Full opinion text
Opinion MORENO, J. On June 3, 1998, a jury found defendant Tommy Jesse Martinez guilty of the rape, robbery, and murder of Sophia Castro Torres. (Pen. Code, §§ 261, subd. (a)(2), 211, 187.) The jury found true the special circumstance allegations of rape and robbery and further determined that defendant personally used a knife, a deadly and dangerous weapon, in committing the crimes against Sophia. (§§ 190.2, subd. (a)(17)(A), (C), 12022, subd. (b).) The jury also found defendant guilty of assaulting three other women. The jury found defendant guilty of assaulting Maria M. with a deadly weapon, assaulting her with the intent to commit rape, kidnapping her for robbery, and kidnapping her with the intent to commit rape and oral copulation. (§§ 245, subd. (a)(1), 220, 261, subd. (a)(2), 209, subd. (b); former § 208, subd. (d).) The jury further determined that defendant personally used a knife, a deadly and dangerous weapon, in committing the crimes against Maria. (§ 12022, subd. (b).) The jury found defendant guilty of assaulting Laura Z. with the intent to commit rape and that he used a knife, a deadly and dangerous weapon. (§§ 220, 261, subd. (a)(2), 12022, subd. (b).) The jury found defendant guilty of assaulting Sabrina P. with a deadly weapon, assaulting her with the intent to commit rape, and attempting to kidnap her with the intent to commit rape and also found that defendant used a knife, a deadly and dangerous weapon in the offenses. (§§ 245, subd. (a)(1), 220, 261, subd. (a)(2), 664; former § 208, subd. (d); § 12022, subd. (b).) The jury found that defendant was not guilty of attempting to kidnap Sabrina for robbery, but was guilty of the lesser offense of attempting to kidnap her. (§§ 664, 207, 209, subd. (b).) After a penalty trial, on June 23, 1998, the jury returned a verdict of death. The court denied a motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. FACTS A. Guilt Phase 1. The Prosecution’s Case (a) The crimes against Sophia Torres Sophia Torres was bom in Mexico in 1961 and moved to Arizona when she was 23 years old. Around 1994, because she had broken up with her longtime boyfriend, Sophia moved to Santa Maria, California, where three of her sisters lived. Approximately eight months later, she moved back to Arizona and learned that her ex-boyfriend had been shot and killed. She returned to Santa Maria in October 1995. Sophia, who had been a hard-working and outgoing person, was deeply affected by her boyfriend’s death and became withdrawn and reclusive. She did not have any boyfriends and was described as a loner who did not use alcohol or drugs. She worked odd jobs and was homeless, living mostly in a shelter, but she remained a very neat and clean person. At one point, she briefly worked as a bartender at the Tres Amigos bar in the La Joya Plaza, but was let go after two weekends because she was “very meek” and “too inhibited” to be a bartender. While she worked there, she never drank, and, after she was let go, she never came back to the bar as a patron or to socialize. In the week before her murder, Sophia stayed with a friend of her sisters’, Ofelia Francisco. According to Mrs. Francisco, Sophia kept to herself. Sophia’s routine was to leave the house around 8:30 or 9:00 a.m. and return around 9:00 or 10:00 p.m. On the morning of November 15, 1996, Sophia left Mrs. Francisco’s home at around 9:00 a.m. She was wearing a long blue jacket over a long black dress and was carrying her purse. As she usually did, Sophia stopped at the local Salvation Army where she sat alone and had lunch. At some time around 10:30 or 11:00 p.m. that night, Sophia was assaulted and killed in a baseball field in Oakley Park, a few blocks south of Mrs. Francisco’s home. At 11:07 p.m., at a pay phone in La Joya Plaza, several blocks south of the park, an anonymous male dialed 911 and reported that “a lady” was being attacked in Oakley Park with baseball bats by “two Black girls” who were “kinda heavy set.” When the 911 dispatcher realized the location of the pay phone, she asked the caller why he had called so far away from the scene, but the caller hung up. The call was recorded. At 11:08 or 11:09 p.m., Santa Maria Police Officer Louis Murillo arrived at Oakley Park in response to the 911 call. Due to the poor lighting conditions, Officer Murillo drove into the park to investigate. Using his patrol car’s lights, he noticed a female lying on the ground near the snack bar. There was fresh blood all around her and he called for an ambulance. He checked for vital signs and did not find any. Because the grass was wet, fresh bicycle tracks were visible on the grass between the snack bar and a large tree, leading to the street. Based upon the location of personal items and blood spatter marks found at various places at the park, it appeared Sophia was attacked multiple times as she tried to flee her attacker. At the bleachers on the third base side of the baseball diamond, police found a fingernail file, toothbrush, and pencil that may have come from Sophia’s purse. On the bleachers, there were also long strands of black hair that could have belonged to Sophia. Behind home plate, in the walkway between the backstop and the snack bar, there was blood spatter on the wall of the snack bar. Blood spatter in the bleachers on the first base side of the diamond indicated that Sophia had run into those bleachers. It appeared that Sophia had run under the bleachers and stopped at one end, as the blood spatter there was consistent with someone standing still and bleeding downward. The area where Sophia’s body was found was a section of concrete near the snack bar. She was lying on her back, with her long dress hiked up above her knees. There was a large amount of blood on the ground around the victim and a larger pool of blood a few feet away, indicating that she had lain in that spot for some time and bled. There was a palm print next to this pool of blood. Sophia’s body had multiple bruises with crush-type lacerations consistent with having been hit with a smooth, blunt object like a baseball bat. The ring and little fingers of Sophia’s right hand were swollen and bruised, as if her hand had been hit while fending off her attacker. She had a large bruise to her left breast area and over her left hip. The left side of her head was swollen and bruised, as if hit repeatedly by a blunt object. Her nose was broken, with bone fragments protruding through her skin, and the bridge of her nose was indented and had sunk inward due to a large crush-type laceration. Her right ear was bruised, with a small, crush-type laceration. Although her skull was otherwise intact, her brain had swollen to the point of flattening out in some areas, as opposed to having a normal wrinkled appearance. The coroner concluded that Sophia died due to blunt force trauma to the left side of her head, which caused cerebral contusions with acute subarachnoid and subdural hemorrhage. On the right of Sophia’s face, extending from the hairline of the temple to her cheek, was a very deep and sharp-cut laceration measuring three and a half or four inches long, three-quarters of an inch wide, and almost as deep. The wound was consistent with having been inflicted by a knife. She also had relatively minor cuts to her left hand and right elbow and had abrasions to both knees. Sophia had no bruising, no tearing, and no trauma to her vagina, but the pathologist, Dr. Robert