Full opinion text
Opinion THE COURT. Defendant Rodney Gene Beeler was convicted of one count of first degree murder (Pen. Code, § 187) and one count of burglary (Pen. Code, § 459) committed with the personal use of a firearm (Pen. Code, § 12022.5). The jury found to be true the special circumstance that the murder was committed during a burglary. (Pen. Code, § 190.2, subd. (a)(17)(vii).) The jury returned a verdict of death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment in its entirety. Guilt Phase Facts 1. The Prosecution The prosecution’s theory of the case was that defendant entered the unoccupied residence of Anthony Joseph Stevenson (Tony) to commit a burglary, that Tony returned home and discovered defendant, and that, as Tony fled the house, defendant shot him. The key prosecution evidence was as follows: Shortly before 11 a.m. on December 30,1985, Tony was found lying on a lawn near the house where he resided with his brothers Dino Stevenson (Dino) and Michael Stevenson (Michael) in the City of Orange. Tony had been shot in the back. Police and paramedics were called to the scene. Tony died on the lawn. The house’s rear sliding-glass door had been pried open with a screwdriver. The house, including the brothers’ bedrooms, had been ransacked. Bullets for Tony’s .22-caliber semiautomatic Marlin rifle were strewn across his bed. The rifle was shattered on the hallway floor. Michael’s bedroom door had a large gash that was attributed to the butt of Tony’s rifle. Missing from the house were jewelry (including a gold chain and an Italian gold charm), a 35-millimeter camera, $1,200 in cash, a dark blue gym bag, and Dino’s fake Rolex watch. Also taken was Michael’s .22-caliber single-action Ruger revolver, which he had kept unloaded under his bed with two bullets nearby. A fingerprint identified as being defendant’s was found on the top of a metal file cabinet in the southwest bedroom. An autopsy showed that Tony died from a single gunshot wound—a .22-calibér long-rifle bullet that entered the left side of his back at an upward 45-degree angle, struck his left lung, and pierced his heart. There was no exit wound. The muzzle was more than two feet away from Tony when the shot was fired. The bullet was not fired from Tony’s .22-caliber rifle but could have been fired from a .22-caliber single-action Ruger revolver similar to the one taken from Michael’s bedroom. (That gun was never recovered.) Police found a bullet hole in a car parked on the street in front of the Stevenson house. The car’s owner testified she had parked the car at that location about 9:30 the morning of the killing. Ballistics tests showed the bullet was consistent with a .22-caliber long-rifle projectile, but police could make no further conclusions as to the nature or source of the bullet because of extensive damage to it caused by passing through the car door. In particular, they could not determine whether it had been fired from either Michael’s revolver or Tony’s rifle. The front, main door of the Stevenson house was open, but the screen door was closed. The screen door had what appeared to be a small bullet hole, although no gun powder residue was found on the screen. Police ran a string from the hole in the screen door to the bullet hole in the car door and concluded that the bullet found in the car could have been fired from inside the house through the screen door into the car. The homicide investigator conducting the string experiment found on the “very well taken care of and landscaped and trimmed” front lawn of the Stevenson residence an indentation, “a rounded portion where it appeared something had fallen down, possibly a knee, right into the lawn underneath the string. And then right next to the indentation, the rounded portion, there was a disturbance where the grass had actually been pulled up.” (Italics added.) The implication was that Tony had been shot from inside the house as he was running across the yard trying to escape from a burglar. Tony and his brothers resided at 1144 Everett Street. Floyd Raney resided at 1104 Everett Street. About the time of the killing, Raney was in his garage, with the door open, when he heard a motor running. He went into his driveway and saw a pickup truck parked directly across the street. Defendant approached Raney’s garage. He wore pale blue jeans and what appeared to be a solid blue shirt. Defendant asked Raney, “My cat jumped the wall in your backyard. Would you look back there, please, and see if my cat is back there?” Raney stepped into his backyard to look for the cat, but when he returned to the garage, defendant “was takin’ off across the street in the truck.” At trial, Raney identified a photograph of defendant’s truck as being similar to the truck Raney saw that day. Everett Street runs east to west. The parallel street immediately to the south is East Rose Avenue. A block wall, about six feet high, runs between the backyards of the houses on the south side of Everett and those on the north side of East Rose. Lavada Hoskins resided at 1115 East Rose. The common wall ran along the rear edge of her backyard. The morning of the killing, Mrs. Hoskins was in her backyard, talking to her next-door neighbor, Mrs. Fern Await. Both women saw a man walking along the top of the block wall. Mrs. Await recalled the time as being between about 10:30 a.m. and 11:30 a.m. Neither woman saw the man’s face, but Mrs. Hoskins recalled him wearing a blue plaid shirt and carrying a small, dark sports bag. Mrs. Await did not see a bag, but she recalled the man was wearing work pants and a shirt that were solid blue. Mrs. Await required eyeglasses to read and was not wearing her glasses when she saw the man on the wall. Neither Hoskins, Await, nor Raney saw any other unknown persons in the area at the approximate time of the killing. Defendant worked at a laminated products company (the company) as a senior line operator. Jim Anderson also worked at the company and reported to defendant. Anderson recalled that defendant left work early the day of the killing, about 10 a.m., and did not return until the afternoon. Calvin Brunsting, the company’s manager in charge of time cards, testified that defendant’s card for December 30, 1985, indicated that he clocked into work that day at approximately 5:45 a.m. Sometime after December 30, 1985, defendant asked Brunsting to write on defendant’s card the time he left on December 30 and the time he came to work the following day. Defendant said he had forgotten to punch the clock for those times. Brunsting complied with defendant’s request and indicated on defendant’s card for December 30 that he left work at 3:40 p.m. John Lorenzi worked with defendant. Lorenzi testified that, one day between Christmas and New Year’s Eve 1985, defendant said to him at work, “John, let me ask you a hypothetical question. If I was—if you were robbing somebody’s house, someone who lived there caught you in the act, would you shoot him?” Lorenzi replied, “Why? Did you kill somebody?” Defendant became upset and responded, “No, asshole.” Defendant later had a similar exchange with co-worker Jim Anderson, asking him, “Hypothetically speaking, if you were robbing a house and the guy came home—the guy that lived there, this is, came home and you had a gun, would you shoot him?” Anderson replied, “No, I wouldn’t. I wouldn’t put myself in that position to begin with. Why, did you do something, did you kill somebody?” Defendant denied having done so and walked away. Sometime after January 1,1986, defendant attempted to sell Dino’s watch to Anderson for $500. On January 7, 1986, defendant sold to an acquaintance the Italian gold charm taken from the Stevensons’ house. Defendant’s employer provided lockers for its workers. Police found in defendant’s locker the camera and lens taken from the house. 