People v. Harris , 28 Cal. 3d 935 ( 1981 )

Opinion

CLARK, J.

Defendant Robert Alton Harris appeals from a judgment imposing the death penalty following his conviction of kidnaping, robbery and first degree murder of John Mayeski and Michael Baker. (Pen. Code, §§ 187, 189, 190, 209, subd. (b), 211.)¹ Defendant was also convicted of receiving stolen property (§ 496, subd. 1) and of possession of a concealable firearm by an ex-felon (§ 12021). The latter offense and the allegation that he had served a prior separate prison term for manslaughter, a “violent felony” within the meaning of section 667.5, subdivision (c), were admitted by defendant outside the presence of the jury. With regard to each of the kidnaping, robbery and murder counts, the jury found defendant was armed with a firearm (§ 12022), personally used a firearm (§§ 1203.06, 12022.5) and personally inflicted great bodily injury upon his victims (§ 12022.7). That defendant was convicted in this proceeding of more than one first degree murder was one of the special circumstances found by the jury. (§ 190.2, subd. (c)(5).) The other special circumstances were that each of the murders was wilful, deliberate, premeditated and committed during the commission of kidnaping and robbery. (§ 190.2, subd. (c)(3)(i)-(iii).) We affirm the judgment.

Guilt Phase

In May or June of 1978 defendant first asked his brother Daniel for help in a planned bank robbery.² Defendant next raised the subject in July of 1978 while visiting Daniel in Visalia. On 2 July 1978, Daniel stole a .22 rifle and a .9 millimeter pistol from the home of Jim Corbin, a neighbor. While Daniel and defendant were in the house, apparently in Corbin’s absence, defendant stated they needed weapons for the bank robbery and asked whether there were any in the house. Daniel then showed defendant the guns and took them from the house.

The brothers left Visalia for San Diego that evening. The next morning, 3 July 1978, they purchased ammunition, went to a nearby rural area and practiced firing the weapons by shooting at trees while running and rolling—a drill they considered appropriate in preparing for the bank robbery. The brothers then drove to the Mira Mesa area of San Diego County and spent the night in a house defendant had been sharing with his girl friend.

The following morning, 4 July 1978, defendant and his brother purchased more ammunition as well as knit caps, in which they burned eye holes, to serve as masks in the bank robbery. That afternoon they went to the Miramar Lake area, near Mira Mesa, for more shooting practice. They walked up a fire trail, fired a few rounds, but left when a vehicle approached. They next reconnoitered the area around their intended target—the San Diego Trust and Savings Bank on Mira Mesa Boulevard.

The next morning, 5 July 1978, having decided to steal an automobile for use as a getaway car, the brothers spotted a green Ford in a grocery store parking lot directly across Mira Mesa Boulevard from the bank. John Mayeski, 15, and Michael Baker, 16, were in the car eating hamburgers. Assuring Daniel “nobody is going to get hurt,” defendant walked over to the Ford, pulled the pistol from his waistband, and got in the back seat. With Daniel following in defendant’s car, the Ford was then driven out Mira Mesa Boulevard toward Miramar Lake and the fire trail where the brothers had been the day before.

At the foot of the fire trail defendant and Daniel parked the cars and forced the two boys to walk up the trail at gunpoint. Defendant was carrying the pistol and Daniel the rifle. Defendant told the boys their car was going to be used in a bank robbery but that no one would be hurt. Defendant asked the boys whether there was any rope in their car. The boys replied there was not but said they would walk to the top of the hill, wait until the brothers drove back to Mira Mesa, and then report the Ford as stolen, giving the police a misleading description of the thieves. Defendant voiced approval of this suggestion.

The boys then began walking up the hill. Suddenly, Daniel heard a shot. Turning around, he saw John Mayeski fall to the ground. Defendant had shot the boy in the back with the pistol. Defendant fired another shot into the boy’s head, then ran after Michael Baker. Finding the Baker boy crouching and screaming in the brush, defendant shot him four times. Defendant then went back to the fallen Mayeski boy and fired a shot point-blank into his head. Finally, defendant picked up the rifle dropped by Daniel and shot John Mayeski yet again. The brothers then left the murder scene and drove back to the house defendant shared in Mira Mesa. There defendant ate the remainder of the dead boys’ food and laughed at Daniel for not having the stomach to join him.

While the brothers continued preparing for the bank robbery, defendant laughed and giggled about shooting the boys, saying he had blown Michael Baker’s arm off. Defendant also amused himself by imagining what it would be like to be a police officer and to report the boys’ deaths to their families. When Daniel noted there were fragments of flesh on defendant’s pistol, apparently from the point-blank shot fired into John Mayeski’s head, defendant laughed, commented he had really blown the boy’s brains out, and then flicked the bits of flesh into the street.

Later the same day the brothers robbed the bank.³ They were quickly arrested for the bank robbery when a witness, who followed them from the bank to defendant’s house, called the police.

