hands and knees, using a vacuum designed for forensic evidence collection. While vacuuming defendant’s living room, Lough collected a small plastic star. She had not seen the star before it was sucked into the vacuum. Lough also testified she was not a “hair examiner” and did not recall whether there were any hairs in the filter. Lough also found in a clothesbasket in defendant’s master bedroom a shirt that had two spots of blood. Defendant was wearing the same shirt when Franey first spoke to him in the early morning on Saturday, April 24. Although Franey had not noticed blood on the shirt at that time, he had not looked for blood; the spots were very small, and the lighting was poor. The shirt was similar to the shirt defendant was wearing when Griego observed him in the laundry room on Saturday morning, April 24. On the floor next to the shirt, Lough found a pair of pants that had a white dust-like material on the legs. In the closet of the master bedroom, Lough found a pair of dress boots that also had a white dust-like material on them. In the office area of the apartment, Lough found a knife that had a speck, one millimeter in diameter, of what appeared to be blood on the blade. The specimen was too small to yield information revealing DNA. Finally, Lough removed the floormats from defendant’s two vehicles. Detective Franey found in defendant’s apartment a collection of pornographic magazines and videotapes. Fifty-five pornographic magazines were found on the nightstand in defendant’s bedroom, including Shaved Pussy, Oriental Delight, and Bridled. Shaved Pussy magazine contains sexually explicit photographs of young women whose pubic hair has been shaved. Oriental Delight magazine also contains sexually explicit photographs of young adult women. All of the models in these two magazines are postpubescent, but some are posed with props such as stuffed toys and a lollipop, and some are wearing kneesocks and saddle shoes and have “pigtails” and bows in their hair. Bridled magazine depicts nude and seminude women who are bound to objects such as chairs and stocks by devices such as ropes and collars. Some have objects strapped into their mouths or tape over their mouths, some are blindfolded, and some have mousetraps or C-clamps attached to their nipples. In many of the photographs, the models exhibit expressions that reflect pain or fear, but none of the photographs portrays strangulation. The three magazines bear inscriptions on their covers that all models are over 18 years of age. Detective Franey described the 55 magazines found on defendant’s nightstand as “hard-core” or “triple-X” pornography. Another 58 magazines, described by Franey as “soft-core” pornography, were found on a bookshelf in the hallway. In addition, 195 X-rated videotapes bearing 550 separate movie titles were stored in a metal cabinet in the apartment. Finally, more than 100 nonpomographic films were found on an open bookshelf adjacent to the metal cabinet. A list of the 113 magazines, identified by title and the location where they were found in the apartment, and including a brief description of each magazine, was admitted into evidence. The actual magazines found in defendant’s bedroom were admitted into evidence. A list of the 550 pornographic movies, identified by title, also was admitted into evidence. vi. Defendant’s whereabouts on April 23 On April 30, one week after Tahisha disappeared, Detectives Franey and Griego interviewed defendant at Victor Valley Community Hospital. Defendant continued to assert he had stayed home all evening on April 23. When Griego told defendant that Hunskor and Jannsen had seen him leaving at approximately 9:30 that evening, defendant claimed he was confused. Approximately one week after Tahisha disappeared, the police interviewed Holly Robles, a waitress at Coco’s Restaurant, and learned that defendant had not remained at his home the entire evening of April 23. Robles testified that defendant regularly came into the restaurant between 8:00 p.m. and 10:00 p.m. On April 23, he entered the restaurant between 9:00 p.m. and 9:30 p.m., ordered an iced tea, and stayed about 20 minutes. Defendant told Robles that a little girl who had “wandered off Rimrock” was missing. He told Robles that it was the mother’s fault, because mothers do not watch their children and leave them with babysitters. He also told Robles that he was on call in the event they found the missing girl and needed a helicopter. Robles testified that defendant seemed edgy that evening, “[p]laying with napkins and stuff,” which she could not recall seeing him do when she had waited on him on other occasions. She testified that he was “scared and jumpy,” that his eyes were red, and that she could tell something was wrong. She also had the impression that defendant did not care about the girl who was missing, but she further stated that he “seemed normal” concerning the girl’s disappearance. Coco’s Restaurant is located on Main Street in Barstow, several blocks from Interstate Highway 15. Defendant usually went to work by driving on Main Street to Interstate 15, then proceeding on the interstate highway to Fort Irwin Road. The distance from the Rimrock Apartments to the location of Tahisha’s body on Fort Irwin Road was approximately seven miles. Detective Franey drove this route several times and arrived at the location where Tahisha’s body was found within nine to 