Full opinion text
Opinion CHIN, J. Capital defendant Charles McDowell, Jr., comes before this court for the second time. In 1984, a jury convicted defendant of first degree murder (Pen. Code, § 187), attempted murder (§§ 187, 664), attempted rape (§§ 261, 664), and burglary (§ 459). The jury sustained personal use of a knife allegations as to each offense (§ 12022, subd. (b)); in conjunction with the attempted murder, it sustained allegations that defendant inflicted great bodily injury (§ 12022.7) and that his victim was a person over 60 years of age (§ 1203.09). The jury also sustained two special circumstance allegations, felony-murder burglary and felony-murder rape (§ 190.2, subd. (a)(17)), and defendant admitted a prior conviction for lewd, lascivious, and indecent assault on a child. After a penalty trial, the jury set the penalty at death. This court affirmed the judgment in its entirety. (People v. McDowell (1988) 46 Cal.3d 551, 557 [250 Cal.Rptr. 530, 763 P.2d 1269] (McDowell I).) However, in 1997, the Ninth Circuit Court of Appeals, while affirming the federal district court’s denial of defendant’s petition for writ of habeas corpus as to the guilt phase, reversed its denial of the writ as to the death sentence on the ground that the trial court committed prejudicial error by failing to correct the jury’s misapprehension as to what factors might be considered in mitigation on the issue of penalty. (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 (en banc).) The first retrial of the penalty phase, in 1999, resulted in a mistrial after the jury indicated it was deadlocked. After the second penalty retrial, also in 1999, the jury returned a verdict of death. The trial court denied defendant’s application to modify the penalty (§ 190.4, subd. (d)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. FACTS PRESENTED AT SECOND PENALTY RETRIAL A. Prosecution Evidence 1. Circumstances of the Crime In May 1982, Frank and Diane Bardsley lived in the Hollywood Hills of Los Angeles. To their north lived Theodore and Dolores Sum; to their south lived Lee D’Crenza. At that time, defendant, who was then 28 years old, had been staying with D’Crenza for about five months. D’Crenza knew defendant by an alias, “Gene Holland.” In the afternoon of May 20, 1982, defendant broke into the Bardsley home. After attempting to rape Paula Rodriguez, the Bardsleys’ 28-year-old housekeeper, defendant stabbed her to death. Prior to the murder, defendant had come to the Bardsley home to use their telephone on at least six occasions. A day before the murder, Dolores had noticed defendant standing between the top of her property and the Bardsley property, looking down towards the Bardsley house; when he realized he had been seen, defendant hid behind a bush and then ran to the D’Crenza residence. Dolores testified that on May 20, she and Theodore called the Bardsley residence after hearing “terrible” screaming emanating from it. When their call was answered, they heard screams, and then the call was disconnected. They had the Bardsleys’ house key and immediately went to check on Paula-because they knew she was their housekeeper and that she worked that day. When Theodore, who was 73 years old at the time, arrived at the front entrance, “a hand came out from the door and cut [Theodore’s] throat” with a knife, in a motion from left to right. The couple called the police from their home, and paramedics took Theodore to the hospital by ambulance. In his testimony, Theodore described the screams he and his wife heard while inside their house as “frantic” and “female.” He testified that when he arrived at the Bardsley home to check on Paula, the front door was closed but unlocked. He opened it slightly, looked inside, and called out, “Paula, where are you?” When no one answered, he opened the door wider, stepped inside, and called Paula’s name again. Moments later, defendant appeared near the front entrance, naked and bloody. He made a sudden upward thrusting motion towards Theodore’s neck. Theodore was cut by the knife in defendant’s hand. Theodore pushed defendant’s belly, defendant lost his balance, and Theodore was able to close the door and run home. It was there that Theodore realized there was a “big hole” in his throat and that he was bleeding profusely. When the police arrived at the Bardsley residence, they found Paula’s body in the living area between a bar and a chair. Her legs were “spread,” her skirt had been pulled up, and her underpants had been “cut or ripped.” Paula was not wearing any shoes; one plastic thong was found behind the front door; its match was found in the same room as Paula’s body. Paula had been stabbed four times. She would have died from the stab wound that went through her chest and hit her aorta “within about a minute.” She had suffered a deep stab wound to her abdomen that likely was inflicted when she already was dying or in shock. Paula also had two superficial stab wounds, one to her chest and a “defensive wound” to her forearm. In addition, her hands had more than 15 knife wounds, including deep cuts across her fingers, in the web of one thumb, and on a palm; those wounds were consistent with injuries she would have received had she grabbed the knife “in a defensive maneuver to try to stop the stabbing process.” Paula also had a cut on each side of her throat; they were consistent with wounds suffered when a knife is used to control a person’s actions. There was blood all over the living room, on the blinds, walls, carpet, sofa, and telephone. Officers found a pack of True cigarettes and a BIC lighter on the floor, although neither the Bardsleys nor Paula smoked. Defendant’s fingerprints and palm prints were found on the Bardsleys’ bloodied telephone and on the inside of their front door. Officers searched the residence for other victims or suspects. Upstairs, they discovered Paula’s two-year-old baby, Valeria, unharmed in her stroller. No one else was in the house. When Los Angeles Police Detective Henry Petroski arrived at the murder scene, he saw that the front doorknob had punched a hole in the wall, which led him to conclude the door had been opened “in a very forceful manner.” Petroski noticed blood on the sidewalk, the front door, and the entryway of the Bardsley residence. He followed a trail of blood that led from the house and went south and up the steps into the D’Crenza residence. The door to the D’Crenza residence was open. In the kitchen Petroski found a bloodstained knife and bloodstains in the sink. He saw blood smears and drops on an upstairs linen closet door. In a bedroom, he found a bloody pair of men’s shorts and saw blood smears on the shower’s tile wall and handles. On the dining room table he noticed a blood-soaked roll of masking tape. In the living room he noticed several True cigarette butts in an ashtray. Once Petroski realized no one was home, he stepped outside, and noticed additional blood drops leading south of the D’Crenza residence. That trail ended at the driveway of a house on a nearby street. As Petroski bent down to circle the last bloodspot with chalk, he heard a voice say, “Don’t shoot me, don’t shoot me” and “I give up.” At some point, the person said, “I’m