People v. Cunningham (61 Cal. 4th 609, 2015)

Opinion

WERDEGAR, J.

In a bench trial before the Superior Court of San Bernardino County, defendant John Lee Cunningham was convicted of the first degree murders of Wayne Sonke, David Smith, and Jose Silva. (Pen. Code, §§ 187, subd. (a), 189.) The trial court found true the special circumstance allegations that defendant committed multiple murders and that the murders of Sonke and Smith took place during the commission of a burglary and a robbery. (§ 190.2, subd. (a)(3), (17)(A), (G).) The court also found defendant guilty of one count of second degree burglary (§ 459), three counts of second degree robbery (§ 211), one count of arson (§ 451, subd. (d)), and one count of possession of a firearm by a felon (former § 12021, subd. (a)). The court further found true various sentencing enhancement allegations — that defendant personally used a firearm in the commission of the murders, robberies, and burglary (former § 12022.5, subd. (a)), had previously been convicted of various felonies (§ 667), and had served prior prison terms for felony convictions (§ 667.5).

A jury was sworn for the penalty phase and returned a verdict of death. After conducting an automatic review and declining defendant’s request to modify the jury’s verdict (§ 190.4, subd. (e)), the trial court sentenced him to death for the three first degree murders with special circumstances, as well as to a determinate term of 16 years for the remaining counts and allegations.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTS

A. The Guilt Phase

Defendant went to Surplus Office Sales (SOS) in Ontario, California, around closing time on the afternoon of Saturday, June 27, 1992, and robbed the three remaining employees at gunpoint. He then bound the victims, herded them into a bathroom, and shot them each at least once in the head. Afterward, he set fire to the building before fleeing the scene. He was arrested a month later while on the run from police. Defendant subsequently confessed to the murders, burglary, and robberies, and participated in a videotaped reenactment of the crimes.

Waiving his right to a jury, defendant’s bench trial extended over 10 noncontiguous court days. In addition to the prosecution’s guilt phase evidence, the trial court considered the evidence presented at the preliminary hearing and at pretrial proceedings concerning defendant’s motion to suppress his multiple confessions.

1. The prosecution’s case

a) The crimes

Around 4:00 p.m. on June 27, 1992, members of the Ontario Fire Department responding to a call at SOS found an inactive fire in the office portion of the building and three homicide victims in a hallway bathroom. An autopsy revealed that SOS employee Jose Silva died from two gunshot wounds to the head, assistant manager David Smith died from multiple gunshot wounds to the head and neck, and store manager Wayne Sonke died from a single gunshot wound to the head. More than $1,000 in cash had been taken from the store’s cash register and petty cash box.

Michael Ray, the owner of SOS, had employed defendant in the early and mid-1980s at two other businesses. About a month before the murders, Ray returned a phone call from defendant asking about work. Ray had not heard from him for three or four years. Defendant also made unannounced visits to SOS on June 20 and 24, a week and a few days before the murders, respectively.

About 8:30 p.m. on the evening of the murders, defendant called SOS employee Evelyn Eriksen at home to ask how she was. Defendant told her he had been playing poker with some friends since about noon that day. Later, defendant took Alana Costello, his girlfriend at the time, to the movies and a motel room. Costello was surprised because defendant was not steadily employed and had been under “stress” trying to find enough money for them to move into a bigger apartment. That evening, defendant was “much more close-mouthed” than usual and acting “very stressed, very tense, very wrapped up in himself.” According to Costello, defendant generally was distant and removed, had difficulty sleeping, and would wake up in the middle of the night from bad dreams. He had borrowed her Ruger .22-caliber semiautomatic rifle and modified it by sawing off part of the stock and barrel. A few days after the murders, Costello noticed the rifle was missing.

b) Defendant’s subsequent flight and capture

On June 30, defendant called Diana Jamison, a former girlfriend. Jamison told defendant that his parole officer had come to her house looking for him. In a later telephone conversation, defendant told Jamison he was on the run because someone, perhaps the Mexican Mafia, was after him. Around the same time, defendant again called Jamison upset and crying, saying “something very terrible had happened” and he wanted to come back and “do the right thing.” Jamison told defendant to turn himself in. According to Jamison, defendant had trouble sleeping; he would often wake up in the middle of the night in a cold sweat, and mentioned dreams of being tortured by women and children from his time in Vietnam. Defendant had tried to seek counseling at a veteran’s center.

On July 1, Costello received a telephone call from defendant asking her to join him in Nevada. Meeting at the Las Vegas airport, the two traveled by car to Atlantic City, New Jersey, then drove southwest through Arkansas before heading north. Along the way, defendant placed an Ohio license plate on the car and registered under false names at motels. He never discussed why he had left California and when Costello asked, he said he did not want to talk about it. After seeing how anxious defendant became when police cars passed them, she concluded that he was running from the law.

On July 23, law enforcement officers stopped defendant’s car in Deadwood, South Dakota, after being advised he was in the region and wanted as a murder suspect. Defendant and Costello were both taken into custody and defendant was arrested for violating his parole. Police seized a Ruger .22-caliber semiautomatic rifle, a box containing 31 cartridges for a .22-caliber long rifle, and a magazine loaded with 10 rounds of .22-caliber ammunition.

c) Defendant’s statements to law enforcement officers and videotaped reenactment of the crimes

Over the following two days, Ontario Police Department Detectives Gregory Nottingham and Pat Ortiz interrogated defendant four times. Each interrogation was audiotaped or videotaped. On each occasion, the recording equipment was in plain view.

At their first meeting the morning of July 24, after approximately six minutes of preliminary introductions and questions, Detective Nottingham read defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). After defendant confirmed that he understood these rights, Nottingham proceeded to ask defendant about his relationships with Costello and Jamison, as well as about his military and employment background and his prior robbery arrest. In discussing these subjects, defendant recounted working for Michael Ray at a facility in Long Beach in 1979 and going to SOS in Ontario in early June 1992 to visit Eriksen and to look for a job.