The brothers were arrested at 1:05 p.m. on 5 July 1978. At 4 p.m., Daniel first informed officers of the murders; at 6:30 p.m., Daniel confessed in a tape-recorded statement, placing the blame primarily on defendant. At 7 p.m., having listened to portions of Daniel’s statement, defendant himself confessed to Officer Fred Dreis. At midnight, the brothers were interviewed by Dr. Wait Griswold, a psychiatrist. On 7 July 1978, at 11:20 a.m., defendant repeated his confession in detail to Johnny Bolden, a criminal investigator for the San Diego County District Attorney’s office. Finally, at 1 p.m. on 7 July 1978—an hour before he was arraigned—defendant confessed to Officer Ronald Newman.⁴

When one of defendant’s sisters visited him in jail on 15 July 1978, he told her, “Now, I guess because I killed those two boys, they were only 16 years old, then robbed the bank and kidnaped them was because I really wanted to die.” Defendant’s last extrajudicial confession was made to a fellow inmate. Asked why he had killed the boys, defendant answered, “I couldn’t have no punks running around that could do that [identify him], so I wasted them.”

Testifying in his own behalf at the guilt phase, defendant admitted the bank robbery but denied kidnaping, robbing and murdering the two boys. He explained his pretrial confessions as attempts to protect his brother.

Penalty Phase

In 1975 defendant pleaded guilty to voluntary manslaughter of James Wheeler.

Wheeler and his wife lived with defendant’s brother Ken and his wife; defendant and his wife lived next door. At the scene, defendant admitted beating Wheeler to death but claimed he had done so to protect the victim’s wife when her husband threatened her with a knife. Later, just as in the present case, defendant repudiated his confession and sought to shift the blame to his brother, claiming Ken had killed Wheeler and that he had confessed to protect Ken. This is the story defendant told when testifying in the present proceeding. However, defendant’s former wife and his niece testified defendant, without provocation, beat Wheeler to death while mockingly claiming to teach his victim self defense. During this sadistic attack defendant also cut off Wheeler’s hair and threw matches at him after squirting him with lighter fluid. Defendant’s former wife admitted she lied to the grand jury investigating Wheeler’s death explaining defendant had threatened to kill her too if she did not support his story.

Defendant continued to lead a life of violence while in jail awaiting trial on the present charges.

Defendant was housed in a “tank” consisting of a dayroom and adjoining cells. A guard approaching the tank overheard a conversation between defendant and other inmates in which reference was made to a knife. When the guard left to advise his superior a search should be conducted, one of the inmates, realizing a search was likely, told defendant to hide the “shank.”⁵ Defendant went to his cell, removed from a box a piece of metal, which was approximately 10 inches long and sharpened on 1 edge. He then returned to the dayroom and concealed the shank underneath a table top where guards found it minutes later.

The next day defendant presided over a kangaroo court and found another inmate, Keith G., guilty of cowardice. Defendant told Keith he would have to submit to sodomy or lose his life. Keith was then taken into a cell, forced to lie face down on the bunk with his trousers pulled down and forcibly subjected to sodomy by three inmates, including defendant. Later in the day his assailants demanded Keith play strip poker with them. When Keith would not pick up his cards he was taken into the shower room and forced to orally copulate defendant and another inmate. Removed from the tank when he reported the assaults, Keith later encountered defendant in a holding area. Despite the presence of guards, defendant loudly and repeatedly threatened Keith’s life.

Six days after the assaults upon Keith were reported, defendant’s cell was searched. In the toilet a large water-soaked wad of tissue was found. Wrapped in the tissue was a 17-inch wire with looped ends in which the short pencils available to inmates might be inserted as handles. The guard who found this garrote said, “Look what I found, Bobby.” Defendant, laughing, replied, “Aw, looks like you have me now.”

Defendant’s testimony during the penalty phase indicated he had a dismal childhood. When defendant was approximately 11 years old, his father served two separate prison terms for having sexual relations with defendant’s sisters. The family then followed the harvest from state to state with defendant’s mother and her boyfriend. Defendant’s schooling ended in the seventh grade. Defendant’s mother forced him to leave the family when he was 14, saying he was not working hard enough. He soon stole a car and served four years in federal institutions for that crime, escape and a separate instance of attempted escape. He was subsequently imprisoned for the voluntary manslaughter of James Wheeler. Defendant was 26 years old at the time of trial.

Defendant admitted his testimony at the guilt phase—that he had nothing to do with killing the boys—was a lie. Changing his story, defendant testified he had not planned to kill the boys, that his brother had fired first, and “the next thing I knew I was shooting them myself.”

Defendant claimed he was “sorry” about the murders. In support of this claim, defendant called Deputy Sheriff Michael Mendoza who testified that when he inquired into defendant’s emotional state after he cut his wrist and reportedly attempted to stab himself with a pencil, defendant appeared remorseful. However, defendant admitted on cross-examination he had told a jail visitor his attorney wanted him to express remorse and he was not going to do so.

