Turner v. Calderon (970 F. Supp. 781, 1997)

DEATH PENALTY CASE

AMENDED MEMORANDUM AND ORDER RE: CLAIMS 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 27, 30, 34, AND 36.

COYLE, District Judge.

This amended memorandum and order is filed to clarify the Court’s discernment of the law governing death eligibility and sentencing in California. The original memorandum and order was filed on April 29, 1997. This amended document reflects minor grammatical and citation corrections as well as an update of the present procedural status.

I. Summary of the Relevant Facts

This ease involves the stabbing murder of Roy Savage by Petitioner Thaddaeus Louis Turner on April 14, 1984. Mr. Savage was stabbed 44 to 46 times in his Merced home. Several household items and Mr. Savage’s late model Cadillac were missing from the house when sheriff’s deputies commenced their investigation. Turner admitted the act of stabbing Mr. Savage, taking a television from Mr. Savage’s home, and driving away in Mr. Savage’s car. He claimed to be a habitual PCP and marijuana user, including on the day of the offense. When Turner was apprehended by a CHP officer in Fresno two days later, he was driving Mr. Savage’s car. The missing television set was in the trunk and Mr. Savage’s wallet was on the console of the car. None of the other items said to be missing from Mr. Savage’s house were recovered.

The evidence adduced at trial discloses that Mr. Savage was a highly respected African-American administrator and instructor at Merced Community College. In his position as the director of the Educational Opportunity Programs and Services at the college, he helped many young people pursue an education and obtain jobs. Since Mr. Savage owned several rental houses, it was not unusual for him to hire young people to help with landscaping and clean up tasks for these rental houses.

The defense attempted to bring out the fact that Mr. Savage engaged in homosexual activities and cultivated homosexual relations. This inference was alluded to by the testimony of Mr. Savage’s second cousin, Gregory Mayo, as well as by his co-worker at the college, Augusti Albritton. Both testified that sometimes Mr. Savage went to San Francisco for week end stays and did not talk about what he did. The defense also called a former bartender, Jay Bradshaw, who worked at a known “gay” bar in Fresno. Mr. Bradshaw had informed police that Mr. Savage was a frequent customer at the bar. Turner testified that he met Mr. Savage at a bus stop just outside this bar in Fresno while Turner was on his way home from work as a construction worker. Mr. Savage offered Turner work performing landscaping tasks on his (Mr. Savage’s) house. Turner accepted and Mr. Savage arranged to drive to Fresno to pick Turner up and return to Merced the following week end.

Turner worked for an unspecified time in Mr. Savage’s yard, as he was hired to do, and then, with no protest from Mr. Savage, stopped mid-morning. For the remainder of the morning and afternoon, he and Mr. Savage talked and ran errands together. Mr. Savage also invited Turner to listen to his stereo. According to Turner, at the end of the day, while Turner was waiting for Mr. Savage to take him back to Fresno, Mr. Savage first requested, then pleaded for Turner to have sex with him. An argument followed about whether Turner would have sex with Mr. Savage or disclose the fact of Mr. Savage’s proposition. Ultimately, Turner testified, the argument became physical and Mr. Savage assaulted him. Turner claims he drew his buck knife to ward off the unwanted sexual attack. Mr. Savage’s perceived persistence was followed by Turner’s harried and hysterical response, which resulted in Mr. Savage’s death. Mr. Savage’s homosexuality and his proposition to Turner were the linchpins for Turner’s defense respecting motivation for the killing. During Turner’s testimony at trial, he did not controvert that he killed Mr. Savage. Rather, the case focused on Turner’s perceived need to defend himself and diminished mental state due to low intelligence and drug/alcohol intoxication.

The prosecutor painted a picture of Turner as an opportunistic, cold-blooded killer motivated by the desire to steal from his victim. The prosecutor argued Turner’s story of Mr. Savage’s unwanted homosexual overtures was simply unbelievable. To the extent Mr. Savage did express a sexual interest, Turner exploited Mr. Savage’s feelings to gain access to Mr. Savage’s home and cultivate Mr. Savage’s trust. Under the prosecution theory, Turner formulated a premeditated plan to kill Mr. Savage so he could realize his goal to acquire Mr. Savage’s property.

Two aspects of the crime were highly contested at trial. The first was whether Turner absconded with all the household items from Mr. Savage’s house that were catalogued as missing, or just the items found in his possession at the time of his arrest. The second concerns whether Turner was responsible for cutting two of the three telephone cords in Mr. Savage’s house. Since the cords had no blood on them, and the killing of Mr. Savage was a very bloody event, the prosecutor argued Turner cut the cords in advance of the killing as part of his plan to steal. Turner denied cutting the cords or formulating the intent to steal in advance of Mr. Savage’s death. He maintains that his decision to take any of Mr. Savage’s possessions did not occur until Mr. Savage was dead. He offered an alternative theory that someone entered Mr. Savage’s home after the killing, cut the cords and took the rest of the missing items from the house.

II. Procedural History

Turner’s jury returned a verdict of guilty for first degree murder and found true the robbery murder special circumstance on November 21, 1984. On November 27, 1984, the penalty phase commenced and was completed the same day when the jury returned a verdict of the death penalty. Turner’s motion for modification of the verdict was heard and denied on December 21, 1984. His direct appeal affirming the conviction and death sentence was filed April 26, 1990. He commenced this federal proceeding on April 1, 1991. On May 25, 1993, the Court ordered Turner to exhaust his state remedies. His state petition for habeas corpus was denied on March 25, 1996. Turner filed his amended Federal Petition on April 29, 1996.

Following the State’s Motion to Dismiss the Petition on the grounds of procedural default, the Court issued an Order on October 30, 1996 resolving the State’s motion. In the Order, Claims 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 27, 30, 34, and 36 were determined to be proeedurally defaulted based on the Dixon rule. Under California law, the Dixon rule bars the presentation of claims to the California Supreme Court on state habeas which could have been, but were not, raised on a timely appeal. In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). Where the denial of habeas relief by the California Supreme Court rests on independent and adequate state law grounds, federal review of the same claims also is barred. Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 2553-55, 115 L.Ed.2d 640 (1991). For the reasons stated in the October 30, 1996 Order, this Court has determined that the Dixon rule is an independent state law ground which precludes federal review.