2. The Defense The primary defense theory was that defendant’s employment supervisor, Mitchell Jackley, participated in the burglary and was the actual killer. Jackley was granted immunity in exchange for testifying for the prosecution at defendant’s preliminary hearing. At trial, the defense called him to testify. Jackley denied killing Tony Stevenson. Defendant attacked Jackley on two basic fronts: (1) Jackley’s intimate knowledge of the crime details suggested he may have been the killer; (2) Jackley had been charged with a similar crime several years earlier, but after he testified for the prosecution in that case, charges were dismissed. A. Jackley’s knowledge Jackley testified he had breakfast with defendant the day of the killing and afterward authorized defendant to leave work. Later in the day, defendant allegedly told Jackley that defendant had entered the Stevenson house and killed Tony Stevenson. Sometime thereafter, Jackley stole the key to defendant’s work locker, observed a camera, and handled it with silk gloves so that he would not leave fingerprints on it. On January 9, 1986, Jackley anonymously called police and implicated defendant in the Stevenson killing. Jackley claimed he called anonymously because he was concerned he might be implicated in the crime for two reasons. First, Jackley had been in the victim’s house on at least one social occasion before the killing and was afraid his fingerprints might be found there. (Jackley’s wife was acquainted with Dino Stevenson.) Second, Jackley testified he had been charged with a prior murder. Jackley also admitted to having received stolen goods from defendant, i.e., a ring that defendant had allegedly stolen during a rape and robbery. Jackley told police that defendant gave the following account of the crime to Jackley: “The way he explained it to me is that while he was in the house, that is, ah, ah, Tony apparently’s his name, came in and brought his— brought his dog in? Ya. Called his dog. His dog was with him. Rodney was saying his dog was with him and he thought he was calling some friends or somethin’ and then—what the fuck else did he say?—he said right after that took place, Rodney apparently was in one of the bedrooms, he said or somethin’, and went behind the comer or somethin’ like that.... And the guy [Tony] went into his room. He [defendant] told me he [Tony] came out with a goddamn ah rifle and told him he was gonna beat the shit out of him with it, and he’s gonna to do [sz'c] bodily damage. . . . And he [defendant] said somethin’ to the effect that they got into an altercation in the hallway, and that the guy came at him with a rifle, used it like a club—.” Jackley testified to other details of the crime, allegedly told to him by defendant: defendant had “hit” two rooms in the Stevenson house and was in a third when he was interrupted by Tony. Defendant took a .22-caliber revolver from the house and shot Tony in the back with a hollow-point bullet as Tony was running away from the house. Tony fell on the front lawn. Defendant escaped the area “down a brick wall running on the back of’ the Stevenson house. He had left his truck idling. He had a conversation with a person outside the house at the end of the wall. (This last reference was apparently to the conversation between Floyd Raney and defendant.) B. Jackley’s prior crimes Jackley, his wife, and two of his acquaintances were arrested in 1974 in connection with a robbery-murder in South Carolina. Jackley admitted he had previously committed a burglary with one of these acquaintances but denied involvement in the killing. As in the present case, one of the South Carolina defendants allegedly confessed the killing to Jackley, an anonymous call was made to police implicating that defendant, Jackley knew many details of the crime, and he had received stolen goods from those defendants. The South Carolina charges against Jackley, however, were dropped after he testified for the prosecution against his acquaintances. Jackley admitted to three other burglaries in which (1) he knew the victims, (2) the items taken were similar to those taken from the Stevenson house, and (3) his fingerprints were not found in any of the houses. Based on these similarities to the present crime, defendant argued that one could reasonably conclude Jackley was the killer and the principal burglar in this case. Penalty Phase Facts 1. The Prosecution The prosecution presented evidence of defendant’s three prior burglary convictions—in 1971, 1974, and 1976. The prosecution also presented evidence that defendant raped a female newspaper carrier early one morning in 1985. Defendant forced her to remove her clothing, to fellate him, and to engage in vaginal intercourse. He boasted in vulgar language to a co-worker later that day of having had sexual intercourse with the woman after robbing her. 2. The Defense Members of defendant’s family, former neighbors, a psychologist, and a psychiatrist, among others, testified he was subjected for several years to extreme psychological, physical, verbal, and sexual abuse by his stepmother. She often called defendant “a little bastard.” She repeatedly beat him with sticks, belt buckles, and brushes and threw him down a flight of stairs with his hands tied. (His father also beat him.) She sometimes chained him to a basement post for several days, forced him to urinate and defecate in his underpants, and then beat him for that as well. She smeared his feces on his face and held his hands over flames. She once pulled his thumbs from their sockets. She forced him to eat fruit preserves until he vomited. Dr. Lenore Walker, a licensed psychologist, testified to defendant’s recounting of abuse by his stepmother. According to Dr. Walker, the stepmother told defendant she wanted him to look like a girl, she dressed him in her daughter’s panties and dresses and made him wash dishes while dressed like a girl. She tied a string around his penis, “. . . pulling it in back of him so that you couldn’t see he had a penis in front of him, and tying the penis to his waist and telling him he looked better that way. . . . [¶] Then she moved into giving him enemas, using Vaseline and taking a tampon, at first just a clean tampon, and then she would use her own soiled, bloody tampons and insert them in his anus. . . . [¶] In addition, she would make him insert tampons in her vagina so she was having him touch her as well, and she would make him fondle her vagina area and have him lick her vagina area so she could reach a climax. . . . [¶] She would also masturbate him at that age—as he got older, some of it is progressing as he got older—between the two-year period of time of 10 and 12, but not allow him to reach an orgasm. When