bleeding.” Petroski drew his gun and ordered the person to come out from the nearby bushes. Defendant, who responded that he was “stuck,” obeyed an order to show his hands, and Petroski could see they were cut and bleeding. Officers who arrived to assist Petroski pulled defendant from the bushes. Petroski then heard defendant make a number of statements in a loud and belligerent manner, including, “ ‘Hey, I’m good for a rape in Florida too,’ or something to that effect.” Defendant, who was shirtless when arrested, had a cut to one wrist “serious enough to leave a continuous blood trail.” He was transported to a hospital for medical treatment. At the time of the arrest, defendant was carrying a California identification card in the name of “Gene Hollon.” The arrest occurred approximately two hours after the murder and less than a quarter-mile from the D’Crenza residence. During the ride to the hospital and his stay there, defendant made several statements to officers assigned to watch him. He told Officer Michel his name was “Gene Hollon, Jr.,” and several times pleaded with Michel to shoot him, once saying, “Take out your .357 and shoot me in the head.” Defendant commented that the day before Paula’s murder, he had been watching a television program when he “felt a force come over his body,” that he felt the same force when he was “hurting the girl,” and that he could not control that force. He also said he had “hurt” Paula because he had worked on the D’Crenza house all day, but when D’Crenza came home, D’Crenza had not appreciated the work defendant had done. Defendant added that he was surprised by Paula’s strength and that “she had put up quite a fight.” At the hospital, when a police technician observed defendant’s hands, defendant stated, “That would be my blood. Her blood would be on my stomach.” Defendant told Michel he was using an alias because he was wanted for rape in Florida, that he was a habitual criminal, that he was a “Hitler buff,” and that if Michel did not shoot him, he “would just go out and do it again.” Defendant was at the hospital for between six and seven hours. He then' was transported to the police station. With regard to the issue of whether defendant had been intoxicated at the time of Paula’s murder, the prosecution presented testimony from Detective Petroski and Officer Michel that defendant did not appear to be “under the influence of anything” during the trip to the hospital, during the hospital stay, or at the Hollywood police station. The trial court told the jury it was taking judicial notice of the following facts; on August 16, 1984, defendant was convicted by a jury of the first degree murder of Paula, attempting to murder Theodore, attempting to rape Paula, and burglarizing the Bardsley residence; the jury had found true special circumstance allegations that the murder of Paula was committed during an attempted rape and a burglary, and that defendant used a knife in the commission of the offenses; and on February 24, 1977, defendant was convicted in Florida of victimizing Curtis M. A certified copy of the Florida conviction for lewd, lascivious and indecent assault on a child was received into evidence. {McDowell I, supra, 46 Cal.3d at p. 557.) 2. Prior Criminal Acts The prosecution presented evidence concerning the following incidents of criminal behavior by defendant. Defendant’s younger sister Teressa testified that when she was a child, defendant “made [her]” urinate in his mouth. Defendant’s ex-wife Rebecca married defendant in 1975 when she was 14 years old. She testified that during the time they were married, defendant beat her, choked her, forced her to have sex while holding a knife to her throat, gave her razor blades and told her to cut her wrists, and put items in her rectum. Defendant told her he enjoyed the aberrant sexual things that he did to her, and Rebecca did what defendant wanted because he was “violent” and “very controlling.” Rebecca testified that shortly after they were married, defendant made her aware that he was bisexual. Defendant’s brother Thomas testified he saw defendant grab Rebecca by the hair and then drag her along the ground. Rebecca testified she had been “knocked out” during that incident and that defendant pulled her out of the house by her hair. In 1977, while defendant was living in a trailer park in Florida, he enticed Curtis M., his four-year-old neighbor, to enter his trailer by promising Curtis a quarter. Defendant took Curtis into his bedroom, locked the door, undressed, and had Curtis undress. Defendant had Curtis suck his penis, defendant sucked Curtis’s penis, and defendant inserted his penis into Curtis’s rectum. After Curtis got dressed, defendant gave him a quarter. Curtis reported to his parents that defendant had given him a quarter and “put his penis inside [Curtis’s] behind.” Curtis added that “his behind was hurting.” Curtis’s mother testified that she had “checked” him, found “redness on his rectum,” and called the police. This incident led to the Florida conviction and to defendant’s commitment to a Florida state hospital. While defendant was confined there, Rebecca left him and went into hiding for several years because she feared defendant would kill her if he found her. In 1981, defendant told his brother Thomas that he would definitely kill Rebecca even if it was the last thing he ever did. He added that he would kill Thomas if Thomas “gave him a reason.” Thomas compared defendant to a wild animal, “full of hate,” like one “that’s been shot.” Thomas said he had known defendant “was going to hurt somebody, you could see it.” In 1981, 28-year-old Patricia H. met defendant after he began living in a tent near the house she shared with her six-year-old son, Paul. Paul met defendant as well. Both Patricia and Paul testified at the penalty retrial. A summary of their testimony follows. On July 29, 1981, a week or two after Patricia met defendant, he knocked on their door in the evening. Defendant said he had been “mugged” and needed to use Patricia’s telephone to call the police. He was naked except for tennis shoes, and asked for a towel to cover up. He covered himself with the towel, picked up the telephone, and appeared to speak with the police. Patricia said defendant could stay until the police arrived but became nervous when she noticed he was wearing jewelry. In response to her question, defendant said the muggers had been in a hurry and had not taken everything. Defendant put on a pair of shorts. He sat with Patricia on a couch, said he wanted to make love to her, and tried to kiss her. Patricia declined, excused herself, called her friend Carol, asked Carol to call her back, and then told defendant to wait outside. When defendant left, Patricia called Carol and told her what had happened. They agreed Patricia and Paul would spend the night at Carol’s house. While Patricia was on the telephone, defendant yelled through the window, “[L]ady, don’t get all upset now. Nothing is going to happen.” As Patricia and Paul left the house and approached their car, defendant jumped from behind the car, grabbed Patricia, and said he now “was going to have it his way.” Paul started to run and scream but stopped when defendant said