People v. Houston (54 Cal. 4th 1186, 2012)

Opinion

LIU, J.

A jury convicted defendant Eric Christopher Houston of the first degree murders of Robert Brens, Judy Davis, Beamon Hill, and Jason White (Pen. Code, §§ 187, subd. (a), 189; further undesignated statutory references are to the Penal Code), and found true a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)). The jury also convicted defendant of the attempted murders of Wayne Boggess, Patricia Collazo, Danita Gipson, Donald Graham, Thomas Hinojosai, John Kaze, Sergio Martinez, Jose Rodriguez, Rachel Scarberry, and Mireya Yanez (§§ 187, subd. (a), 664); and found true allegations that the attempted murders were willful, deliberate, and premeditated (§ 664); that defendant personally used a firearm in committing the murders and attempted murders (§ 12022.5); and that, except as to Graham, defendant personally inflicted great bodily injury in committing the attempted murders (§ 12022.7). The jury further convicted defendant of assault with a firearm on Joshua Hendrickson, Bee Moua, and Tracy Young (§ 245, subd. (a)(2)), and false imprisonment for the purpose of protection from arrest (§ 210.5). After a sanity trial, the jury found defendant to be sane; after a penalty phase, the jury returned a verdict of death. The trial court denied defendant’s motion to dismiss the special circumstance finding and the automatic motion to modify the penalty verdict (§ 190.4, subd. (e)), and sentenced him to death on the murder counts, life imprisonment on the attempted murder counts, and a determinate sentence on the remaining counts and enhancements.

Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I.

A. Guilt Phase

On May 1, 1992, while armed with a shotgun and a rifle, defendant entered the high school he had last attended in 1989, shot and killed four people, and wounded several others. Defendant then held approximately 80 to 90 students hostage for about eight hours before surrendering. Defendant attacked the school because one of his former teachers had given him a failing grade, which, according to defendant, caused him to not graduate and to lose his job, and also caused his girlfriend to leave him. At trial, defendant also accused this former teacher of having molested him.

1. Prosecution Evidence

On several occasions in early 1992, defendant and his best friend, David Rewerts, discussed going to Lindhurst High School and shooting on the school grounds; in at least one such discussion, defendant said he would like to shoot a couple of people at the school. Defendant read to Rewerts passages from a book on military tactics and police procedures. Defendant owned a shotgun, two .22-caliber semiautomatic rifles, and another firearm. Rewerts had gone target shooting with defendant. According to Rewerts, defendant could cock his pump-action shotgun with one arm.

Defendant lived with his mother and older half brother. On the morning of May 1, 1992, defendant waited outside his home for the mail carrier to deliver his unemployment check and left after the check arrived. Between 11:00 a.m. and 1:00 p.m., defendant went to three different stores looking for a specific type of shotgun ammunition, and he ultimately purchased No. 4 buckshot ammunition for a shotgun, .22-caliber ammunition, and an ammunition pouch. A clerk testified that defendant had a shopping list with him.

Although the precise sequence of the day’s events is somewhat unclear, about 1:50 p.m., a teacher at Lindhurst High School saw someone, later identified as defendant, walking “with a determined stride” toward building C. Defendant wore a camouflage vest with pockets full of shotgun shells, two bandoliers full of ammunition, and a full ammunition belt. He carried a 12-gauge shotgun, had slung over his back a .22-caliber rifle with the butt sawed off, and wore a canteen on his belt. The teacher asked defendant if he had a permit for the shotgun he was carrying. He looked at her, did not respond, and continued walking toward the building.

Defendant entered building C, walked into classroom C-108, pointed his shotgun at Rachel Scarberry, a student, and shot her in the chest. Defendant then shot Robert Brens, a teacher, who ultimately died of chest wounds. Defendant walked towards Brens’s fallen body, turned around, and shot student Judy Davis in the face and upper chest, killing her. Defendant then shot at Thomas Hinojosai, a student, as he dove away; the blast hit him in the ear and the shoulder. Tracy Young, a student, dove to the floor after defendant’s first shot, but was hit in the foot by one of the shots.

Defendant left the classroom, continued down the hallway, and fired three times into classroom C-105, injuring three students: Jose Rodriguez was struck in the feet; Patricia Collazo was struck in the right knee; and Mireya Yanez was struck in the knees. Defendant then went to the doorway of classroom C-107 and shot and killed Jason White, a student. Defendant at some point passed by classroom C-109, saw student Sergio Martinez hiding in the comer, and shot at him. Martinez attempted to move away but was hit in the left arm.

At some point during the shootings, Joshua Hendrickson, a student in classroom C-204 on the second floor, heard the shots, left the classroom, looked over the railing, and saw defendant on the first floor. Defendant saw Hendrickson and shot at him. Hendrickson retreated into the classroom.

Around this time, Danita Gipson, a student in classroom C-110, heard the shots and left the classroom to investigate. John Kaze, a substitute teacher, followed her. Gipson walked down the hallway and saw defendant. Defendant saw Gipson and aimed at her. She attempted to mn away but was shot in the buttocks. Gipson fell to the ground, got up, and then ran back to classroom C-110. Defendant walked toward Kaze with “a slight smile on his face and a spring to his step.” Kaze attempted to return to classroom C-110, but before he could do so, defendant shot him in the face, shoulder, and neck. Kaze retreated into the classroom. Wayne Boggess, a student in classroom C-110, started to leave the classroom but failed to respond to a cry for everyone to get down and instead stood in the doorway as if “in a daze.” Defendant shot Boggess in the face. Defendant then walked toward classroom C-102.

The teacher in classroom C-102 heard the shots, went to the hallway, and yelled to Donald Graham, the teacher in classroom C-101, “911. Man with a gun. Shots fired.” Graham leaned out the doorway and asked the other teacher to repeat himself. Defendant shot at Graham and hit him in the forearm, and Graham retreated into classroom C-101. Defendant reloaded, went to classroom C-102, and made eye contact with a female student inside. Beamon Hill, another student in the classroom, yelled, “No,” and pushed her to the floor. Defendant shot Hill in the head, killing him, and walked away.