he was a little older and he would reach an orgasm, she would take the semen and smear it all over his face and he would be punished for that. In addition, in order to prevent him from reaching a climax, she would squeeze his testicles, and he remembers that being done with great pain to him. Later on, she would have intercourse with him and insert his penis in her vagina but not allow him to reach an orgasm.” Defendant was eventually taken from his family and lived in foster homes, mental hospitals, a youth authority facility in Nevada, and finally prison. Dr. Walker further testified that she believed defendant had in fact been sexually molested as he described. She believed that because of his past he suffered a variety of mental maladies, including schizophrenia and disassociation, which in general might best be described as comparable to, but more severe than, post-traumatic stress syndrome. Dr. Walker stated that defendant is very confused, with guilt feelings and a need to be punished, and that his tendency to steal was not motivated by greed, but by a compulsion he could not control. Defendant told her he would often wake up in the middle of a burglary and not know what he was doing there. John Cahill, a counselor at a Nevada youth camp where defendant had been incarcerated, testified, “Well, I’d say he was picked on by the other boys. He was—he was kind of a pitiful character and tended to be easily manipulated and generally picked on.” Dr. Ernest Noble, a psychiatrist employed by the California Department of Corrections, testified that he had examined defendant in 1971 during one of his incarcerations: “I felt that he had been brought up in a very highly chaotic home environment. And I felt his stepmother was extremely vicious to him. ... I felt in some ways that she had set up a template in his head for prison or incarceration very early . . . .” Dr. Noble also observed that defendant’s thumbs appeared to be distorted, thus tending to confirm his description of having had them pulled from their sockets. Dr. Stephen Wells, a clinical psychologist who examined defendant and reviewed his records, also testified to a lengthy history of abuse: “Given the nature, the prolonged administration and the severity of the mental, the physical, and the sexual abuse, I would say that taken all together, it was almost an impossible group of experiences to recover from. The physical abuse alone, which his stepmother admitted to me when I saw her in Utah itself, was profound and extreme. . . .” Dr. Wells further testified that defendant suffered severe emotional problems caused by the abuse. Defendant had two minor children. Defendant’s wife testified that he was a loving father. Dr. John Selden, a clinical psychologist, testified he had been treating defendant’s five-year-old son for numerous behavioral problems. His son seemed very attached to him. Defendant’s family was under great stress from medical and financial problems. Dr. Selden believed defendant was very concerned for his children’s welfare. Discussion Defendant’s primary contention on appeal is that he suffers from severe organic brain damage. Based on that assertion, he raises several arguments against the guilt verdict, the special circumstance finding, and the death sentence. Because the arguments based on alleged brain damage relate to all phases of the trial, we will first address defendant’s other challenges directed only to the guilt phase. Second, we shall turn to the special circumstance and penalty phase issues that are not based on the brain damage allegation. Third, we shall resolve defendant’s multiple contentions based on the alleged brain damage. Guilt Phase Issues Other Than Alleged Brain Damage 1. Juror McCoskey On May 26, 1988, shortly before the trial’s guilt phase began, Juror McCoskey telephoned the court clerk to say “she was not sure that she could fulfill her duties as a juror . . . [t]he nature of the case itself was very upsetting to her. . . .” The clerk noted that McCoskey “had broken down and was crying on the phone.” On May 31, the court informed counsel of McCoskey’s emotional outburst, recommended that she be excused, and asked counsel to stipulate accordingly. Defense counsel agreed and asked the court to seat an alternate juror. The prosecutor declined the court’s request. The court then questioned McCoskey about her ability to serve as a juror. She had an apparent change of heart, apologized for her emotional phone call, and stated that she believed herself to be able to serve. The court refused to seat an alternate juror. The proceeding was as follows: “[Court]: Ms. McCoskey, my clerk received the phone call from you which she tells me you were very distraught about possible service on this case? “[Juror]: I think I was kind of in a state of shock, but I’m all right—. “[Court]: You no longer feel that you have any kind of disabling factors with regards to sitting on the case? What was it that troubled you? “[Juror]: I—I think I was in a state of shock that I was on it. You said our possibilities were one in eight, and the seriousness of it, and I think—I think I could be fair. “[Court]: You do realize—you’ve gone through the whole thing with us, and the private communication with you without all the other jurors present—that ultimately there may be a problem through serving and sitting in judgment of this defendant. Is that what’s bothering you, and is that what caused you concern, the gravity of responsibility as a juror? “[Juror]: Yes. And I had to—I really had to stop and think about that, but I’m okay— “[Court]: Is there anything about the communication that we’ve talked to you privately, now, that you need to add to or any further concern? “[Juror]: No. “[Court]: So in a fair sense, if we sit through this case and you believe the person is not guilty, will you have any problem with voting not guilty? “[Juror]: No. “[Court]: And I’m talking about the trial we’re about to start now? “[Juror]: Right. “[Court]: And if it turns out that you’re convinced beyond a reasonable doubt that he’s guilty from the evidence that you receive, would you have any problems in voting guilty? “[Juror]: No, no problems. “[Court]: Now once we get into the penalty phase of the trial, if we ever do, you know we’re going to hear good things and bad things about the man’s life. When we’ve finished with that you go through that weighing process in the end, if we ever get to that phase of the trial, will you have the ability to come back with a just verdict regardless of what the consequences may be? “[Juror]: Yes. “[Court]: So, in other words, if your conscience tells you that the appropriate verdict is life without parole, you can vote that way? “[Juror]: Yes. “[Court]: And if your conscience tells you that the death penalty is the appropriate verdict, you think you can vote that way, too? “[Juror]: Yes. “[Court]: Is there anything else, now, you need to discuss with the court? “[Juror]: I’m very sorry, your honor. “[Court]: Okay. All right. I don’t mean to embarrass you, and because we’ve talked to you privately that shouldn’t affect any of your decisions in any regard throughout this case. Okay? “[Juror]: Okay. “[Court]: I’m sorry that you became so emotionally charged with the responsibilities. “[Juror]: I just