Failing, believed that the lack of such injuries did not rule out the possibility of sexual assault. Sperm was detected on Sophia’s dress and on vaginal swabs taken from her. Subsequent DNA analysis of the vaginal swabs identified a match with a blood sample obtained from defendant. The DNA profile recovered from the vaginal swab occurs at an expected frequency of one in 2.2 million persons, or one in 3.75 million Hispanics. At the time of her death, Sophia did not have any alcohol or drugs in her system. (b) The other assaults (1) The assault on Maria M. Two weeks before Sophia’s murder, on November 3, 1996, Maria M., then aged 16, was walking to work at a nearby discount mall in La Joya Plaza, taking her usual shortcut through an alleyway. As she exited the alley and entered a pedestrian walkway into the mall property, a man she later identified as defendant grabbed her from behind with one arm and held a knife blade against her neck with his other arm. Maria tried to pull away, but defendant held her tighter, grabbed her by her hair, and pulled her about 180 feet back into the alleyway. Defendant untied her shirt and tried to take off her belt and unzip her pants. When Maria asked what he wanted, defendant replied, “I want you. I want to mark your beautiful face.” Maria believed that defendant wanted to rape her. Defendant tried to kiss her and his breath smelled like “[c]hocolate with peanuts, like a Snickers bar.” As Maria continued to struggle, a young man appeared in the alley and yelled at defendant. Defendant pushed Maria away from him, but then punched her in the face. Defendant then ran off. The young man came to Maria’s aid and called the police. Maria later realized that her pager was missing. One month later, Maria identified defendant as her attacker when police presented her with a six-person photographic lineup that included a picture of defendant. Maria was 100 percent certain that the photograph was of her attacker. (2) The assault on Laura Z. Just over two weeks after Sophia’s murder, on December 2, 1996, about 6:15 p.m., Laura Z. was leaving her job at a department store in the Town Center mall in Santa Maria. As she walked toward her truck, which was parked in the mail’s parking structure, Laura noticed defendant standing on the side of the ramp, leaning against a wall. After Laura got inside her truck and closed her door, she saw defendant running behind her. Laura reacted by immediately locking her door, just before defendant reached it and tried lifting the truck’s door handle. Defendant looked from side to side, as if he was surprised that the door was locked. Defendant then pointed to his wrist and asked Laura what time it was. She replied, “I don’t know.” Defendant then looked around again and ran away. Laura believed defendant’s intentions were “bad or evil,” and was frightened by the encounter. After she drove home, Laura told her husband about the incident, and he called the police. A few days later, the police showed Laura a photographic lineup, and she identified defendant’s photograph as that of her assailant. On a scale of one to 10, Laura rated her certainty about her identification as a “10.” (3) The assault on Sabrina P. Two days after the incident with Laura Z., on December 4, 1996, about 9:00 or 9:30 p.m., Sabrina P. was leaving her job at the Town Center mall. Sabrina’s mother was supposed to pick her up, so she waited while seated on a bench outside the mall. Soon after Sabrina sat down, defendant appeared from behind a cement wall of the parking structure and started walking toward her while looking from right to left. Defendant sat down next to Sabrina with his shoulder touching hers, pulled out a small knife, and held it against her right side, saying, “Don’t move, don’t scream and I won’t have to stab you.” Defendant told Sabrina to come with him, but she said she was not going anywhere because she had just called her mother, who would be arriving any second. She believed that defendant intended to rape her. Defendant repeated his demand that Sabrina go with him, but then said, “Get your hand off my knife.” Sabrina suddenly realized that she had grabbed the handle of defendant’s knife. She refused to let go of the knife, thinking he might stab her if she did. As they stood up and struggled over the knife, Sabrina began to scream, and defendant grabbed her other wrist with his free hand. A motorcyclist passed by, but appeared not to hear Sabrina’s screams. During their struggle, defendant said, “Okay, I’ll leave. Just give me my knife. Just let go of my knife and I’ll leave.” After further struggling, defendant let go of the knife and walked away calmly as if nothing had happened. As defendant slowly walked away, he turned around and smirked. Sabrina told him that he would not get away with what he did. She made a point of observing defendant carefully as he walked out of view so she was certain of what he looked like and what he was wearing. Sabrina, still holding the knife in her hand, then ran to a nearby restaurant and pounded on the door but a woman inside refused to open it. Sabrina pleaded for the woman to let her in; the woman still refused but agreed to call 911. The 911 operator convinced the woman to let Sabrina into the restaurant, where she got on the phone and described defendant. While Sabrina was on the phone with the 911 operator, Santa Maria Police Officer Jeff Lopez received a call from dispatch regarding a possible attempted kidnapping outside the mall restaurant. The dispatch operator described the suspect as a Hispanic male wearing a black, hooded sweatshirt. After driving through the mail’s parking structure, Officer Lopez saw a person matching that description riding a bicycle down an adjacent street. That person was defendant. Defendant made eye contact with Officer Lopez, but began to pedal faster. Officer Lopez could not maneuver his patrol car over to stop defendant because a traffic island prevented him from crossing the street. Instead, Officer Lopez radioed to other officers, who intercepted defendant and detained him. Officer Lopez arrived at the scene of defendant’s detention, told defendant to identify himself, and asked where he was coming from and where he was going. Defendant admitted he had come from the mall and was going home, but Officer Lopez pointed out that defendant had been headed in the opposite direction from his home address. Defendant then claimed he was going to his cousin’s place on Boone Street first, although he was unable to give Officer Lopez a specific address. Officer Lopez pointed out that Boone Street was also in a direction opposite to that in which defendant had been traveling. Defendant claimed he might have gotten lost. Officer Lopez then asked defendant to sit down on the curb. After the police arrived to meet Sabrina at the mall restaurant, they told her they had already detained someone nearby who matched the description she had provided. Santa Maria Police Officer A1 Torres took her to the location where defendant was being detained, and Sabrina identified him “without a doubt or a second guess.” (c) The investigation (1) Defendant’s statements during his arrest After Sabrina identified defendant as her attacker, Officer Lopez placed defendant under arrest. At the restaurant, outside defendant’s presence, Sabrina had given the knife to Officer Torres. While the officers transported defendant to the police station, Officer Torres radioed