At some point during the shootings, Bee Moua, a student in classroom C-104, tried to leave the room. As Moua was getting up from his desk, defendant fired two shots into the classroom from the hallway. Moua and the other students in the room dropped to the floor and stayed there.

Defendant headed up a stairway, entered classroom C-204, told the teacher to leave, and ordered the approximately 24 students to get to one side of the room. Defendant ordered the students to barricade the doorway with a bookshelf. At defendant’s command, a student went to classroom C-104 and told the students in that room to join the others in classroom C-204, promising that if they did, defendant would not shoot them. They complied. Students hiding in the library and other classrooms were similarly ordered to classroom C-204. The teachers were ordered to leave the building. Eventually there were 80 to 90 students in classroom C-204. Defendant assigned four to six students to different positions in the building to act as lookouts.

Using the school’s intercom system, defendant contacted law enforcement personnel and threatened to shoot people if the school bells were not turned off. Defendant told law enforcement personnel that Brens had flunked him and that he had been fired from his job because he did not have a high school diploma. Defendant made similar statements to the students in the room, saying Brens had “ruined his life” and he was going to make Brens “pay.” Defendant also said his girlfriend had left him. Defendant blamed Brens and the school system, and wanted to “make a point” and ensure that other teachers did not repeat this mistake.

Defendant told the students he had previously reconnoitered the school. Defendant also said he had placed gasoline around the building and would ignite it if his plan did not work. Defendant told the students that he had studied police tactics as well as the Penal Code, so he was aware of the potential sentence he faced.

Defendant sent a student to retrieve a radio. Defendant appeared relieved when the radio newscast announced no one had been killed, but he appeared surprised when it reported that he had shot people. Defendant later admitted that he had shot Brens “in the ass,” and then smiled. Defendant told the students he had not intended to kill anyone.

Defendant asked the students if they had to use the restroom, and many responded that they did. Defendant allowed the students to go downstairs to the restroom in pairs, threatening to kill everyone in the classroom if they did not return. The second pair of students sent to the restroom did not return. A third student was sent to look for the pair, but he did not return either.

Later in the afternoon, law enforcement personnel delivered to classroom C-204 a portable telephone system, which permitted them to monitor and record the sounds in the classroom even when the device was not in use. Law enforcement personnel recorded the hostage situation, and the jury later listened to the audiotapes.

At some point, defendant demanded that law enforcement personnel deliver a key to the faculty restroom, which could be seen from the classroom, and threatened to kill people if it was not delivered in a timely manner. Defendant later fired a warning shot, shattering a library window. After law enforcement personnel delivered the key, defendant allowed the students to go to the faculty restroom in pairs, again threatening to kill everyone in the classroom if they did not return. Two pairs of students who left to use the restroom did not return.

Hendrickson told defendant that he was not feeling well and was allowed to leave. Defendant also released a student who was crying hysterically and another who claimed to be pregnant. A short while later, defendant released 10 to 15 more hostages as a sign of good faith. At law enforcement personnel’s request, the remaining students wrote their names and telephone numbers on a piece of paper so that their parents could be informed. As the students became hungry, defendant released 15 to 30 hostages in exchange for pizza, soda, and some ibuprofen for the students complaining of headaches.

Defendant asked law enforcement personnel about the condition of the people he had shot. They lied and said no one had been killed. Defendant inquired whether he could receive a light sentence and sought assurances that they would not “double-cross him.” At defendant’s insistence, law enforcement personnel sent him a purported contract guaranteeing that he would serve no more than five years in a minimum security facility that had education and employment opportunities. Representatives of the Yuba City Police Department and Yuba County Sheriff’s Department had signed the document. Sixteen of the hostages also signed the document as witnesses.

Defendant eventually released the remaining students, with the final group leaving about 10:00 p.m. Defendant then left his weapons, ammunition, and a pair of thumb cuffs in the classroom, left the building, and was taken into custody.

At some point during the hostage situation, law enforcement personnel obtained consent from defendant’s mother to search defendant’s bedroom in her house and recovered a handwritten supply list, which included quantities of ammunition, lighter fluid, and a rifle sling. They also recovered empty ammunition boxes, including boxes for No. 4 buckshot for a shotgun and a handwritten note addressed “to my family,” which read in part, “I know parenting had nothing to do with what [happens] today. It [seems] my sanity has slipped away and evil [took its] place. The mistakes the loneliness and the failure have built up [too] high. Also I just want to say I love my family very very much.” Officers, pursuant to a search warrant, later recovered additional papers, including one captioned “Mission Profile” consisting of a hand-drawn diagram of building C. Officers recovered pieces of a tom-up sheet of paper, on which had been handwritten in part, “What I did today at the school . . . . [f] [I’ve] been [fascinated] with weapons and death .... [S]et on killing. [¶] My [hatred toward] humanity forced me . . . what I did.” Officers also found two magazines that focused on law enforcement weapons and tactics and a copy of an abridged version of the Penal Code. Police recovered the sawed-off butt of defendant’s .22-caliber rifle.

Defendant’s vehicle was discovered parked directly in front of building C. Inside the vehicle was a book entitled “Modem Law Enforcement Weapons and Tactics.” Text in portions of the book concerning lethal shotgun ammunition had been circled or underlined, and the first page of a chapter entitled “Special Weapons and Tactics” had been turned down.

Defendant submitted to a videotaped interrogation, which the jury later watched. After being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] and waiving them, defendant said he did not decide to commit the shootings until the teacher asked him about having a gun permit. Defendant acknowledged he had created a shopping list and drawn up plans, but claimed he did not intend to go through with them. Defendant also admitted he had visited the school a few weeks before and had sawed off the butt of the .22-caliber rifle before the shootings to make it more maneuverable. Defendant said he intended to “wing[] a couple of people” to get the media’s attention, but not to kill anyone. Defendant insisted he used No. 4 buckshot, rather than less lethal ammunition, because that was what he used when he went target shooting. Defendant described the assault and said that once he went upstairs he realized what he was doing was wrong.