didn’t know if I would be, you know, able to—able to—the different things I heard, you know—not being fair, I know I could be fair. “[Court]: Is there something at home that’s going to be a problem? “[Juror]: No. “[Court]: ... All right. Let me give you one last chance, now. If you want off this case, I have a suspicion that the attorneys will stipulate that you be excused. If you’re satisfied that you can do the job, that’s another thing. “[Juror]: I feel I can do it.” Defendant contends Juror McCoskey was emotionally unable to fulfill her duties and that the trial court’s refusal to dismiss McCoskey violated defendant’s federal constitutional rights to due process (U.S. Const., 5th & 14th Amends.), an impartial jury (U.S. Const., 6th Amend.), and a reliable penalty determination (U.S. Const., 8th Amend.). We reject the contentions. “A juror’s inability to perform his or her functions . . . must appear in the record as a ‘demonstrable reality’ and bias may not be presumed.” (People v. Thomas (1990) 218 Cal.App.3d 1477, 1484 [267 Cal.Rptr. 865], citing People v. Collins (1976) 17 Cal.3d 687, 696 [131 Cal.Rptr. 782, 552 P.2d 742]; People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537].) The record reflects no demonstrable reality that McCoskey was unable to serve as a juror. Moreover, under Penal Code section 1089, which allows a trial court to remove a juror on a finding of good cause, “The determination of ‘good cause’ in this context is one calling for the exercise of the court’s discretion; and if there is any substantial evidence supporting that decision, it will be upheld on appeal.” (People v. Thomas, supra, 218 Cal.App.3d at p. 1484.) Substantial evidence supports the trial court’s determination that McCoskey could fulfill her duty. In response to careful questioning by the court, she made clear her belief that she could be impartial and able to serve despite her prior misgivings. In that circumstance, the trial court was within its discretion not to remove her from the jury. (People v. Goldberg (1984) 161 Cal.App.3d 170, 192 [207 Cal.Rptr. 431] [no good cause to discharge juror who ultimately recanted her initially claimed inability to judge impartially]; People v. Franklin (1976) 56 Cal.App.3d 18, 25-26 [128 Cal.Rptr. 94] [same].) 2. Alleged Failure to Investigate and Preserve Evidence Defendant contends the prosecution violated his right of due process by failing to preserve (or, as he puts it, by destroying) two critical pieces of exculpatory evidence. First, he asserts the victim’s autopsy was inadequate because discolorations on the victim’s hands were not excised and examined. Second, defendant contends the prosecution destroyed material exculpatory evidence by test-firing the rifle found at the crime scene. As defendant acknowledges, trial counsel failed to object to the alleged shortcomings in the autopsy or the rifle testing. The objections are thus waived and cannot be raised on direct appeal. (Evid. Code, § 353; People v. Gallego (1990) 52 Cal.3d 115, 179-180 [276 Cal.Rptr. 679, 802 P.2d 169]; People v. Coleman (1988) 46 Cal.3d 749, 777-778 [251 Cal.Rptr. 83, 759 P.2d 1260].) We also reject these contentions on the merits. The federal constitutional guarantee of due process imposes a duty on the state to preserve only such “. . . evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, see United States v. Agurs [(1976)], 427 U.S. [97], at 109-110 [49 L.Ed.2d 342, 353-354, 96 S.Ct. 2392], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta (1984) 467 U.S. 479, 488-489 [81 L.Ed.2d 413, 422, 104 S.Ct. 2528], fn. omitted (Trombetta)-, People v. Webb (1993) 6 Cal.4th 494, 519-520 [24 Cal.Rptr.2d 779, 862 P.2d 779]; People v. Johnson (1989) 47 Cal.3d 1194, 1233 [255 Cal.Rptr. 569, 767 P.2d 1047].) The state’s responsibility is further limited when, as in the present case, the defendant’s challenge is to “. . . the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [102 L.Ed.2d 281, 289, 109 S.Ct. 333].) In this circumstance, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id., at p. 58 [102 L.Ed.2d at p. 289].) “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” (Id., at p. 57, fn. * [102 L.Ed.2d at p. 288].) Applying these principles to the two items in question, we find no constitutionally improper conduct by the police because the items had no then-apparent exculpatory value. A. Discolorations on the victim’s hands Autopsy photographs showed discolorations on the victim’s hands. The prosecution’s pathologist testified on cross-examination that he could not determine whether these discolorations were bruises or whether they occurred close to the time of death because the discolored areas had not been excised from the victim’s body and examined microscopically. Defendant contends this failure to examine the discolorations undermined his ability to substantiate his claim that the victim was shot in the heat of a struggle and that the killing was not intentional. He asserts the crime scene evidence, for example, the shattered rifle in the hallway, indicated a struggle and that bruises on the victim’s hands would have been the “physical evidence necessary to link him [the victim] to that struggle.” Even with the benefit of hindsight, we are not persuaded the evidence would have had any meaningful exculpatory value. If an examination had revealed the victim’s hands were bruised during the burglary, such evidence would not point necessarily to the conclusion he had struggled with defendant. Moreover, even that conclusion would have aided defendant only minimally, if at all. That the victim was struggling to protect himself or his home does not by itself negate the finding that he was intentionally killed. One could just as reasonably conclude to the contrary—that he was killed because he was struggling. The lack of exculpatory value is also demonstrated by defense counsel’s argument to the jury. Emphasizing various aspects of the crime scene evidence in detail, counsel argued that the killing was not intentional. Counsel did not refer, however, to the discolorations on the victim’s hands and did not suggest the victim had been bruised during the alleged struggle. Even if viewed in the light most favorable to defendant, the best that can be said is that the evidence of bruising might have had some minimal exculpatory value. That is not enough. The constitutional duty to preserve evidence is “limited to evidence that might be expected to play a significant role in the suspect’s defense.” (Trombetta, supra, 467 U.S. 479, 488 [81 L.Ed.2d 413, 422], italics added, fh. omitted.) We find to be farfetched the notion that a jury would find anything significantly exculpatory in the fact, if it was a fact, that a resident was shot while struggling to defend himself and his home from a burglar. We therefore cannot conclude that the police were aware during their investigation of any exculpatory value in possible bruises on the victim’s hands. B. Test-firing of the rifle Defendant contends a test-firing of the rifle found in the victim’s house destroyed material exculpatory evidence by precluding a determination whether the rifle had been fired by the victim on the day of the killing. We reject this contention for several reasons, including defendant’s failure to