that he had the “item used” in his possession. Although no one had mentioned a knife, defendant asked if an officer had found a knife. Officer Torres replied, “Who said anything about a knife?” Defendant stated that he thought he had heard one of the officers mention finding a knife. At the police department, Officer Lopez questioned defendant. Defendant claimed he had gone to the mall to meet his cousin, but did not find her and left on his bicycle. Defendant denied meeting or assaulting Sabrina P. (2) Defendant’s statements during the first recorded interrogation The following day, on December 5, 1996, the police began to suspect that defendant was also involved in the assaults against Maria M. and Laura Z., and the murder of Sophia Torres. Santa Maria Police Detective Gregory Carroll had been assigned to the investigation of Sophia’s murder along with his partner, Detective Mike Aguillon. On the morning of December 5, 1996, the detectives thought they might be able to determine whether defendant was involved with Sophia’s murder by comparing defendant’s voice with the recording of the man who made the 911 call shortly after the murder. Earlier that morning, they had played the 911 recording to defendant’s probation officers, who believed the recording matched defendant’s voice. With a tape recorder running, the detectives introduced themselves to defendant and asked him a few questions about the assault on Sabrina P. the night before. Defendant again denied assaulting Sabrina and repeated his claim that he was at the mall to meet his cousin. The detectives then took a break, excused themselves from the interrogation room, and compared the taped portion of the conversation with the 911 tape. Believing that defendant’s voice matched that of the 911 caller, the detectives returned to the interrogation room and began to question defendant about Sophia’s murder. Defendant initially denied being the 911 caller, but then admitted making the call after Detective Carroll told defendant that both his probation officers had identified the caller’s voice as his. Defendant claimed he had gone to meet Sophia at Oakley Park to buy “crank” from her, but, when he arrived, he saw two Black women chasing Sophia through the park and hitting her. He claimed he observed this from the street and that he also saw a man in “a little beat up car” parked on the street. Defendant told the detectives that he did not go into the park, but just kept walking. He said he was wearing a white T-shirt, white pants, and a white baseball cap. He claimed he went home, but then decided Sophia needed help, and so he walked to a pay phone to make the 911 call. He told the detectives that he did not want to identify himself on the 911 call because he was high on “crank” and did not want to get arrested. Defendant claimed that when he last saw Sophia, she was being chased from the playground area and into the baseball field. But when Detective Carroll asked defendant why he told the 911 operator that Sophia was being attacked at the snack bar, defendant hesitated and said, “I just wanted somebody to go out there quick.” He denied killing or hitting Sophia, but said he would be unable to identify the two Black women. Defendant initially said he had bought “crank” from Sophia before, but after Detective Carroll explained that Sophia was a “semi-transient” and that “nothing” indicated that she was a drug dealer, defendant claimed that he had met her for the first time that night and was going to the park to buy “crank” from her for the first time as well. Defendant said he had met her earlier that night at the Tres Amigos bar at La Joya Plaza. After Detective Carroll pointed out defendant’s inconsistent statements about buying “crank” from Sophia, explained that she could not have been a drug dealer, and explained that it was not possible for defendant to have seen Sophia in the pitch-black park from the street, defendant admitted his story did not make sense. The detectives encouraged him “to think about it,” and ended the interrogation. (3) Search warrants and witness identification During the course of the day on December 5, 1996, police officers located Maria M. and Laura Z. and, as described above, they each positively identified defendant’s picture in the photographic lineups presented to them. On the same day, Detective Aguillon participated in the execution of a search warrant at defendant’s residence. Detective Aguillon searched defendant’s bedroom and found a can of Fabulous brand cleaning fluid and a bottle of hydrogen peroxide on his closet floor, but found no white T-shirt, white pants, or white baseball cap. About 5:00 p.m. that day, Detectives Carroll and Aguillon then executed a second search warrant by taking defendant to a hospital, for a nurse to collect his blood, hair samples, and additional evidence for a sexual assault kit. During the ride to the hospital, the detectives asked defendant to repeat his explanation of what happened on the night of Sophia’s murder. Defendant again described how he had gone to the park to buy “crank” from Sophia, but then saw two Black girls chasing her, one hitting Sophia with her fists and the other holding a bat. Defendant described Sophia’s attackers as being about five feet six or five feet seven inches tall and “chunky.” Contradicting his previous statement, defendant now said he thought he would be able to identify them. (4) Defendant’s statements during the second recorded interrogation At 7:00 p.m. on December 5, 1996, Detectives Carroll and Aguillon returned defendant to the police station from the hospital, and began a second recorded interrogation. In this interrogation, the detectives told defendant that two other women had now identified him as a suspect in two different incidents. Detective Carroll briefly described the incidents reported by Maria M. and Laura Z. The detectives also explained how Maria and Laura had both unequivocally identified defendant after being shown a photographic lineup. Detective Aguillon explained defendant’s predicament — that three different women, who did not know each other, all described defendant as their attacker in incidents occurring within a month and a half. The detectives also explained that the small paring knife defendant had used to assault Sabrina P. had a handle that matched a set of knives found at his residence. Defendant denied involvement in any of the three assaults and claimed the three women must be mistaken or lying. As to Sophia’s murder, defendant again denied hitting her or having any physical contact with her. Defendant claimed he mentioned the snack bar on the 911 call because he had seen the girls chase Sophia towards the snack bar. Contrary to what he had said in the first recorded interview, he now claimed he had not seen them coming from the playground. But when the detectives pointed out that it was not possible for him to have seen Sophia at the snack bar from his location on the street, defendant claimed, for the first time, that he had walked off on an adjacent street and then returned to the edge of the park, and that was when he saw them running towards the snack bar. The detectives said they did not find defendant’s story credible and told him that no witnesses reported seeing any Black females in the area that night. They also told defendant they had spoken with people at the bar where defendant had claimed he met Sophia on the night of her murder and