The issue now before the Court is whether Turner can demonstrate that he should be excused from his procedural default under the cause and prejudice test or the fundamental miscarriage of justice standard. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986). In the October 30, 1996 Order, Turner was instructed to limit his showing to the “prejudice” prong of the cause and prejudice test and actual innocence during the guilt phase of the trial under the miscarriage of justice standard.

In reviewing the record and the parties’ briefs, the Court finds that Claims 10, 19, and 30 are not proeedurally barred on federal habeas. It is now apparent these claims were not properly categorized by the California Supreme Court as defaulted under the Dixon rule in the order denying Turner’s state habeas petition. The merits of Claims 10, 19, and 30 were presented to the state court and rejected on direct appeal. People v. Turner, 50 Cal.3d 668, 710-14, 268 Cal. Rptr. 706, 789 P.2d 887 (1990). The Court withdraws its earlier determination in the October 30, 1996 Order to the contrary.

In addressing the prejudice prong of the cause and prejudice test, both parties have argued the merits of Claim 10, 19, and 30 complete with record references and citation to legal authority. The arguments on both sides are forceful and logically reasoned. There is no basis to believe the parties failed to advance their best arguments at this stage of the proceedings. Since both parties have thoroughly briefed Claims 10, 19, and 30, no reason appears for the Court not to address and resolve the merits. Claims 10, 19, and 30 are discussed in Part V, below.

The Court finds that all of the claims discussed below lack substantive merit. Accordingly, Turner has not established prejudice or a fundamental miscarriage of justice for the procedurally defaulted claims. Claims 9, 11, 12, 16, 17, 18, 20, 21, 27, 34, and 36 are dismissed. Claims 10, 19, and 30 are denied on the merits.

III. The Standard of Review to Excuse Procedural Default

To establish prejudice in the context of overcoming a procedural default, the petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original); Carrier, 477 U.S. at 494, 106 S.Ct. at 2648-49. The facts must demonstrate that the petitioner “was denied fundamental fairness at trial.” Id. (internal quotation omitted).

A fundamental miscarriage of justice requires a showing that the petitioner either was innocent of the underlying murder or ineligible for the death penalty. In Carrier, the Supreme Court refers to the first of these possibilities as an “extraordinary case” where a petitioner establishes “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 496, 106 S.Ct. at 2649. This standard of innocence requires “a stronger showing than that needed to establish prejudice.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). The petitioner must show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id.

Under the second possibility for establishing a miscarriage of justice, the petitioner may present facts to show ineligibility for the death penalty by clear and convincing evidence. Sawyer v. Whitley, 505 U.S. 333, 348, 112 S.Ct. 2514, 2523-24, 120 L.Ed.2d 269 (1992); see also Schlup, 513 U.S. at 322-24, 115 S.Ct. at 865. In California, death penalty eligibility is made by the jury’s finding of the existence of statutory special circumstances during the guilt phase. People v. Bacigalupo, 6 Cal.4th 457, 467, 24 Cal. Rptr.2d 808, 862 P.2d 808 (1993), cert. denied 512 U.S. 1253, 114 S.Ct. 2782, 129 L.Ed.2d 894 (1994); Tuilaepa v. California, 512 U.S. 967, 975, 114 S.Ct. 2630, 2636-37, 129 L.Ed.2d 750 (1994).

IY. Analysis of the Defaulted Claims

With the foregoing standards as the foundation, excuse for procedural default is analyzed for the following claims.

Claim 9: That the trial court erred in allowing testimony of a psychiatrist who criticized the methodology of Turner’s psychologist expert.

During the defense case at the guilt phase of the trial, Dr. Phillip Morton Hamm, a psychologist, offered his opinions on Turner’s mental state at the time of the crime. In Dr. Hamm’s assessment, Turner was mentally dull, had a lower than average ability to solve problems, and had a tendency to lose control under stress. RT: 1481-82. The results of the psychological tests Dr. Hamm administered indicated Turner was both passive and submissive, which is consistent with Turner’s version of the facts that the victim, Mr. Savage, was the initiator in all aspects of the acquaintance. RT: 1485-86; 1488-89. Dr. Hamm stated that the effects of PCP, which Turner habitually used and smoked during the day of the crime, including one entire PCP treated marijuana cigarette a short time before the crime, made Turner, who was mentally disorganized in a drug free state, even more disorganized. Turner’s cognitive ability was impaired; he was “bombarded with conflicting passionate behavior on the part of Mr. Savage.” RT: 1499. On one hand, Mr. Savage was a high powered person being solicitous and kindly, and on the other, he was becoming sexually demanding and physically abusive. Turner was having auditory hallucinations and was in the grips of hysteria. RT: 1500. Eventually, Turner began to disassociate himself from the situation and from his own conduct. RT: 1502. When the crime was committed, Turner was borderline psychotic. RT: 1503.

On cross examination, the prosecutor made a point of establishing that the events Dr. Hamm recounted were not actually what transpired, but what Turner said had happened. RT: 1504. The prosecutor opened the door to his theory that since Turner lied to the police (when asked whether he knew Roy Savage or had ever been to Merced), that he would also lie to the jury. 1509. Dr. Hamm admitted that nobody knows for certain whether Turner was telling the truth when he testified. RT: 1513.

The prosecution rebuttal witness was Dr. Lee Stewart Coleman, a practicing psychiatrist and an avid critic of the role mental health professionals play in legal proceedings determining defendants’ mental conditions. RT: 1519-21. Initially, defense counsel objected to Dr. Coleman’s recitation of his opinions respecting the value of psychiatry and psychology in the legal system. RT: 1522. Defense counsel argued that the opinion was merely personal opinion, and not the proper subject for expert testimony. RT: 1523. The court overruled the objection, and Dr. Coleman testified: “it’s my opinion that the methods of psychiatry and psychology do not allow psychiatrist[s] and psychologists] to form opinions that the law, the court think they are getting, that is, we don’t have any scientific methods to in fact make the opinions that we offer as expert.” RT: 1523-24 (emphasis added). Dr. Coleman further testified that psychological tests are totally unreliable because their results require the subjective opinion of the tester. RT: 1524. Finally, he opined that psychologists have no way of knowing whether facts recounted to them are accurate because their subjects can lie. RT: 1525. Psychologists are very inept at determining whether someone is lying. This is because in a clinical setting, a therapist is supposed to believe what his or her client says. RT: 1526.