establish as a factual predicate that the testing he seeks was not done. Stanley Slonina, employed as a firearms specialist in the Orange County Sheriff’s crime laboratory, testified he recovered and examined the rifle at the crime scene on the day of the killing. Defense counsel did not ask Slonina on cross-examination if he checked the temperature of the rifle, smelled gunpowder, or conducted any other field examination to determine if the rifle had been recently fired. Even if we assume, however, that no such determination was made, defendant also fails to show the test-firing precluded the further testing he claims should or could have been done. Perhaps most obvious by omission is defendant’s failure to establish the existence of any subsequent laboratory test that would have shown whether the rifle was fired on the day of the killing. Defendant cannot fairly charge the prosecution with precluding testing that may not have been possible. Moreover, even if we assume to be true defendant’s factual premise that the test-firing precluded further testing and that such testing would have shown the rifle was fired the day of the killing, defendant has failed to show the testing would have had any exculpatory value that would have reasonably been apparent to the police. (See, e.g., People v. Webb, supra, 6 Cal.4th 494, 518-520 [rejecting the defendant’s contention that police should have preserved a revolver].) Evidence the rifle was fired the day of the killing would not have established it was fired by the victim—the key to defendant’s claim. Moreover, we find most attenuated the notion that defendant could establish a lack of intent by showing a struggle based on the fact that the victim might have fired the rifle. As with the claim regarding the discolorations on the victim’s hands, the victim’s struggle to protect himself or his home does not itself negate the finding he was intentionally killed. Evidence that the rifle was fired the day of the killing would not have played “a significant role in the suspect’s defense.” (Trombetta, supra, 467 U.S. 479, 488 [81 L.Ed.2d 413, 422], italics added, fn. omitted.) 3. Admission of Autopsy Report Dr. George Bolduc, the pathologist who conducted the autopsy on the victim, did not testify. The prosecution instead called a pathologist who did not participate in the autopsy to testify regarding the autopsy report, which, despite defendant’s objection, was admitted into evidence under Evidence Code section 1271, the business records exception to the hearsay rule. Defendant contends admission of the report was error for several reasons: (1) the prosecution failed to establish the autopsy report’s trustworthiness; (2) Dr. Bolduc was not unavailable and should have been required to testify; (3) admission of the report into evidence without an opportunity for defendant to cross-examine Dr. Bolduc violated defendant’s constitutional right of confrontation; and (4) the report contained inadmissible medical opinion. We conclude the report was properly admitted into evidence. A. Trustworthiness Evidence Code section 1271 states that a document is admissible as a business record only if “[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1271, subd. (d).) The proponent of the evidence has the burden of establishing trustworthiness. (People v. Diaz (1992) 3 Cal.4th 495, 534-535 [11 Cal.Rptr.2d 353, 834 P.2d 1171]; 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1726, p. 1681.) The trial court, however, has “. . . wide discretion in determining whether sufficient foundation is laid to qualify evidence as a business record. On appeal, exercise of that discretion can be overturned only upon a clear showing of abuse.” (People v. Lugashi (1988) 205 Cal.App.3d 632, 638-639 [252 Cal.Rptr. 434].) We find no abuse of discretion in this case. Dr. Fukumoto, a pathologist who had worked in the same office as Dr. Bolduc, testified, albeit over defendant’s confrontation-clause objection, regarding the autopsy procedures of the office and further testified that standard operating procedures were followed in the Stevenson autopsy and in the documentation of the autopsy. Moreover, the trial court was aware that Dr. Bolduc had apparently left the coroner’s office under unfavorable conditions. Before the report was admitted into evidence, the testifying pathologist acknowledged on cross-examination that Dr. Bolduc had caused “quite a bit of consternation” in a prior murder case by basing his conclusion regarding the cause of death on a police report rather than on medical evidence. By admitting the report into evidence, the court impliedly found the report to be trustworthy nevertheless. The terms under which Dr. Bolduc departed the coroner’s office and his asserted misconduct in a prior, unrelated case were facts for the trial court to consider—and, indeed, might even raise questions—but they did not mandate a finding that the autopsy report in this case was untrustworthy. B. Dr. Bolduc’s unavailability Defendant contends admission of the report was error because it “was premised on the puzzling conclusion that Dr. Bolduc was unavailable.” Defendant does not clearly explain the point of this assertion, but he seems to contend that because the report was not sufficiently trustworthy to be admitted under Evidence Code section 1271 his constitutional right of confrontation entitled him to cross-examine Dr. Bolduc regarding the report. (Evidence Code section 1271 itself states no requirement that the person who prepared the business record testify regarding its contents.) We rejected a similar contention in People v. Clark (1992) 3 Cal.4th 41, 158 [10 Cal.Rptr.2d 554, 833 P.2d 561], in which the physician who conducted an autopsy and prepared the report died before being called to testify about his report. A different physician was permitted, as in the present case, to testify about the report over the defendant’s objection. We explained that the report was properly admitted into evidence as an official record under Evidence Code section 1280. Thus, “The contents of Dr. Carpenter’s [the examining physician’s] report were admitted under a ‘firmly rooted’ exception to the hearsay rule that carries sufficient indicia of reliability to satisfy the requirements of the confrontation clause.” (3 Cal.4th at p. 159; see also People v. Denies (1963) 220 Cal.App.2d 423, 442 [33 Cal.Rptr. 896] [no error in allowing physician other than the examining coroner to testify regarding autopsy report]; People v. Wardlow (1981) 118 Cal.App.3d 375, 388 [173 Cal.Rptr. 500] [same].) The same principle obtains in the present case even though the report was admitted under Evidence Code section 1271, the business records exception to the hearsay rule, rather than under Evidence Code section 1280, the official records exception. “[T]he cases require the same showing of trustworthiness in regard to an official record as is required under the business records exception. . . . Section 1280 constitutes the law declared in these cases by explicitly requiring the same showing of trustworthiness that is required in Section 1271.” (Cal. Law Revision Com. com., Deering’s Ann. Evid. Code (1965 ed.) § 1280, p. 438 [citations omitted].) In light of our conclusion that the trial court was within its discretion in