11 minutes while keeping within the speed limit. d. Expert testimony i. Tahisha’s injuries On Tuesday, April 27, Dr. Frank Sheridan, a forensic pathologist, performed an autopsy on Tahisha. Tahisha was four feet tall and weighed 50 pounds. Dr. Sheridan testified that her body exhibited a grouping of injuries that occurred while she was alive—injuries that were accompanied by bruising, swelling, and redness—and a grouping of injuries that occurred at or after the time of death, when her body no longer reacted to injuries. Dr. Sheridan began by describing the injuries to Tahisha’s head. She had bruises and abrasions on her upper and lower lips, likely caused by someone placing a hand over her mouth to suffocate or silence her. She also had bruises and abrasions on the bridge of her nose, her cheeks, and her chin, which might have been inflicted during a struggle. There also was bruising in her right temple area. Finally, she had suffered at least two major blows to the back of her head, which caused bleeding in the subdural space between her skull and her brain. Dr. Sheridan testified that the presence of a subdural hemorrhage strongly suggests that the injury was caused when Tahisha’s head was in motion and was slammed forcibly into a hard flat surface, such as a floor. Her head might have been slammed into something more than twice, but a blow against the same area of the head as an earlier blow would not cause distinguishable subdural bleeding. Tahisha also suffered injuries on her arms that had elements of both bruising and abrasions, a combination that typically is seen when someone has been struggling. She had a large bruise as well as abrasions on her left shoulder, and a bruise in the iliac crest region of her back. Dr. Sheridan testified that the blows to Tahisha’s head and the injuries to her back and shoulder were consistent with her having been thrown to the floor and held down while she struggled. She also had bruises on her legs and a bruise in her pubic area just above her vagina. Her body exhibited injuries inflicted by a sexual assault. The vaginal walls were bruised, and the hymen was disrupted. When Dr. Sheridan initially examined the body, blood was flowing from the vagina, indicating there was a laceration as well as bruising. Based upon the location of the bruising, Dr. Sheridan determined that something had been inserted at least one inch inside Tahisha’s vagina. Based upon the level of inflammation associated with the vaginal injuries, Dr. Sheridan concluded that Tahisha was alive for longer than one hour, but not longer than three or four hours, after the vaginal injuries were inflicted. Tahisha’s heart and lungs had tiny, scattered, surface hemorrhages that resulted from obstruction of her breathing. Her suffocation, together with the other injuries she suffered while alive, were consistent with someone grabbing her, placing a hand over her mouth, and throwing her down on the floor, followed by a struggle, obstruction of her breathing, and a sexual assault. Tahisha may have lost consciousness due to the blows to her head or the suffocation, but neither of these injuries appeared to be the cause of death. None of the injuries resulted in bleeding, other than the injury to her vagina. Tahisha died from strangulation. No bruises were visible on the exterior of her neck, indicating that she no longer was struggling at the time of her death, but bruising had occurred deep in the muscles around the larynx and trachea, which is typical of forcible compression of the neck. The evidence of blockage of the flow of blood through her jugular veins included hemorrhaging within the eyes and scalp, congestion in the blood vessels in her brain, and hemorrhaging into the bone around the ear. None of these symptoms involved bleeding outside the body. Dr. Sheridan testified that strangulation must continue approximately two and one-half to three minutes to cause death. Tahisha also suffered a cut approximately three centimeters in length on her neck. The wound was inflicted with a sharp instrument, probably a knife. It was an incised wound rather than a stab wound, meaning it ran across her skin. The injury was the type that could occur if someone held a knife to her throat and moved it across her skin. The cut was not deep and was not life threatening. It appeared from the crime scene photographs and from the small amount of blood on Tahisha’s clothing that only a small quantity of blood had flowed from this wound, a circumstance indicating the wound was inflicted at or near the time of death. Finally, there were scrapes on Tahisha’s arms, legs, torso, chest, back, and head that did not display any redness or bruising, indicating they occurred at or after the time of death. Because the type of white chalky material found in the mine site was associated with these scrapes, the latter injuries probably occurred when Tahisha’s body was thrown down the embankment into the mine pit. The condition of Tahisha’s body when found on Saturday, April 24, was consistent with her having been killed sometime on Friday night, April 23. Dr. Sheridan agreed that the actions that caused these various injuries “[cjould be characterized as a very vicious assault on a six-year-old girl ii. Swabs from Tahisha’s body Criminalist Lough collected evidence from Tahisha’s body, including swabs of the inside and outside of her vagina, as well as a rectal