Defendant then volunteered, “I know what you guys are getting at. ... I also want you to know that the reason why I’m so calm is because I’m where I belong. ... I know why you’re here in my dreams and that’s all.” When asked to clarify, defendant replied, “You know as well as I do that I committed an armed robbery in Ontario” at “Mike’s company.” When asked for further clarification, defendant reiterated, “I committed an armed robbery,” and asked, “Should I have somebody here talking for me, is this the way it’s supposed to be done?” Detective Nottingham reread defendant his Miranda rights and asked if he understood them. Defendant stated, “I do understand.”

In response to the detectives’ subsequent questions, defendant gave an occasionally rambling account of his activities on June 27, describing how he chose to rob SOS, how the robbery, murders, and arson occurred, and his subsequent actions. He admitted entering SOS with the intention to steal money, binding the hands of the three victims with duct tape, returning to the bathroom to shoot them, and then using gasoline to set the building on fire. These confessions were interspersed with references to defendant’s dreams, things he claimed to have done during his military service in Vietnam, and expressions of relief at being caught.

The detectives interrogated defendant two more times the afternoon of July 24, and again the following morning. No additional Miranda advisements were given. Defendant told the detectives he had altered two military personnel forms found in his car because he was looking for work and wanted to “look[] better” and “cover” for time when he had been incarcerated. He also indicated he had “ripped off a shipment” as a narcotics courier and asked at one point to be placed in protective custody. One of the detectives also made references to the victims’ families, stating that once lawyers got involved in a case, it would get “a lot more complicated.”

Between July 27 and July 31, the detectives spoke with prosecutors working on the case and played the interview tapes for them. Because the quality of the tapes was poor, the prosecutors suggested a videotaped reenactment at the crime scene and told the detectives that the reenactment should be done before an arrest warrant was filed. On July 31, Wesley Lewis, a correctional sergeant at Folsom State Prison where defendant was being held on his parole violation, interviewed defendant to determine whether he would be willing to participate in the reenactment. Defendant indicated that he would be “happy” to cooperate “if it would get me out of here any sooner or quicker.”

On August 2, defendant conducted a reenactment of the crimes, which two detectives observed and videotaped. Defendant was advised of his Miranda rights before starting the reenactment, and affirmed that he understood these rights and wished to talk to law enforcement officers.

In the video, defendant described how on the day of the murders he first went to SOS shortly after noon and stayed for about a half-hour talking with the three victims. He then left and returned after 3:00 p.m. “to take all the money ... so I could leave the state.” He reentered SOS with the shortened .22-caliber rifle concealed in a paper bag. At gunpoint, defendant ordered the three victims to follow him through the hallway to the front lobby, where he forced Sonke to give him the money from the cash register.

When defendant asked Sonke where the rest of the money was, Sonke indicated it was in an office down the hall. Defendant made all the victims go with him to that location and Sonke opened a filing cabinet with some keys, but did not remove anything. Defendant took the keys and made the victims enter the women’s bathroom, where he told them to lie down on the floor and be quiet. He left all three victims with their hands bound behind them with heavy duty tape he had purchased weeks before, but also claimed he had only planned the robbery earlier that day when he decided to return to SOS. Defendant then took the money from the cash drawer in the filing cabinet, returned to the bathroom, and shot the three men.

Retrieving a can of gasoline from his car, defendant went back inside to set fire to the building. When he reentered the bathroom, Silva and Sonke were not moving but Smith was attempting to break loose from his bonds. Defendant shot Smith again, poured gasoline along the hallway, and ignited it with a match. He then removed a key from inside the front door and exited, locking the door from the outside. He drove to a freeway overpass to watch the building for a minute or so until a fire truck arrived.

2. The defense case

In his opening argument during the guilt phase, defense counsel described defendant’s experiences in Vietnam, stating that because of posttraumatic stress disorder, there were periods in his life when defendant “lost time.” With respect to the murders, counsel claimed these were not crimes defendant wanted to commit, and that the only way law enforcement officers were able to connect defendant to them was by virtue of defendant’s cooperation. Counsel cross-examined prosecution witnesses, but presented no guilt phase witnesses or other evidence on defendant’s behalf.

During closing argument, counsel contended defendant committed the charged offenses because he was experiencing a buildup of pressure caused by a mix of helplessness and fear. In conclusion, counsel argued, “from everything we know John Cunningham wished to take responsibility for this particular crime, and he did.”

B. The Penalty Phase

Defendant’s requests to absent himself from the penalty phase were denied. A jury was selected and heard evidence for 34 court days over the course of five months. The prosecution presented testimony relating to the circumstances surrounding the crimes, the effect of the murders on those connected to the victims, and defendant’s prior felony convictions. Defendant presented extensive testimony to document his abusive childhood, his traumatic combat experiences in Vietnam, and the effects of posttraumatic stress disorder on Vietnam-era veterans. He also presented testimony that attempted to discredit some of the prior crimes evidence.

1. The prosecution’s case in aggravation

a) The circumstances surrounding the murders

The prosecution presented the testimony of many of the same witnesses who testified during the preliminary hearing and the bench trial to demonstrate the circumstances surrounding the burglary, robberies, murders, and arson. Also presented were the videotapes and transcripts of defendant’s July 1992 interviews and August 1992 reenactment and stipulations regarding the collection of crime scene evidence.

b) Prior crimes

On April 24, 1976, Herta Gill was a cashier at the Vineland Drive-In in the City of Industry, California, when at about 9:00 p.m., defendant robbed her at gunpoint of all the money in her register. He was apprehended a short time later while in possession of a firearm and the stolen cash. After pleading guilty to felony robbery and admitting to personally using a handgun, defendant was sentenced to one year in county jail and then placed on probation.

On April 5, 1982, Michelle I. was 14 years old and alone at her home in La Mirada, California, when defendant sexually assaulted her. Defendant, then a family friend, entered the home on the pretense his car had broken down, but after appearing to use the phone asked Michelle to give him a “blow job.” When she refused, defendant forced her onto her knees. When she began screaming, defendant struck her in the face with a closed fist, threatened further physical violence if she continued to scream, and dragged her by the hair to the sofa, where he forced her to perform oral sex on him for approximately 10 minutes. Before leaving, defendant said he had killed his ex-wife and her lover and warned he would “come back” to do the same to Michelle if she told anyone what had happened. Michelle nonetheless reported the incident to her family and the police and testified at the subsequent trial. Defendant was convicted of felony forcible oral copulation with a minor and sentenced to state prison.