he would kill Paul and his mother if he “didn’t shut up.” Patricia took Paul into the house after defendant warned that if she did not obey him, he would kill her and then “do it” to her son and then kill him. Following defendant’s demands, Patricia put Paul in his room and called Carol to say she had changed her mind. Defendant then ordered Patricia to take off her clothes. He then raped her, forced her to insert her fingers in his rectum, made her orally copulate him, had her fondle his testicles, made her crawl “like a dog” and sodomized her as she did so, shaved her pubic hair, and inserted a razor in her rectum. Throughout this sexual assault, defendant warned that if Patricia cried he would “do it” to Paul and then kill him. He also told Patricia “to make him feel loved.” When Carol periodically called to see why Patricia had changed her mind, defendant had Patricia answer the phone. In one call, Carol asked if “that guy” had left, and Patricia said “no.” When the police later called and asked if the perpetrator still was there, Patricia said yes. After Patricia hung up, defendant had her orally copulate him again. He told her to hold his semen in her mouth and then put it in his mouth. However, as soon as he ejaculated Carol called again, and he told Patricia to swallow and answer the phone. Defendant next had Patricia get him his cigarettes, he smoked one, and he asked for a glass of tea with a paper towel around it because he wanted to conceal his fingerprints, having “done enough time” to know “all the tricks.” Defendant then took Patricia’s keys, locked the deadbolt, handed the keys back, and told Patricia to wash them to remove his fingerprints. He then forced her back into the bedroom to engage in more sex acts. When headlights lit Patricia’s driveway, defendant assumed Carol had come and ordered Patricia to “get out there and make that cunt leave.” It was not Carol, but Patricia’s ex-brother-in-law. Patricia explained the situation and then broke Paul’s bedroom window, lacerating her knees as she pulled him outside. As the three drove off, they passed police cars, so they returned. By the time police searched Patricia’s house, defendant was no longer there. On cross-examination, Patricia testified defendant smelled “[o]f beer” when he tried to kiss her, but on redirect examination, she said she did not believe defendant was under the influence of alcohol during the sexual assault because he “[q]uite precisely” told her “what to do and how to do it.” 3. Victim Impact Evidence Paula’s husband, Jose, and her daughters, Maria and Valeria, testified regarding the impact of Paula’s death on them. Jose, who had been married to Paula for nine years, testified he thought about her every day and “suffered every minute” since her death. In describing how Paula’s murder affected him, Jose said his family was “not well” and that they were “not really united at all.” Maria, who was age nine when Paula died, missed her mother and thought about her every day. Maria and her mother had discussed how together they would celebrate Maria’s 15th birthday party, an “important” birthday in the “Mexican culture,” but Maria did not have one. Maria was unmarried and did not intend to have children because she did not want “them to suffer the same way I’m suffering now and for the rest of my life without my parents.” After Paula’s death, Maria “had a problem” with her father and other members of her family and, at the time of the second retrial, she was not close with her father. Valeria missed her mother although she had little memory of her. She thought about what her life would have been like had her mother lived and wondered if she would not be so estranged from her sister Maria. B. Defense Evidence The defense introduced evidence from a number of witnesses that defendant had grown up in a highly dysfunctional family. According to defendant’s paternal aunt, Roberta Williams, defendant’s father, Charles, Sr., was “very violent” towards his family members. He had a terrible temper and beat defendant and his siblings with a belt or with his fists during much of defendant’s childhood. Williams described an incident when defendant was about five years old when defendant and his brother Ronald were throwing pebbles at a pony; in response, Charles, Sr., “beat them in the face” with his fist, bloodying their noses and then daring them to cry. Williams testified that defendant’s mother, Shirley, did not provide adequate care for defendant when he was an infant, giving him “curdled milk” to drink and keeping him in dirty diapers so long his “bottom” was “bloody.” When defendant was older, Williams often saw Shirley beat defendant with a broom, slap his face, and beat him with her fist. While the family lived in Florida, Shirley briefly left her husband on several occasions; she would take the younger children and leave defendant and Ronald with Charles, Sr. Williams and other witnesses testified they never saw any positive interactions between defendant and his mother. Defendant’s mother, Shirley, testified that Charles, Sr., began beating defendant when he was a few weeks old “to make him go to sleep” because he would cry at night. She said defendant was “whipped” by his father as a young boy “every day.” When defendant was two or three years old, he wet his bed each night; in response, Charles, Sr., beat him every morning and sometimes rubbed defendant’s nose in the urine. When defendant’s brother Ronald was about the same age, he wet his pants; in response, his father pinched his penis so hard that Ronald had to have an operation to repair the damage. When defendant was five years old, he and his brother Ronald set their doghouse on fire; in response, Charles, Sr., removed their clothes and held them naked over the fire. Defendant and his brothers often had bruises and welts where Charles, Sr., had hit them. Once Charles, Sr., threw a fork at defendant, which lodged in defendant’s finger. Charles, Sr., beat any child whose report card did not meet his expectations. The children often could not tell what would “set [their father] off,” but he would inflict multiple “licks . . . until the urge passed him.” When one member of the family did something to provoke Charles, Sr., he often would beat up everyone in the house. Charles, Sr., once “stomped” on his son Thomas, breaking one of his ribs, and he later continued to beat Thomas while he was in a body cast. Thomas testified there was no safe time or safe place in the house, that although all the sons were beaten, defendant, who was the oldest child, “got the worst” of Charles, Sr.’s beatings, and that the violence level of the father towards the family “escalated as time went on.” Once, when Charles, Sr., picked up his three-year-old daughter and smeared her face with paint she had spilled, defendant’s mother tried to “wrestle” their daughter from him. Defendant, who was a teenager at the time, then hit Charles, Sr., on the top of his head with a two-by-four. In response, Charles, Sr., grabbed defendant by the throat and lifted his feet off the ground while Ronald begged him not to kill defendant. Religion played a major role in defendant’s family life. Charles, Sr., forced the family to