Autopsies revealed Brens, Davis, Hill, and White were all killed by multiple shots of No. 4 buckshot that caused extensive external and internal injuries. A sheriff’s deputy testified that No. 4 buckshot contained approximately 24 projectiles per shell and described them as “[antipersonnel] type rounds” with “devastating” impact power. The diameter of the spread of multiprojectile ammunition fired from a shotgun expanded approximately one inch for every yard traveled.

2. Defense Evidence

Defendant called as witnesses four of the students whom he had taken hostage. They testified that defendant had said he did not know he had killed anyone, was not “aiming to kill anybody,” and did not want any of the injured students to die. Defendant expressed shock at his actions and apologized to the final four hostages.

Defendant’s half brother, Ronald Caddell, testified about their experiences together. Caddell explained defendant had been fascinated with military equipment and firearms since the age of 12 or 13. Defendant often practiced shooting, and they had gone target shooting together two or three times. Defendant worked for a temporary agency that had a contract with Hewlett-Packard, but his contract had expired a few months before the shootings. Defendant could have obtained a job at Hewlett-Packard if he had had a high school diploma or equivalency certificate. Caddell had argued with defendant about his not looking for work. In the weeks leading up to the shootings, defendant ate little, stayed up late, and was heard handling his firearms. Caddell and defendant were fans of action movies, especially The Terminator (Hemdale Film Corp., 1984).

C. Jess Groesbeck, an associate professor at the University of California, Davis Medical School (UC Davis Medical School) who was board certified in psychiatry, psychoanalysis, and forensic psychiatry, evaluated defendant. Dr. Groesbeck reviewed the police reports, other doctors’ reports, and defendant’s medical and school records. He also interviewed defendant on different occasions. In his testimony, Dr. Groesbeck described several traumatic events in defendant’s family: His mother had been abused by several family members; a maternal uncle had killed three people in a fight; his maternal grandmother had committed suicide; and his father, who was an alcoholic, had abandoned the family when defendant was a young child. According to Dr. Groesbeck, defendant suffered from spinal meningitis and severe asthma as an infant. As a child, defendant had problems learning in school, paying attention, and controlling his behavior; he had been classified as “learning handicapped.” Defendant’s IQ had dropped from 95 to 84 around the age of 16. Defendant had twice attempted to commit suicide, once in 1988 and once while in custody awaiting trial.

Dr. Groesbeck noted defendant felt guilty about “quasi-homosexual seeking behavior” he had with Rewerts, his best friend. As a young child, defendant had been photographed wearing a dress, which, in Dr. Groesbeck’s opinion, contributed to defendant’s sexual identity confusion and caused his fascination with firearms. Dr. Groesbeck related defendant’s claim that Brens, the teacher he shot and killed, had molested him at least twice in 1989.

Dr. Groesbeck diagnosed defendant as suffering from “organic brain syndrome,” that is, chronic, permanent brain damage. According to Dr. Groesbeck, defendant also suffered from “a developmental disorder, as well as a hyperactivity syndrome, which he had as a child, most likely.” Dr. Groesbeck also diagnosed defendant as suffering from dependent personality disorder, as well as borderline personality disorder, manifested by extreme mood swings, and suggested that defendant’s contact with reality was unstable. Dr. Groesbeck further diagnosed defendant as suffering from posttraumatic stress disorder (PTSD), which could have been caused by having been molested. Dr. Groesbeck suggested defendant had a dissociative reaction to the shootings and screened out the memories or did not see himself as involved in what happened.

In Dr. Groesbeck’s opinion, defendant also suffered from psychotic schizophreniform disorder, “the most serious of all mental illnesses,” in which the mind “literally disorganizes at all levels.” During the shootings, Dr. Groesbeck believed defendant was “dissociated, [detached], living in an unreal world,” and identifying with the self-sacrificing protagonists in his favorite action movies. Dr. Groesbeck characterized defendant’s preshooting writings as examples of his internal struggles overwhelming his ability to maintain contact with reality.

Helaine Rubinstein, Dr. Groesbeck’s associate and a psychologist who specialized in neuropsychology and diagnosing and treating mental disorders of youth, also evaluated defendant. Dr. Rubinstein reviewed police reports, defendant’s medical and school records, some of his writings, interviews of his mother and brother, his interrogation by the police, and the audiotapes of the hostage situation. She also spent about 50 hours interviewing him and administering tests. Dr. Rubinstein found defendant to be significantly disoriented, dissociative, delusional; and suffering from auditory and visual hallucinations.

Dr. Rubinstein diagnosed defendant as suffering from “Specific Developmental Disorder, Not Otherwise Specified, Chronic,” specifically, brain damage in the left hemisphere that impaired his ability to understand orally conveyed information. Such a disorder could be the result of physical abuse or a childhood illness such as spinal meningitis. Dr. Rubinstein also diagnosed defendant as suffering from “Attention Deficit Hyperactivity Disorder, Residual Phase,” that is, childhood hyperactivity marked by an inability to concentrate. Dr. Rubinstein agreed with Dr. Groesbeck that defendant suffered from PTSD, which she opined was caused by his claimed molestation, and explained that his inability to recall certain facts of the shootings was consistent with PTSD. Like Dr. Groesbeck, Dr. Rubinstein diagnosed defendant as suffering from a paranoid type of a schizophreniform disorder. In Dr. Rubinstein’s opinion, the onset of defendant’s disorder occurred approximately a month before the shootings and had escalated since then.

Dr. Rubinstein also detected that defendant had a “Savior Syndrome,” which is a delusion of grandeur involving the belief that he was a special servant of a higher power. Defendant had told Dr. Rubinstein that he intended to take Brens hostage and disclose all the wrongdoings of the school system.