Discussion

None of the many contentions raised by defendant has merit. Indeed, none comes close to demonstrating prejudicial error. Nevertheless, because defendant’s life is at stake, each will be fully discussed.

I

Defendant contends the trial court erred in denying his motion for change of venue based on prejudicial pretrial publicity.

A change of venue must be granted when the defendant shows a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. (People v. Welch (1972) 8 Cal.3d 106, 113 [104 Cal.Rptr. 217, 501 P.2d 225]; Frazier v. Superior Court (1971) 5 Cal.3d 287, 294 [95 Cal.Rptr. 798, 486 P.2d 694]; Maine v. Superior Court (1968) 68 Cal.2d 375, 383 [66 Cal.Rptr. 724, 438 P.2d 372].) Whether raised on petition for writ of mandate or on appeal from judgment of conviction, the reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable. (People v. Welch, supra; People v. Tidwell (1970) 3 Cal.3d 62, 68-69 [89 Cal.Rptr. 44, 473 P.2d 748]; Maine v. Superior Court, supra, 68 Cal.2d at p. 382.) The factors to be considered are the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim. (People v. Salas (1972) 7 Cal.3d 812, 818 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832].)

Of these factors, two weighed in favor of a change of venue in this case. Murder is, of course, a crime of the utmost gravity, and these murders were especially heinous. Press coverage of the crimes was extensive and included such information as that defendant was on parole for manslaughter, that his brother had confessed and had placed the blame principally on defendant, and that defendant himself had confessed. Two factors were neutral. Although the murdered boys were popular among their friends and their families were respected in their neighborhood, there is no indication the victims or their families were “prominent.” (Cf. Maine v. Superior Court, supra, 68 Cal.2d at p. 388; Frazier v. Superior Court, supra, 5 Cal.3d at p. 293.) Defendant lived in the same community as his victims and worked in San Diego. The final factor—the size of the community—tipped the balance against venue change.

The community in which this case was tried is quite unlike the communities involved in the cases upon which defendant relies. Of the fifty-eight California counties, San Diego County is third in population and ninth in area. Moreover, the City of San Diego, where the trial took place, is the second largest city in this state. (State of Cal. Statistical Abstract (1979) pp. 1, 9, 12-15.) This is significant because the “adversities of publicity are considerably offset if trial is conducted in a populous metropolitan area.” (People v. Manson (1976) 61 Cal.App.3d 102, 189 [132 Cal.Rptr. 265], and cases cited therein.) That the populous metropolitan character of the community dissipated the impact of pretrial publicity in this case was made clear on voir dire.

“A significant difference between pretrial and posttrial review is that after conviction in determining whether a defendant received a fair and impartial trial under the ‘reasonable likelihood’ standard, the review is retrospective. It extends to an examination of what actually occurred at trial.” (People v. Martinez (1978) 82 Cal.App.3d 1, 13 [147 Cal.Rptr. 208].) In other words, voir dire may demonstrate that pretrial publicity had no prejudicial effect. (See Murphy v. Florida (1975) 421 U.S. 794, 800-802 [44 L.Ed.2d 589, 594-596, 95 S.Ct. 2031]; People v. Sommerhalder (1973) 9 Cal.3d 290, 303-304 [107 Cal.Rptr. 289, 508 P.2d 289]; People v. Manson, supra, 61 Cal.App.3d at pp. 187-188; People v. Whalen (1973) 33 Cal.App.3d 710, 716 [109 Cal.Rptr. 282].)

Before discussing the voir dire in this ’ease, it should be emphasized that the controlling cases “cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.” (Murphy v. Florida, supra, 421 U.S. at p. 799 [44 L.Ed.2d at p. 594].) “It is not required ... that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Irvin v. Dowd (1961) 366 U.S. 717, 722-723 [6 L.Ed.2d 751, 755-756, 81 S.Ct. 1639].)

Examined under these guidelines, the voir dire clearly indicated pretrial publicity did not have the effect of denying defendant his right to a fair and impartial jury. Four of the jurors chosen had not been exposed to any pretrial publicity. Of the remainder, none remembered anything in the least damaging to defendant, none knew anything about his background, and none had formed an opinion concerning his guilt or innocence.

II

We now consider defendant’s contention that the trial court erred in denying his mistrial motions. The two motions arose out of separate but related incidents. The first incident involved a transcript given to the jury to assist them in understanding a tape recording of one of defendant’s extrajudicial statements. Defendant moved for a mistrial on the ground the transcript contained a reference to his having called his parole officer. The second mistrial motion was based on the prosecutor’s having elicited from defendant during cross-examination the admission he had been convicted of a felony and was on parole. Neither motion proves to have had merit.