finding Dr. Bolduc’s report sufficiently reliable to be admitted under Evidence Code section 1271, defendant’s right of confrontation was not violated. C. Medical opinion Defendant briefly asserts the autopsy report was inadmissible because it contained Dr. Bolduc’s medical opinions, for example, the cause of the victim’s death. We disagree for several reasons. First, defendant did not raise this objection at trial. Rather, he objected to admission of the autopsy report on the ground it was not subject to the business record exception under Evidence Code section 1271. The present objection, i.e., that the report contained Dr. Bolduc’s opinions, is therefore waived. Second, defendant even now does not specify the opinions to which he objects except Dr. Bolduc’s opinion regarding the cause of death. We decline to address an objection to unspecified opinions. Third, Dr. Bolduc’s conclusion regarding the cause of death was not inadmissible opinion. (7) To be sure, some medical opinion has been deemed inadmissible under the business records exception of Evidence Code section 1271. (People v. Reyes (1974) 12 Cal.3d 486, 502-503 [116 Cal.Rptr. 217, 526 P.2d 225] [psychiatric opinion not admissible]; People v. Terrell (1955) 138 Cal.App.2d 35, 57 [291 P.2d 155] [physician’s opinion that patient had criminal abortion not admissible].) The reasoning in those cases was that, to be admissible under the business records exception, the evidence “. . . must be a record of an act, condition, or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion. . . .” (138 Cal.App.2d at p. 57.) As the Terrell court explained, however, “It is true that some diagnoses are a statement of a fact or a condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors.” (138 Cal.App.2d at p. 58; People v. Reyes, supra, 12 Cal.3d 486, 503 [holding inadmissible a subjective psychiatric opinion and noting the distinction made in Terrell, supra, 138 Cal.App.2d 35, 57].) The same reasoning obtains in the present case. Dr. Bolduc’s conclusion regarding the cause of death—a bullet wound to the heart—was based on his direct observation and is no different in kind from a diagnosis of a broken femur, the example noted in Terrell of an observed fact. Indeed, all of Dr. Bolduc’s relevant conclusions are of this type. He concluded in his report that: (1) “There is an entrance gunshot wound of the posterior left chest [i.e., the back]. . . .” (2) “This is a distant gunshot wound entrance. . . . The wound is free of gunpowder, bums or stippling.” (3) The shot pierced the heart. (4) “The direction of the [bullet] track is forwards, up 45 degrees and left to right 10 degrees.” None of these conclusions, including that regarding the cause of death, was inadmissible under Evidence Code section 1271. Fourth, even assuming, solely for discussion, that Dr. Bolduc’s conclusion regarding the cause of death—the only opinion to which defendant specifically objects—was inadmissible opinion, it was harmless. We note People v. Williams (1959) 174 Cal.App.2d 364 [345 P.2d 47], a murder case in which, as in the present case, a physician testified regarding the contents of an autopsy conducted by another physician. The court observed, “[T]he sole and only purpose served by the records in the trial was to establish the cause of death. Appellant certainly was not prejudiced by this testimony because neither at trial nor here, does he seriously challenge the fact that the life of the deceased was terminated by a gunshot wound.” (Id., at p. 391.) Likewise here, Dr. Bolduc’s conclusion that the victim died from a gunshot wound to the heart is not disputed. Nor does defendant dispute Dr. Bolduc’s conclusion that the victim was shot in the back. Similarly, criminalist Richard Brown testified independently of the autopsy report that the distance from the gun muzzle to the victim was at least two feet. Admission of these conclusions was not prejudicial to defendant. Special Circumstance Issues Other Than Alleged Brain Damage Defendant contends the special circumstance finding of murder in the commission of a burglary (Pen. Code, § 190.2, subd. (a)(17)(vii)) must be set aside for three reasons: (1) improper instructions, (2) insufficient evidence, and (3) his alleged brain damage. We at this point address the instructions and evidence but will later discuss the brain damage contention in connection with the other issues related to that allegation. Before proceeding, we note this case is subject to the holding of Carlos v. Superior Court (1983) 35 Cal.3d 131, 153-154 [197 Cal.Rptr. 79, 672 P.2d 862] (Carlos), that a felony-murder special circumstance required proof of the defendant’s intent to kill. We later overruled Carlos by holding that intent to kill must be charged and proved only where the defendant was an aider and abettor to the homicide and not the actual killer. (People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147 [240 Cal.Rptr. 585, 742 P.2d 1306].) We subsequently held, however, that for crimes committed during the period between Carlos and Anderson, the Carlos requirement of an intent to kill would govern. (People v. Fierro (1991) 1 Cal.4th 173, 227 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) The killing in this case was during that period. 1. Instructions on Special Circumstance A finding of implied malice is not sufficient to establish the intent-to-kill requirement of Carlos, supra, 35 Cal.3d 131. (People v. Ramos (1984) 37 Cal.3d 136, 148, fn. 3 [207 Cal.Rptr. 800, 689 P.2d 430].) Defendant contends the trial court incorrectly “left the impression that implied malice was sufficient to establish the requisite intent to kill.” We are not persuaded. The trial court instructed the jury with respect to the special circumstance as follows: “To find that the special circumstance, referred to in these instructions as murder in the commission of a burglary is true, it must be proved . . . that the defendant intended to kill a human being or intended to aid another in the killing of a human being. . . . [¶] The only evidence of whether defendant specifically intended to kill Mr. Stevenson is circumstantial evidence. You may only find that the special circumstance alleged is true if the proved circumstances are not only consistent with the theory that Mr. Beeler had the specific intent to kill Mr. Stevenson, but cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to whether defendant had the required specific intent to kill Mr. Stevenson is susceptible of two reasonable interpretations, one of which . . . points to the existence of specific intent and the other of which points to the absence of specific intent, it is your duty to adopt that interpretation which points to the absence of specific intent.” (Italics added.) Defendant contends this instruction was insufficient in two respects. Before turning to the merits of those contentions, we note his acknowledgment that “. . . defense counsel did not object to the intent to kill instruction in the lower court.” Defendant contends this failure to object does not constitute a waiver because under Penal Code section 1259, “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” As we shall explain below, we find no merit to defendant's objections to the instructions. We therefore need not