Defendant’s friend, Ricardo Borom, testified that in 1989, defendant had told him that he had permitted a high school teacher named Robert to fondle him and then orally copulate him in exchange for a passing grade.

3. Prosecution Rebuttal Evidence

Rewerts, defendant’s best friend, admitted that they had had sexual contact once in 1991. Rewerts and defendant were very close and discussed sexual matters, but defendant never told Rewerts about Brens’s claimed acts- of molestation. On cross-examination, Rewerts admitted defendant and he at one point had had a falling out because defendant had started to date an ex-girlfriend of Rewerts’s, and Rewerts wanted to have an exclusive sexual relationship with defendant.

Lindhurst High School’s records indicated that during his senior year (1988-1989) defendant had taken two classes taught by Brens: civics and economics. Defendant passed civics but failed economics. Following his senior year, defendant attended a summer school session for nongraduating seniors and again failed economics; Brens did not teach the summer school class.

B. Sanity Trial

1. Defense Evidence

Dr. Groesbeck reviewed his notes from his interviews of defendant, defendant’s interrogation by the police, another doctor’s report, and a number of other documents, and interviewed defendant two more times. Dr. Groesbeck reaffirmed his opinion that defendant suffered from permanent brain damage, a developmental disorder, hyperactivity syndrome, dependent personality disorder, borderline personality disorder, PTSD, and psychotic schizophreniform disorder. According to Dr. Groesbeck, testing indicated that defendant was detached and suffered from diminished ability to abstract, conflicted feelings, and poor impulse control. He also suffered from hallucinations that would command him to do unrealistic things. Dr. Groesbeck said his diagnosis would have remained the same even assuming defendant had fabricated the molestation allegations. Although defendant had told the hostages that Brens had flunked him, Dr. Groesbeck thought defendant’s failure to also mention the molestations to them did not indicate that he had made up the allegations.

In Dr. Groesbeck’s opinion, defendant was aware of the nature and quality of his acts during the shootings, and his awareness grew during the hostage situation. Dr. Groesbeck testified, however, that defendant was in a dissociated, depersonalized state and was not capable of distinguishing right from wrong.

2. Prosecution Evidence

Captane Thomson, a clinical professor at UC Davis Medical School who is board certified in psychiatry and forensic psychiatry, also interviewed defendant. After reviewing Dr. Groesbeck’s and Dr. Rubinstein’s testimony, defendant’s medical and school reports, and interviews of defendant’s family members, Dr. Thomson disagreed that defendant suffered from schizophreniform psychosis. He believed defendant’s symptoms were indicative of a mood disorder such as psychotic depression.

In Dr. Thomson’s opinion, at the time of the crimes, defendant understood the nature and quality of his acts, and knew what he did was legally and morally wrong. Dr. Thomson explained that even a psychotic person may understand the nature and quality of his or her actions. Dr. Thomson believed defendant’s preshooting writings were evidence that he was planning to do something he knew was both legally and morally wrong.

Charles Schaffer, a board-certified psychiatrist and former professor at UC Davis Medical School, interviewed defendant and reviewed the police reports and materials, interviews of witnesses, defendant’s psychiatric and medical records, and his psychological test results. He diagnosed defendant as suffering from major depression with psychotic features and possibly bipolar disorder. Dr. Schaffer believed defendant also probably suffered from an unspecified personality disorder. Dr. Schaffer noted defendant showed symptoms of PTSD and possible caffeine intoxication on the day of the shootings based upon defendant’s claim that he had taken eight or nine caffeine pills and drunk four or five cups of coffee before the shootings. In Dr. Schaffer’s opinion, during the shootings defendant was capable of understanding the nature and quality of his acts and could distinguish right from wrong. Dr. Schaffer did not diagnose defendant as suffering from a schizophrenic disorder, but even assuming that diagnosis was correct, Dr. Schaffer said it would not alter his opinion that defendant understood the nature and quality of his acts and was able to distinguish right from wrong.

C. Penalty Phase

1. Prosecution Evidence

The prosecutor introduced into evidence seven photographs taken during the four autopsies. The jury also viewed a videotape, played without sound but narrated by a detective, that'depicted the crime scene; it included images of the four dead bodies.

2. Defense Evidence

During the penalty phase, defendant’s mother testified about his difficult upbringing. His former supervisor testified about his excellent work habits. Defendant testified about the shootings and his relationship with Brens, the teacher he killed.

Defendant’s mother, Edith Houston, testified about his physical illnesses as a child, the breakup of her marriage, his social and mental problems, and his difficulties in school. Defendant had an older sister as well as an older half brother, Caddell, from Edith’s prior marriage. As a child, defendant suffered from encephalitis or meningitis and severe pneumonia, which delayed his development. Defendant’s father drank and was unfaithful, and he and Edith fought. When defendant was a year old, his father left and thereafter visited only infrequently. Edith had suicidal thoughts.

Defendant did not do well in school. Defendant’s elementary school classified him as a “slow learner” and placed him in special classes. Defendant continued in special education classes during junior high and high school.

During high school, Edith had difficulty controlling defendant, so she sent him to live with his father and stepmother in Arkansas. Defendant soon begged to return, claiming his father was very strict with him and was drinking and “into a lot of heavy drugs.”

During high school, defendant attempted to commit suicide. But he also talked other students out of committing suicide.

After leaving high school, defendant attempted to work. Donna Mickel, defendant’s supervisor at Hewlett-Packard, testified she considered defendant an ideal employee whom she wanted to hire after his contract had expired. According to Edith, defendant started to change after his contract at Hewlett-Packard ended. He spent much of his time alone; he was depressed and quick to start an argument.

Defendant drank some and had tried marijuana, and Edith thought he had tried other drugs. Defendant had had no prior trouble with law enforcement.

Edith described defendant as shy, not comfortable in groups of people, and more comfortable with children than with people his own age. Other than perhaps occasionally hitting his sister, defendant was not violent and did not pick on other people.

Edith loved defendant and wanted him to live. Defendant was artistic, and Edith believed he could contribute to society by creating works of art. Defendant expressed to Edith remorse for the problems he had caused his family.