swab. Lough began testing the swabs on April 27, before any sample of blood from defendant had been submitted to the crime laboratory. Lough’s testing detected the presence of saliva on the outer genital area. Further testing indicated that the person whose saliva was found on Tahisha’s body had ABO type A blood. Tahisha had ABO type O blood, which excluded her as the source of the saliva. Defendant is among those persons comprising approximately 30 percent of the population who have ABO type A blood. Criminalist David Stockwell subsequently performed DNA testing on the external vaginal swab. He found DNA that was consistent with Tahisha’s DNA, and also DNA from another person. The three genetic markers that were inconsistent with Tahisha’s DNA were consistent with defendant’s DNA. These markers appear on different chromosomes, and thus are independently inherited; that is, whether a person inherits one protein has no relation to whether that person inherits another protein. Stockwell testified that the frequency of individuals having the same genetic markers as found in the DNA that was foreign to Tahisha is approximately one in 400,000. Criminalist Donald Jones analyzed the internal vaginal swab and the rectal swab using a technique known as restriction fragment length polymorphism, or RFLP. The RFLP procedure employs an enzyme that recognizes certain sequences of DNA and severs or “restricts” the DNA in certain locations. The length of particular sequences of DNA will vary among individuals. Therefore, the RFLP test may establish that DNA from more than one individual is present by revealing different lengths of the selected sequences of DNA, and may establish whether the foreign DNA is consistent or inconsistent with a particular foreign donor. Because the internal swabs were collected from parts of the body that slough off epithelial cells, these swabs contained large amounts of Tahisha’s DNA. Lough had suggested to Jones that these swabs also might contain foreign DNA from saliva. Therefore, Jones had the task of attempting to identify any foreign epithelial cells shed from the mouth in saliva, amidst a much larger quantity of epithelial cells from the victim. In attempting to maximize the amount of any foreign DNA in the tested sample, Jones used 10 to 12 times the amount of sample that normally is tested. Jones’s RFLP test generated results that reflected the presence of Tahisha’s DNA, as well as some sequences of DNA that were different lengths from the sequences of Tahisha’s DNA. Jones testified that “overloading” of the sample may have resulted in a higher incidence of “partially digested” DNA— sequences that were not severed at the proper site on the DNA and therefore were a different length. In Jones’s opinion, the sequences of DNA that were a different length from Tahisha’s DNA were “partial digests” rather than foreign DNA. Although Jones concluded that the sequences that were of a different length from Tahisha’s DNA were due to partial digests, he also testified that such sequences could result from foreign DNA or from bacterial DNA present in the body; if they were the result of foreign DNA, they were not the product of defendant’s DNA. iii. Blood on defendant’s shirt Criminalist Lough performed a test on a spot of blood one millimeter in diameter located on the neck of a shirt found in defendant’s apartment, to determine whether five different genetic markers were present. Lough was able to extract only one genetic marker—identified as a PGM1 subtype— because the sample was very small. That subtype appears in approximately 40 percent of the population. The genetic marker matched Tahisha’s blood, but did not match defendant’s blood. Criminalist Stockwell tested a second spot of blood, which appeared on the upper left front of the shirt and measured several millimeters in diameter. Stockwell analyzed two genetic markers identified as GM/KM (or gamma marker and kappa marker). These two markers are independently inherited, and they provide useful statistics by which to distinguish among various population groups. Among the three racial groups that comprise the majority of San Bernardino County—Caucasians, African-Americans, and Hispanics— the type of GM protein in the bloodstain never appears among Caucasians or Hispanics, but appears in approximately three of every 1,000 individuals of African-American ancestry, including those having mixed-race ancestry. Because the GM protein in the bloodstain excluded Caucasians and Hispanics as possible sources, Stockwell considered the frequency of the bloodstain’s type of KM protein among the African-American population. This type of KM protein found in the bloodstain occurs in 44.9 percent of individuals with African-American ancestry, including those having mixed-race ancestry. These results excluded defendant, who is Caucasian, as a source of the bloodstain. These two factors matched Tahisha, whose father is African-American and whose mother is Caucasian. Although the type of testing performed in 1993 required use of the entire bloodstain, after that testing there remained cellular material that had adhered to the fabric. This material was saved in anticipation of advances in testing technology. In 1996, Stockwell was able to test seven locations on the DNA for genetic markers that are independently inherited. Each of the seven markers matched Tahisha’s blood. Stockwell calculated