In April 1987, Samira S. was 15 years old and living with her mother and younger sister in Paramount, California, when defendant, a family friend, moved in. Within two or three weeks, he began fondling and kissing Samira when they were alone. She would tell him to stop, but defendant would continue touching different parts of her body. Subsequently, defendant forced Samira to perform oral sex on him, slapping her when she did not perform to his satisfaction. Samira thereafter engaged in oral sex with defendant once or twice a week between April and September of 1987. If she resisted, defendant would get angry and slap her. Defendant repeatedly tried to convince Samira to have sexual intercourse with him but she refused. Nevertheless, he would put Vaseline or baby oil on his penis and partially penetrate her vagina. Defendant also asked to take naked photographs of Samira, but she refused. Sometimes defendant would give Samira money and buy her gifts. He also caused her to be truant from her summer school courses. In September or October of 1987, Samira told a friend from church and a school counselor about defendant’s sexual assaults. He was convicted of two counts of oral copulation with a minor and sentenced to state prison.

c) Victim impact evidence

The prosecution introduced the testimony of family members of the victims who testified about qualities of their loved one and how each learned about the murders. Jose Silva was the youngest of 10 children and was raised by his older sister Josefina after their mother died. He regularly attended family functions and had a one-year-old son at the time of his death. David Smith had been married to his wife Mimi for 10 years when he died and had á daughter named Tiffany. His half brother described Smith as someone who loved the outdoors and as “a very gentle soul.” Wayne Sonke had five adult children and five grandchildren at the time of his death. His daughter Lois Backe described being at her mother’s house waiting for Sonke to return home from work when the fire department called asking for Sonke and saying that the alarms had gone off at SOS. After her father still had not returned or called home, Backe drove to SOS. A police officer on the scene told her there had been a triple homicide and asked Backe to describe her father. She later had to give the news of his murder to her youngest brother and mother.

2. The defense’s case in mitigation

a) Family and social history

Ronald Forbush, a defense investigator, researched defendant’s personal and social history and interviewed various relatives. Defendant’s parents, Vivian and Maurice Cunningham, divorced when defendant was approximately two years old. Vivian had a prior marriage at age 14, two subsequent marriages, and apparently worked at some point as a prostitute. Maurice subsequently remarried as well. As a result, defendant had two older brothers, Sam and W.C., and several half siblings and stepbrothers and stepsisters. At the time of the trial, defendant’s parents were deceased, and his brother Sam was in Huntsville State Prison in Texas.

Vivian’s younger half sister Carolyn M. testified that Vivian was dishonest; at various times she had lied about a brother having died, about being in a car accident, and about her middle son (W.C.) having died. Carolyn also recounted one evening when she was in seventh grade and Vivian and Maurice were living in the same house as the rest of the family when Carolyn awoke to find Maurice sexually molesting her.

Defendant’s brother W.C. testified their mother and father both had problems with alcohol. One time, when W.C. was under 10 years old, Vivian, intoxicated, called him into her bedroom and sexually fondled him. After he left, she called the other two brothers into the room one by one. Vivian’s sexual abuse may have been recurring. Maurice and Gene Collins, a stepfather, physically abused the boys. One time, after a violent confrontation with Collins in which Vivian stabbed him with a fork, she abandoned her three sons (then ages five, seven, and nine) for several weeks and they were forced to steal food to survive. Eventually, the boys were placed in an orphanage for approximately a year. Later they were flown to California to live with Maurice, his second wife, Betty, and her children from a previous marriage. W.C. believed that his father sexually abused his stepsister, although Maurice never molested W.C. or, to the best of W.C.’s knowledge, defendant or their brother Sam.

One of defendant’s stepbrothers testified that Maurice was a heavy drinker who often became violent with Betty and the children. Maurice also sexually molested the stepbrother so often he “couldn’t count the times.” Once when he was in seventh grade, the stepbrother told his mother Betty about the molestation. She cried but never did anything to stop it.

Diana Jamison, one of defendant’s former girlfriends, testified she got the impression from defendant that his mother, Vivian, was very promiscuous when he was a young boy and had many different men coming in and out of her life. Defendant also alluded to having been sexually molested by his father, but would not discuss any details with Jamison.

Some of the sexual abuse detailed by the above witnesses was confirmed or alluded to by defendant in his interviews with Thomas Williams, one of the defense’s penalty phase psychologists.

b) Military background

After defendant graduated from high school, he enlisted in the United States Army. According to relevant military files and records, defendant was court-martialed various times for being absent without leave (AWOL) between May 1969 and March 1970. In May 1970, defendant was sent to Vietnam for approximately 11 months where he was promoted three times, ultimately to sergeant. As a result of his service in the Vietnam War, defendant received several commendations.

While in Vietnam, defendant engaged in reconnaissance missions with units that would travel through the jungles for periods of five to 14 days scouting and securing areas believed to be infiltrated by the Viet Cong or North Vietnamese Army. The units set up claymore mines for mechanical ambushes and engaged in several firelights in which enemy troops or sympathizers were killed or captured. Defendant at one time operated in a “free fire zone,” meaning that the soldiers had permission to kill any enemy combatants in that area. Sometimes a unit would happen upon empty enemy bunkers or mass enemy graves; other times it found “blood trails” left by the enemy dragging their wounded or dead soldiers away from combat scenes. If a unit encountered an enemy village in an uncontrolled area not authorized for settlement, standard operating procedure was to evacuate the people and set the buildings on fire. Once, defendant required medical attention due to heat exhaustion. Another time, he was hospitalized for a malaria infection.