attend church and also provided religious instruction in their home. If the children or Shirley resisted his preaching, which always concerned hell and damnation, Charles, Sr., would beat them. He regularly told his children they were sinners who were going to hell, while portraying himself as “perfect” and someone who would be “saved.” Several witnesses testified that Charles, Sr., was physically and verbally abusive towards his wife. He beat her in front of the children with a belt or with his fists. He broke or bloodied her nose on several occasions and left bruises on her. All of the children witnessed these beatings their entire childhood. Charles, Sr., would beat his wife if she tried to intervene on behalf of the children, and he once pointed a gun at her. He treated his wife “like a child,” “cursed her,” and called her names, telling her she was lazy, filthy, and incompetent. Defendant’s sister Teressa testified that their father, Charles, Sr., had sexually molested her as far back as she could remember, probably starting before she was three years old. The molestations continued until Teressa was age 17, when she told her mother about the sexual abuse and Charles, Sr., moved out of the house. Charles, Sr., would come into her room almost every night through a hole he had created in the closet between their bedrooms, touch her until he had an ejaculation, and then cry and ask for forgiveness. Charles, Sr., also molested Teressa during the day on Saturdays when Shirley went shopping for groceries, and he made Teressa sleep in his bed during a period when Shirley was in the hospital. Teressa had to kiss Charles, Sr., when he came home from work each day, in a way a wife kisses a husband; if she did not, “there would be hell to pay” for the entire family. Thomas had caught Charles, Sr., in Teressa’s bedroom and had seen them naked together, and Shirley once had found Teressa in bed with Charles, Sr. Shirley testified that when their children were teenagers, Charles, Sr., would accuse their sons of having sex with Teressa. When defendant was a teenager, the family moved to Florida. A Florida neighbor, Bonnie Haynes, saw bruises on defendant, Ronald, and Thomas. In defendant’s presence, the boys told Haynes that Charles, Sr., “whipped” them and had inflicted the bruises she saw on their arms, backs, and shoulders. After defendant’s younger sister Belinda was hit by a car and killed, Haynes heard Charles, Sr., on several occasions spend an hour blaming his other children for Belinda’s death while making them look at a large photograph of her. She also frequently saw bruises on the arms of defendant’s mother. Haynes said Charles, Sr., never had “a kind word to say to the boys” and was “always real mean” to defendant, talking to him in a derogatory manner, criticizing him, telling him he was dumb and ignorant, and saying that he was going to hell. Defendant told Haynes he was “no good” and was “for sure going to hell.” She described defendant’s childhood as “pitiful” and said she did not think defendant or his siblings “ever had a chance” because abuse was not reported to the authorities “back then.” Robbie Edwards, a registered nurse, testified she was defendant’s primary therapist while he was in a mentally disordered sex offender (MDSO) program in Florida. She testified that while under her supervision, defendant had seemed sincere about wanting some help. She evaluated his participation and graded him as very good or excellent, but she acknowledged that at one point defendant had a “homemade knife” on the ward, and that in 1977 the hospital staff concluded that while he had made some positive changes, defendant “still remained a menace to society based on his assaultive tendencies.” Edwards testified defendant had reported several instances in which he was forced into homosexual acts, first by his uncles when defendant was nine or 10 years old, and later by employers, schoolmates, and members of a Boy Scout troop. Edwards added that defendant told her he feared homosexual advances by other inmates on the ward, but she acknowledged a court-appointed psychiatrist had concluded that defendant’s “sexual deviation” involved elements of homosexuality and pedophilia. Edwards also testified that another Florida doctor concluded defendant had a sociopathic character disorder. In 1979, Edwards and the staff recommended that defendant be returned to the court because he no longer met the definition of an MDSO under the Florida statute. The defense called defendant’s ex-wife Rebecca as its own witness. In that capacity, Rebecca testified she once had been in Teressa’s room when Charles, Sr., stood outside the window and let his daughter Teressa know he was there. Rebecca testified that, in response, Teressa “was naturally frightened of him.” Rebecca also described an incident that occurred when she was 16 years old, defendant was in the state hospital, she was moving to be near him, and Charles, Sr., was helping with the move. The two were in his truck en route to her new home when Charles, Sr., pulled his truck to the side of the road and “made a pass” at her, grabbing her face and trying to pull her towards him to kiss her. She rebuffed his sexual advances, and their trip continued without incident. Rebecca said that defendant’s brother Ronald once lost his temper during a card game and slapped her. That was the only time she witnessed Ronald act in a violent manner, and she testified he was not violent like defendant. Defendant’s brother Thomas testified that the circumstances in which he and defendant grew up “made him what [he] had been in the past,” namely, someone who “was convicted of rape, sexual abuse.” Thomas decided never to have children because the “legacy that I was brought up with, sexual abuse, sexual misconduct, I don’t want to pass that on to any children that I might have.” At the time of the second penalty retrial, Thomas intentionally had been out of contact with his entire family, and he refused to tell the jury where he was living. H. DISCUSSION A. Constitutionality of the Second Penalty Retrial Defendant contends “the long-delayed and repeated retrial of the penalty phase” violated his “state and federal constitutional speedy trial rights, rights to due process, and to freedom from cruel and unusual punishment.” We conclude there is no merit to these constitutional challenges to the second penalty retrial. 