that the frequency with which someone with this genetic profile would appear in that population is one in 400 million. iv. Stains on defendant’s shirt There was a pink stain on the left sleeve of defendant’s shirt, which appeared to be similar in color to pink stains on the front of Tahisha’s dress. Criminalist Lough was unable to determine what caused the pink stain on the shirt or whether that stain was caused by the same substance as the stains on Tahisha’s dress. Lough could not find any expert who could compare the stains on the two articles of clothing, but a Federal Bureau of Investigation (FBI) laboratory agreed to compare the stain on defendant’s shirt to other substances provided by Lough in an attempt to find a match. The FBI laboratory was provided four of Tahisha’s lipsticks, but they did not match the pink stain on defendant’s shirt. v. The plastic star On April 28, the day Lough vacuumed a plastic star from the carpet, Franey was unaware Tahisha had been wearing stick-on star earrings on the day she disappeared. The investigation into possible sources of the pink stains on defendant’s shirt and Tahisha’s dress led Franey, on May 3, 1993, to question Tahisha’s family about anything she may have been wearing as makeup. He asked Stefan what Tahisha “had on” the day she disappeared, but apparently did not specify that he was referring to makeup. In response, Stefan retrieved a card that held stick-on earrings, and told Franey that Tahisha had been wearing the star earrings labeled as “Friday” earrings. Franey observed that the star impression on the card was approximately the same size as the plastic star that Lough had vacuumed and collected from defendant’s carpet. Franey confirmed with Tahisha’s mother and with the neighbor, Ulrike Meyers, that Tahisha had been wearing the star earrings that day. Franey could not find any store in Barstow that sold stick-on earrings identical to those on Tahisha’s card of earrings. Franey learned from Tahisha’s father that Tahisha’s card of earrings was purchased at the Kids Mart store in Bakersfield. Franey determined that there was no Kids Mart store in Barstow. Franey purchased from the Bakersfield Kids Mart store several packages of the stick-on earrings for comparison and testing. Franey also purchased the brand of stick-on earrings that were available in Barstow. Criminalist Craig Ogino tested a stick-on earring from a package purchased at the Kids Mart store in Bakersfield to evaluate whether the earring found in defendant’s apartment might have been tracked into his abode on the bottom of a shoe. Ogino stuck the earring to the sole of a shoe and took five steps on a sidewalk like that outside defendant’s apartment. Examined under a microscope, the stick-on earring had pitting and scratch marks. In contrast, the stick-on earring found in defendant’s apartment did not have the same type of damage. Ogino concluded that no one had walked on the stick-on earring found in defendant’s apartment. Criminalist William Matty, who specialized in analyzing “tool marks”— manufactured items that have been marked in some manner by another object—examined the stick-on star earring found in defendant’s apartment, the card of stick-on earrings produced by Stefan, and the cards of stick-on earrings purchased by Franey in Bakersfield and Barstow. The markings were not adequate to establish that the stick-on earring found in defendant’s apartment came from the earring card obtained from Stefan, but Matty determined that the stick-on earring was from the type of card produced by Stefan and obtained by Franey in Bakersfield, but not from the type purchased by Franey in Barstow. Matty also concluded that the stick-on earring was identical in appearance to “Friday” stick-on earrings on the cards purchased in Bakersfield, and that this earring matched the outline of a star that was faintly visible in the location where a “Friday” earring would have been located on the card obtained from Stefan. vi. Bentonite Erich Paul Junger, an expert on forensic trace examination and forensic geology, studied the pants and boots retrieved from defendant’s apartment, the floormats obtained from his vehicles, and a sample of the geologic substance taken from the mine location where Tahisha’s body was found. The material from the mine was bentonite, a fluffy clay containing bits of other minerals. Junger found bentonite in the toes, the side seam, and some webbing in the boots. There also were white smears of bentonite on the pants, and particles of bentonite inside the pants cuffs. Finally, traces of bentonite were found on a car mat from one of the vehicles. The bentonite found on defendant’s belongings was of the same color and type as the bentonite taken from the crime scene. The bentonite had the same general ratio of other minerals mixed in, and was relatively pure compared to bentonite that may be found at other sites, such as quarries that have been abandoned and exposed to the elements. The boots and pants did not have any sand or other types of stray soil that might be picked up if the wearer had walked around other places in addition to walking in a bentonite deposit. Junger testified that because only bentonite was found on the items of apparel, the material could be analyzed and characterized despite the small sample obtained from the items. Junger concluded that the bentonite on defendant’s belongings could have