Nineteen veterans who served in defendant’s reconnaissance platoons testified about their daily activities and various missions in Vietnam. Some of the veterans who testified characterized defendant as a “good soldier” but also as a “loner” who generally kept to himself. Others did not specifically remember defendant. Three veterans, including one who allegedly knew defendant the best, for various reasons were unable to attend the trial and testify.

Many of the veterans who testified suffered from posttraumatic stress disorder (PTSD), flashbacks, depression, or other problems as a result of their service in Vietnam. These veterans explained they often had problems adjusting to life after Vietnam, and many of those adjustment problems remained with them throughout their lives. They had trouble sleeping, were regularly afflicted by nightmares, and experienced problems with anxiety, hypervigilance, and being easily startled by innocuous sounds (such as a car backfire or a motorcycle) or simple sights (like a tree stump). One witness compared the experience of suffering from PTSD to “carrying a demon around at times.” However, none had committed any felonies or crimes of violence after they returned home.

Cross-examination further revealed that other than the death of a medic from a mortar accident on base, there were no casualties or fatalities in any of defendant’s platoons. Defendant was never captured or tortured by the enemy, and none of his units ever destroyed a village in a manner that killed women and children. Defendant did not participate in long-range reconnaissance patrols or special forces. Although the reconnaissance platoons rarely took prisoners, on one occasion, defendant’s unit took 30 to 50 prisoners, including women and children who were sympathetic to the enemy, but none of the prisoners were bound or mistreated in any way.

After Vietnam, defendant was stationed for the remainder of his three-year tour at Fort Hood, Texas, where he was court-martialed four different times for being AWOL. Ultimately, he was demoted from his sergeant rank and honorably discharged as a private.

c) Psychological evidence concerning PTSD

G. Robert Báker and Thomas Williams testified for the defense as experts on PTSD, among other topics. Baker was a psychologist with the Department of Veterans Affairs and clinical coordinator for the National Center for Posttraumatic Stress Disorder. Williams was a psychologist who specialized in working with trauma victims and training individuals involved in treating veterans. Both served in Vietnam in the Marines Corps.

Baker and Williams described PTSD as a reaction to unusual and frightful events outside the normal range of human experiences, such as those experienced in war zones. The symptoms of PTSD include nightmares, intrusive and unwanted thoughts and images, flashbacks, avoidance and dissociative behaviors, depression, psychiatric numbing, social isolation, disassociation from and distrust of others, anxiety, sleep disorders, anger management problems, hypervigilance, adrenalin- or sensation-seeking behaviors, memory impairment, and concentration difficulties. Although there is no cure for PTSD, the symptoms can be treated and individuals can be taught how to manage them.

Williams explained symptoms such as flashbacks or nightmares could happen at any time depending on the particular individual and his experiences. However, certain stimuli would be expected to trigger them. Military training in particular sensitized soldiers to various stimuli and caused them to react quickly to perceived danger. PTSD may also be retriggered by secondary traumatic experiences, or compounded by preceding ones. According to Baker, although soldiers suffering from PTSD might be expected to avoid events such as fireworks displays, which can trigger combat memories, they might still carry guns, which would likewise trigger combat memories, because guns were a source of protection. Recurrence of malaria symptoms also can act as a PTSD trigger, although malaria infections themselves, which were common in Vietnam, did not cause PTSD. Baker also explained the concept of “survivor guilt” and how soldiers who suffered from PTSD often exaggerated their combat roles.

Both experts explained how the Vietnam conflict, presented unique difficulties for many reasons — most of the soldiers were very young, the war had no front lines, there were no clearly defined objectives other than killing people, it was often unclear who was the enemy, there were no safe areas in light of the guerrilla nature of the war, there was no winning strategy, the primary goal was survival, there was little unit cohesion because soldiers were constantly being replaced, the jungle environment made living conditions difficult, and neither the Vietnamese civilian population nor the American public appreciated the soldiers. These factors made it more difficult to treat Vietnam War veterans suffering from PTSD. In particular, the social isolation Vietnam War veterans felt upon returning home prevented them from seeking treatment. In defendant’s case, the isolation was exacerbated because he did not have a loving and supportive family or religion to turn to upon his return. Present-day treatments for PTSD, moreover, were not available to veterans in the early 1970s, as the disorder was not well understood at that time.

Based on his review of defendant’s records, Baker opined defendant was involved in the type of combat that could produce PTSD. However, he never met or evaluated defendant for PTSD. Baker explained how individuals are screened for PTSD and the importance of confirming the truthfulness of reported personal histories in rendering a diagnosis, as malingering — feigning the symptoms of a disorder — can apply to someone claiming to suffer from PTSD.

Williams positively diagnosed defendant as having PTSD. This diagnosis was based on his interviews of defendant for three days in May and June of 1995, and his review of the videotapes of defendant’s interviews with the detectives and the reenactment, charts of the daily activities of defendant’s Vietnam units, statements of family members and the veterans who served with defendant, and the penalty phase testimony of various witnesses. Williams did not, however, meet with any of the witnesses from the case.

In his interviews with Williams, defendant said when his mother abandoned him and his brothers, their electricity and water were turned off and they had to steal food to eat and use neighbors’ swimming pools to bathe. Defendant further claimed he broke into other people’s homes to observe what normal childhood and family life was like. He told Williams that he was isolated in the orphanage. He alluded to being sexually molested by his mother once, and told Williams that he was once sexually fondled by his father, had personally observed his father having sex with his half sister at least once, and “quite frequently” heard his stepbrother screaming as Maurice sodomized him. Although defendant refused to give details of the alleged molestation by his mother, saying “he was going to take that to his grave,” Williams felt the brother’s reported sexual abuse by Vivian and the literature on sexual abuse — which stated generally all the children are sexually abused within a family that has sexual abuse — corroborated defendant’s claim of abuse by his mother. Williams further noted that observing sexual abuse could cause PTSD.