that the detectives had been told that Sophia did not “hang out there.” The detectives told defendant that Sophia was penniless, did not sell methamphetamine, and was only near Oakley Park because that was the route she took to walk home. Defendant did not change his story. (5) Defendant’s final interrogation The next morning, on December 6, 1996, Detectives Carroll and Aguillon again met with defendant. This interrogation was not recorded. Defendant repeated his story about two Black females assaulting Sophia. But when the detectives confronted him about the assaults against the other women and asked whether they were lying, defendant admitted, “I did those.” He claimed, however, that he had not intended to rape either Maria M. or Sabrina R, but had only intended to rob them. He also explained that he had not tried to remove Maria’s pants, but had only tried to go through her pockets. He did not know why he had punched her. Defendant continued to deny any involvement in the Laura Z. assault. (6) Additional investigation Employees at the Tres Amigos bar did not see either defendant or Sophia at the bar on the night of her murder. At the time of the crimes, Oakley Park, including its baseball field, had no artificial illumination at night. In addition, according to the testimony of astronomer David Kary, on the night of the murder the moon had set at 9:38 p.m., well before Sophia’s estimated time of death. Under similar lighting conditions, the prosecutors reenacted defendant’s version of how he observed the attack on Sophia inside the park while Kary observed from the street adjacent to the park. Kary testified it was not possible to see persons inside the park from his location on the street, and that, at best, he was only able to see the prosecutors briefly in silhouette. In addition, Detective Carroll tried to reenact defendant’s claimed route on the night of the crimes by foot and by bicycle. His trip between Oakley Park and defendant’s residence took seven and a half minutes by foot and nearly three minutes by bicycle. His trip from defendant’s residence to the pay phone defendant used to make the 911 call was four and a half minutes by foot and two minutes by bicycle. 2. Defendant’s Case Keith Gorman, a paramedic who arrived at Oakley Park on the night of Sophia’s murder, observed a single set of bicycle tracks in the wet grass, which were east of third base outside the dugout and ended on the adjacent street, near the middle of the block. Defendant’s younger brother, Mario Martinez, testified that sometime in November 1996, defendant came home with a pager. Because the pager kept ringing, defendant asked Mario to answer the page. When Mario called the number, a girl answered and said it was her pager. Mario asked her what the pager number was, got the number, told the girl she had paged the wrong number, and then hung up. Defendant told Mario that he stole the pager from a girl at La Joya Plaza by snatching it from the outside of her pocket as she walked by. Mario kept and used the pager for a few weeks, but later threw it away. Francisco Javier Lopez testified he witnessed the assault of Maria M. in the alleyway near the La Joya Plaza discount mall on November 3, 1996. While he was parked in his truck, he saw what appeared to be a boyfriend and girlfriend fighting, and the man was trying to stop the girl from entering the mail’s walkway entrance. The girl made eye contact with Lopez, and he realized that she needed help. Lopez activated his truck’s alarm manually, and the man appeared surprised but reacted by pulling the girl out of Lopez’s view and into the alleyway. Carrying a heavy flashlight and his phone, Lopez exited his truck and approached the alley. He saw them struggling halfway down the alleyway, where the man hit the girl and then ran off. Lopez may have yelled at the man to let her go. He called 911, and ran over to help the girl. The police arrived a few minutes later. Lopez could not identify defendant as the assailant. 3. Prosecution Rebuttal The prosecution presented evidence indicating that Maria M. deactivated her pager on November 4, 1996, and that the pager would not have functioned after that date. Because her pager was missing after the assault, Maria made one call to her pager the very same day, and a young man called her back. She then immediately called to have her pager disconnected, but the pager company could not disconnect it until the next business day, which was Monday, November 4, 1996. B. Penalty Phase 1. Prosecution’s Case (a) Prior crimes (1) Robbery of an ice cream shop On April 24, 1992, at the age of 14, defendant robbed a cashier at an ice cream shop. On that date, Alicia Anaya was working at the Delicias de Mexico ice cream shop at La Joya Plaza. Defendant entered the shop and demanded money from Anaya. Before she gave him the money, the shop’s phone rang a few times, and each time defendant picked up the phone and hung up. As he left the shop with the money, he told Anaya that she was pretty and tried to reach for her hand, but she blocked him. A few days later, Anaya was working with her boss when she saw defendant and another boy walking by the shop. Anaya told her boss that defendant was the person who had robbed the shop. Her boss ran outside, but she was only able to grab defendant’s companion. Later, the police took Anaya to a house where she positively identified defendant as the person who had robbed the shop. Defendant initially denied committing the robbery, but later admitted it, claiming that a friend of his needed the money. (2) Burglary at a bread store On September 1, 1993, at the age of 15, defendant was detained during an investigation of a burglary at a bread store. Initially, defendant provided the officer with false identifying information. The investigating officer noticed that defendant’s right pants pocket was sagging, as if it contained something heavy. The officer conducted a patsearch and removed a dagger from defendant’s pocket. (3) Robbery of Pepe ’s Liquors On February 23, 1994, at the age of 16, defendant and a friend attempted to rob Francisco Chavez at knifepoint. While Chavez was working at Pepe’s Liquors, defendant and his friend entered the store. Defendant held a knife and demanded money. Chavez refused and activated his silent alarm, and the store received a phone call seconds later. While defendant and his friend were still in the store, Chavez reported that he was being robbed. Defendant and his friend ran off, but were stopped by a police officer. The arresting officer did not find a knife, but defendant admitted his involvement. Defendant stated that he did not intend to rob Chavez and that it was a joke. (4) Knife possession On April 22, 1995, at the age of 17, defendant encountered his probation officer and a police officer at a community strawberry festival. In a probation search, the officers found an unsheathed hunting knife tucked into defendant’s waistband. (5) The Alejandre incident On April 2, 1996, at the age of 18, defendant was involved in an attack on the Alejandre household. Willie Alejandre, then aged 16, was at a friend’s house, across the street from his own, drinking beer with some friends. An older man approached Willie and began fighting with him, claiming that Willie had fought his cousin. Willie ran off when he heard the older man call out to his friends for a gun. Willie ran back home and was chased by a group of young men, including