1. Cruel or Unusual Punishment Defendant contends the state’s repeated retrials of the penalty phase in his case “after lengthy delays for which he was not responsible” constituted cruel and unusual punishment in violation of our state and federal Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree. The death row delays in the present case do not constitute cruel and unusual punishment because they resulted from the “desire of our courts, state and federal, to get it right, to explore . . . any argument that might save someone’s life.” (Chambers v. Bowersox (8th Cir. 1998) 157 F.3d 560, 570; see People v. Anderson (2001) 25 Cal.4th 543, 606 [106 Cal.Rptr.2d 575, 22 P.3d 347] (Anderson).) Reaching the same conclusion, the Fifth Circuit, in rejecting a claim that petitioner White had been on death row for so long that executing him would be cruel and unusual punishment, recognized that “there are compelling justifications for the delay between conviction and the execution of a death sentence. The state’s interest in deterrence and swift punishment must compete with its interest in insuring that those who are executed receive fair trials with constitutionally mandated safeguards. As a result, states allow prisoners such as White to challenge their convictions for years. White has benefitted from this careful and meticulous process and cannot now complain that the expensive and laborious process of habeas corpus appeals which exists to protect him has violated other of his rights.” (White v. Johnson (5th Cir. 1996) 79 F.3d 432, 439.) Defendant similarly benefitted from challenging his conviction for many years and cannot successfully complain that the delay from the process of state and federal appellate and habeas corpus review resulted in cruel and unusual punishment. The fact that defendant prevailed on one of his claims in federal court and succeeded in obtaining a reversal of his initial death sentence does not alter our conclusion. In Anderson, we concluded the “automatic appeal process following judgments of death is a constitutional safeguard,” and held that “appellate delay in a capital case is not cruel and unusual punishment.” (Anderson, supra, 25 Cal.4th at p. 606.) We rejected a claim similar to that made here, although the defendant in that case initially had been sentenced to death in 1979, had his death sentence reversed in 1987 due to instructional error and, after retrial of the penalty phase, was again sentenced to death in 1991. (Id. at p. 559.) Defendant argues his case is different from Anderson in part based on his claim that he has suffered “agony” as a result of his prolonged stay on death row, and his belief that the prosecution should “acknowledge” the instructional error by the trial court in 1984 and seek a modification of defendant’s sentence to life without the possibility of parole. None of defendant’s arguments alter the fact that his situation is indistinguishable from that in Anderson, and we remain convinced that reasonable “appellate delay in a capital case is not cruel and unusual punishment.” (Anderson, supra, 25 Cal.4th at p. 606.) In so holding, we reject, as we have in the past, the contention that execution after such an extensive delay serves no penological purpose. {People v. Ochoa (2001) 26 Cal.4th 398, 463-464 [110 Cal.Rptr.2d 324, 28 P.3d 78].) 2. Speedy Trial and Due Process The Sixth Amendment speedy trial guarantee “is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” (United States v. Ewell (1966) 383 U.S. 116, 120 [15 L.Ed.2d 627, 86 S.Ct. 773] (Ewell); see Barker v. Wingo (1972) 407 U.S. 514, 515 [33 L.Ed.2d 101, 92 S.Ct. 2182] (Barker).) Defendant contends the “delay of 15 years between the imposition of the death penalty in 1984 and the 1999 retrial(s)” violated his due process right to a speedy trial under our state and federal Constitutions. (U.S. Const., 6th & 14th Amends.; Cal. Const, art. I, § 15.) The United States Supreme Court has held that “when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. [Citations.] The rule of these cases, which dealt with the Double Jeopardy Clause, has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial.... [This policy], so carefully preserved in this Court’s interpretation of the Double Jeopardy Clause, would be seriously undercut by the interpretation given the Speedy Trial Clause by the court below,” which had raised a Sixth Amendment obstacle to retrial after a successful attack on a conviction. (Ewell, supra, 383 U.S. at p. 121; see United States v. Loud Hawk (1986) 474 U.S. 302, 313 [88 L.Ed.2d 640, 106 S.Ct. 648] (Loud Hawk).) The delay in defendant’s case is primarily attributable to the appellate process and defendant’s collateral attack on his conviction and sentence. That process, like many of the other “procedural safeguards provided an accused,” is “designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. . . . ‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’ [Citation.]” (Ewell, supra, 383 U.S. at p. 120.) Here, the federal writ of habeas corpus was issued on September 15, 1998. On September 23, 1998, the Los Angeles Superior Court set the case for a penalty phase retrial. Defendant’s first penalty retrial occurred 10 months after the issuance of the writ of habeas corpus, and defendant personally agreed to each of the time waivers during that period. We conclude defendant’s speedy trial claim fails because the prosecution had the right to retry the penalty phase and did so in the normal course of events. (See, e.g., Anderson, supra, 25 Cal.4th at p. 603 [no speedy trial violation when retrial held three years after reversal of death sentence and defendant personally waived all delays except one].) In support of his speedy trial and due process claims, defendant relies on the framework adopted in Barker, supra, 407 U.S. 514, which the high court used to evaluate speedy trial claims in criminal cases. That balancing test ordinarily requires us to weigh the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Id. at p. 530.) However, the first factor, the length of the delay, is the “triggering mechanism” for the Barker test: “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” (Barker, supra, 407 U.S. at p. 530.) “[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” (Id. at pp. 530-531, fn. omitted.) Ewell supports the People’s position that defendant’s speedy trial claim accrued only after his federal petition for writ of habeas corpus was granted. In apparent agreement with this position, with respect to his penalty retrial, the defendant in Anderson, supra, 25 Cal.4th 543, “[did] not argue that his speedy-trial rights attached any earlier than the issuance of our remittitur” in the prior case reversing the defendant’s death sentence. (Id. at p. 603.) Section 1382, subdivision (a)(2), which mandates the dismissal of an action, unless good cause is shown, in any felony case in which the defendant is not brought to trial within 60 days of “the issuance of a writ or order which, in effect, grants a new trial,” lends further support to the position that the delay between the issuance of the writ and his first penalty retrial is the length of delay to be considered with regard to defendant’s speedy trial claim. We conclude that defendant’s right to a speedy retrial of the death penalty phase of his case did not accrue until the issuance of the writ ordering a new penalty trial, and we agree with the People that the 10-month delay between the date the writ issued and the first penalty retrial was not presumptively prejudicial given the complexity of the case, the voluminous record of at least “15 boxes” of discovery that needed to be reviewed, and the difficulty the defense was having locating and bringing to court out-of-state witnesses. Defendant does not argue otherwise. Accordingly, we need not inquire into the remaining Barker factors with regard to defendant’s speedy trial claim. Defendant relies on Loud Hawk, supra, 474 U.S. 302, to support his claim that it is the 15-year delay