Williams opined defendant’s PTSD was caused by childhood neglect and sexual abuse, as well as combat experiences in Vietnam. Defendant most likely developed PTSD when he was about nine years old, and then was retraumatized in Vietnam, which contributed to his then current PTSD. Although he believed defendant had PTSD when he robbed Gill and committed the sexual offenses against Michelle I. and Samira S., Williams could not say whether defendant was going through a dissociative episode when he committed those offenses. Williams conceded child molestation, robbery, and murder were not part of the diagnostic criteria for PTSD. Although Williams found defendant to have an “[inability to delay sexual gratification and generally poor sexual adjustment,” he did not consider defendant a pedophile or sex addict.

Defendant told Williams he had always had an active “fantasy life,” had difficulty at times distinguishing fantasy from reality, and relied on dreams for memory. When relating stories about Vietnam, defendant was not sure whether they really happened or not. Williams believed this was dissociative behavior indicative of PTSD. It was clear to Williams defendant’s Vietnam service was very important to him, “a cornerstone in his life.” Williams acknowledged defendant made inaccurate or untrue claims about his military background and Vietnam experiences during the police interviews. He also was aware defendant had altered a form regarding his military experience, listing training and awards he did not receive and operations in which he did not participate, and deleting references to his AWOLs. Williams agreed falsification of military records might indicate a “factitious” PTSD disorder or malingering, and it was also possible defendant’s false Vietnam stories were unrelated to PTSD and only “embellishments of war stories.”

Based on his review of autopsy photographs and defendant’s statements to law enforcement officers, Williams opined defendant “dissociated” at some point during the SOS killings. As a result of this altered state of mind, although defendant knew robbery was wrong at the time, he did not “really internally believe[]” he had committed the murders until he participated in the reenactment. In support of this conclusion, Williams cited defendant’s claim he felt like he was standing behind himself watching the crimes happen, his shooting the victims even though they were bound with tape and he already had the money, his viewing Smith as a threat when Smith broke his bonds, defendant’s reference to “the LT” or lieutenant instructing soldiers “to always bum the village, never leave anyone behind, kill everyone,” and the physical distress defendant manifested in the video reenactment of the crime. Although defendant did not refer to his dreams during the reenactment as he had done in the first interview, Williams still felt defendant was “drifting” during the reenactment. Williams also related some of defendant’s behaviors to experiences defendant had had in Vietnam, such as arming himself with a gun, using duct tape, and shooting the victims in the head even if they might already have been dead. He conceded, however, a person who intentionally makes a decision to injure another or rob someone in order to take money would “probably” not be acting due to PTSD.

Defendant also took a self-administered and unsupervised test called the Dissociation Experiences Scale (DES). Based on the DES, Williams concluded defendant had a high level of dissociative experiences. Another self-administered and unsupervised test, the Minnesota Multiphasic Personality Inventory 2 (MMPI-2), indicated defendant was distmstful and moody, had poor social skills, and was not malingering. Two subscales within the MMPI-2 scored defendant positive for PTSD. However, defendant declined to answer five questions out of 568, which prompted the testing service to state “the pattern of his item omission should be carefully noted.”

d) Prior crimes

Daniel and Olivia Negron knew Samira S. and her mother through church. While defendant was residing in Samira’s home, the Negrons attended social functions during which Samira sat on defendant’s lap and appeared to be “very flirtatious with” him and “coming on” to him in an inappropriate manner.

Damarie H., Samira’s aunt, stayed at Samira’s home for approximately six months, during which time defendant was sleeping on the sofa. Damarie noticed Samira did not shy away from the attention she received from defendant. Concerned about their relationship, she asked Samira if “anything was going on” with defendant. Samira became defensive, saying her mother was “starting to get on her case about the same thing.” Samira told her aunt defendant was “very nice” and she cared for him, and tried to imply there was something going on between defendant and her mother. According to Damarie, Samira was not always truthful. Although Samira bruised easily as a result of having lupus, Damarie did not recall seeing any bruises on her during the time defendant was staying with them.

Deputy Sheriff Pierre Nadeau interviewed Samira in October 1987. When asked about bruising around her eyes and swelling on the back of her head, Samira told Nadeau she had been injured fighting with her mother. When Deputy Sheriff Goran interviewed Samira, she never mentioned defendant had slapped her, but said she was afraid to say no to defendant because other men had previously slapped or beat her for refusing sex. When Dr. Kerry English examined Samira, she also did not tell him that defendant had slapped her. Although she indicated defendant had twice attempted to have sexual intercourse with her, she stated defendant stopped because it was painful for her.

3. The prosecution’s rebuttal in aggravation

Detective Nottingham testified defendant told him during the Deadwood, South Dakota, interview that he had spent two years in Vietnam and served in the special forces. Nottingham further explained how he found the original and altered forms relating to defendant’s military record.

II. DISCUSSION

A. Guilt Phase Issues

1. Pretrial shackling

Defendant claims he was denied his state and federal constitutional rights to due process and a fair trial when he was “repeatedly and unnecessarily” restrained during pretrial proceedings without an adequate showing of manifest need and without employing less restrictive alternatives. He argues the shackling rendered his trial structurally unsound and resulted in prejudice. This claim is meritless.

a) Background

During the initial hearing on defendant’s motion to suppress his statements to law enforcement officers, defense counsel objected to defendant’s being shackled in the courtroom. The trial court ordered defendant’s waist chains removed and his hands placed in regular handcuffs in front of his body. After counsel continued to object to the handcuffs, the prosecutor placed on the record various reasons justifying the shackling, including that defendant was being tried for three capital murders and had specialized military training. The court ultimately ruled the “limited restraints” would remain for purposes of the current proceedings.

At the next hearing, defense counsel objected to any shackling of defendant, indicating defendant would “waive all appearances if he has to go through this shackling business.” The court stated it was willing to order defendant not be restrained in the courtroom and to be restrained only during transit in the public halls of the courthouse, a routine security measure in the San Bernardino courthouse not limited to defendant. The prosecutor concurred and the court ordered defendant “not be shackled in the courtroom.”