defendant. After Willie ran inside his home, he closed the door and told his mother, Josephina, to call the police. The young men began pounding on the Alejandres’ front door and kicked it open. Defendant stood in the doorway and demanded that Josephina “hand over Willy.” When she refused, defendant threw a flower pot at her, and the other young men threw flower pots through her windows. Defendant also threw a beer can. Josephina’s husband grabbed a hammer and began to chase away the young men. A neighbor, Gabriel Resendez, also came outside with a baseball bat. Defendant confronted Resendez with a broomstick and hit his truck with it. As the police arrived, the young men ran off, but defendant was chased down by a police officer and arrested. Despite being identified by the Alejandres and their neighbor, defendant denied any involvement in the attacks. (b) Victim impact (1) Sophia Torres’s family Sophia Torres’s older sister, Victoria Francisco, testified that Sophia’s death seemed like a “dream” to her and that it was difficult for her to realize that she was dead. What hurt her most was thinking of “all that [Sophia] went through” and how she “suffered that night” before her death. She remarked that Sophia never harmed anyone. Sophia’s oldest brother, Gilberto Torres, testified that Sophia lived with him in Phoenix for a time. Sophia had problems and was a shy person, but he had hoped that she would one day return to her normal self and become an independent, hard-working person again. When Gilberto attended her funeral and opened her casket, he could not recognize her face. He thinks about Sophia every day, “especially for the brutal way she died.” Sophia’s father, Angel Torres, often thought of Sophia, “felt her death very deeply,” and explained that his family “never had such a case.” It was not fair for Sophia to have had that “stroke of luck” because she was not a bad person and never harmed anyone. (2) Maria M. Maria M. testified that, in the first two weeks following defendant’s assault, she would become frightened when a man came near her, but, little by little, eventually overcame this fear. Whenever she is out alone or with a friend, however, she is still afraid of encountering young men who look like defendant. She used to love chocolates, but can no longer eat or smell Snickers bars because they evoke her memory of the assault. Since the incident, Maria’s mother is also very afraid and worries about her. (3) Sabrina P. Sabrina noted that she has become very nervous around men as a result of defendant’s assault. She recounted an incident a week after her assault where she encountered a male customer at the clothing store where she worked. It was near closing time and the store was empty except for her and a fellow salesclerk. The man was wearing gloves and asked Sabrina if she could help him find a pair of jeans for his girlfriend even though he did not know her size. Sabrina thought this was weird and became frightened, thinking he wanted to hurt her. She then panicked, walked to the back of the store, and asked the other salesclerk to help the man. Because of defendant’s assault, Sabrina changed her habits and is now more aware of her surroundings. (c) Conduct while in custody While defendant was awaiting trial on this case, on March 21, 1998, a correctional officer at the Santa Barbara County Main Jail in Goleta found a handmade knife, sharpened from the handle of a plastic eating utensil, hidden in his cell. According to the officer, a knife is considered “critical” contraband and poses a safety hazard to both inmates and officers. 2. Defendant’s Case (a) Defendant’s family history Defendant’s parents, Eva Martinez and Tommy Martinez (Tommy Sr.), met in Santa Maria when he was 15 years old and she was 13. Tommy Sr. and many of his siblings had problems with alcohol. Although Eva’s father objected to her relationship with Tommy Sr., her parents forced them to marry when Eva became pregnant with defendant at the age of 16. On October 10, 1977, defendant was bom. Their second son, Isaac, was bom on February 27, 1979. When defendant was nearly a year old, Tommy Sr. was incarcerated for rape and he remained largely absent from defendant’s early childhood due to repeated violations of his parole. Defendant, however, developed a close bond with his maternal grandmother, Dorothy. In brief periods in which Tommy Sr. was in the household, he and Eva had numerous arguments in front of the boys, some of which became physical. At school, defendant initially had difficulty keeping up with the other children and had to repeat kindergarten, but did well in first grade. Tommy Sr. and Eva also had a third son, Mario. Although Tommy Sr. would often go to bars and stay out late on work nights, on weekends he would take the boys bike riding, which they enjoyed. In 1987, when defendant was 10 years old, Tommy Sr. began having an affair with a woman who lived across the street from their house, and he eventually moved out to live with her. Before he moved out, Eva became pregnant with their fourth child, Angel, but that did not deter Tommy Sr. from leaving. He said goodbye to his children and left the household. The couple’s fourth son, Angel was bom on November 20, 1987. Soon after, defendant’s grandmother, Dorothy, was killed in a car accident. At the end of 1988, Tommy Sr. entered a rehabilitation center for alcoholics, but later secretly moved to Oklahoma. He did not maintain any contact with defendant’s family for an entire year. The death of his grandmother and the disappearance of his father upset defendant and made him feel lonely. Around this time, defendant began spending time with the family of Tommy Sr.’s brother, Rick Martinez. Rick often brought defendant to church where he related well with other children in his youth group. During this period, defendant began to get into trouble. At the age of 12, defendant and his brother Isaac were arrested for stealing video cassettes from a department store, but were not prosecuted. Defendant also started doing poorly in the seventh grade and began skipping school. Eva did not encourage him to go to school. In fact, on days when she was feeling depressed, Eva would pick up defendant from school in the middle of the day and take him with her to lunch and shopping. Also around this time, defendant began inhaling solvents. Eva once caught defendant and his cousin sniffing glue in his bedroom. She also repeatedly found around the home bottles of glue and bags that had paint sprayed into them so the fumes could be inhaled from the bags. She tried to warn defendant not to inhale solvents because they would affect his brain. Defendant also began using methamphetamine, marijuana, and alcohol. At the end of eighth grade, defendant was expelled and stopped attending school, but was forced to return after he was placed on probation for the ice cream shop robbery. In 1990, Tommy Sr. returned to Santa Maria, but was soon placed in prison for two years for fighting and drunk driving. During this period, Tommy Sr. and Eva divorced, and he remarried. While he was in prison, Tommy Sr. and defendant exchanged letters, and defendant confided in his father that he was “getting high.” Tommy Sr. counseled him against using drugs, and wanted to get defendant out of Santa Maria because of local gangs. After the robbery of the liquor store, the juvenile court sent defendant to Los Prietos Boys Camp, the same camp