between the imposition of the death penalty in 1984 and the 1999 retrials that is presumptively prejudicial and that, accordingly, we must consider the remaining three Barker factors. Defendant’s reliance on Loud Hawk for that proposition is misplaced. Loud Hawk did not involve a postconviction delay. Instead, in Loud Hawk, the United States Supreme Court considered the delay “occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint” (id. at p. 312) in assessing “the extent to which appellate time consumed in the review of pretrial motions should weigh towards a defendant’s speedy trial claim” (id. at p. 314, italics added). It was in the context of pretrial delay that the court recognized that the Sixth Amendment safeguards inherent in the guarantee to a speedy trial “may be as important to the accused when the delay is occasioned by an unduly long appellate process as when the delay is caused by a lapse between the initial arrest and the drawing of a proper indictment.” (Loud Hawk, at p. 312.) The court in Loud Hawk cited with approval the portion of its decision in Ewell that explained that the speedy trial clause should not be interpreted in a manner that raises a Sixth Amendment obstacle to retrial following a successful attack on a conviction. (Loud Hawk, at p. 313, citing Ewell, supra, 383 U.S. at p. 121.) Here, defendant availed himself of the judicial process to challenge his conviction and sentence by appeal and collateral review. “ ‘Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a decision, the defendant[] [is] not now able to criticize the very process which [he] so frequently called upon.’ ” (Loud Hawk, supra, 474 U.S. at pp. 316-317, quoting U.S. v. Auerbach (5th Cir. 1969) 420 F.2d 921, 924.) Although the holding in White v. Johnson, supra, 79 F.3d 432, was rendered in the context of a cruel and unusual punishment claim, its reasoning applies in the context of defendant’s speedy trial and due process claims as well. Here, where defendant has benefitted from the careful and meticulous process of judicial review, he cannot now complain that the process “which exists to protect him has violated other of his rights.” (Id. at p. 439.) We disagree with defendant’s claim that the “state” is responsible for the appellate delay he suffered because the delay “is attributable to the trial court’s instructional error.” Such an argument would apply anytime a conviction is reversed or set aside on collateral attack, but Ewell established that the speedy trial clause of the Sixth Amendment should not be interpreted to act as an obstacle to retrial after a successful attack on a conviction. (Ewell, supra, 383 U.S. at p. 121.) In the context of discussing the “limited class of cases where a pretrial appeal by the defendant is appropriate” and the weight to be attributed to delays caused by such interlocutory appeals, the court in Loud Hawk commented that while delays from such an appeal ordinarily will not support a speedy trial claim, a “defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court.” (Loud Hawk, supra, 474 U.S. at p. 316.) While this statement appears to apply only to pretrial appellate delay, we simply note that here defendant does not specifically allege an unreasonable delay caused by the prosecution in his appeals or a wholly unjustifiable delay by the courts that handled his appeals and collateral attacks. No such delays are apparent from a review of the record in this case, which includes the relevant dockets of this court, the federal district court, and the Ninth Circuit Court of Appeals. We conclude the prosecution of defendant’s case, the direct appeal of the resulting conviction and death sentence, and the capital appellate and habeas corpus process that ensued in this court and the federal courts did not cause any unreasonable or unjustifiable delay. Instead, the judicial process, including the appellate process from which defendant benefitted, was a constitutional safeguard based on the desire of state and federal courts to explore any argument that possibly could save defendant’s life. (Chambers v. Bowersox, supra, 157 F.3d at p. 570.) Having used the appellate process to his advantage, defendant cannot return to the trial court “to reap the reward of dismissal for failure to receive a speedy trial.” (Loud Hawk, supra, 474 U.S. at p. 316.) B. Excusal of Two Prospective Jurors for Cause Defendant contends the trial court erred by excusing prospective jurors, No. F6136 and No. R9529, for cause, over his objection, because of .their views on the death penalty. “[T]he erroneous exclusion of a prospective juror because of that person’s views on the death penalty is reversible per se.” (People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865], italics omitted, citing Gray v. Mississippi (1987) 481 U.S. 648 [95 L.Ed.2d 622, 107 S.Ct. 2045].) Here, for the reasons stated below, we find no error. “The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of the juror’s duties. On appeal, we uphold the trial court’s ruling if the record fairly supports it, and we accept as binding the trial court’s determination of the juror’s true state of mind if the juror has made conflicting or ambiguous statements.” {People v. Cleveland (2004) 32 Cal.4th 704, 735 [11 Cal.Rptr.3d 236, 86 P.3d 302]; see People v. Mayfield (1997) 14 Cal.4th 668, 727 [60 Cal.Rptr.2d 1, 928 P.2d 485].) We have reviewed the record as to the two prospective jurors in question, and we find no basis on which to overturn the trial court’s rulings. The two said some things that suggested they could be fair to both sides and that they could impose the death penalty if appropriate. They also gave conflicting and sometimes ambiguous statements and responses to questions regarding the death penalty that suggested that their views would prevent or substantially impair their ability to perform their duties in the penalty phase of a case in which the prosecution intended to argue for the death penalty. Significantly, each made statements that supported the trial court’s findings that her views would substantially impair her ability to serve as a juror in defendant’s penalty retrial. In her questionnaire, Prospective Juror No. F6136 wrote that she hoped the death penalty “will be abolished some day.” She explained to the trial court that she had read that the death penalty serves no purpose and does not act as a deterrent to crime. She also told the trial court that she believed life without the possibility of parole was a greater penalty than death. In response to the prosecutor’s questioning, she clarified that it was her own belief that the death penalty “has no value” as a deterrent of crime. She then acknowledged that her feelings regarding the death penalty “could” impair or influence to a substantial degree her “ability to decide this case on the issue of punishment” and that her favoring life without the possibility of parole as a punishment “could” affect her ability “to be fair and impartial to the prosecution in this case.” The trial court excused this juror, stating that “based on the answers she’s given orally, it did seem to me that she was substantially impaired” in her ability to perform her duties as a juror in defendant’s