Defendant subsequently filed a motion objecting to the use of restraints in the holding areas of the courthouse, where he might be kept for several hours before a court appearance, and further requesting the case be transferred back to the Rancho Cucamonga courthouse, where the preliminary hearing had been held and where in-transit shackling apparently was not required. The trial court ultimately ordered that defendant not be restrained in the holding facilities or the courtroom. However, it found the standard procedure of shackling prisoners during public transit between the holding cell and the courtroom to be a reasonable security precaution and denied without prejudice the request to transfer the case to Rancho Cucamonga.

Later, defendant appeared in court to personally waive his presence at that and all future pretrial hearings. Although his legs were shackled at the time, the court assured defendant the shackles would be removed in the courtroom if he chose to participate in the proceedings. After defendant waived his presence, counsel asked he not be transported to court again until the penalty phase jury trial or transfer of the case to Rancho Cucamonga.

The balance of pretrial proceedings as well as the guilt phase bench trial took place in San Bernardino. Thereafter, defendant filed a written request to have the penalty phase tried in Rancho Cucamonga with jurors from its West End Judicial District. The trial court denied the request in part, ordering that jury selection occur in San Bernardino but that the panel be drawn exclusively from the West End. Defendant was ordered to personally appear to address jury selection issues but his counsel objected, claiming that the court’s promises concerning shackling had not been kept and again objecting to the in-transit shackling. The court overruled the objection, finding it had accommodated defendant throughout the proceedings. Subsequent prepenalty-phase proceedings and the initial portion of jury selection (primarily hardship excusáis and challenges for cause based on the juror questionnaires) took place in San Bernardino, but the remainder of jury selection and the penalty phase trial took place in Rancho Cucamonga, after which there were no further shackling objections.

b) Analysis

No defendant “may be subjected, before conviction, to any more restraint than is necessary for his [or her] detention to answer the charge.” (§ 688.) However, an appellate court will not overturn a trial court’s decision to restrain a defendant “absent ‘a showing of a manifest abuse of discretion.’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1050 [81 Cal.Rptr.3d 651, 189 P.3d 911] (Wallace).)

The jurisprudence on shackling primarily concerns situations that might prejudice a jury. Such cases hold that under state law, in light of the potential harm to the constitutional presumption of innocence and right to be present and participate in one’s defense, “ ‘[a] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’ ” (Wallace, supra, 44 Cal.4th at p. 1050, quoting People v. Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322]; see People v. Harrington (1871) 42 Cal. 165, 168-169; see also Deck v. Missouri (2005) 544 U.S. 622, 624 [161 L.Ed.2d 953, 125 S.Ct. 2007].)

Defendant incorrectly assumes the propriety of shackling a defendant while in transit through the public hallways of a courthouse to attend a pretrial hearing, the factual scenario presented here, should be assessed under the same standards used to determine whether a defendant can be shackled while in the courtroom. Not so. The considerations of public safety and the need for restraints are different during prisoner transport than when a defendant is seated in a secured courtroom. We have long observed that a defendant may be restrained while in transit between a jail and the courtroom without reference to any particularized showing of need. (See, e.g., People v. Ross (1967) 67 Cal.2d 64, 72 [60 Cal.Rptr. 254, 429 P.2d 606] [“It was a reasonable practice for the sheriff to keep prisoners handcuffed while in transit, and the fact that the handcuffs were removed inside the courtroom rather than outside added to the security.”]; People v. Metzger (1904) 143 Cal. 447, 449 [77 R 155] [“In many cases it is proper, and it is often necessary as a precaution, to manacle a prisoner to secure his safe conduct and guard against an escape while on the way from the jail to the courtroom.”]); see also People v. Hardy (1992) 2 Cal.4th 86, 180 [5 Cal.Rptr.2d 796, 825 P.2d 781]; accord, People v. Jacobs (1989) 210 Cal.App.3d 1135, 1140-1141 [258 Cal.Rptr. 734]; People v. Du Bose (1970) 10 Cal.App.3d 544, 549-550 [89 Cal.Rptr. 134]; U.S. v. Leach (8th Cir. 1970) 429 F.2d 956, 962.].)

Accordingly, we see no abuse of discretion in the use of physical restraints during defendant’s transit through the public hallways of the San Bernardino courthouse without any particularized showing of need. The shackling was a reasonable and limited precaution taken to retain custody of an accused and was no more restraint than was necessary for his detention. The in-transit physical restraints in no way affected the conduct or outcome of the trial, whether before judge or jury, nor did they impinge upon the presumption of innocence or defendant’s right to present a defense.

In his reply, defendant argues that given the necessity of shackling him for transport through the halls to his courtroom in San Bernardino, “the unreasonable burden placed on this defendant should have been ameliorated by moving the proceeding to a different courtroom or to Rancho Cucamonga.” He cites no authority to support this proposition, nor are we aware of any. As noted, defendant’s shackling for security during transport was a limited and reasonable imposition. The trial court was not required to move the proceedings to a different courtroom or to the Rancho Cucamonga courthouse simply to obviate this precaution.

2. Waiver of the right to be present at pretrial and guilt phase proceedings

Defendant claims the trial court violated his state and federal constitutional rights to due process and a fair trial when it excused him from numerous pretrial proceedings and the guilt phase of his trial based on a waiver of his personal presence that allegedly was coerced by “painful, excessive, and unnecessary shackling.” He additionally contends the trial court violated sections 977 and 1043 by accepting involuntary waivers of his right to be personally present at the guilt phase of his capital murder trial without adequate justification.

a) Constitutional right to be present

“Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination.’ [Citations.] Due process guarantees the right to be present at any ‘stage . . . that is critical to [the] outcome’ and where the defendant’s ‘presence would contribute to the fairness of the procedure.’ ” (People v. Butler (2009) 46 Cal.4th 847, 861 [95 Cal.Rptr.3d 376, 209 P.3d 596].) The state constitutional right to be present at trial, which is guaranteed by article I of the California Constitution, “ ‘is generally coextensive with the federal due process right.’ ” (Butler, at p. 861.) As a matter of both federal and state constitutional law, however, a defendant may validly waive his or her right to be present during a critical stage of the trial, provided the waiver is knowing, intelligent, and voluntary. (People v. Moon (2005) 37 Cal.4th 1, 20-21 [32 Cal.Rptr.3d 894, 117 P.3d 591] (Moon) People v. Jackson (1996) 13 Cal.4th 1164, 1210 [56 Cal.Rptr.2d 49, 920 P.2d 1254] (Jackson).)