decide the procedural question of whether those objections were properly preserved under Penal Code section 1259. We note, however, that what defendant appears to be asserting is that the trial court should have explained the special circumstance instruction. In the absence of a request, however, a trial court is under no obligation to amplify or explain an instruction. (People v. Bonin (1989) 47 Cal.3d 808, 856 [254 Cal.Rptr. 298, 765 P.2d 460]; People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414 P.2d 366].) We shall nevertheless address the merits of defendant’s contentions. He first contends, barely in passing, “The court failed to explain that ‘intent to kill’ means the intent to take the life of a human being." This contention is belied by the record. As stated above, the special circumstance instruction included the explicit requirement that “the defendant intended to kill a human being. ...” Defendant more vigorously contends the trial court failed to instruct the jury that implied malice was not sufficient to establish a specific intent to kill and that the error failed to channel the jury’s discretion, thus violating the Eighth Amendment to the federal Constitution. He points to the trial court’s earlier instruction regarding the murder charge that, “When it is shown that a killing resulted from the intentional doing of an act with implied malice, no other mental state need be shown to establish the mental state of malice aforethought.” Defendant contends the absence of an instruction that intent to kill requires more than a finding of implied malice may have caused the jury reasonably to conclude “that implied malice was sufficient to establish the specific intent to kill.” We reject the contention. The special circumstance instruction did not refer to a killing with malice and thus would not have caused the jury to refer to the definition of malice as now suggested by defendant. Moreover, the special circumstance instruction repeatedly and explicitly referred to a “specific intent to kill.” The earlier instructions regarding malice stated, “ ‘Malice’ is express when there is manifested an intention unlawfully to kill a human being. [H ‘Malice’ is implied when the killing results from an unjustified intentional act, the natural consequences of which are dangerous to life, where it is shown that the defendant consciously disregarded the high degree of probability that the act would result in death.” The language of the implied malice definition is simply not consistent with the notion of a specific intent to kill. Thus, even if the jury did refer to the definition of malice, nothing in that definition would have suggested that implied malice was congruent with a specific intent to kill. Moreover, the prosecutor’s closing argument foreclosed any realistic possibility of the jury not believing they had to find intent to kill for the special circumstance. “The defendant intended to kill the human being. Now, that is the difference between felony-murder and special circumstance.” Describing a chart shown to the jury, he further explained, “As you can see, first of all, on the chart here with the counts and the crimes, I have ‘felony-murder’ in red down where ‘special circumstance’ is, I also have it in red up where ‘murder’ is, but under ‘special circumstance’ I have ‘intent to kill’ with that, and that is supposed to show the distinction between the two. [U You can find the defendant guilty of felony-murder in the first degree and conceivably, not even looking at these facts here, but conceivably find the defendant not, or the special circumstance not true, even though it’s felony-murder related, because of the intent to kill; that [i.e., intent] is needed.” We reject defendant’s contention the jury was perhaps misled by the instructions into finding the felony-murder special circumstance to be true based only on a showing of implied malice. 2. Evidence of Specific Intent to Kill Defendant contends the special circumstance is not supported by substantial evidence and thus violates the California and federal constitutional due process guaranties. He agrees, however, with respondent that the general standard of review of this factual question is whether “ ‘. . . after viewing all the evidence in the light most favorable to the prosecution’ any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Edwards (1991) 54 Cal.3d 787, 813 [1 Cal.Rptr.2d 696, 819 P.2d 436].) Respondent asserts three reasons why the finding of a specific intent to kill is supported. (1) Respondent contends defendant fired two shots from a single-action revolver while standing inside the house.—Defendant asserts the evidence does not show that both shots were fired from the revolver or that they were fired from inside the house. One bullet was retrieved from the victim’s body; the other bullet was found lodged in a parked car across the street from his house. The bullet recovered from Tony’s body was not fired from Tony’s .22-caliber rifle but could have been fired from a .22-caliber single-action Ruger revolver similar to the one taken from Michael’s bedroom. Thus, respondent is correct that the evidence supports an inference at least one shot was fired from the revolver. The bullet in the car, however, was extensively damaged by impact, and the only conclusion that could be drawn from laboratory testing was that the bullet was consistent with a .22-caliber long-rifle projectile. That bullet could have been fired from either Michael’s revolver or Tony’s rifle. Defendant is therefore correct that respondent overstates the evidence by asserting it establishes that two shots were fired from the revolver. Respondent is likewise too expansive in asserting that the evidence establishes the two shots were fired from inside the house. There was only a single bullet hole in the front screen door. Although the evidence does not mandate the inferences on which respondent relies, it does permit those inferences. The fact there was only one bullet hole in the screen door does not necesarily refute the inference that both shots were fired from inside the house. One of the shots could have been fired while the door was open or while the shooter was perhaps standing in the doorway. Trajectory testing showed that “It was consistent for someone to have fired a weapon inside the residence, have a clear line of fire and hit the car out in front of the residence.” This clearly permits the inference that at least one shot was fired from inside the residence. Moreover, in connection with the same test, police found in the front lawn an indentation directly underneath the string used to measure the trajectory, “a rounded portion where it appeared something had fallen down, possibly a knee, right into the lawn underneath the string. And then right next to the indentation, the rounded portion, there was a disturbance where the grass had actually been pulled up.” The lawn indentation permitted the inference the victim was shot and fell in the line of trajectory from the house to the car. This, in turn, would support the inference that both shots were fired from the same location, i.e., from inside the house. Moreover, the bullet retrieved from the victim’s body could have been fired from the revolver, and the bullet from the car was the same type of projectile as the bullet retrieved from the victim’s body. The foregoing evidence taken as a whole clearly permits the inferences that two shots were fired from the revolver and that they were both fired from inside the house. Most important, the dispute over how many shots were fired from which weapon and from what location is largely beside the point. At a bare minimum, the record supports inferences that defendant fired two shots, one of which struck the victim in the back. (2) Respondent contends the victim was shot in the back while fleeing from defendant, who was in the act of burglarizing the victim’s home.