case. In her questionnaire, Prospective Juror No. R9529 wrote, “I really do not believe in the death penalty,” that she was “moderately against it,” and that she felt that when a defendant is sentenced to death he “got off easy.” She also wrote that she did not believe “people should decide if someone should die whether they are doing the killing physically or verbally.” She additionally wrote that in her opinion life without the possibility of parole is “much” worse than death. In answering whether she would always vote against death, she circled “no,” but then put a question mark by it. On page 15 of her questionnaire, she circled “no” in response to the following question: “In a case that involved the special circumstance of murder in the commission of attempted rape, could you impose the death penalty depending on the aggravating evidence to be offered in the Penalty Phase?” Responding to questioning by the trial court, Prospective Juror No. R9529 said that “[i]f it was up to me, I wouldn’t want to” vote for the death penalty. Once the court explained to her that no juror would be told “you have to vote for the death penalty,” she admitted she was “not sure,” and “really [did not]” know, whether she would ever vote for the death penalty. In response to the prosecutor’s questioning, she mentioned that she “would rather die than spend [her] life in prison.” In the course of challenging her for cause, the prosecutor noted for the record that she “got very angry with me . . . when I asked her questions about the death penalty,” and that “her initial answers were that she was against the death penalty, that she couldn’t impose the death penalty and that she would not impose the death penalty.” The trial court excused this juror, explaining that “although there is some ambiguity in what she said, it’s clear to me that she is substantially impaired” in her ability to perform her duties as a juror in defendant’s case. The court specifically noted that initially in her questionnaire, she was “saying she doesn’t believe in [the death penalty], she’s moderately against it. She said as to always vote against death, she circled no, but she put a question mark by that, and that’s really the nature of her position. [][] She also said on page 15 could you impose the death penalty, she circled no.” “In light of the [jurors’] conflicting and ambiguous statements, we must accept the trial court’s determination of [their] true state of mind. As the United States Supreme Court recently explained, ‘Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.’ (Uttecht v. Brown (2007) 551 U.S. 1, [9] [167 L.Ed.2d 1014, 127 S.Ct. 2218].)” (People v. Kelly (2007) 42 Cal.4th 763, 778 [68 Cal.Rptr.3d 531, 171 P.3d 548].) Here, as in Kelly, “[n]o error appears.” (Ibid.) Defendant cites other statements by each of the two prospective jurors that would have supported keeping them as jurors. “The question before us as a reviewing court, however, is whether the evidence supports the actual rulings, not whether it would have supported different rulings.” (People v. Smith (2003) 30 Cal.4th 581, 602 [134 Cal.Rptr.2d 1, 68 P.3d 302].) On this issue, defendant relies on People v. Pearson (2012) 53 Cal.4th 306 [135 Cal.Rptr.3d 262, 266 P.3d 966], in which this court found that the trial court erroneously excused a prospective juror who consistently indicated that she could consider both death and life without possibility of parole. (Id. at pp. 332-333.) Pearson is distinguishable. Here, by contrast, the record in the present case supports the trial court’s findings that the views of the two prospective jurors would have substantially impaired the performance of their duties. C. Victim Impact Evidence and Related Instructions Defendant contends the trial court erroneously admitted victim impact testimony regarding the broken relationship between Paula’s husband and their daughter Maria. He contends the court compounded its error by instructing the jury that the victim’s family members were prohibited from giving their opinions as to the punishment they felt defendant deserved. Defendant also claims the timing of the evidence’s admission deprived him of sufficient opportunity for his counsel to “appropriately . . . challenge the legitimacy of the prosecution’s spin on the family’s estrangement.” “A State may legitimately conclude that evidence about ... the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” (Payne v. Tennessee (1991) 501 U.S. 808, 827 [115 L.Ed.2d 720, 111 S.Ct. 2597].) “The federal Constitution bars victim impact evidence only if it is ‘so unduly prejudicial’ as to render the trial ‘fundamentally unfair.’ [Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056 [47 Cal.Rptr.3d 467, 140 P.3d 775].) Under California law, “[u]nless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones ... is relevant and admissible as a circumstance of the crime under section 190.3, factor (a).” (Id. at pp. 1056-1057.) The circumstances of the crime under this factor “extend to that which surrounds the crime materially, morally, or logically.” (People v. Hamilton (2009) 45 Cal.4th 863, 926 [89 Cal.Rptr.3d 286, 200 P.3d 898].) We find no merit in defendant’s claims that the challenged evidence was “too attenuated in time and logic to be relevant,” and that “its reliability was questionable.” The long-standing rift between Paula’s husband and their daughter Maria was relevant evidence that reminded the jury that the victim’s death “ ‘represents a unique loss to . . . [her] family.’ ” (Payne v. Tennessee, supra, 501 U.S. at p. 825.) The trial court did not err by finding that evidence of a family’s continued suffering over nearly two decades, including evidence of the long-term estrangement, was admissible. (People v. Hamilton, supra, 45 Cal.4th at pp. 923-927 [evidence victim’s husband suffered depression for over 16 years after her death, his alcoholism near the end of his life, his refusal to attend family reunions, and his loss .of custody of his sons due to his unending despair was admissible victim impact evidence]; People v. Boyette (2002) 29 Cal.4th 381, 441 [127 Cal.Rptr.2d 544, 58 P.3d 391] [evidence victim’s father did not want to be around his other children after the murder was admissible victim impact evidence].) We also find meritless defendant’s claim that evidence that the rift was caused by Paula’s murder was unreliable and “collateral” because “there was a question whether the rift had indeed occurred because Maria was mad at her father for remarrying too quickly.” That the defense told the trial court during pretrial litigation in the first retrial that there was “also evidence” that the rift was the result of Jose’s remarriage does not establish that the trial court erred by admitting testimony regarding the rift as victim impact evidence. The prosecutor had advised the trial court that he had proof Maria was holding her father responsible for her mother’s death, and nothing in the family’s testimony contradicted that assertion. Defendant was entitled to request an Evidence Code section 402 hearing to question Jose and Maria about the cause of their estrangement outside the presence of the jury. Defense counsel indicated that after