Defendant premises his challenge to the voluntariness of his right to be present waivers entirely on the argument that the waivers were induced and coerced by improper shackling. He contends he was forced to waive his presence “simply because he could not endure the effects of the wrist, waist and leg chains every day for more than eight hours a day.” (Italics added.) The record demonstrates, however, that the trial court relieved defendant of all physical restraints in the courtroom and holding cell prior to any evidentiary hearings or critical phases of the postarraignment proceedings. Thereafter, defendant remained subjected to physical restraints only for the time it took to transport him to and from the holding cell and the courtroom. Having concluded that this limited in-transit shackling was not an abuse of the trial court’s discretion, we further conclude the use of restraints in transit did not improperly coerce defendant to waive his presence at the pretrial and guilt phase proceedings, particularly as the court permitted him to remain completely unrestrained in the courtroom.

An analogous situation was presented in People v. Price (1991) 1 Cal.4th 324 [3 Cal.Rptr.2d 106, 821 P.2d 610] (Price). After a hearing outside the presence of the jury during which the evidence established the defendant had committed multiple acts and threats of violence against officers at the jail or while being transported to court, the court ordered he be secured to his chair in the courtroom by a single belly chain not visible to the jury. The defendant then stated “he would rather be absent from the trial than appear before the jury in chains. The trial court allowed defendant to leave the courtroom and return to the jail, after informing defendant that his leaving would be construed as a voluntary waiver of presence. After giving the matter further thought, the court directed jail officers to bring defendant back to the courtroom, but defendant refused to dress in civilian clothing for the court appearance. The court then concluded that defendant had effectively waived his presence. The remainder of the guilt phase proceeded in his absence.” (Id. at pp. 404-405.)

On appeal, we found “no constitutional infirmity in the trial court’s decisions ... to accept defendant’s actions as a voluntary waiver and to proceed with the guilt phase in defendant’s absence.” (Price, supra, 1 Cal.4th at p. 405.) Similarly here, we find no constitutional infirmity in defendant’s waivers of his right to be present at pretrial proceedings and the guilt phase, even assuming such waivers were motivated in part by concerns about the in-transit shackling that would have accompanied his appearing in court.

b) Statutory right to be present

The issue of statutory error is another matter. As we have previously acknowledged, “defendant’s statutory ability to waive his presence in a capital case is more circumscribed than the associated ability to waive his constitutional right.” (People v. Rundle (2008) 43 Cal.4th 76, 135 [74 Cal.Rptr.3d 454, 180 P.3d 224] (Rundle); see Jackson, supra, 13 Cal.4th at p. 1211.) Specifically, section 977 requires any defendant charged with a felony to “be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2).” (§ 977, subd. (b)(1), italics added.) Section 1043 provides that a felony defendant “shall be personally present at the trial” (id., subd. (a)), but that the trial may continue in a defendant’s absence if the defendant (1) persists in disruptive behavior after being warned (id., subd. (b)(1)), (2) is voluntarily absent in “[a]ny prosecution for an offense which is not punishable by death” (id., subd. (b)(2), italics added), or (3) has waived his rights “in accordance with Section 977” (id., subd. (d)). Read together, the statutes provide that a capital defendant cannot voluntarily waive his right to be present during the proceedings listed in section 977, including those portions of the trial in which evidence is taken, and he may not be removed from the courtroom pursuant to section 1043 unless he has been disruptive or threatens to be disruptive.

Defendant correctly contends his absence during the guilt phase violated sections 977 and 1043. However, assuming defendant has not forfeited his claim of statutory error by failing to raise it below (see Rundle, supra, 43 Cal.4th at p. 135), the error does not warrant reversal of the judgment because it is not reasonably probable the result of the trial would have been more favorable to defendant absent the error. (See People v. Weaver (2001) 26 Cal.4th 876, 968 [111 Cal.Rptr.2d 2, 29 P.3d 103].) Defendant fails to explain how he could have effectively assisted counsel in subjecting the prosecution’s case to meaningful adversarial testing. We therefore conclude the violations of sections 977 and 1043 were harmless. (See, e.g., Moon, supra, 37 Cal.4th at p. 21.)

Relying upon Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 100 S.Ct. 2227], defendant also contends the statutory violation deprived him of his federal constitutional procedural due process rights because the “arbitrary” violation of section 977 and section 1043 allegedly deprived him of a state-created “liberty interest” in the proper application of state law. We have previously rejected this exact argument. (See Rundle, supra, 43 Cal.4th at p. 136.)

3. Waiver of the right to a guilt phase jury

Defendant claims the “wanton infliction of pain” caused by the daily courthouse shackling not only coerced a waiver of his right to be present at the guilt phase, but also resulted in the involuntary waiver of his right to a jury trial at the guilt phase in order to avoid the alleged “embarrassment and prejudice” attendant to being tried by a jury while he was not present. He argues the failure to obtain a knowing and intelligent waiver of his right to a jury trial violated his state and federal constitutional right to due process and requires 'the reversal of his conviction. As with his claim concerning the waiver of his right to be present, this claim is without merit.

At a pretrial status conference, the prosecutor informed the court he had discussed with defense counsel the possibility of having a bench trial for the guilt phase. Defense counsel confirmed, stating “I am inclined to agree to recommend to my client that if he’s agreeable, then we’re agreeable to a court trial on the guilt phase[, although w]e would still want a jury trial in the penalty phase.” At the next status conference, defense counsel confirmed defendant had filed a written waiver of his right to a jury trial of the guilt phase, stating, “[W]e don’t wish to have a jury decide [the issue of defendant’s guilt or innocence,] just the court.” The court indicated a personal appearance by defendant was required for the waiver to be effective.