Defendant testified about his childhood and upbringing. In particular, he testified that during the second semester of his junior year, Brens was his United States history teacher. His relationship with Brens was “pretty good,” but they did get into some arguments. Defendant said Brens sometimes had “snotty attitudes” but was “pretty professional” and a “good teacher.”

In his senior year, defendant took Brens’s economics class. According to defendant, there were some out-of-control students who agitated Brens, who in turn took out his frustrations on the rest of the class. In December or January of his senior year, defendant went to talk to Brens about a paper for the class. While they were alone, defendant claimed, Brens rubbed his hands on the crotch of defendant’s pants. Defendant did not report the incident. After that, defendant and Brens had some arguments. Toward the end of the school year, defendant again went to talk to Brens about a paper. Defendant claimed that while he and Brens were alone in the classroom, Brens reached into his pants, grabbed his penis, and twisted it, causing excruciating pain.

Defendant said he felt unable to report these incidents, and he believed that if he had done so, Brens would not have gotten in trouble. Although Borom, defendant’s friend, testified that defendant told him that a teacher named Robert had orally copulated him, defendant could not recall either the incident or telling Borom about it because, he said, he was intoxicated while talking to Borom.

After these incidents, Brens rebuffed defendant’s attempt to discuss his failing grade. Brens failed defendant, and he did not graduate. Defendant attempted to retake the class during summer school but said he failed due to the “mental strain of the molestation.”

Defendant testified that he was “laid off” in early 1992 because he lacked a high school diploma and that he did not understand why a diploma was required for his job. During the month leading up to the shootings, defendant’s thoughts were “very distorted.” When both awake and asleep, defendant heard Brens’s voice. When defendant was asleep, he would see people laughing at him and hear people telling him to go to the high school.

Defendant said that although he drew up his plans a few days before the shootings, he did not intend to go through with it until he heard voices nagging him to go to the high school. Defendant admitted that the night before the shootings, he sawed off the stock of the .22-caliber rifle to “make it smaller and more versatile.”

Defendant recounted the events on the day of the shootings. Throughout the day, he heard voices encouraging him. Defendant claimed he did not intend to shoot people but rather “just start blowing stuff up.” By the time he entered the second story of the school, the voices in defendant’s head were silent.

Since his incarceration, defendant continued to have auditory and visual hallucinations. Medication lessened the hallucinations.

Defendant expressed remorse for his actions. He apologized to the living victims and to the families of those who had died. Defendant did not see a value in his execution but felt a fair punishment would be whatever the victims’ families wanted.

II.

A. Pretrial Claims

1. Composition and Conduct of the Grand Jury

Defendant contends that his September 15, 1992 indictment was defective because the grand jury members were selected with “constitutionally impermissible methods” and its proceedings were “prejudicially flawed.” Before the start of his trial, defendant moved to set aside the indictment, asserting four distinct challenges, all of which the trial court rejected. On appeal, defendant renews three of these challenges, which we address in turn below.

As preface to our discussion, we note that in these claims and most others on appeal, defendant contends that the asserted error or misconduct he raises infringed his state and federal constitutional rights to a fair and reliable trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17 [42 Cal.Rptr.3d 677, 133 P.3d 581] (Boyer), applies in the present case: “In most instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances. In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant’s substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. [Citations.] [f] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (Original italics.)

a. Failure to maintain a record of the entire grand jury proceedings

Defendant contends that the transcript of the grand jury proceedings is incomplete and therefore violated his statutory right to have all proceedings in his death penalty case conducted with a court reporter present. (§ 190.9, subd. (a)(1) [in any case in which the death penalty may be imposed, “all proceedings” must be conducted on the record with a court reporter present].) The record indicates that four times during the grand jury’s proceedings, the prosecutor went “off the record” by requesting that the court reporter not transcribe the proceedings. These instances occurred during the prosecutor’s opening statement, during his closing argument, during a recess in which a juror’s unspecified question was addressed, and during a discussion that occurred after a witness finished testifying.

The Attorney General concedes that some of the grand jury proceedings were improperly conducted without a court reporter present. The parties disagree, however, on whether a showing of prejudice is necessary for us to reverse the judgment based on this error. Defendant relies on Dustin v. Superior Court (2002) 99 Cal.App.4th 1311 [122 Cal.Rptr.2d 176] (Dustin), in which the prosecutor ordered the court reporter to leave the grand jury room during his opening statement and closing argument. Based on this irregularity, the defendant filed a pretrial motion to dismiss the indictment. When the trial court denied the motion, the defendant filed a petition for a writ of mandate in the Court of Appeal. The Court of Appeal, citing section 190.9, agreed that the defendant was entitled to have these remarks transcribed. (99 Cal.App.4th at pp. 1321-1323.) The court presumed that the defendant was prejudiced by this omission from the transcript, granted the defendant’s mandate petition, and directed the trial court to dismiss the indictment without prejudice to the filing of a complaint or another indictment. (Id. at pp. 1325-1328.) The Attorney General contends that Dustin was incorrectly decided.

We need not address the Attorney General’s concerns about Dustin because defendant’s reliance on it is misplaced. In People v. Booker (2011) 51 Cal.4th 141 [119 Cal.Rptr.3d 722, 245 P.3d 366] (Booker), which was, like this case, an automatic appeal from a death judgment, we rejected a complaint about an irregularity that occurred during the grand jury proceedings. We explained that postconviction challenges to irregularities during grand jury proceedings are generally reviewed for prejudice. (Id. at p. 156.) In contrast, pretrial challenges to grand jury proceedings, such as those raised by way of a petition for writ of mandate filed before trial, may warrant relief without a showing of prejudice. (Ibid.; Dustin, supra, 99 Cal.App.4th at pp. 1325-1326.) As the Attorney General notes, Dustin involved a pretrial challenge to the grand jury proceedings. Because defendant here did not seek pretrial relief in the Court of Appeal for the denial of his motion to set aside the indictment, he is entitled to a postconviction reversal only if the error prejudiced him.