Dr. Coleman did not evaluate Turner or offer an opinion on Turner’s mental state. He stated health care professionals do not possess the methods to offer such opinions. As to the defense expert, he commented that Dr. Hamm “essentially believed everything he was told [by Turner].” RT: 1527. He stated Dr. Hamm’s testimony was

extremely misleading. The tests are irrelevant ... none of those tests are reliable, even when there isn’t any legal issue pending ... [T]he literature is overwhelming that the tests are not reliable. They’re too subjective. They depend on the psychologist drawing inferences about these things.... [I]f they’re unreliable when there isn’t a legal issue going on, they’re even less reliable when there is a legal dispute, and the person may have strong reason to want to influence the conclusions of the doctor.

RT: 1528.

On cross examination, Dr. Coleman stated expert mental health testimony in the courtroom is “not only worth nothing, it’s worse than nothing.” RT: 1542. The best way for jurors to determine the facts, he continued, “is to listen to everything they’ve heard in the case, and the Defendant’s statements, and exclude from any credibility the psychiatric and psychological opinions and decide whether you believe it or not, that’s the legitimate way, in my view to do it.” RT: 1544. When psychiatrists “try to form opinions that the court is interested in, [they] do not have methods that are beyond what the lay person can do.” RT: 1548. In Turner’s trial, he concluded the “psychological opinions that have been offered about the Defendant’s state of mind do not deserve credibility.” RT: 1549.

Turner alleges that Dr. Coleman’s testimony did not qualify as admissible expert opinion. The opinion was that “psychiatry and the law do not mix merely because you cannot believe what a client says.” Petition, ¶ 144. Turner contends drawing this conclusion is not beyond the ability of any lay witness. Further, the purpose of Dr. Coleman’s testimony was to demolish Turner’s entire defense. The testimony was prejudicial, he continues, because it attacked the very heart of Turner’s mental state defense. Under Frady, 456 U.S. at 170, 102 S.Ct. at 1595-96, the admission of Dr. Coleman’s testimony worked to his “actual and substantial disadvantage.” He also claims the testimony has resulted in a fundamental miscarriage of justice. This conclusion follows from the assertion that Dr. Hamm’s testimony “established” that the killing of Roy Savage was not a murder in the course of a robbery but that the robbery was an afterthought. Turner claims Dr. Coleman’s testimony actually improperly attacked the admissibility of psychiatric and psychological testimony. Because of Dr. Coleman’s testimony, Dr. Hamm’s opinion was discounted and Turner was found to have committed Mr. Savage’s murder in the course of a robbery. In fact, Turner argues, he is innocent of the robbery special circumstance.

In response, the State focuses on the instructions given to the jury. In particular, the jury was told:

Every person who testifies under oath or affirmation is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.

The trial court also instructed:

In resolving any conflict that may exist in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider'the relative qualifications and credibility of the expert witnesses as well as the reasons for each opinion and the facts and other matters upon which it was based. [¶] You’re not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it be unreasonable.

RT: 1635-36; 1639-40.

Under those instructions, the State argues, Turner suffered neither prejudice nor a miscarriage of justice. Dr. Coleman merely opined that the jury should give no weight to the testimony of Dr. Hamm. He did not attack the admissibility of Dr. Hamm’s opinion as Turner claims. The State points out that the California Supreme Court has repeatedly held comments which are directed to the weight and not the admissibility of a witness’s testimony are not improper. People v. Babbitt, 45 Cal.3d 660, 699, 248 Cal. Rptr. 69, 755 P.2d 253 (1988) (specifically addressing the testimony of Dr. Coleman); People v. Danielson, 3 Cal.4th 691, 730, 13 Cal.Rptr.2d 1, 838 P.2d 729 (1992) (same); People v. Clark, 5 Cal.4th 950, 1019, 22 Cal. Rptr.2d 689, 857 P.2d 1099 (1993) (same).

The Court finds, under the instructions given, the jury was free to reject all or part of Dr. Coleman’s testimony, just as it was free to reject all or part of Dr. Hamm’s testimony. This is consistent with California law.

When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable.

Cal.Penal Code § 1127b. No claim is or could be advanced that California law on this issue violates the Federal Constitution.

The State’s argument that the admission of Dr. Coleman’s testimony did not prejudice Turner or result in a miscarriage of justice has merit. Neither his testimony nor the instructions suggested that Dr. Hamm’s opinions were inadmissible. The analysis of Turner’s argument in Claim 9, however, need not advance that far. The underpinning of the cause and prejudice and the miscarriage of justice standards is the existence of a constitutional error. There was none in this instance. Dr. Coleman’s testimony was appropriately admitted, as was Dr. Hamm’s. Dr. Coleman did not attempt to persuade the jury that Dr. Hamm’s testimony was inadmissible, he merely opined that Dr. Hamm’s conclusions were entitled to little weight.

In the absence of a procedural default, Claim 9 would be denied on the merits. Turner has failed to demonstrate either the prejudice prong of the cause and prejudice test or a fundamental miscarriage of justice to excuse his procedural default of Claim 9. The claim is dismissed.

Claims 11 and 12: That the trial court erred at the penalty phase for its failure to instruct the jury that mitigating circumstances need not be found unanimously (Claim 12) or beyond a reasonable doubt (Claim 11).

Turner addresses Claims 11 and 12 as one. He claims the jury’s verdict of death resulted from potential confusion that mitigating factors could be considered only if those factors were unanimously agreed upon and determined beyond a reasonable doubt. A sentence resulting from such confusion, he continues is unconstitutional.

The complained of confusion follows from an instruction about aggravating factors. Prior to closing argument the trial court instructed, “Any evidence of an aggravating factor is to be disregarded by you unless you unanimously agree that the factor has been proved beyond a reasonable doubt.” RT: 1847. No instruction was read to the jury about how mitigating factors should be considered.