come from the excavation where Tahisha’s body was found. Junger also examined 27 soil samples collected by Detective Franey in the Barstow area. Franey consulted with persons who worked at Fort Irwin, in order to determine the various locations to which someone who worked in range control might walk, and collected 19 of the samples at Fort Irwin. Franey also collected three samples at the Rimrock Apartments, and five samples at various locations in the desert, including in and around the mine where Tahisha’s body was found. Two samples taken from sites within the quarry contained bentonite, but the samples taken from Fort Irwin, defendant’s apartment complex, and other locations did not contain bentonite. There are six bentonite mine sites within a 50-mile radius of the crime scene, but only the site where Tahisha’s body was found had white bentonite. vii. Pubic hair found on Tahisha’s dress Tahisha’s dress was not removed until the autopsy was performed. The dress then was delivered to criminalist Lough for examination. Upon removing the dress from its sealed bag on April 30, Lough found a pubic hair on the dress. Lough had examined the dress at the mine pit, but she had not seen the pubic hair at that time. The pubic hair did not match defendant’s, defendant’s girlfriend’s, Tahisha’s mother’s, or her mother’s boyfriend’s hair. Five other hairs found on Tahisha’s dress matched Tahisha’s hair. Forensic expert lunger testified that the pubic hair had a razor-cut edge such as one might find on a hair that had been shaved in the manner depicted in Shaved Pussy magazine. He also testified that hair is resilient and may be transferred easily from one location to another. 2. The defense case a. Evidence concerning defendant’s background, character, conduct, and habits Defendant did not testify at trial, but evidence concerning his life and character was presented by psychologist Edward Fischer, who examined defendant, and by defendant’s family and friends. Defendant was bom in 1951. He had two brothers—Kenneth, bom in 1949, and Kevin, bom in 1963—and two sisters—Deborah, bom in 1954, and Brenda, bom in 1957. The five siblings were raised by defendant’s mother and stepfather, who shuck his wife and children with his hands, spanked defendant, and hit defendant with a belt. As a child, defendant was timid, shy, and passive, and had no close friends. He was taunted and called retarded by his siblings and other children. He received poor grades in school, and was in special education classes from the seventh grade until he left high school during his junior year and enlisted in the Army at 17 years of age. As an adult, he remained passive and avoided confrontation. Defendant served in Thailand, Vietnam, and Korea. While in the Army, he worked as a wheeled vehicle mechanic, and became sergeant first class in charge of a small motor pool. Defendant met his future wife, Kwang Lee Chong, in Korea. Their first child was bom in 1976; they wed in 1978; the family moved to the United States in 1979, and their second child was bom in 1980. In 1981, the Army transferred defendant to Allentown, Pennsylvania. In Allentown, Kwang purchased a convenience store, and when the Army transferred defendant to Hawaii in 1984, Kwang remained in Allentown with their children to operate the store. In 1987, the Army transferred defendant to Fort Irwin. Defendant and Kwang remained friends, and their children visited defendant once after he was transferred to Fort Irwin, but Kwang and defendant did not reside together after 1984, and they divorced several years prior to his arrest. They remarried after his arrest. Kwang testified that defendant was a wonderful father and a good husband. Defendant became depressed after his marriage failed, and began drinking alcoholic beverages more than he had in the past. While serving in the military at Fort Irwin, defendant began drinking during the day, and sometimes would leave work after lunch and go out into the desert and become intoxicated. Defendant received a “bad efficiency report” after an officer discovered his alcohol-related activities, and defendant then was given the option of retiring from the military. He chose to do so in July 1988, after 20 years of military service, rather than face further military discipline. When defendant retired from the military, he became a firing range maintenance supervisor at Fort Irwin for DynCorp, a military contractor. His supervisor at DynCorp, Larry Blaine, testified that defendant was a hard worker and an exacting supervisor to the 15 employees who worked under him, and performed his job extremely well. In 1992, when DynCorp was awarded a five-year contract to continue managing Fort Irwin, the new contract’s listing of job titles that were funded pursuant to the contract did not include defendant’s job title. Thereafter, despite Blaine’s reassurances, defendant had a fear, bordering on the abnormal, of losing his job. Blaine also testified that defendant was generally quiet and withdrawn at work. Blaine did not believe that defendant attempted suicide because of job concerns, and also did not believe he could have committed the crimes with which he was charged. When defendant’s apartment was cleared out after his arrest, Blaine was shocked to learn that defendant had been taking property from DynCorp and the Army. Vicki Evans, whom defendant supervised at DynCorp, testified that