Defendant subsequently appeared in person via closed-circuit television to waive his right to a guilt phase jury trial. In response to questioning by the court, defendant indicated he understood (1) he had an absolute right to a jury trial in both the guilt and penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not convinced beyond a reasonable doubt that defendant was guilty, the jury could not return a guilty verdict, (3) if he waived his right to a jury trial, instead of 12 people deciding the issue of his guilt or innocence, the judge alone would make that decision, and (4) it could be easier for the prosecution to convince only one person, as opposed to 12, that defendant was guilty beyond a reasonable doubt. Defendant nevertheless stated he wished to waive his right to a jury trial for the guilt phase, confirming he had discussed the issue with his counsel, who concurred in the waiver.

As relevant here, the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . .” (See Cal. Const., art. I, § 16 [“Trial by jury is an inviolate right and shall be secured to all . . . .”].) Although trial by jury is a fundamental constitutional right, a criminal defendant may waive the right. (See Adams v. U. S. ex rel. McCann (1942) 317 U.S. 269, 275 [87 L.Ed. 268, 63 S.Ct. 236]; see also Cal. Const., art. I, § 16.) However, “[a]s with the waiver ... of several other constitutional rights . . . long . . . recognized as fundamental, [in order to be valid] a defendant’s waiver of the right to jury trial [must be] knowing and intelligent, that is, ‘ “ ‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,’ ” ’ as well as voluntary, ‘ “ ‘in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’ ” ’ ” (People v. Collins (2001) 26 Cal.4th 297, 305 [109 Cal.Rptr.2d 836, 27 P.3d 726].)

The conclusion defendant’s waiver of a guilt phase jury was knowing, intelligent, and voluntary is supported by his clear express waiver, made in open court, with counsel’s consent and agreement, and after a full explanation from the court of the right and the consequences of the waiver. Conversely, the record does not support defendant’s contention that his waiver was induced by the “inhumane courtroom restraints in the San Bernardino County Courthouse.” Having been relieved of all physical restraints in the courtroom and holding cell well before the guilt phase commenced, defendant would have been restrained during the trial only for the time it took to transport him to and from the holding cell and the courtroom. Having concluded this limited in-transit shackling was not an abuse of the trial court’s discretion and did not improperly coerce defendant to waive his right to be present, we further conclude it did not improperly coerce defendant’s waiver of his right to a jury trial for the guilt phase, particularly as he was permitted to remain completely unrestrained while in the courtroom.

4. The guilt phase bench trial as tantamount to a “slow plea of guilty”

Defendant claims defense counsel failed to mount a defense at the guilt phase — presenting no affirmative witnesses, evidence, or defenses and conceding defendant’s guilt on all the charges — and contends this failure was the “functional equivalent of a slow plea of guilty” that denied defendant his state and federal constitutional rights to enter a knowing and voluntary guilty plea following a full advisement of rights and express waiver of those rights. Respondent argues that defendant forfeited this claim by repeatedly rejecting the trial court’s offers to set aside the guilt phase verdict and grant him a new guilt phase trial with or without a jury, or, in the alternative, that defendant is barred from raising it under the doctrine of invited error. We need not decide the forfeiture and invited error issues, however, because even assuming the claim has not been forfeited and is not barred, it lacks merit.

In In re Mosley (1970) 1 Cal.3d 913 [83 Cal.Rptr. 809, 464 P.2d 473], we stated that if a defendant’s stipulation to submit a case for decision on the basis of the transcripts of the preliminary hearing is, in the circumstances of the particular case, “tantamount to a plea of guilty,” it must be accompanied by Boykin-Tahl advice and waivers, that is, the advisement and express personal waiver of three specific constitutional rights — the rights to a jury trial, to confront and cross-examine witnesses, and against self-incrimination. (Mosley, at p. 924; see id., at pp. 925, 926, fn. 10; see also Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].) The phrase “ ‘tantamount to a plea of guilty’ ” was used “to explain [the] extension of the Boykin-Tahl requirements to submissions in which the guilt of the defendant was apparent on the basis of the evidence presented at the preliminary hearing and in which conviction was a foregone conclusion if no defense was offered.” (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 [119 Cal.Rptr. 302, 531 P.2d 1086] (Bunnell).) We have further suggested that “a ‘slow plea’ of guilty” may occur where a defendant submits the issue of his or her guilt of the charged offense on the basis of the police report (In re Jennings (2004) 34 Cal.4th 254, 265, fn. 5 [17 Cal.Rptr.3d 645, 95 P.3d 906]) or “other documentation” (People v. Watson (2007) 42 Cal.4th 822, 826, fn. 3 [68 Cal.Rptr.3d 769, 171 P.3d 1101]), or where a defendant in a capital case submits the issue of penalty on the transcript of prior proceedings (People v. Robertson (1989) 48 Cal.3d 18, 39 [255 Cal.Rptr. 631, 767 P.2d 1109] (Robertson)).

In Robertson, we explained that “submission” within the meaning of the slow plea doctrine “is defined by the rights a defendant surrenders.” (Robertson, supra, 48 Cal.3d at p. 40.) “Although the parties may reserve the right to present additional evidence, the essential components of a submission are waiver of a jury trial and, with respect to the witnesses who testified in the prior proceedings, waiver of the right to confrontation in the present proceeding. [Citations.] When the submission is a ‘slow plea’ or ‘tantamount to a plea of guilty,’ the defendant also gives up his privilege against self-incrimination.” (Ibid.; see Wright, supra, 43 Cal.3d at p. 495 [“If the submission does not amount to a slow plea of guilty, there is no involuntary confession of guilt.”].)

Defendant’s stipulation to a bench trial for the guilt phase in this case was not tantamount to a plea of guilty. (See Robertson, supra, 48 Cal.3d at p. 40; People v. Hendricks (1987) 43 Cal.3d 584, 592-594 [238 Cal.Rptr. 66, 737 P.2d 1350]; Wright, supra, 43 Cal.3d at p. 497.) Although in agreeing to the stipulation defendant gave up his right to a jury trial, he was advised of and personally waived this right. In so stipulating, he did not give up the right to confrontation and cross-examination or to remain silent. To t