Defense counsel also failed to provide meaningful guidance for the jury’s consideration of mitigating factors. In fact, Turner contends, defense counsel’s closing statement actually amplified the confusion. During his closing, defense counsel summarized “that various factors have be proved beyond a reasonable doubt.” RT: 1858 (emphasis added). He made no effort to distinguish mitigating from aggravating factors. Because of counsel’s imprecise and unexplained statement, Turner argues the jury may have erroneously concluded that the standard of unanimity beyond a reasonable doubt which the trial court said applied to aggravating circumstances also applied to mitigating circumstances.

Turner correctly points out that if the instructions led the jury to conclude its determination of mitigating factors had to be unanimous and beyond a reasonable doubt, the sentence would be contrary to the holding in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In that case the Court held unconstitutional a verdict form which reasonably could be interpreted to require the jury to agree unanimously on the existence of particular mitigating circumstances. Id. at 384, 108 S.Ct. at 1870. A sentencing scheme which requires unanimous agreement for mitigating factors would unconstitutionally preclude the sentencer from considering relevant circumstances, including the defendant’s character or record and the circumstances of the offense. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965; see also Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2634-35; Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083-84, 108 L.Ed.2d 255 (1990). The State maintains the jury was not precluded from considering relevant mitigating circumstances and that the instructions given did not lead the jury to conclude mitigating factors had to be unanimous and beyond a reasonable doubt.

The parties’ arguments must be evaluated in the context of what is and what is not constitutionally required at the penalty phase of a California capital trial. The standard is summarized in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983): “Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, [by] determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” Id. at 1008, 103 S.Ct. at 3457. It is during the jury’s consideration of these factors at the penalty phase that the defendant’s character and record, together with the circumstances of the offense are pondered. See Lockett, 438 U.S. at 605, 98 S.Ct. at 2965. Indeed, these factors are paramount. “What is important at the selection stage is an individualized determination on the basis of character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983) (emphasis in original); Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2634-35.

Juror discretion during this individualized determination process is quite broad. In Tuilaepa, the Court describes the quantum of discretion permitted to be “expansive,” “wide,” and “unbridled.” Id. at 973, 974, 979, 114 S.Ct. at 2635, 2636, 2639. See also Zant, 462 U.S. at 875, 103 S.Ct. at 2742 (“unbridled discretion”); Ramos, 463 U.S. at 1009, n. 22, 103 S.Ct. at 3457, n. 22 (same, quoting Zant, 462 U.S. at 875, 103 S.Ct. at 2742). On the strength of United States Supreme Court precedent approving the individualized procedure in California for sentence selection, the California Supreme Court has rejected a challenge based on the absence of procedural safeguards during penalty phase proceedings. People v. Rodriguez, 42 Cal.3d 730, 777-78, 230 Cal.Rptr. 667, 726 P.2d 113 (1986) (relying on Ramos, 463 U.S. at 1009, n. 22, 103 S.Ct. at 3457, n. 22).

The penalty phase process followed in California is constitutionally sound even though,

it fails to require (1) written findings as to the aggravating factors supporting a death judgment, (2) proof beyond a reasonable doubt of any such aggravating factors, (3) jury unanimity on the dispositive aggravating factors, (4) a finding that aggravating factors outweigh mitigating beyond a reasonable doubt, (5) a finding beyond a reasonable doubt that death is the appropriate penalty, and (6) appellate proportionality review.

Id. Following Rodriguez, a number of California Supreme Court opinions have concluded specifically that jury unanimity on the existence of an aggravating factor is not required. People v. Jennings, 46 Cal.3d 963, 988, 251 Cal.Rptr. 278, 760 P.2d 475 (1988); People v. Miranda, 44 Cal.3d 57, 99, 241 Cal.Rptr. 594, 744 P.2d 1127 (1987); People v. Ghent, 43 Cal.3d 739, 773-74, 239 Cal.Rptr. 82, 739 P.2d 1250 (1987); People v. Allen, 42 Cal.3d 1222, 1285, 232 Cal.Rptr. 849, 729 P.2d 115 (1986). The natural corollary to Rodriguez and its progeny is that trial courts also need not give guiding instructions on how a jury is to consider mitigating factors. People v. Breaux, 1 Cal.4th 281, 314-15, 3 Cal. Rptr.2d 81, 821 P.2d 585 (1991).

Rather, the determination of the appropriate sentence is committed to juror discretion upon presentation of relevant evidence and guiding instructions on sentencing factors. There is no additional mandate that California penalty jurors be told unanimity is not required for the consideration of mitigating factors.

Although Turner does not challenge this precise principle, he maintains that his jury nonetheless was confused. He argues the trial court’s constitutionally unnecessary instruction that aggravating factors had to be unanimously determined beyond a reasonable doubt triggered the concomitant converse instruction that mitigating factors need not be unanimously determined beyond a reasonable doubt. Absent this guidance, he argues, the jury was led to believe that unanimity beyond a reasonable doubt was required for its consideration of mitigating factors.

The same issue raised in Turner’s ease was presented to the court in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir.1990). In that case, a majority of the panel members concurred that an instruction requiring unanimous agreement for aggravating factors would not necessarily have led the jury to believe that a unanimous finding was required for mitigating factors. Id.

The instructions carefully stated that finding an aggravating factor required such agreement, but it cannot be reasonably inferred that silence as to finding a mitigating factor would likely cause the jury to assume that unanimity was also a requirement. Indeed it would indicate the opposite. The instructions were not misleading.

Id. (emphasis in original). The same result obtains here.

The instructions given by the trial court at Turner’s penalty phase were within the constitutional bounds prescribed by Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235, California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171, and Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750. The jury was instructed on the relevant mitigating and aggravating circumstances of Turner’s character and the circumstances of the crime.

Turner has not established and cannot establish that the omission of an instruction concerning mitigating circumstances was error. Even if the omission could be considered to be a trial error, Turner has not shown that it “worked to his actual and substantial disadvantage infecting the entire trial with error of constitutional dimension.” Frady, 456 U.S. at 170, 102 S.Ct. at 1596. At most, he has raised the possibility that some jurors may have been confused. He has failed to establish the prejudice prong of the cause and prejudice test for the alleged sentencing error alleged in Claims 11 and 12 to excuse his procedural default. The claims are dismissed.