defendant was very concerned about job security and spoke of that frequently. In 1991, when Evans underwent chemotherapy and could not work, defendant visited her once or twice a week to ask whether she needed anything. During those visits, he always was a gentleman to her daughter, who then was 12 or 13 years of age. Evans testified that defendant was very passive, and in her view would not commit the charged crimes. Manuila Cahill testified that she and her daughter, Monique, commuted with defendant to and from Fort Irwin, where she worked and Monique attended school. Sometimes she and Monique watched movies at defendant’s apartment, and he always was very nice and a very good friend. Cahill was surprised that defendant was interested in the sort of pornography admitted into evidence, that he might attempt suicide, and that he would steal from his employer. Monique testified that she met defendant when she was 11 or 12 years of age, and that he was a sweet, caring, sensitive, calm, polite, and respectful person who never would scream at a child or grab a child who was riding a bicycle. Deborah Wartenbe, the manager of the Rimrock Apartments, testified that defendant complained about loud children riding their bikes, climbing on the fence by the satellite dishes, and playing around his apartment, which was in a building of the complex that housed only adults. She also testified that he usually washed his laundry on Saturday morning. Defendant’s former girlfriend, Sylvia Twiford, met defendant in 1987, and resided with him for one and one-half years in 1991 and 1992. Sylvia testified that on Saturday mornings, defendant would wash his laundry, vacuum, dust, and do any other cleaning. She also testified that when children played around the satellite dish by his apartment, he would shoo them away, sometimes yelling at them. She saw him lose his temper and scream and yell at a man who angered him, but she described him as a hard-working, kind, considerate, introverted, shy, and overall nice person who would not commit the charged crimes. DuWayne Vandruff worked with defendant and became friends with him at Fort Irwin when both men were in the Army and they began to work for DynCorp. Vandruff described defendant as an “all-around nice guy.” Vandruff resided at defendant’s apartment for two or three months, and remembered children being near the satellite dish outside defendant’s apartment, but never saw defendant yell at the children. Vandruff did not believe defendant was capable of committing the charged crimes. b. Evidence concerning defendant’s activities on April 23 and 24, 1993 Larry Blaine testified that on April 23, defendant did not express any concern about his job, and that defendant’s demeanor was normal when he left work. The only concern defendant expressed to Blaine on April 23 was that defendant needed to leave at approximately 4:30 p.m. so he would not be late picking up his carpool riders. Manuila Cahill testified she was commuting with defendant in April 1993 and usually arrived home at approximately 5:30 p.m. Robert Hunskor, whose apartment was next to defendant’s, testified that he was contacted by Mr. Jannsen sometime between 9:15 and 9:45 p.m. concerning Tahisha’s disappearance. The two men then walked by defendant’s apartment as defendant exited from his front door. When the threesome reached the area where cars were parked, defendant and the other two men parted ways. Hunskor did not recall that defendant had anything in his hands as he left his apartment. From Hunskor’s apartment, Hunskor could not see the area between defendant’s door and defendant’s vehicles, and did not know whether defendant had made additional trips between his apartment and his vehicles. Defendant seemed “normal” to Hunskor when Jannsen and Hunskor encountered him that evening. Hunskor’s and defendant’s apartments shared an internal wall, but Hunskor did not hear any noises from defendant’s apartment on April 23 or at any other time. Holly Robles was working her shift as a waitress at Coco’s Restaurant in Barstow on the evening of April 23, 1993. Robles testified that on that evening, defendant arrived at the restaurant between 9:00 and 9:30 p.m. and departed about 20 minutes later. When Beverly Walker, a resident of the Rimrock Apartments, returned home on April 23, it was dark and there were at least three police cars at the apartment complex. She agreed to assist in the search for Tahisha and received a list of telephone numbers to call, which she began calling between 9:30 and 10:00 p.m. Walker made telephone calls to residents for an hour or more, until perhaps 11:00 or 11:30 p.m. At some point during this time period, Walker contacted defendant by telephone at his apartment. At 1:15 a.m. on April 24, Detective Griego observed defendant’s vehicle in a parking area of the apartment complex. At 2:35 a.m., Franey and Griego went to defendant’s apartment. Defendant appeared to have been sleeping, and was calm when the officers spoke to him. Shortly before noon on Saturday, defendant was in the apartment complex’s laundry room, apparently just finishing washing some laundry. c. DNA evidence Marc Taylor, a forensic scientist, evaluated the DNA testing performed by the prosecution’s experts. With respect to the outer vaginal swab, Taylor testified that Stockwell properly performed the DNA testing on this sample, that Stockwell’s results were