his father had been sent to as an adolescent. Defendant eventually fled the camp and returned home. His mother sent him to Northern California, where he lived with his uncle Louie for three months. While there, defendant developed an intimate relationship with Louie’s stepdaughter. Defendant returned to Santa Maria with Louie’s stepdaughter, hoping they would both be able to stay with his mother, but she disapproved of the relationship and notified the authorities, who then brought defendant back to the camp. By then, his brother Isaac had also been sent to the same camp. Defendant and Isaac fled the camp and stayed at their father’s residence in Simi Valley for one day. The next day, Tommy Sr. tried to return them to their mother’s residence, but on the way to Santa Maria, Tommy Sr. was stopped and arrested for drunk driving; he served four years in prison as a result. As the eldest brother, defendant had a very close relationship with his youngest brother, Angel, whom he cared for like a father. Defendant taught Angel how to play baseball, took him bike riding, and picked him up from school. Defendant had similar relationships with his cousins from his uncle Rick’s family and had a positive influence on them as well. During his middle adolescence, ages 15 to 17, defendant had four serious girlfriends. With his mother’s permission, at various times, two of them lived at the household and stayed in defendant’s room. Defendant’s ex-girlfriends all described their relationships with defendant as intimate and loving. Defendant wrote them poetry. None of them experienced any violence from defendant or any abnormal sexual behavior. (b) Defendant’s mental health Dr. Peter Russell, a neuropsychologist, gave defendant a series of standardized tests as part of a neuropsychological evaluation. Before testing defendant, Dr. Russell reviewed his school records, medical records, arrest reports, and other legal records. On the Wechsler Adult Intelligence Scale, defendant scored an overall IQ of 107, equivalent to the 68th percentile, within the normal range of intelligence. Defendant performed within the normal range in both his immediate verbal and visual memory tests. He also performed exceptionally well on some of his nonverbal visual organizational skills tests and other visual perception and visual memory tests. Dr. Russell’s tests showed no indications that any of defendant’s memory or sensory functions were impaired. Dr. Russell’s testing, however, revealed a discrepancy between defendant’s verbal ability, which tested at the 45th percentile, and his nonverbal ability, which tested at the 90th percentile. Dr. Russell believed that this discrepancy could reflect a problem with the English language itself, difficulty with language-related reasoning ability, auditory processing problems, or defendant’s education level, which was the equivalent of an eighth- or ninth-grade education. He also acknowledged that the discrepancy could be the result of antisocial personality disorder, but did not test defendant for any personality disorders. Dr. Russell also believed that defendant may have neurological problems because, although he is right handed, he performed finger-tapping tests better with his nondominant left hand. Dr. Russell acknowledged, however, that defendant may have performed poorly on this test because he had previously suffered a dislocated shoulder, an injury that often results in residual nerve impingement. In addition, defendant performed atypically on the trail-making test, which required him to draw a line connecting randomly distributed circles, first in alphabetical order and then in alphanumeric order. Although defendant made no mistakes, he performed the easier alphabetical ordering slower than normal, and the more difficult alphanumerical ordering at a normal speed. Dr. Russell believed this discrepancy could also indicate neurological problems. Based on the test results, Dr. Russell believed defendant may have neurological impairment in his anterior frontal lobe, especially the right frontal lobe. According to Dr. Russell, the frontal lobe is the part of the brain important for responsiveness, abstract reasoning, the ability to react to stimuli, and to interpret sensory information from other pathways. People with frontal lobe damage can have difficulty controlling impulses. Dr. Russell was uncertain as to the cause of defendant’s impairment, but noted that defendant’s hospital emergency room records reflected he may have suffered head trauma as a result of a fall during a police chase. In addition, he noted that using methamphetamine and inhaling solvents are known to cause neurological damage and that defendant’s use of solvents coincided fairly closely with the time he quit going to school. Dr. Russell acknowledged that defendant’s shoulder injury and his poor school performance could have contributed to his lower scores in some verbal and motor skills tests, but he believed these conditions could not explain all of his test results. He also explained that persons with normal IQ scores can still suffer from brain damage because the IQ test is a measure of global functioning and does not target a specific part of the brain. Therefore, Dr. Russell ordered a positron-emission tomography scan, or PET scan, which is essentially an X-ray imaging of the brain, to see whether defendant’s brain functioned abnormally. Dr. Joseph Wu, clinical director of the Brain Imaging Center and an associate professor in the School of Medicine at the University of California at Irvine, performed a PET scan on defendant. A PET scan is designed to reveal brain functioning in a conscious patient. In a PET scan, the patient is given a radioactive sugar that is designed to be consumed by active portions of the brain. The PET scan can detect different levels of the radioactive sugar as parts of the brain switch from being relatively inactive to active while the patient is asked to perform standardized tasks. In this fashion, the PET scan can present a recorded visual map of brain activity. According to Dr. Wu, although the usefulness of PET scans has been questioned, he believed the medical community now considers PET scans to be an accurate and reliable test of brain function and brain activity that can be useful in evaluating conditions created by inhalant exposure. In Dr. Wu’s opinion, defendant’s PET scan revealed brain abnormalities consistent with neurological damage from inhaling solvents. According to Dr. Wu, defendant had an unusually low degree of activity in the front part of his brain — in particular, the parietal lobe area and in his orbital frontal cortex. Consequently, defendant’s brain activity was the reverse of a normal functioning pattern, with more activity in the back of his brain. According to Dr. Wu, this reversal can occur as undamaged parts of the brain increase their activity to try to compensate for damaged portions. Dr. Wu believed that defendant’s abnormalities were consistent with frontal lobe syndrome, which can result in poor judgment, inappropriate behavior, and an inability to defer gratification and control inappropriate aggressive impulses. These abnormalities can also result in impulsive decisionmaking without considering long-term consequences. He also believed the abnormalities could result in decreased control or regulation of emotions or aggression as well, but would not hinder the ability to have normal emotions, including