Claim 16: That the catchall instruction under § 190.3(k) is overbroad and unfocused and that the term “extenuate,” as used in the instruction, should have been defined for the jury-

As part of the penalty instructions, the jury was told,

In determining which penalty is to be imposed on Defendant, you shall consider all of the evidence which has been received during any part of the trial of this case ... [¶] You shall consider, take into account, and be guided by the following factors, if applicable .... [¶] ... any other circumstances [sic] which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any other aspect of the Defendant’s character or record that the Defendant offers as a basis for the sentence less than death.

RT: 1841-42.

Turner argues the terms “circumstances,” “extenuates,” “gravity of the crime,” and “legal excuse for the crime” embrace technical legal concepts which are meaningless to the average juror. Further, due to the defect in this instruction, combined with the instructional errors identified in several other claims, the jury was not clearly informed that any aspect of Turner’s background could constitute a mitigating circumstance. Additionally, in the Petition, Turner alleges that one or more jurors could have interpreted the factor (k) instruction to mean that all of his positive attributes counted for only one mitigating circumstance. Petition, ¶ 173.

The State maintains that Turner has failed to demonstrate the jury did not understand the meaning of the factor (k) instruction or that a different instruction would have changed the outcome of the penalty determination. The State’s position has merit.

The instruction given specifically was requested by Turner’s counsel. The request was entirely appropriate. In People v. Easley, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813 (1983), the court provides a directive for the procedure in trials to be conducted after that opinion.

In order to avoid potential misunderstanding in the future, trial courts — in instructing on the factor embodied in section 190.3, subdivision (k) — should inform the jury that it may consider as a mitigating fact “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime” and any other “aspect of [the] defendant’s character or record ... that the defendant proffers as a basis for a sentence less than death.

Id. at 878, n. 10, 196 Cal.Rptr. 309, 671 P.2d 813, quoting Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65. This procedure works to ensure that the penalty phase will be characterized by the jury’s individualized determination of the appropriate sentence based on the defendant’s character and the circumstances of the crime. Zant, 462 U.S. at 879, 103 S.Ct. at 2743-44; Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2634-35.

Nothing in the record or alleged in the Petition undermines the efficacy of the challenged instruction in focusing the jury on appropriate considerations. Turner’s argument that it is reasonable to conclude the average juror would have difficulty comprehending the meaning of the terms used in the factor (k) instruction is both unsupported and insufficient.

The allegation is unsupported for two reasons. First, in the context of the instruction, it is clear the language of factor (k) refers to evidence tending to sway the jury in favor of leniency. Second, the jury never questioned the meaning of “extenuate” or any of the other factor (k) terms during deliberations.

The allegation is insufficient because the prejudice prong to excuse a procedural default requires more than a showing of a possibility of prejudice. By arguing that the average juror would not have understood the import of the factor (k) instruction, Turner is engaging in speculation. Rather, Turner must establish that the perceived error actually worked to his disadvantage. Frady, 456 U.S. at 170, 102 S.Ct. at 1595-96. It cannot be said that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977), or that Turner “was denied fundamental fairness at trial.” Carrier, 477 U.S. at 494, 106 S.Ct. at 2648 (internal quotation omitted). Claim 16 is without substantive merit, and accordingly, Turner has not and cannot establish prejudice to excuse his procedural default. The claim is dismissed.

Claim 17: That the trial court erred at the penalty phase for its failure to explain to the jury that the prior felony conviction factor under § 190.3(c) did not relate to the conviction of the underlying murder and robbery.

During the guilt phase of his trial, Turner admitted his conviction of two prior felonies, robbery and receiving stolen property. RT: 1314. After the penalty phase evidence was presented, the jury was instructed to consider a number of factors in determining the appropriate penalty, including, “the circumstances of the crime of which the Defendant was convicted in the present proceedings and the existence of any special circumstance found to be true,” and “the presence or absence of any prior felony conviction.” RT: 1841-42. The first of these factors tracks § 190.3(a) (factor (a)) and the second tracks § 190.3(c) (factor (c)).

Turner argues that the lack of an appropriate clarifying instruction permitted the jury to arbitrarily and capriciously triple count the underlying murder of Roy Savage in determining penalty, first as felony murder, second as a statutory special circumstance under § 190.2 making him death penalty eligible, and third as a factor in aggravation. He contends that under Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), the use of a vague aggravating factor in the weighing process invalidates the sentence unless the error was harmless.

Turner’s reliance on Stringer is misplaced. In that case, the Court considered an invalid aggravating factor used to determine death eligibility under Mississippi law. Id. at 232, 112 S.Ct. at 1137-38. Sentence selection factors considered at the penalty phase of a California capital trial are not subject to the harmless error analysis announced in Stringer, since death eligibility has already been determined. Bacigalupo, 6 Cal.4th at 465-68, 24 Cal.Rptr.2d 808, 862 P.2d 808; Tuilaepa, 512 U.S. at 975, 114 S.Ct. at 2636-37. The Stringer test applies to those states, like Mississippi, which determine death eligibility and sentence selection during the penalty phase.

Aside from the inapplicability of Stringer, nothing in either the instructions given or the trial attorneys’ arguments to the jury urged or even suggested that the jury should give a single incident duplicative consideration. See People v. Montiel, 5 Cal.4th 877, 938-39, 21 Cal.Rptr.2d 705, 855 P.2d 1277 (1993). In Montiel, the penalty jury was instructed under factor (a) (the circumstances of the crime), factor (b) (the presence or absence of violent criminal activity by the defendant), and factor (c) (the presence or absence of any prior felony conviction). Id. at 938, 21 Cal.Rptr.2d 705, 855 P.2d 1277. The court’s holding explains that

factors (a), (b), and (c), taken together, allow the jury to consider all the offenses of which defendant was convicted in the current proceeding; [footnote omitted] all his other criminal violence, and all his felony convictions entered before the capital crime was committed. Yet nothing in the statute or parallel instructions implies that any of this matter may be considered more than once. Hence, even if one or more jurors mistakenly consider a particular criminal incident under the wrong factor, there is little risk that a reasonable jury will give a single incident duplicative consideration.