accurate, and that these results were what one would expect to find if defendant had left his saliva on Tahisha. Taylor also stated that the figure of one in 400,000 was “a close estimate.” With respect to Jones’s testing of the internal vaginal and rectal swabs, Taylor criticized Jones’s decision to “overload” the sample. Taylor also testified that the results of Jones’s RFLP test reflected either “partial digestion” of Tahisha’s DNA or foreign DNA, and that if the DNA was foreign, it did not match that of defendant. Taylor agreed that the test results did not establish the presence of foreign DNA. Taylor did not find any flaws in Stockwell’s testing of the blood found on defendant’s shirt, and agreed that all of the markers in that blood matched those of Tahisha. In calculating the frequency with which an individual with these markers would appear in the population, Taylor expressed discomfort with a formula using the GM and KM statistics in combination with the other DNA markers. Instead, multiplying together the frequency of the markers, without consideration of the GM and KM statistics, Taylor calculated that all of these remaining markers would appear in one in every 552,000 persons. d. Bentonite Dr. Joan Esther Fryxell, a geology expert, testified that the sample of bentonite collected from defendant’s belongings was too small to permit identification of its source. Fryxell also testified that the color of bentonite is not a reliable characteristic with which to determine its source, because if the minerals in the clay are light colored, the addition of a small amount of impurities may change the color drastically, while dark minerals will be affected only minimally by the addition of impurities. Accordingly, the chemical composition of two samples may be nearly identical, but their colors may be different. Fryxell agreed that the bentonite found on defendant’s belongings was similar to the bentonite from the crime scene, but stated that the primary characteristics of the bentonite found on defendant’s belongings also were similar to those of the bentonite found in other locales. She testified that most of the terrain in the Fort Irwin area that is used for firing ranges is weathered and would not have soil that would match the bentonite from the crime scene. She agreed it was unlikely the bentonite on the dress boots found in defendant’s apartment could have come from walking in the flat areas of Fort Irwin. She also testified that a bentonite fragment found on the work boots defendant kept at work and wore while supervising the maintenance of the firing ranges did not match the bentonite found on his dress boots or the bentonite from the crime scene. She confirmed she had been told by the defense that defendant did not have any explanation regarding the source of the bentonite on his dress boots. William Mann, the owner of the company that operated the excavation site where Tahisha’s body was found, testified that his company’s active operation of the excavation site was sporadic; about twice a year, a bulldozer was sent to the excavation to gather a large stockpile of bentonite, and every month or two, when trucks arrived to haul away bentonite, a “loader” was sent to the site. According to Mann, in April 1993 one other actively mined bentonite site was located in the Fort Irwin area. e. The plastic star Defendant presented evidence suggesting that the star found in his apartment might have come from some other child, might have been brought into the apartment by adhering to something other than the sole of a shoe, or might have been placed in the carpet after defendant had vacuumed on Saturday. Defendant’s forensic expert, Marc Taylor, agreed that the star could have come from Tahisha’s card of earrings, but testified it also could have come from any card of earrings that were produced using the same mold, which had several small defects. Taylor speculated that the adhesive on the back of the star was capable of clinging to the side of a shoe or trousers, but he did not analyze the stick-on star earring. Both Mabel Pizzo, the mother of Tahisha’s friend Carrie Pizzo, and Carrie testified they never had seen Tahisha wear earrings and they were certain that other children residing in the apartment complex wore stick-on earrings. The carpet in defendant’s living room apparently had been vacuumed before Lough vacuumed the carpet for evidence. A photograph of the living room taken at the time the search warrant was served revealed marks from what Franey described as a “standard vacuum cleaner,” which were different from the marks left by Lough when she vacuumed. f. Pubic hair found on Tahisha’s dress Marc Taylor testified that hair may be very important evidence, particularly in cases involving sexual assault. He agreed that because pubic hair generally is confined in clothing, such hair usually is not found floating in the air. He testified that finding a pubic hair on a victim in a mine pit is more significant than finding a pubic hair on a victim in a motel room or bathroom. Taylor also testified that he would expect to find hairs in an apartment from a victim who was assaulted, thrown on the floor, and left on the floor for a few hours. g. Medical and psychological evidence concerning defendant Defendant’s two psychological experts testified during 11 days of the trial. Dr. Edward Fischer testified concerning defendant’s background, the