compassion. Dr. Wu thought his findings of brain damage correlated with Dr. Russell’s neuropsychological evaluation. Dr. Wu explained that inhaling solvents can dissolve fatty protective tissues in the brain. He noted that exposure to solvents does not necessarily diminish a person’s intelligence, but exposure during adolescence would affect the maturation of the frontal lobe, causing problems with impulsivity and poor judgment. The use of marijuana, alcohol, and methamphetamine by a person who also used solvents would further diminish that person’s inhibitions and behavioral control. Dr. Wu believed defendant would be able to control his behavior if he were in a highly structured setting like a state prison. (c) Adjustment potential James Esten, a retired correctional consultant, testified that defendant, if sentenced to life without the possibility of parole, would be assigned to a maximum security “level 4” prison. Esten reviewed defendant’s records related to the present case, records from Los Prietos Boys Camp, and interviews of staff at that camp, county jail, and juvenile hall. Esten also interviewed defendant on several occasions in order to assess his maturity level and his ability to function within a maximum security prison setting. When Esten initially interviewed him, defendant did not believe he could adequately adjust to a long-term prison commitment. But after his trial and conviction, defendant’s attitude changed. Esten believed defendant had matured enough to make the changes required for prison life. In making this assessment, Esten discounted incidents at the Los Prietos Boys Camp where defendant was “mad-dogging” a female camp counselor and drew an inappropriate picture of her being sexually assaulted by a dog. Esten also downplayed an incident in which defendant had conspired with other boys to assault another boy, which resulted in defendant being expelled from the camp. Esten believed that these behaviors reflected defendant’s lack of maturity at the time and the need to impress a peer group, but testified that prison inmates tend to warn each other about this type of immature behavior. Esten also downplayed the significance of the plastic eating utensil found in defendant’s cell while he awaited trial. Esten did not believe the item should have qualified as a weapon and would have been more concerned if it had been a sharpened piece of metal. Esten was concerned about defendant’s past methamphetamine use, which he believed was a factor in the present case, but pointed out that it was not possible for a prison inmate to maintain a methamphetamine habit. Esten also thought it positive that many of the interviewees in the reports he read could not clearly remember defendant, which suggested defendant blended in and did not stand out in a bad way. On cross-examination, however, Esten acknowledged that defendant had been the subject of numerous disciplinary writeups on almost a daily basis while he was at Los Prietos, and many of the interviewees believed defendant was not trustworthy. Esten also believed that defendant was intelligent and capable of being productive in prison by completing his high school education, becoming a teacher’s aide or clerical assistant, and showcasing his artistic skills, and as a “lifer” might serve as a mentor for younger inmates and exercise a stabilizing influence in prison culture. He did not believe defendant was interested in joining a prison gang or would succumb to any pressure to join, even though defendant had claimed gang membership as a juvenile. On cross-examination, Esten acknowledged that until January 1998, lifers were allowed to marry and have conjugal visits, and that such regulations could change again based upon the political leanings of a future state governor. He also acknowledged that prison gangs are a problem and that it is well documented that initiation into a prison gang may require a killing as a rite of passage. 3. Prosecution’s Rebuttal Workers from the Los Prietos Boys Camp, including Kum Herman, testified about their observations of defendant at the camp. They all characterized defendant as a continuous disciplinary problem due to his disruptive behavior and his refusal to follow staff instructions, particularly those given by female staff members. Defendant was untrustworthy, openly invoked his gang membership, and was an influential ringleader in fostering group defiance and instigating fights. Herman also provided further details concerning the drawing defendant had made of her and her pet dog, Jack, who lived at the camp. The drawing was of a naked woman on her hands and knees with a dog standing behind her attempting sexual intercourse. A caption read, “Bitch, no wonder you can’t get a man. It’s cause you are into doggie style and when I say it I mean it. I would give you dick but I will probably catch Jack disease.” A caption under that read: “Mrs. Herman, also known as Broadzilla.” Herman discovered the drawing after it had been anonymously placed on a staff counter. Defendant admitted he had drawn the picture only after staff threatened to punish the entire group when no one took responsibility. After Herman disciplined defendant, he stared at her intimidatingly, or “mad-dogged” her, on more than one occasion. She also noted defendant did get along with a few other boys, but would intimidate or exert peer pressure on weaker boys. Richard Diaz was defendant’s probation officer for two and a half years. He described defendant as emotionless, often being quiet and “flat.” He testified that defendant admitted to using alcohol, marijuana, and methamphetamine, but never mentioned inhaling solvents, and Diaz never saw indications of solvent use. Defendant’s family members had made no mention of defendant inhaling solvents. Diaz believed defendant became a member of the West Park street gang when he was 14 or 15 years old, and went by the gang moniker of “Lonely Boy.” As far as Diaz was aware, defendant never ended his involvement in the gang. While under Diaz’s supervision, defendant repeatedly violated the terms and conditions of his probation and was unable to conform to either house arrest or electronic monitoring. Two correctional officers testified about defendant’s behavior in jail pending trial in the present case. They both described him as being unwilling to follow rules and orders, often taking his own time in doing what he was asked. Dr. David Frecker, a Santa Barbara neurologist, disagreed with Dr. Wu’s findings regarding defendant’s PET scan. Although he acknowledged he is not as familiar with PET scanning as Dr. Wu, Dr. Frecker believed Dr. Wu had misinterpreted one of the scans by confusing the front portion of defendant’s frontal lobe with an area outside defendant’s brain, his sinus cavities, where the PET scan would not have detected any activity. Dr. Frecker believed that any other abnormalities in defendant’s PET scan were all artifacts created by a misalignment of defendant’s head with the scanner. Dr. Frecker also disagreed with Dr. Wu’s “baffling” theory that inhalant use exposes the brain to solvents that could result in demyelinization, the dissolution of fatty protective tissue in the brain. Dr. Frecker testified that inhalant use would damage the brain by depriving it of oxygen only after long-term daily use over several months, or possibly years, and that the damage would be limited to areas of the brain that are sensitive to the lack of oxygen, such as the temporal lobe, which otherwise appeared normal in defendant’s case. On cross-examination, however, Dr. Frecker admitted that it is well documented that “a lot” of the brain damage caused by inhaling solvents is the result of demyelinization. He believed that long-term inhalant use typically would cause a person to become docile and withdrawn. He also concluded a PET scan was an unreliable predictor of an individual’s behavior because changes in brain functioning are too dynamic to be captured by a single series of PET scans. 