A

As stated, because of acoustical problems members of the jury were furnished transcripts of defendant’s extrajudicial statement to Officer Dreis. References to defendant’s manslaughter conviction were j excised from the transcripts and the corresponding portions of the tape i recording were not played for the jury. Well before trial, defense counsel was given a copy of the edited transcript. After reviewing it, counsel stated he had no objection. Despite these precautions, as the tape was being played for the jury, the prosecutor noticed in the transcript the reference to defendant’s having called his parole officer. Commendably, the prosecutor immediately brought the problem to the court’s attention. As a result the tape was stopped before the passage in question was played, the jury was asked to stop reading the transcripts, and a recess was ordered. During the recess the transcripts were left on the jurors’ chairs and collected by the bailiff. Denying the mistrial motion with the observation he did not believe the jurors had read as far as the troublesome reference, the court offered to inquire whether the jurors had read that passage. This offer was declined by defendant, but with his approval the jury was carefully instructed they were to disregard anything they may have read in the transcripts if the corresponding portion of the tape recording had not been played for them.

First, defendant should not be permitted to raise this issue, having reviewed and approved the transcript. Second, as the trial court pointed out, there is no reason to believe the jury read the statement in question. Third, if they did read the statement, we must assume they obeyed the instruction to disregard it. Finally, as will be explained below, inquiry by defense counsel following the guilt phase revealed the jury did not consider defendant’s prior conviction during its deliberations.

B

Defendant’s admission during cross-examination that he had previously been convicted of a felony and was on parole occurred under the following circumstances. Shortly after defendant was arrested, an evidence technician took nitric acid swabs of his hands to check for gunpowder residue. As the technician did so, defendant asked him whether the swabs would detect powder burns and pick up gunpowder particles. Upon being informed the test would reveal whether he had fired a gun recently, defendant stated he had been shooting in the Porterville area approximately 24 hours earlier. Defendant contradicted this statement at trial when he testified he had been in the San Diego area the day before the murders and had fired a gun near Miramar Lake. Defendant further testified he had not known of the murders, or of any shootings, when the nitric acid swabs were taken, but was simply curious as to the purpose of the test.

The prosecutor pursued this line of inquiry further to demonstrate that in his conversation with the technician defendant manifested a consciousness of guilt—that defendant was concerned about the test because he knew he had gunpowder on his hands as a result of shooting the boys and that defendant lied to the technician about his activities the previous day to provide an alternative, innocent explanation for the powder traces. Defendant clearly realized he was being backed into a corner; rather than admit the truth, he blurted out that he was an ex-felon and on parole.⁶ This admission was obviously intended to provide a less damning explanation for defendant’s concern that the swabbing would reveal that he had recently fired a gun, namely, that as a condition of his parole he was not to be in possession of a firearm.

Following defendant’s admission there was a conference at the bench in which the prosecutor expressed surprise at defendant’s answer and stated he would pursue the matter no further. Defendant’s mistrial motion was denied on the ground that the prosecutor’s questions were not intended to elicit the admission but that it had been volunteered by defendant. The jury was instructed that defendant’s reference to being on parole for “some prior conduct” was not to be considered by them in determining his innocence or guilt of the crimes charged in this proceeding.

“Where a defendant takes the stand and makes a general denial of the crime the permissible scope of cross-examination is very wide.” (People v. Ing (1967) 65 Cal.2d 603, 611 [55 Cal.Rptr. 902, 422 P.2d 590], and cases cited therein.) When a defendant voluntarily testifies in his own defense the People may “fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (People v. Schader (1969) 71 Cal.2d 761, 770 [80 Cal.Rptr. 1, 457 P.2d 841].) Evidence relevant for these purposes is admissible even though it incidentally involves an unrelated offense. (People v. Crawford (1968) 259 Cal.App.2d 874, 880 [66 Cal.Rptr. 527].)

Under these x principles the prosecutor’s cross-examination of defendant was entirely proper. Moreover, any error in this regard was cured by the instruction that the jury was not to consider defendant’s admission in determining whether he committed the present offenses. That the jury followed this instruction was established by inquiry defense counsel was permitted to make of the jury following the guilt phase. At the hearing on defendant’s motion for new trial, defense counsel was asked by the court whether his inquiry of the jurors had shed any light on the issue. Counsel responded that none of the jurors he had interviewed was aware of defendant’s prior conviction or had discussed the subject during deliberations.⁷

Ill

Defendant contends the trial court erred in denying his motion to suppress his confession to Officer Newman. Defendant had argued in support of the motion that his arraignment was unnecessarily delayed and that the challenged confession was obtained during the period of illegal detention. We need not resolve the question whether defendant was promptly arraigned. Even assuming arguendo he was not promptly arraigned, the delay would not necessarily have rendered his confession to Officer Newman inadmissible. “[D]elay in arraignment is but one factor to be considered in determining whether a confession is voluntary.” (In re Walker (1974) 10 Cal.3d 764, 778-779 [112 Cal.Rptr. 177, 518 P.2d 1129]; see People v. Kendrick (1961) 56 Cal.2d 71, 85 [14 Cal.Rptr. 13, 363 P.2d 13]; Rogers v. Superior Court (1955) 46 Cal.2d 3, 10-11 [291 P.2d 929].) It is not contended, nor could it be, that defendant’s confession to Officer Newman was involuntary.