Jose’s testimony he intended to “do a 402 as to the extent of the alienation and the reasons for it” but counsel did not follow through and request such a hearing. Absent evidence that the cause of the estrangement was Jose’s remarriage, the defense theory did not provide a basis to exclude the otherwise relevant, admissible victim impact testimony. We additionally conclude that the evidence of the rift caused by Paula’s murder was “not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case” {People v. Pollock (2004) 32 Cal.4th 1153, 1180 [13 Cal.Rptr.3d 34, 89 P.3d 353]), nor was it “so unduly prejudicial” as to render defendant’s trial “fundamentally unfair.” {Payne v. Tennessee, supra, 501 U.S. at p. 825.) The challenged testimony was a brief statement without detailed explanation, and it “could not reasonably be seen as having encouraged an inappropriate response by the jury.” (People v. Benavides (2005) 35 Cal.4th 69, 107 [24 Cal.Rptr.3d 507, 105 P.3d 1099].) Defendant’s argument regarding the timing of the evidence focuses on his complaint that the prosecutor, in deciding to introduce the challenged evidence during the testimony of the victim’s husband, made “an abrupt about-face without giving the other side an opportunity adequately to contend with the change” in the prosecution’s position from the first retrial, and that this was “the quintessence of sandbagging.” In response to the People’s argument that defendant’s “real complaint appears to be that the prosecutor engaged in some kind of misconduct by eliciting the family estrangement testimony in the second retrial,” defendant specifically states that he is “not raising a misconduct claim here.” We conclude defendant’s timing claim that the prosecutor’s “sandbagging” deprived him of the opportunity “to litigate this volatile evidence in a nonvolatile situation” does not support a claim of trial court error. Defendant received adequate notice that the prosecution intended to introduce victim impact evidence concerning the estrangement in Paula’s family. Section 190.3 provides that “no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time . . . .” “The statute does not require production of the evidence, however, but notice of it. (§ 190.3.)” {People v. Roberts (1992) 2 Cal.4th 271, 330 [6 Cal.Rptr.2d 276, 826 P.2d 274].) Here, the prosecutor provided notice that Maria and her father would be called to testify about the impact of Paula’s murder on them. “The defense was not entitled to a summation of the witnesses’ expected testimony.” {Ibid.', see People v. Scott (1997) 15 Cal.4th 1188, 1219 [65 Cal.Rptr.2d 240, 939 P.2d 354].) The family estrangement aspect of the family members’ testimony was discussed before and during the first retrial, and defendant recognizes that the trial court never issued a ruling on its admissibility at the first retrial. The fact that the prosecutor chose not to introduce any evidence of the estrangement during the first retrial did not preclude the presentation of that evidence in the second retrial. {People v. Barragan (2004) 32 Cal.4th 236, 247 [9 Cal.Rptr.3d 76, 83 P.3d 480].) To the extent defendant contends his federal constitutional rights were violated by a lack of notice that left him with an insufficient “opportunity to prepare a defense to the aggravating circumstances,” those claims have been forfeited by defendant’s failure to raise them in the trial court. {People v. Huggins (2006) 38 Cal.4th 175, 238 [41 Cal.Rptr.3d 593, 131 P.3d 995].) The claims also fail on their merits as defendant was given adequate notice of the victim impact testimony. Here, as in People v. Roberts, supra, 2 Cal.4th at page 330, “[t]here was no state law error. Nor was there any Sixth Amendment violation. (See Pennsylvania v. Ritchie [(1987)] 480 U.S. 39, 52-53 [94 L.Ed.2d 40, 107 S.Ct. 989] [pretrial discovery request].)” Finally, any deficiency in the notice was harmless because defendant failed to request a continuance to meet the evidence, decided not to conduct an Evidence Code section 402 hearing to obtain more information regarding the cause of the estrangement, and has not explained how he could have rebutted or impeached the prosecution witnesses had he received notice earlier. (People v. Hinton (2006) 37 Cal.4th 839, 900 [38 Cal.Rptr.3d 149, 126 P.3d 981]; People v. Benavides, supra, 35 Cal.4th at pp. 106-107; People v. Roldan (2005) 35 Cal.4th 646, 734 [27 Cal.Rptr.3d 360, 110 P.3d 289].) Defendant next contends the trial court committed prejudicial error when, at the prosecution’s request, it instructed the jurors that the victim’s family members were not allowed to offer their opinions regarding what punishment they hoped defendant would receive. He essentially concedes the instruction “correctly reflected the law” but argues the error and prejudice arose because the court “specifically instructed that this kind of evidence was inadmissible.” We find neither error nor prejudice. Victim impact testimony does not include opinions regarding the appropriate punishment. Such testimony by the victim’s family or friends is not permitted. (People v. Smith, supra, 30 Cal.4th at p. 622.) It was not error to give the requested instruction to forestall the jury from improperly considering why the family members did not offer opinions on the appropriate punishment during their victim impact testimony. (See, e.g., People v. Thompson (1988) 45 Cal.3d 86, 131-132 [246 Cal.Rptr. 245, 753 P.2d 37] [would not be error to give requested instruction that the jury was not to consider deterrent effect of the death penalty or monetary cost of execution or maintaining a prisoner for life].) In People v. Abilez (2007) 41 Cal.4th 472 [61 Cal.Rptr.3d 526, 161 P.3d 58], the defendant claimed the provision of accessory-after-the-fact verdict forms for his codefendant but not for him led the jury to understand the trial court credited the codefendant’s testimony or believed defendant was the more culpable of the two. We found defendant’s “unsupported assertion” of jury confusion to be “pure speculation.” (Id. at p. 521.) Similarly, in the present case, nothing in the instruction or the record supports defendant’s speculative and unsupported claims that the jury understood the instruction to mean the victim’s family wanted defendant to be executed or that the instruction “erected a barrier” that prevented the jury from considering his mitigating evidence. We presume the jurors understood and followed the challenged legally correct instruction (People v. Hovarter (2008) 44 Cal.4th 983, 1005 [81 Cal.Rptr.3d 299, 189 P.3d 300]), as well as the instruction that advised that they could not impose the .death penalty as a result of a purely emotional response to evidence that may have aroused in them “a natural sympathy for the victim or the victim’s family.” (CALJIC No. 8.85.) To the extent defendant claims the challenged instruction violated his state and federal right to trial by jury, those claims fail on the merits for the reasons stated above. D. Exclusion of Defense Expert Opinion Testimony Defendant contends the trial court erred by excluding the proffered defense expert opinion testimony from Dr. Arlene Andrews. Dr. Andrews had testified at defendant’s first