Assuming the failure to transcribe all of the grand jury proceedings implicated defendant’s federal constitutional rights, he is entitled to relief unless the prosecution can show beyond a reasonable doubt that the irregularity did not affect the outcome of the trial. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman)’, see Booker, supra, 51 Cal.4th at p. 158.) We conclude defendant here is not entitled to relief because the record shows that the evidence presented to the grand jury was sufficient to support an indictment and because defendant “has failed to identify anything other than mere speculation to support his contention that he has suffered prejudice, i.e., that the grand jury’s decision to indict may have been in some way influenced by the alleged unreported communications.” (People v. Bennett (2009) 45 Cal.4th 577, 591-592 [88 Cal.Rptr.3d 131, 199 P.3d 535]; cf. Vasquez v. Hillery (1986) 474 U.S. 254 [88 L.Ed.2d 598, 106 S.Ct. 617] [racial animus may have affected grand jury’s decision whether and how to charge the defendant].)

b. Failure to provide requested evidence

Section 939.7 provides, in pertinent part, that when the grand jury “has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.” Defendant contends that the prosecutor violated section 939.7 by refusing to provide the grand jury with evidence it requested. As we explain, defendant’s contention lacks merit.

As noted, law enforcement personnel videotaped defendant’s interrogation and made audiotapes of the hostage situation. During the proceedings, the prosecutor indicated to the grand jury that one or more jurors had asked if they would be able to review the audio and video recordings. The prosecutor explained to the grand jury that the recordings were obtainable, but that he did not intend to present them. The prosecutor added, “However, if the jury so wishes, then we will do that.” He then suggested that the grand jury meet outside the presence of the prosecution to discuss whether it needed any additional evidence. The prosecutor expressly said, “[I]f you feel you need more evidence . . . we’re willing to serve whatever the needs of the [grand jury] feels are necessary.” The grand jury, however, at no time actually asked the prosecutor to present the recordings. The prosecutor, therefore, did not violate section 939.7 by not presenting them.

Defendant nonetheless contends that the prosecutor’s statements dissuaded the grand jury from requesting the evidence and improperly implied that the recordings had no exculpatory value. We are not persuaded that the statements had such an effect. The grand jury was aware that it had the authority to request additional evidence and that the prosecutor was willing to produce the recordings if requested. Hence, defendant suffered no prejudice. (See Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1029-1034 [13 Cal.Rptr.2d 551, 839 P.2d 1059] [prosecutor did not mislead the grand jury into believing it could not request additional evidence].) In addition, defendant has failed to identify anything other than speculation that, had the grand jury considered the recordings, they would have affected its decision to indict.

c. Underrepresentation of minorities on the grand jury

Defendant contends that the grand jury that indicted him was not a “fair cross-section” of the community because it did not contain anyone from the African-American, Native American, Asian Indian, or Hmong communities, all of which, according to defendant, comprised a substantial portion of Yuba County. Although defendant successfully moved to have his cased tried in Napa County, he committed his crimes in Yuba County and was indicted there.

This underrepresentation in Yuba County, defendant contends, violated his right to an impartial jury under the Sixth Amendment to the federal Constitution and article I, section 16 of the California Constitution. Defendant relies upon the rule that a violation of the requirement that a petit jury be drawn from a fair cross-section of the population is established by showing “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in the venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v. Missouri (1979) 439 U.S. 357, 364 [58 L.Ed.2d 579, 99 S.Ct. 664].)

In support of his motion in the trial court, defendant introduced evidence that African-Americans constituted 4.2 percent of the population of Yuba County, Native Americans constituted 2.9 percent, Asian Indians constituted 0.7 percent, and Hmongs constituted 3.7 percent, whereas Whites accounted for 78.2 percent of the population. The Superior Court for Yuba County had no data regarding the racial or ethnic identity of its grand jury venire members. The grand jurors served for a term of one year, with their term of service starting on July 1, and the parties stipulated that an Asian-American served on the 1989-1990 grand jury and that an Asian-American and two African-Americans served on the 1986-1987 grand jury.

Bonita Marqua, the jury commissioner who presided over the selection of the grand jury that indicted defendant, explained how grand jurors were selected in Yuba County. The superior court randomly selected approximately 10,000 people from DMV and voter registration records, and sent juror questionnaires that were to be returned to the court. The grand jury venire was created from those who responded. Returned responses were randomly selected and then added to the previous term’s venire. In addition, any member of the public could volunteer or be nominated; such an applicant would be added to the grand jury venire if the presiding judge consented. The venire was capped at 200 people. No special effort was made to encourage racial or ethnic minorities to volunteer for grand jury service.

Court staff and the presiding judge then interviewed the venire members to determine whether they were qualified and able to serve as grand jurors, and excused those who were not. Nineteen people were randomly selected from this smaller group to serve.

Peter Sperlich, a professor of political science at the University of California, Berkeley, testified as an expert in grand jury selection processes. In Dr. Sperlich’s opinion, from 1986 to 1993, there was significant underrepresentation of minorities on Yuba County grand juries that he attributed to flaws in the selection process, such as “the lack of follow-up” on those who did not return the initial questionnaire or make an appointment to be interviewed, the lack of a clear policy on granting excusáls or deferments, lack of a true random selection of returned questionnaires, the ability of applicants to volunteer or be nominated for grand jury service, and the carrying over of grand jury venire members from term to term.

In denying the motion, the court acknowledged defendant had identified distinctive minority groups in the community. In light of the lack of evidence about the composition of the grand jury venires, however, the court ruled that defendant failed to prove that the representation of these groups on the venires was not fair and reasonable in relation to their numbers in the county. The trial court also noted defendant failed to identify any procedures that systematically excluded members of these groups.