Defendant was arraigned on the present charges 48 hours and 55 minutes after he was arrested for the bank robbery. The challenged confession was the last of four made by defendant during this period and occurred approximately an hour before he was arraigned. The parties stipulated to the following chronology. Defendant and his brother Daniel were arrested for the bank robbery and taken to the police station for interrogation concerning that crime at 1:05 p.m. on 5 July 1978. At 4 p.m., Daniel first informed the officers of the murders; 10 minutes later the victims’ bodies were found at the location described by Daniel. At 6:30 p.m., Daniel confessed in a tape-recorded statement, placing the blame primarily on defendant. .

At 7 p.m., having listened to portions of Daniel’s statement, defendant confessed to Officer Dreis. (It is not contended with regard to any of these confessions that defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], were violated.) Defendant told Officer Dreis: “Danny thought I was going to let them go. He didn’t know I was going to kill them. Danny was about 20 feet away sitting down when I shot them. I shot one and he spun around. I then shot him in the head because I didn’t want him to suffer. I chased the other and shot the other boy about three times. Danny was scared and he didn’t shoot either of them. I think I took the .22 and shot the blond kid one time. I was pretty loaded and didn’t know what I was doing. I had smoked two joints before this came down. My brother was terrified. I didn’t know what I was doing.”

At midnight defendant and his brother were transported to the office of Dr. Wait Griswold, a psychiatrist, and interviewed by him concerning the murders. Defendant told Dr. Griswold he had shot the victims after assuring his brother they would not be hurt.

Defendant and his brother were booked into jail in the early morning hours of 6 July 1978. On 7 July 1978, at 11:20 a.m., defendant repeated his confession in detail to Investigator Bolden. He told Bolden, among other things, that he and his brother planned to steal an automobile for use as a getaway car in the bank robbery; that he had approached the victims’ car, pulled his pistol out of his waistband, entered the back seat of the car and ordered the boys to drive away; and that he shot John Mayeski in the chest and head with the pistol, then chased Michael Baker and upon catching him, shot the boy three or four times with the pistol, and, finally, went back to Mayeski and shot him with the rifle.

The challenged confession was given to Officer Newman at 1 p.m. on 7 July 1978—an hour before defendant was arraigned.-Defendant contends this confession was crucial to the People’s case, despite its being the last of the four confessions. He argues its detailed character was used by the People to impeach defendant’s testimony at trial that he had no part in kidnaping, robbing and murdering the two boys; that his brother was solely responsible for the crimes; that his confessions were attempts to cover up for his brother, and that he learned the details of the crimes from his brother while they were detained at the police station. Be that as it may, it is clear the delay in his arraignment did not affect the voluntariness of defendant’s confession to Officer Newman. There is no reason to believe that confession was less voluntary than his previous confessions, the first of which was given 42 hours earlier, just 6 hours after his arrest.

IV

Defendant contends he was deprived of his constitutional and statutory right to be present personally at all trial proceedings. (See Cal. Const., art. I, § 15; Pen. Code, §§ 977, 1043.) As the People’s case-in-chief drew to a conclusion, a hearing was held in the absence of the jury as to the admissibility of the People’s exhibits theretofore marked for identification. There was also a brief review of the question whether the jurors should have been polled by the court as to whether they had read defendant’s reference to his parole status in the transcript of his interview with Officer Dreis. The record clearly indicates defendant was not present at this hearing; it also reveals, with equal clarity, his counsel did not object to his absence. Given the nature of the matters under discussion, defendant’s presence was not necessary to protect his interests. Accordingly, the court did not err in holding the hearing in defendant’s absence. (See People v. Jackson (1980) 28 Cal.3d 264, 309-311 [168 Cal.Rptr. 603, 618 P.2d 149].)

V

Defendant contends the trial court erred in instructing the jury by failing to properly limit the purposes for which other-crimes evidence might be considered.

Tailoring CALJIC No. 2.50 (1977 revision) to the facts of this case, the court instructed the jury: “Evidence has been received tending to show that the defendant committed a crime other than that for which he is on trial. Such evidence was not received and may not be considered by you to prove that he is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show one or more of the following: The identity of the person who committed the crime, if any, of which the defendant is accused; a motive for the commission of the crime charged; the existence of the intent which is a necessary element of the crime charged; that the defendant had knowledge of the nature of things found in his possession; that the defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged. For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purposes.”

Defendant expressly concedes the instruction was correct insofar as it related to motive; that is, defendant concedes the evidence he subsequently robbed the bank using the murder victims’ automobile as a getaway car was admissible as tending to show his motive in committing the murders. However, defendant contends the instruction was erroneous insofar as it permitted evidence of the uncharged crime to be considered for the other purposes mentioned.

Before discussing those other purposes, we note there is no merit in the People’s argument that defendant is precluded from raising this issue by his failure to object to the instruction below. Section 1259 provides in relevant part: “The appellate court may ... 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.” (Italics added; see People v. Hannon (1977) 19 Cal.3d 588, 600 [138 Cal.Rptr. 885, 564 P.2d 1203].)