4. Defense Surrebuttal Based upon two additional reports made while defendant was in the juvenile system, James Esten believed that defendant can become compliant when faced with an “appropriate authority figure” — in particular, a person “who knows how to handle himself and is properly skilled in the handling of minors.” Two months prior to his testimony, Esten visited defendant, discussed his disciplinary history, and told defendant “to knock off that kind of shit.” After his meeting, defendant remained discipline free during that period, with the exception of a single incident when he was disciplined for continuous talking in the hallway while awaiting bus transportation. According to Esten, when presented with strong guidelines, defendant has the potential to adjust as a life prisoner without possibility of parole. Dr. Wu disagreed with Dr. Frecker’s assertion that the PET scan image he reviewed showed sinus material, as that would have appeared black on the scan, instead of the blue color that appears. He also reviewed the PET scan technician’s notes and did not find any error in the alignment of defendant’s skull when the scan was performed. Dr. Wu noted that he had reviewed 30 times as many PET scans as Dr. Frecker and, unlike Dr. Frecker, has published many articles on the subject. H. PRETRIAL ISSUES A. Failure to Conduct an Inquiry into Possible Juror Bias 1. Factual Background During jury selection, Prospective Juror No. 684037, who was later empanelled and selected as foreperson, stated in her juror questionnaire that she was a lead clerk in the Santa Barbara County Probation Department at Santa Maria’s juvenile hall and had worked there for 20 years. In her questionnaire, Prospective Juror No. 684037 stated she recognized defendant’s name because “he had been at” juvenile hall. During the initial voir dire of Prospective Juror No. 684037, however, the parties did not question her about her employment or knowledge of defendant. Instead, they focused on her views concerning the death penalty. She stated that if defendant were found guilty of murder and special circumstances, she probably would lean towards the penalty of death before hearing any evidence at a penalty phase. Later, in response to questioning by the court, she said she would be able to follow the law and consider both a life sentence and the death penalty before she reached a verdict in the penalty phase. Defense counsel challenged Prospective Juror No. 684037 for cause, claiming that she was biased in favor of the death penalty and that she appeared to hesitate when she told the court that she could consider either penalty before reaching a verdict. The trial court denied the challenge. Later, defense counsel informed the court that he wanted to question Prospective Juror No. 684037 about her knowledge of defendant based upon one of her answers in her juror questionnaire, and the trial court agreed. When asked, Prospective Juror No. 684037 said it would be difficult for her to serve on the jury because she knew defendant and because of the severity of the charges. The court then excused the other prospective jurors from the courtroom, so the court could question Prospective Juror No. 684037 confidentially. Prospective Juror No. 684037 explained she was “totally aware” that defendant “had an extensive juvenile record,” and indicated she believed defendant had not made good choices in his life. She did not know so much about defendant that it would affect her ability to be impartial, however. Her job at juvenile hall was primarily clerical, and she supervised children while they were waiting for their court interviews. She did not know anything about defendant’s family background and, although she must have interacted with defendant while performing her duties at juvenile hall, she did not remember anything specific about him. Defense counsel again challenged Prospective Juror No. 684037 for cause, arguing that, although it did not appear that she knew the precise nature of defendant’s juvenile record, she nonetheless knew that “he did something to get put in juvenile hall, and that’s not knowledge that a juror should properly have” for the guilt phase of the trial. The prosecutor argued that Prospective Juror No. 684037 had made clear that her knowledge of defendant would not influence her and that her situation was similar to that of someone who had read about the case in the newspaper, but is able to put that information aside and decide the matter on the evidence presented at trial. The trial court denied the challenge. The following day, on May 12, 1998, Prospective Juror No. 684037 was sworn in as Juror No. 12, with trial scheduled to begin a week later. Sometime between May 12 and May 15, 1998, Juror No. 12 had contact with district attorney investigator Tom Barnes. According to a memorandum from Barnes to the prosecutor dated May 15, 1998, Barnes called the Santa Maria juvenile hall in an attempt to locate defendant’s juvenile disciplinary reports and spoke with Juror No. 12. Juror No. 12 informed Barnes that, according to her supervisor, Barnes needed a court order to access those reports. Barnes consulted with a deputy district attorney, and, less than 30 minutes after their first conversation, he again called and spoke with Juror No. 12. At that time, Juror No. 12 admitted to Barnes that she was a juror on defendant’s case, and Barnes told her that he thought it was “unusual that one side or the other hadn’t excused her.” According to Barnes’s memo, Juror No. 12 “somewhat jokingly, then asked [i]f I could get her off the jury,” and Barnes responded he could not, and ended the call. Barnes later called back Juror No. 12 and told her “it would be improper for her to be involved in this matter any further” and asked to speak with her supervisor. According to Barnes’s memo, he was put in contact with another worker for further assistance. On May 19, 1998, just before opening arguments, the parties discussed Barnes’s contact with Juror No. 12 at an in camera proceeding. The prosecutor explained that the contact was inadvertent, as Barnes’s aim in calling juvenile hall was to locate defendant’s disciplinary reports. Defense counsel agreed the contact was innocent, but expressed concern about Juror No. 12’s comment about wanting to get off the jury. Defense counsel asked the court to inquire whether Juror No. 12 was “willing and able and fit for further duty in light of the comment.” The trial court denied the request, reasoning that Juror No. 12’s comment merely reflected “a normal desire not to be a juror” and did not relate to her qualifications as a juror. As the trial court put it, if the court required an inquiry of Juror No. 12, “she’d just tell us she doesn’t want to be here . . . and so would the [other] 14, 13 [jurors], if we could ask them.” Juror No. 12 later became the foreperson during the guilt phas