Defendant contends the trial court’s selection process for grand jurors systematically excluded various minority groups, which deprived him of a grand jury selected from a fair cross-section of the community. When addressing a similar claim in People v. Carrington (2009) 47 Cal.4th 145, 177 [97 Cal.Rptr.3d 117, 211 P.3d 617], we preliminarily noted that neither the high court nor this court has held the fair cross-section rule applies to state grand juries. In rejecting a similar claim in Carrington, we cited People v. Corona (1989) 211 Cal.App.3d 529, 534-536 [259 Cal.Rptr. 524], which held that lack of a fair cross-section of the community in the grand jury, unlike a finding of intentional racial discrimination, does not compel automatic reversal. Citing the “general rule prohibiting reversal absent actual prejudice,” the court in Corona rejected the fair cross-section claim. (Id. at p. 537.) We followed this process in Carrington and similarly rejected the fair cross-section claim in that case because there was no prejudice apparent in the record before us. (Carrington, supra, 47 Cal.4th at p. 179.)

We need not and do not resolve whether the Sixth Amendment right to a fair cross-section of the community applies to state grand juries because the record before us supports the trial court’s assessment that defendant failed to make a showing of underrepresentation of these groups on the venires in relation to their numbers in the county. (Cf. Castaneda v. Partida (1977) 430 U.S. 482, 48-488 [51 L.Ed.2d 498, 97 S.Ct. 1272] [prima facie case of intentional discrimination against Mexican-Americans in grand jury selection process established by examining jurors’ surnames].) Defendant contends the trial court’s lack of records regarding the ethnicity of the grand jurors violated his due process rights, but he fails to supply any authority for this contention. Accordingly, we conclude defendant failed to demonstrate evidence of substantial underrepresentation over a significant period of time on the grand jury.

2. Administration of Oath to Prospective Jurors

Defendant notes the record fails to establish that the trial court questioned prospective jurors under oath. Defendant therefore contends that the trial court’s failure to administer the oath to prospective jurors violated his rights to due process and an impartial jury as well as his right to have all proceedings transcribed. As noted, subdivision (a)(1) of section 190.9 requires that all proceedings in death penalty cases be transcribed.

In addition, Code of Civil Procedure section 232 requires all prospective jurors, before being examined and upon selection, to take an oath of truthfulness: “(a) Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement I do’: [¶] ‘Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.’ [¶] (b) As soon as the selection of the trial jury is completed, the following acknowledgment and agreement shall be obtained from the trial jurors, which shall be acknowledged by the statement I do’: [¶] ‘Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court.’ ”

On June 8, 1993, the trial judge went to the jury assembly room and addressed on the record a panel of 172 prospective jurors. The prospective jurors were first given blank declarations to request excusal from jury duty due to the hardship of serving; these were signed under penalty of perjury. The parties stipulated to the dismissal of 40 prospective jurors, and additional prospective jurors were granted hardship dismissals. Each remaining prospective juror was given a questionnaire which sought to discover bias and views on the death penalty. Although the questionnaires indicated they were to be completed under penalty of perjury, they did not call for a signature, and the prospective jurors did not sign them.

The next morning, 35 prospective jurors were called into the courtroom. The trial court stated, “They have already been sworn for voir dire in the—by the jury commissioner, true, or—they’re nodding yes. That’s the usual procedure . . . .” These prospective jurors were examined, and successive groups of prospective jurors were called in until all remaining members of this panel had been examined. A second panel of approximately 120 additional prospective jurors were also similarly examined. The record is silent as to whether they were administered any oath. A jury ultimately was chosen. Only one seated juror was from the original group of 35 prospective jurors who affirmatively acknowledged taking an oath.

In 2003, the trial court conducted record correction proceedings and ordered the record to be settled to indicate that both panels of prospective jurors were administered the oath required by subdivision (a) of Code of Civil Procedure section 232 before the court conducted voir dire.

Defendant preliminarily contends that the trial court improperly settled the record. It is the trial court’s duty to settle the record, not to make one. (Marks v. Superior Court (2002) 27 Cal.4th 176, 195 [115 Cal.Rptr.2d 674, 38 P.3d 512].) Although record settlement may be based on all available aids, including the memories of the trial judge and the attorneys {id. at pp. 195-196), none of the participants in the record correction proceedings had witnessed the jury commissioner swearing in the prospective jurors, and no court personnel testified at the record correction proceedings. Although the first group of prospective jurors indicated they had been sworn in while in the jury assembly room, and the trial court added that was “the usual procedure,” there is no record of who was sworn in, who administered the oath, or what oath was administered.

In settling the record to indicate that all of the prospective jurors were administered the correct oath, the trial court also relied on section 664 of the Evidence Code, which states in pertinent part, “It is presumed that official duty has been regularly performed.” As noted, the record shows the first panel of prospective jurors indicated that the jury commissioner administered an oath. (E.g., People v. Wader (1993) 5 Cal.4th 610, 661 [20 Cal.Rptr.2d 788, 854 P.2d 80] [official duty presumption includes actions by court clerks].) Defendant does not make a particularized showing that no oath was administered, that the wrong oath was administered, or that not all prospective jurors were administered the oath. (See Evid. Code, § 660 [evidentiary presumptions affect the burden of proof].) Although there is no record that all prospective jurors were administered the correct oath, this absence does not alter the presumption that the correct oath was administered. (See People v. Mello (2002) 97 Cal.App.4th 511, 513-514, fn. 1 [118 Cal.Rptr.2d 523] [despite its absence from the record, appellate court presumed the oath of truthfulness was properly administered to prospective jurors].) Thus, despite the trial court improperly “correcting” the record to indicate the prospective jurors were administered the oath of truthfulness, defendant is not entitled to relief because under Evidence Code section 664, it is presumed they were properly sworn in.