However, there is merit to the People’s argument that evidence of the uncharged offense was admissible on the questions of identity, means and intent. That defendant later the same day robbed a bank with the pistol used to murder the boys, driving as a getaway car the automobile stolen from the boys, certainly tended to show both that he had the means necessary to commit the murders and that he did in fact commit the murders. The evidence was also admissible on the question of intent, indicating as it did that the murders were committed in furtherance of the planned bank robbery.

The relevance of the bank robbery on the remaining issue—“that the defendant had knowledge of the nature of things found in his possession”—is unclear. However, despite the reference in the instruction to “a crime,” evidence was introduced concerning another uncharged offense—the burglary of Jim Corbin’s residence and the theft of his guns. These guns were the stolen property defendant was charged with receiving, and his participation in the theft of the guns clearly tended to show he knew they were stolen.

VI

Defendant contends the trial court erred in refusing to give requested instructions on diminished capacity resulting from voluntary intoxication.

The principles governing the duty of the trial court to instruct on diminished capacity were reiterated recently in People v. Flannel (1979) 25 Cal.3d 668 [160 Cal.Rptr. 84, 603 P.2d 1], “In substance when diminished capacity is at issue a trial court first evaluates the evidence. If defendant proffers evidence enough to deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded that there was diminished capacity sufficient to negate the requisite criminal intent’ [citation], the court must so instruct. A trial court should not, however, measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury. If the evidence should prove minimal and insubstantial, however, the court need not instruct on its effect. [Citations.] In other words, ‘[t]he court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.’ [Citation.]” (25 Cal.3d at pp. 684-685.)

The trial court explained its refusal to instruct on diminished capacity as follows: “I think I indicated in our informal discussion that the Court in viewing this evidence was satisfied that we did not have a basis for diminished capacity instructions. [1Í] First of all, we have no expert testimony in that regard. We have direct evidence on the part of the defendant that even the marijuana that he had admittedly smoked did not in any way interfere with his knowledge of what he was doing. He did not claim any mental blackouts; he did not claim anything that would ordinarily go to the question of mental state in terms of diminished capacity, and I see no reason for giving those instructions.”

Defendant contends substantial evidence of diminished capacity was elicited by the People from Officer Dreis when he testified that, in confessing to the murders, defendant told him: “I was pretty loaded and I didn’t know what I was doing. I had smoked two joints before this came down... .1 didn’t know what I was doing.”

Respondent points out, however, defendant repudiated that statement at trial. “Q Now, you weren’t so under the influence of marijuana on [the day of the murders] that you didn’t know what you were doing, were you? A No.”

Moreover, defendant’s statement to Officer Dreis, even if not repudiated, would not have constituted sufficiently substantial evidence of voluntary intoxication to warrant instructions on diminished capacity. The statement amounted to nothing more than a self-serving claim that, after smoking two “joints” of marijuana, “I didn’t know what I was doing.” There was no indication how soon before the murders he smoked the marijuana. Nor, as the trial judge pointed out, was there any expert testimony on the effect that amount of marijuana would have on a person such as defendant.⁸ Contributing to our conclusion that the evidence of diminished capacity was insubstantial is the testimony of defendant’s brother. Danny Harris testified defendant smoked one “joint” of marijuana approximately an hour before the murders and did not appear to be significantly intoxicated. Defendant’s gait and speech were normal; he could understand what was said to him and could make himself understood. Finally, defendant’s several detailed confessions belie his claim he did not know what he was doing.

In People v. Carr (1972) 8 Cal.3d 287 [104 Cal.Rptr. 705, 502 P.2d 513], this court noted with approval: “It has been held that merely showing that the defendant consumed some alcohol prior to commission of the crime without showing the effect of the alcohol on him is not sufficient to warrant an instruction on diminished capacity.” (8 Cal.3d at p. 294.) The Carr court went on to say: “Similar rules should apply to the consumption of marijuana.” (Id., at p. 295.)

Bearing these rules in mind, we may profitably compare the evidence of marijuana intoxication in this case with cases in which this court has held evidence of alcohol intoxication to be too insubstantial to support instructions on diminished capacity. In People v. Flannel, supra, this court stated: “[W]e are of the opinion that defendant presented no substantial evidence of intoxication. First, defendant consumed relatively small amounts of alcohol over a long period of time. In the early morning, somewhere about 10 a.m., defendant drank about four tall cans of beer and a shot or two of gin. He then went shopping with his girlfriend, and ate a, sandwich for lunch. Between 2:30 and 4 that afternoon defendant drank a couple of beers and a shot of whiskey. In People v. Bandauer [1967] 66 Cal.2d 524, 528 [58 Cal.Rptr. 332, 426 P.2d 900], we found evidence of intoxication insufficient to require an instruction on diminished capacity if the defendant had ‘six or seven beers during the six hours he was at various bars. . ., and he did not appear to be intoxicated.’ Similarly, in People v. Spencer [(1963) 60 Cal.2d 64,] 88-89, we found evidence of intoxication ‘minimal,’ and therefore erroneous instructions immaterial, when defendant testified that he had had ‘“about three shots of whiskey” and some beer, and was “pretty well plastered.”’ Having observed defendant’s behavior, the arresting police officers, however, testified that defendant was not under the influence of intoxicating liquor.” (25 Cal.3d at p. 685.)