Id. at 938-39, 21 Cal.Rptr.2d 705, 855 P.2d 1277 (citation omitted); see also People v. Sanchez, 12 Cal.4th 1, 79, 47 Cal.Rptr.2d 843, 906 P.2d 1129 (1995).

The issue of “double counting” with respect to factors (a) and (b) also was considered by the Ninth Circuit in Bonin v. Calderon, 59 F.3d 815 (9th Cir.1995). Bonin characterizes the factor (a) instruction as one which “obviously refers to the crimes for which the defendant has been convicted” and the factor (b) instruction as one “intended to refer to crimes for which the defendant has not been convicted.” Id. at 848. Like Turner, the petitioner in Bonin argued the penalty instructions permitted the juries to double count aggravating factors. Bonin holds that the petitioner’s double counting argument is “foreclosed by the Supreme Court’s recent holding that the version of paragraph [factor] (b) at issue here is not unconstitutionally vague.” Id. citing Tuilaepa, 512 U.S. at 976-77, 114 S.Ct. at 2637-38.

Although Tuilaepa did not specifically address the factor (c) instruction, the same reasoning applied there regarding factor (b) forecloses Turner’s challenge here. Like factor (b), which requires the penalty jury to consider the defendant’s prior violent criminal activity, factor (c), which directs the jury to consider the defendant’s prior felony convictions, “is phrased in conventional and understandable terms and rests in large part on a determination whether certain events occurred, thus asking the jury to consider matters of historical fact.” Id. at 976, 114 S.Ct. at 2637. In this case, the factor (c) instruction appropriately directed the jury’s penalty determination. It is not unconstitutionally vague.

The logic of Turner’s argument fails for another reason. Under the analysis he presents, the jury would not have considered his prior convictions at all. Yet the fact of the prior convictions was prominent in the case. Turner testified about them during the guilt phase and the court gave detailed instructions about the elements of each at the penalty phase. RT: 1843-44. The record reveals no indication that the jury double or triple counted the underlying murder and robbery convictions from the guilt phase proceedings in determining Turner’s sentence. Turner has failed to establish prejudice under the standard enunciated in Frady, 456 U.S. at 170, 102 S.Ct. at 1595-96 and Carrier, 477 U.S. at 494, 106 S.Ct. at 2648. Claim 17 is dismissed.

Claim 18: That the trial court erred at the penalty phase for its failure to explain to the jury that in the event the jury could not reach a unanimous verdict of either death or life without the possibility of parole, there existed a third alternative, the impanelment of a new jury and retrial.

Turner claims the trial court should have informed the penalty jury that it was not obligated to return a verdict in the course of the penalty instructions. Instead, the jury was instructed, “In order to make a determination as to the penalty, all twelve jurors must agree.” RT: 1864.

Citing California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987), Turner maintains that the Constitution prohibits administration of the death penalty in an arbitrary and unpredictable fashion. He also cites Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932-33, 49 L.Ed.2d 859 (1976) for the proposition that jury discretion must be suitably directed to minimize the risk of arbitrary and capricious action. He suggests that the error in Claim 18, in conjunction with several other.errors, adversely skewed the jury’s determination toward a death verdict. The cases relied on by Turner are inapposite.

The fact that a penalty jury is not informed of the existence of a third alternative to its rendering of a verdict for either life without the possibility of parole or death does not render the California sentencing process arbitrary, unpredictable, or capricious. As suggested in Gregg, a penalty statute withstands constitutional muster if it “ensures that the sentencing authority is given adequate information and guidanee[,] ... apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” Id. at 195, 96 S.Ct. at 2935. The California statute does so.

Moreover, telling a California jury the consequences of its inability to reach a unanimous verdict is foreclosed by People v. Kimble, 44 Cal.3d 480, 244 Cal.Rptr. 148, 749 P.2d 803, cert. denied 488 U.S. 871, 109 S.Ct. 188, 102 L.Ed.2d 157 (1988). Kimble holds “a jury should not be instructed on the consequences of its failure to reach a unanimous verdict.” Id. at 511, 244 Cal.Rptr. 148, 749 P.2d 803. This conclusion follows because those consequences involve a “procedural direction addressed to the trial court, not a substantive factor intended the jury’s consideration.” Id. at 515, 244 Cal.Rptr. 148, 749 P.2d 803 (footnote omitted) (emphasis added).

The policy underlying this holding is one of encouraging jurors to meaningfully participate in jury deliberations. In the absence of this policy,

any juror inclined against a finding that death was the appropriate penalty would have realized he could prevail simply by refusing to participate in good faith in the deliberations: by remaining obdurate and causing a jury deadlock, he would have in effect a veto power over the verdict. The likelihood of a minority juror’s drawing this obvious inference far outweighs defendant’s speculations as to what a jury uninformed on the point might have believed — i.e., that a juror otherwise disposed against voting for death in a given case might discard his considered moral judgment simply to avoid the perceived necessity of a retrial.

Id., at 515-16, 244 Cal.Rptr. 148, 749 P.2d 803.

While other jurisdictions may require disclosure of the consequences of a deadlock under the policy that jurors should have all available information at their disposal when confronted with a death penalty sentence selection, see e.g. State v. Williams, 392 So.2d 619 (La.1980) and Kubat v. Thieret, 867 F.2d 351 (7th Cir.1989), California’s policy nonetheless is valid. The fact that different jurisdictions embrace competing, but valid governmental policies and rules for imposing the death penalty cannot undermine the legitimacy of the rule announced in Kimble. In Blystone, 494 U.S. at 309, 110 S.Ct. at 1084-85, the Supreme Court acknowledges that different forms of death penalty laws have been enacted in different states. The Court observes, “Within the constitutional limits defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.” Id.

Claim 18 has no merit, either standing alone, or in combination with other claims. Turner cannot establish prejudice to excuse his procedural default. The claim is dismissed.

Claim 20: That the trial court erred at the penalty phase for its failure to give the jury sufficient guidance to render a constitutionally valid penalty determination.