With respect to the trial court’s failure to cause the court reporter to transcribe the administration of the oath, we cannot presume that the court reporter transcribed it because it is not in the record. (E.g., Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 132 [65 Cal.Rptr.2d 580, 939 P.2d 1280] [reliance on official duty presumption is misplaced when the record discloses a duty was not properly performed].) Although the trial court failed to cause the administration of the prospective jurors’ oath to be transcribed, defendant is not entitled to relief because any error was harmless. (See People v. Taylor (2010) 48 Cal.4th 574, 659-660 [108 Cal.Rptr.3d 87, 229 P.3d 12] (Taylor) [failure to conduct on-the-record discussions about the jury’s questions to the court in a death penalty case was harmless error].)

Defendant’s reliance on In re Smiley (1967) 66 Cal.2d 606 [58 Cal.Rptr. 579, 427 P.2d 179] is misplaced. In Smiley, the petitioner claimed he was not advised of his right to a speedy trial, and he disputed the minute order that indicated he had “waived time.” (Id. at p. 611.) The applicable law required the trial court to explain to the petitioner his right to a speedy trial and the effect of his consent to the trial date set by the trial court, but the record did not indicate it had done so. (Id. at p. 629.) We declined to presume that the trial court had performed its official duty and advised the petitioner because the purpose of the law was to ensure that a defendant would not waive his or her rights through ignorance or oversight. (Id. at pp. 629-630.) Such a purpose would have been defeated if the petitioner had been required to prove that the trial court did not advise him about a right that he did not know he had. (Ibid.) Here, defendant’s claim does not involve the advisement or waiver of any rights.

Even if we assume that some of the prospective jurors were not administered the oath required by subdivision (a) of Code of Civil Procedure section 232, defendant’s claim does not warrant reversal in light of People v. Carter (2005) 36 Cal.4th 1114 [32 Cal.Rptr.3d 759, 117 P.3d 476]. In Carter, the trial court failed to administer the oath of truthfulness to two panels of prospective jurors, but it denied the defendant’s motion to declare a mistrial or, alternatively, to excuse the prospective jurors who had not been given the oath before being examined. (Id. at pp. 1174-1176.) We rejected the defendant’s argument that the failure to administer the oath to prospective jurors was a structural defect that compelled an automatic reversal. (Id. at p. 1175.) Rather, we noted that the properly sworn seated jurors were instructed to follow the trial court’s instructions, and we presumed they did. (Id. at pp. 1176-1177; see Code Civ. Proc., § 232, subd. (b).) We also noted that those prospective jurors filled out a questionnaire that was signed under penalty of perjury, which impressed upon them the importance of being truthful, thus lessening the harm caused by failure to administer the oath of truthfulness. (Carter, supra, 36 Cal.4th at p. 1177.) We therefore concluded that the failure to administer the oath to some of the prospective jurors was not prejudicial. (Ibid.) Here, as in Carter, any error in failing to properly swear in the prospective jurors was harmless under the applicable federal and state standards (Chapman, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson)) because the prospective jurors were instructed to complete the questionnaires under penalty of perjury and because the seated jurors were administered the proper oath. We reject defendant’s contention that Carter and People v. Lewis (2001) 25 Cal.4th 610 [106 Cal.Rptr.2d 629, 22 P.3d 392], upon which Carter relied, should be reconsidered.

Defendant notes that the prospective jurors in Carter had signed their questionnaires under penalty of perjury. But we see no basis for concluding that defendant was prejudiced by the fact that here the prospective jurors did not sign their questionnaires. The questionnaire clearly instructed the prospective jurors that they were to complete it under penalty of perjury. Absent evidence to the contrary, and defendant has provided none, we presume the prospective jurors followed the instruction.

B. Guilt Phase Claims

1. Lack of Meaningful Appellate Review Due to an Incomplete Record

During his case-in-chief, the prosecutor introduced into evidence videotapes of defendant’s interrogation by law enforcement personnel and audiotapes made during the hostage situation. Defendant contends that the trial court improperly allowed the prosecutor to play for the jury these audio and video recordings. Because the recordings were of poor quality and were not transcribed by the court reporter, defendant argues, the record is incomplete and violates his right to meaningful appellate review. As noted, subdivision (a)(1) of section 190.9 requires that all proceedings in death penalty cases be transcribed. Former rule 203.5 (now rule 2.1040) of the California Rules of Court required the party offering an audio or video recording into evidence to provide the court and opposing parties a transcript of the recording.

During the prosecutor’s case-in-chief, the jury viewed two videotapes of law enforcement personnel interrogating defendant. Before the videotapes were played, the following colloquy occurred:

“THE COURT: The court reporter need not try to take down the audio portion of any videotape? [][]... [][]

“[DEFENSE COUNSEL]: Well, I’m afraid I would get in trouble if I said otherwise.

“THE COURT: I don’t want you to be intimidated in the diligent exercise of your duty as defense counsel. If you wish to say otherwise, you may.

“[DEFENSE COUNSEL]: No, we have no objection.”

The prosecutor later introduced into evidence a transcript, presumably created by law enforcement personnel, of the videotapes. Defense counsel stated, “We have no, no vigorous objection to the introduction of that as an exhibit. With the understanding that the Court will instruct the jury that the tape is the evidence and not the transcript.” The trial court instructed the jury that the transcript was an aid to understanding the interrogation, but if there was a conflict between the videotapes and the transcript, the videotapes controlled.

As noted, during the hostage situation, law enforcement personnel delivered to defendant a portable telephone system that could record sounds even when not being used as a telephone. Seven audiotapes of what it recorded were introduced into evidence without objection. The audiotapes were played for the jury, and the parties stipulated that the court reporter was excused from transcribing the audio recordings. No transcript of the audiotapes was provided to the jury.

Because defendant agreed that the court reporter need not transcribe the audio and video recordings, he cannot now complain of such errors on appeal. (People v. Rogers (2006) 39 Cal.4th 826, 856-858 [48 Cal.Rptr.3d 1, 141 P.3d 135] [defendant’s stipulation to not transcribe certain death penalty proceedings forfeited the claim on appeal]; see Taylor, supra, 48 Cal.4th at pp. 659-660 [failure to conduct death penalty proceedings on the record regarding questions posed by the jury was harmless error where the trial court summarized the unreporte