VII

Defendant contends the excusal of juror Susan McDevitt was error under Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. Witherspoon holds that a prospective juror with scruples against the death penalty may not be excused for cause on that basis unless he makes it unmistakably clear he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at trial. (391 U.S. at p. 522, fn. 21 [20 L.Ed.2d at p. 785].) That standard was clearly satisfied here.

The critical exchange occurred during voir dire by defense counsel.

“Q . .. are you saying that in no instance could you ever vote for the death penalty?

“A According to my own conscience? I would not use the death penalty, no.

“Q Are you saying you could never in any instance, if you are selected as a juror, vote for the death penalty?

“A No, never.

“Q If you were chosen as juror and the Court instructed you that it was your duty to consider both penalties, is it your testimony that you could not do so; that you would automatically and without regard to any evidence vote against the death penalty?

“A That’s according to my own conscience.

“Q That is your belief?

“A Yes.”

Defense counsel thereupon stated he had no further questions of Ms. McDevitt, the prosecutor challenged her for cause, and the court excused her. The exclusion was proper.

VIII

Defendant contends the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt and substantially increases the risk of conviction. This contention, voiced on appeal and amplified in a petition for writ of habeas corpus which we earlier denied (In re Harris, Crim. 21341, denied by minute order on 22 October 1980), lacks merit. (Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].)

IX

We now consider defendant’s contention that the trial court made a number of erroneous evidentiary rulings during the penalty phase.

A

Defendant contends the court erred by permitting the People to call defendant’s wife in rebuttal without having given him notice as required by section 190.3.

Then, as now, section 190.3 provided in relevant part: “Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to the trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.” (Italics added.) The italicized exception is applicable here. No notice was required because the People called defendant’s wife to rebut his testimony in mitigation.

B

Defendant contends psychiatrist Wait Griswold, testifying for the People in rebuttal during the penalty phase, usurped the function of the jury, “set[ting] himself up as a human lie detector concerning whether or not [defendant] felt remorse for his having killed the victims.”

Defendant himself raised the question of remorse. As stated, having claimed during the guilt phase to have had nothing to do with the murders, defendant recanted that testimony during the penalty phase, expressly admitting the crimes and stating he was “sorry.” He then sought to support his claim of remorse by calling Deputy Mendoza who testified that when he inquired into defendant’s emotional state after he cut his wrist and reportedly attempted to stab himself with a pencil, defendant appeared to feel remorse for his crimes.

Dr. Griswold’s testimony on direct examination was entirely unobjectionable. The psychiatrist testified he had examined defendant and was of the opinion he had an “antisocial personality”—a character disorder also known as “sociopathic” or “psychopathic” personality. Dr. Griswold stated sociopaths are commonly manipulative and, drawing upon his extensive experience as a prison psychiatrist, explained that in prison this manipulative tendency might be expressed by “ingratiating themselves with prison personnel [and] by...making what appear to be suicidal gestures in order to call attention to themselves or to manipulate themselves out of a difficulty.”

Framing his question carefully, the prosecutor did not ask Dr. Griswold whether he believed defendant when he said he was remorseful. Rather, he asked, “if a person were truly a sociopath and had committed the crimes of the type that you discussed with [defendant], would you expect that person to truly feel remorse for those crimes?” Dr. Griswold responded, “No, I would not.” It was defense counsel who asked Dr. Griswold whether he credited defendant’s claim of remorse. Asked on cross-examination, “So you venture no opinion whether or not he is remorseful at this time,” the psychiatrist responded, “No opinion except that I would doubt it very much.” The prosecutor carefully avoided encroaching upon the jury’s province when he examined Dr. Griswold on direct. If defense counsel failed to exercise such care in cross-examining the psychiatrist, defendant may not now be heard to complain of the lapse.

C

Defendant contends the court erred in refusing to admit testimony of Clinton Duffy, former warden of San Quentin, and Howard Brodie, a CBS correspondent and courtroom artist, explaining how the death penalty is carried out. Evidence presented at the penalty phase should focus on “the character and record of the individual offender and the circumstances of the particular offense.” (Woodson v. North Carolina (1976) 428 U.S. 280, 304 [49 L.Ed.2d 944, 961, 96 S.Ct. 2978].) The proffered testimony had no bearing on those issues and thus was properly excluded.