Turner describes Claim 20 as cumulative, combining the allegations of Claims 16 (that the trial court failed to adequately inform the jury it could consider mitigating aspects of Turner’s background), 17 (that the trial court failed to instruct the jury not to double or triple count the underlying murder of Mr. Savage in aggravation of the sentence), and 19 (that the trial court failed to explain how the jury should consider the absence of evidence of certain sentencing factors). The cumulative effect of these errors, he argues, unconstitutionally skewed the penalty determination toward death. He claims a more favorable result is likely in the absence of the instructional errors. He asserts that the instructional errors rendered the sentencing circumstances invalid, and, relying on Espinosa v. Florida, 505 U.S. 1079, 1081, 112 S.Ct. 2926, 2927-28, 120 L.Ed.2d 854 (1992) and Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990), that the weighing of invalid aggravating circumstances violates the Eighth and Fourteenth Amendments.

The State argues that Turner has presented nothing new relative to the issue of prejudice and that the claim therefore should be dismissed. The State also refers to its separate argument against Turner’s perceived “cumulative error” claim.

As the State asserts, Turner’s showing of prejudice for this claim is substantially lacking. Claims 16 and 17 are resolved above, and the merits of Claim 19 are resolved below, in Part V. The conclusion with respect to each of these three claims is that the challenged instructional omission was not error of constitutional magnitude, and even if this Court considered the omission to be error, the error was not prejudicial. See discussion of Claims 16 and 17, supra, and of Claim 19, infra.

To the extent Claim 20 focuses on the weighing of invalid aggravating circumstances under Espinosa and Clemons, the challenge is equally unavailing. These cases stand for the proposition that vague aggravating circumstances used to determine death eligibility violates the Eighth Amendment; in each, the Supreme Court remanded the cases to the respective state supreme courts for reweighing of the evidence without the invalid aggravating circumstances. Accord Stringer, 503 U.S. at 232, 112 S.Ct. at 1137-38.

This Eighth Amendment line of cases does not apply in the present case because the death penalty schemes at issue in Espinosa and Clemons are distinct from the process utilized in California. In both Florida (Espinosa ) and Mississippi (Clemons), the task of narrowing the class of death eligible murderers, as required under Zant v. Stephens, 462 U.S. at 877, 103 S.Ct. at 2742, occurs during the penalty phase proceedings. In California the narrowing function occurs during the guilt phase by the jury’s finding of statutory special circumstances enumerated in § 190.2. See Bacigalupo, 6 Cal.4th at 465-68, 24 Cal. Rptr.2d 808, 862 P.2d 808 (describing the death penalty process under California law and various other states); Tuilaepa, 512 U.S. at 975, 114 S.Ct. at 2636-37.

The special circumstances set forth in § 190.2 must comport with Eighth Amendment requirements by providing objective standards for channeling jury discretion, as well as detailed specific guidance capable of rational review. Bacigalupo, 6 Cal.4th at 468, 24 Cal.Rptr.2d 808, 862 P.2d 808. Evaluation of a statute pursuant to this Eighth Amendment standard applies to factors which circumscribe the class of death eligible defendants, not penalty selection. Id. at 475, 24 Cal.Rptr.2d 808, 862 P.2d 808. There is no need to reweigh allegedly vague aggravating factors adduced during the penalty phase in a California capital trial where the only issue is penalty selection. As noted above, in the discussion of Claims 11, 12, and 16, penalty factors need only provide guidance to the jury to make an individualized determination of penalty based on the character of the defendant and the circumstances of the crime. Zant v. Stephens, 462 U.S. at 879, 103 S.Ct. at 2743-44; Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2634-35. In any event, Turner simply has not established that any of the aggravating factors considered by the jury at his penalty proceedings were constitutionally vague.

Claim 20 is meritless. Turner has not and cannot establish prejudice pursuant to Murray, 477 U.S. at 494, 106 S.Ct. at 2648-49 and Frady, 456 U.S. at 170, 102 S.Ct. at 1595-96. The claim is dismissed.

Claim 21: That the death penalty is imposed disproportionally against African-Americans.

Citing McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), Turner correctly states that to prevail on a claim of disparate racial impact he must prove that the decision makers in his case acted with a discriminatory purpose. See id. at 292, 107 S.Ct. at 1766-67. He then adds that he cannot meet this standard and that the McCleskey standard is insurmountable, but that he wants to preserve the claim for appeal in the event the standard changes in the future.

The State seizes on Turner’s concession as grounds for dismissing the claim. The State also refers to another Supreme Court case, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), for the proposition that intercase proportionality review is not constitutionally required. Id. at 50-51, 104 S.Ct. at 879-80; see also Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir.1996) (“[t]here is no federal right to proportionality review”).

The State’s position is sound. Claim 21 cannot be sustained under prevailing authority. No prejudice can be demonstrated to overcome Turner’s procedural default. The claim is dismissed.

Claim 27: That the trial court erred for its failure to sua sponte instruct that Turner’s mental state could negate the specific intent to commit robbery or murder at the guilt phase and be considered a mitigating factor at the penalty phase.

Turner argues that evidence presented at the guilt phase concerning his mental capacity and intoxication obligated the trial court to instruct, sua sponte, about the relation of these conditions to the mens rea for murder and robbery. Evidence of Turner’s mental state was presented by Turner’s own testimony and Dr. Hamm’s opinion.

Turner’s testimony emphasized his drug and alcohol use throughout the day of the crime. At 6:30 in the morning, when Mr. Savage came to Fresno to collect Turner, Turner said he was already “pretty gone” from using PCP. It was for this reason that Turner engaged in little conversation during their' drive to Mr. Savage’s house in Merced. RT: 1334. After working a short time in Mr. Savage’s yard, Turner took a break and smoked the other half of the PCP “stick” he smoked before Mr. Savage picked him up in Fresno. RT: 1339. Later in the day, upon return to Mr. Savage’s house from running some errands, Turner consumed three or four glasses of brandy. RT: 1366. He and Mr. Savage again went out, this time to purchase some clothing for Turner, as compensation for the work he did in Mr. Savage’s yard. When they returned, Turner drank more brandy. RT: 1374.