results of various tests administered to defendant, the nature of defendant’s pornography collection, and the various types of child molesters. Dr. Veronica Thomas, a clinical and forensic psychologist, testified concerning pornography, sexual behavior, and pedophilia. Fischer testified that defendant had fibril convulsions as an infant, but outgrew his seizure disorder. Fischer also testified that defendant had a history of migraine headaches, beginning at 24 years of age, after he had been knocked unconscious in Vietnam. Defendant denied all drug use but admitted consuming alcoholic beverages when he was depressed. Defendant told Fischer that he was exclusively heterosexual, and until he met Kwang, all of his sexual activity was with prostitutes. Defendant also told Fischer that all of his sexual relationships had been with adult women. Fischer administered several tests to defendant to evaluate his brain function. The Bender-Gestalt visual motor test led Fischer to believe that defendant was compensating for some “marginal sort of brain damage.” Fischer also administered to defendant the Wechsler Adult Intelligence Scale—Revised, on which a person of average intelligence will have a score of 100. Defendant’s verbal score was 84, his performance score was 93, and his full-scale score was 87, which is in the “dull normal” range. Fischer also administered the Wide Range Achievement Test, which reflected that defendant had improved his reading and writing abilities over his lifetime beyond the level that would be expected from one with his native intelligence, but that he had difficulty performing simple computational problems. The Luria-Nebraska Neuropsychological Battery generated similar results. Fischer testified concerning medical tests administered by others. An electroencephalogram (EEG) and a magnetic resonance imaging (MRI) test were performed upon defendant in March 1997. Fischer testified that the results of the EEG were normal. He also testified that the MRI test reflected that defendant had many small lesions within the deep white matter of both cerebral hemispheres, which was consistent with his learning disability and other indications of brain dysfunction that Fischer perceived in defendant. Fischer testified that defendant has an arachnoid cyst in his left temporal lobe, which may be the cause of his “rather unusual affect.” Various tests were administered by Fischer and others to evaluate defendant’s personality and psychological tendencies. Fischer testified that Dr. Fredman at Victor Valley Community Hospital administered to defendant the Minnesota Multiphasic Personality Inventory (MMPI) about three days after Tahisha’s death. The answers given by defendant when Fredman administered the test indicated that defendant suffered from depression, which is associated with sadness, pessimism, brooding, being “self-punitive,” and feeling a lack of self-worth. Defendant’s answers also reflected “mania,” which Fischer described as “the opposite of depression.” Fischer stated that this “paradoxical sort of profile” is “found in people who have brain damage .... And the impact of the mania seems to make them a bit more agitated and unable to sit still about it. In some aspects it energizes the depression and may make it easier for them to act out.” Fischer testified that defendant’s profile was different from the profile of a person who would commit a vicious, senseless crime. Fischer also testified that the “pedophilia score” on the MMPI administered by Fredman indicated that it was “unlikely that [defendant] has any interest in children as sex objects.” Fischer administered to defendant the Rorschach “inkblot” test in December 1996. Fischer testified that defendant’s failure to perceive human movement in any of the shapes was consistent with a person with brain dysfunction who does not imagine or fantasize. Fischer also testified that defendant’s responses reflected vulnerability and depression, and lacked “any indication of a failure of impulse control or any tendency toward expressing aggression or explosiveness.” A Thematic Apperception Test also reflected that defendant lacked imagination. Fischer diagnosed defendant as suffering from major depression, dementia, and a learning disorder. Fischer identified, among physical conditions that affected defendant’s mental state, defendant’s high blood pressure, migraine headaches, the temporal lobe cyst, and the multiple brain lesions. Finally, Fischer identified as “personality disorders” defendant’s desire to be cared for by others, such as by his wife, and his “obsessive compulsivity, the need for orderliness of things and need to be in control.” According to Fischer, there was no indication in defendant’s history or psychological tests that he was a pedophile or a violent person. Fischer testified that defendant told him there was no history of child molestation in defendant’s family, and Fischer confirmed that this information was important to his evaluation of defendant. The prosecutor asked Fischer, hypothetically, whether Fischer’s evaluation would be affected if Fischer learned that defendant’s older brother, Kenneth, had molested Kenneth and defendant’s two sisters, Kenneth’s daughter, and Kenneth’s stepdaughter, and that Kenneth had committed suicide when the molestation of his stepdaughter was discovered. Fischer responded that “it would increase the probability