— Defendant contends there is no credible evidence of where the victim was when he was shot. Defendant points to testimony by the prosecution’s pathologist that he could not state “the exact position the gun was in when the gun was fired or the exact position the deceased was in when the gun was fired.” Defendant seems to suggest that the victim may have been shot inside the house rather than outside on the lawn and that, if he was shot inside, that fact would support the theory of a struggle with defendant, which might negate specific intent. The evidence at least equally, however, also supports the inference sought by the prosecution. Defendant’s contention is also beside the point. The evidence showed the victim was shot in the back from a distance of at least two feet. This plainly supports an inference that he was shot while fleeing. (3) Respondent contends the fatal shot pierced the victim’s heart.—To be sure, the precise location of the internal wound does not by itself necessarily establish that defendant aimed for the victim’s heart or that he intended to kill, but this evidence does at least permit that inference. That is sufficient. Moreover, the far more persuasive fact is that the victim was shot in the back in the area of the heart. Evidence the bullet pierced the heart added little to the prosecution’s case. In short, differing inferences could have been drawn from the evidence, and the jury might have found the special circumstance not to be true, perhaps based on defendant’s suggestion there was a struggle or on some other theory. But that is not the point. If the evidence reasonably justifies the finding of the jury, the reviewing court’s opinion that the evidence could also be reconciled with some contrary view does not warrant a reversal of the finding. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320 [61 L.Ed.2d 560, 571-574, 99 S.Ct. 2781].) We hold the special circumstance finding is amply supported by substantial evidence. Penalty Phase Issues Other Than Alleged Brain Damage 1. Death of Juror Coley’s Father Defendant contends the penalty verdict was coerced because the trial court improperly required a juror to continue deliberating despite his father’s death. On Tuesday, July 12, 1988, after two days of penalty deliberations, one of the jurors, Michael Coley, informed the court by telephone that the juror’s father had died. The following proceeding took place later that morning in the judge’s chambers outside the presence of counsel for both sides: “The Court: Juror Coley called in this morning, indicated there was a death in his family. Other than that, no other formal message other than he expected to fly out of state at two o’clock in the afternoon today. I asked the clerk to get hold of him and find out the particulars of it. Court called both counsel. Neither have honored their 20-minute call. They’ve gone to Westminster Court. The court has been able to contact one of the parties, I believe, and they were beyond an hour limit. The court is going to cause the jury to begin deliberations again. I’m simply making a record of the information I’ve received from this juror, and that is that the family member that is deceased is his father, they have a close relationship, he needs to be there, and he will be back—Monday? “Juror Coley: Monday. “The Court: The court’s going to cause the jury to begin deliberations again and we’ll recess early for the convenience of this juror, sometime before noon. And after I speak to the attorneys, the probability is that I will not excuse this juror and will not place an alternate in his seat and will expect that we will begin deliberations again on Monday. So even if the attorneys do not show, that is the information that Mr. Coley will have and he will be required to come back on Monday, unless there’s some other severe family problem that you notify us of by phone. Okay? “Juror Coley: Okay.” Shortly thereafter, about 10:20 a.m., all counsel arrived, and the court provided them with a transcript of the earlier conference between the court and Juror Coley. Defense counsel expressed concern: “Mr. Barnett: I ask the court to seat the alternate juror. I’m afraid that by terminating deliberations sometime before noon the jury may feel some sense of urgency in reaching a verdict today. Or if they don’t reach a verdict today, that if they have to come back next week that’s going to put them beyond our estimate and they may feel forced to reach a verdict.” The estimate to which counsel referred was the court’s earlier representation during jury selection that “It’s possible that we could go a couple of weeks into July and the outermost probability is that the middle of July would terminate the responsibility of the juries [sz'c] on the case.” The Monday on which the court proposed to resume deliberations would have been July 18. Defense counsel and the prosecutor then explained they had arrived a few minutes late for the meeting with Juror Coley because they had been together in another courthouse. The court responded: “Excellent. I’m not angry at you folks. . . . Had the court known that, I wouldn’t have talked to the juror privately.” Defense counsel then explained his concern that the juror might draw a negative inference from the court’s comment to the juror that counsel had not appeared in response to the court’s call. The court agreed: “You’re probably right. What would you ask the court to do?” Counsel requested that the juror be excused, explaining that his primary concern was not the prior reference to counsel’s absence, but the effect of allowing Juror Coley to continue deliberations: “Mr. Barnett: The problem is, your honor, that the court gave him no instructions as to, I suppose—that’s how to deal with the other jurors with respect to his present problem. In other words, we don’t know what he’s told them; that he’s informally told them, hey, we’re gonna be off, or I have to catch a . . . plane at 2:00, or I have to come back next week if we don’t reach a verdict this morning. What time was the court planning on excusing the jury today? “The Court: In 20 minutes. “Mr. Barnett: One additional point or argument for the excusal of Mr. Coley, is that there’s no way to predict the impact of the death of a family member, no way for counsel, the court, or the juror himself, the effect that may have on him in the penalty phase of a death case.” The court stated it would reconvene the jury in open court at 11 a.m. to clear up any misimpression about why counsel had not been present earlier. Before that time, however, the jury returned a. verdict. Defendant reiterated his objection that t