Turner testified that after Mr. Savage ate dinner, and while Turner was waiting to be driven home, Mr. Savage came downstairs in his underwear and invited Turner to have sex with him. RT: 1378. When Turner declined, an altercation broke out during which Mr. Savage hit Turner on his back with a wooden club of some kind. RT: 1379. At this point, Turner testified that he was unable to clearly recall the sequence of events. He did recall, however, leaving Mr. Savage’s house and walking to a nearby supermarket to purchase a pack of cigarettes. RT: 1380. On the way, he smoked another entire “stick” of PCP. Ibid. As Turner lighted a cigarette from the pack he purchased, he saw Mr. Savage driving up in his car. Mr. Savage apologized; Turner asked to go back to Mr. Savage’s house to retrieve his coat and money and then go home. Mr. Savage agreed. RT: 1381.

Argument about whether Turner would have sexual relations with Mr. Savage and whether he would tell anyone about Mr. Savage’s request for sex continued. RT: 1382-84. Turner claims Mr. Savage initiated the physical struggle by grabbing Turner from behind. It was at this point that Turner drew his buck knife and began “sticking” it at Mr. Savage. The encounter was fatal. RT: 1386-90.

The substance of Dr. Hamm’s testimony about Turner’s mental state is summarized in the discussion of Claim 9, supra. Briefly, Dr. Hamm found Turner to have a below average native intelligence and a tendency to become disorganized under stress. He opined that Turner’s use of PCP shortly before the crime exacerbated this innate condition. During the fatal attack on Mr. Savage, Turner was in the grips of hysteria, was disassociating himself from his own conduct, and was borderline psychotic. RT: 1481-82; 1499-1500; 1503.

In Claim 27, Turner contends the foregoing evidence was sufficient to require the trial court to instruct about Turner’s capacity to form the mental state necessary to commit murder and robbery. He relies on People v. Leever, 173 Cal.App.3d 853, 219 Cal.Rptr. 581 (1985). In that case the court held that the trial court erred by not instructing on its own motion as to the relevance of the defendant’s mental condition at the time of the offense. Id. at 865, 219 Cal.Rptr. 581.

Turner claims the trial court should have given an instruction similar to current CALJIC 3.32. At the time of his trial in 1984, the applicable instruction was former CALJIC 3.36. The 1981 version of CALJIC 3.36 provides:

Evidence has been received regarding a [mental disease] [mental defect] or [mental disorder] of the defendant at the time of the offense charged [in Count _]. You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crime charged in [in Count_] to wit__

The State does not contest that the trial court erred for its failure to give the omitted instruction, but argues that in light of the other instructions, Turner suffered no prejudice on account of the alleged error. The State urges that the instructions given fully presented Turner’s theory of the case pointing out that the jury received instructions on all the elements of first and second degree murder, voluntary and involuntary manslaughter, the effect of a sudden quarrel or heat of passion, the honest but unreasonable belief in the need for self defense, and the manner in which circumstantial evidence is to be evaluated. While these instructions define the concepts necessary for the jury’s determination of the various charged offenses, they do not expressly guide the jury’s consideration of how to consider evidence of Turner’s mental defect relative to the mens rea of the charged crimes.

The State, however, does not rely entirely on the instructions given at trial. To bolster its assertion of no prejudice, it also points to the closing statements of prosecution and defense counsel. The prosecutor recounted how Mr. Savage had been stabbed 40 times after Turner delivered a wound that caused Mr. Savage’s chest to “gush” with blood. The prosecutor argued: “You have to actively go at that, to plunge a knife that many times into a body. [¶] At some time he intended to kill, even if it wasn’t the first.... He was intending to kill.” RT: 1673, 1674. The prosecutor also emphasized the evidence that two telephone cords in Mr. Savage’s house had been cut: “He cut the cords in anticipation of the robbery. He is, according to this evidence, guilty of premeditated murder. ... I think reason shows us that the Defendant did have the robbery in mind when he cut the telephone cords” RT: 1674, 1675. With respect to the jury’s finding of the robbery murder special circumstance, he stressed that the jury had to believe the killing of Mr. Savage was intentional: “To say special circumstance in this case, you have to show also that it is intentional. [¶] In other words, if it were accidental in the course of a robbery, then it’s first degree. But, it’s not special circumstance. [¶] If it is in the course of a robbery, and it’s an intentional killing, also, then you have the special circumstance.” RT: 1676.

Defense counsel also addressed Turner’s diminished mental state to the jury. He described Dr. Hamm’s assessment of Turner’s mounting hysteria:

[Dr. Hamm] presented a picture of a young man, isolated in Mr. Savage’s home, isolated in a white affluent community, 50 miles from his home in Fresno. Presented a picture of the frustration of trying to get back to that home and being rebuffed each time by Mr. Savage. [¶] And picture as he described the Defendant himself, once described it of suddenly blowing up, suddenly boiling over and regressing, acting in a physical manner to this combination of circumstances that he was faced with.

RT: 1680. With respect to the number of stab wounds sustained by Mr. Savage, defense counsel continued:

[There was] not one single disabling blow to the head. No bruises. No marks from bruising. But 40 ineffectual wounds and three or four very effectual wounds. [¶] Counsel would have you regard only the three or four effectual, the fatal wounds. I ask you also to consider the 40 ineffectual wounds. Does that speak to you or a planned attack? Upon Mr. Savage? [¶] Does that speak to you of premeditation, of intention to — of a clear, of a thought-out intention to do anything[?] I think that fact, the 40 ineffectual wounds indicate, in themselves, the nature of the claim, or, at least, of the killing that’s been presented to you.

RT: 1680-81.

One additional, relevant piece of information was given to the jury which the State does not mention in its papers. At the culmination of the guilt phase, the trial court instructed: “If the evidence shows that the Defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if Defendant had such specific intent.” RT: 1641 (emphasis added); CT: 203.

This instruction contains precisely the type of language which Turner claims was omitted. Consistent with former CALJIC 3.36, it informs the jury that evidence of Turner’s intoxication may be considered in determining whether or not he actually formed the mental state which is an element of the charged crimes. In light of all the other instructions and argument of counsel, the fact that the words “mental disease,”