D

Concluding this line of argument, defendant contends the court erred in admitting evidence that while in jail awaiting trial for the present offenses defendant was found in possession of a wire garrote and prison-made knife. Defendant is precluded from raising this issue on appeal by his failure to preserve the point by appropriate objection in the trial court. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].) Moreover, the evidence was clearly admissible under section 190.3, which in relevant part provided then, as now: “However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the expressed or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.” (Italics added.) Possession of the garrote and the knife clearly involved an implied threat to use force or violence.

X

Defendant contends that instructing the jury pursuant to former CALJIC No. 8.89 was error under former section 190.4, subdivision (b), and People v. Gainer (1977) 19 Cal.3d 835 [139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73].

Former CALJIC No. 8.89 provided in pertinent part: “It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on defendant. After having considered all of the evidence in this case and having taken into account all the applicable factors upon which you have been instructed, you shall determine whether the penalty to be imposed on defendant shall be death or confinement in the state prison for life without the possibility of parole.” (Supp. Service, pamp. No. 1 (1978).)

Former section 190.4, subdivision (b), provided in pertinent part: “If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and impose a punishment of confinement in state prison for life without possibility of parole.” (Added by Stats. 1977, ch. 316, § 12, pp. 1260-1262, and repealed by § 9 of Initiative Measure approved Gen. Elec. (7 Nov. 1978).)⁹

Defendant argues that instructing the jury it “shall determine” whether the penalty is to be death or life imprisonment without possibility of parole creates the false impression that there is no third alternative, namely, deadlock.

People v. Gainer, supra, is inapposite. No “dynamite” instruction of the sort condemned in Gainer was given here. This jury was never deadlocked. It was not instructed that the case “must at some time be decided.” (Cf. People v. Gainer, supra, 19 Cal.3d at pp. 841, 851-852.) Nor were minority jurors admonished to reconsider their opinions in light of the fact that the majority had taken the opposite position. (Id., at pp. 841, 847-851.) Moreover, CALJIC No. 17.40, the continued use of which was commended in Gainer, was given here.¹⁰ No error appears.

XI

Finally, defendant contends imposition of the death penalty under the 1977 statute would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Defendant admittedly does no more than ask us to reconsider the various arguments rejected in People v. Frierson (1979) 25 Cal.3d 142, 172-188 [158 Cal.Rptr. 281, 599 P.2d 587] (opn. by Richardson, J.). We decline to do so. (See People v. Jackson, supra, 28 Cal.3d 264.)

None of defendant’s contentions having merit, the judgment imposing the death penalty is affirmed.

Richardson, J., and Newman, J., concurred.

1 Statutory references are to sections of the Penal Code unless otherwise noted.

2 Daniel testified for the People in return for being permitted to plead guilty to one count of kidnaping. His testimony was corroborated by a series of extrajudicial statements made by defendant.

3 They were convicted of this crime in a federal proceeding.

4 The details of defendant’s confessions will be given when we discuss his contention that the last of the four confessions, the one to Officer Newman, should have been suppressed on the ground his arraignment was unnecessarily delayed.

5 A "shank” is a knifelike implement fashioned by a prisoner from available materials.

6 “Q. Well, why would you be concerned about gunpowder being on your hand at that time, then?

“A. Just curious.

“Q. You didn’t know there had been a killing of two boys up to that time, did you?

“A. No.

“Q. Didn’t know anything about a gun prior to that, did you?

“A. No.

“Q. But you asked Mr. Stewart if this swabbing would take gunpowder off your hand, didn’t you?

“A. Yes.

“Q. Weren’t you concerned that he would find evidence of your firing a gun that day when you killed the two boys?

“A. No.

“Q. It didn’t bother you at all?

“A. Bother me? No, not then, no.

“Q. You weren’t worried about there being evidence on your hands of firing a gun; right?

“A. Yes and no.

“Q. You were worried about it?

“A. Yes.

“Q. Why were you worried about it if there hadn’t been any shooting?

“A. I’m not supposed to be around firearms or a pistol or even shoot a pistol.

“Q. Why aren’t you supposed to be around a pistol?

“[Defense counsel:] Your Honor, I will object to the question.

“THE COURT: Overruled.

“[Defendant]: I was convicted of a felony.

“[Prosecutor]: And you were on parole?

“A. Yes.

“Q. So that is what you were worried about, is that what you are telling me now?

“A. Yes.”

7 The contention raised in a supplemental brief—that trial counsel violated his obligations to defendant by telling the court what the jurors told him—is as offensive as it is absurd.

8 The importance of expert testimony for a claim of diminished capacity based on voluntary intoxication was recently emphasized in People v. Frierson (1979) 25 Cal.3d 142 [158 Cal.Rptr. 281, 599 P.2d 587].

9 Section 190.4, subdivision (b), now provides that a new jury is to be impaneled to try the penalty issue if the original jury is unable to reach a unanimous verdict. Upon a second failure to reach unanimity, the judge has discretion to impanel a third jury or to impose a life sentence without possibility of parole. (Added by § 10 of Initiative Measure approved Gen. Elec. (7 Nov. 1978).)

10 CALJIC No. 17.40 provides: “Both the People and the defendant are entitled to the individual opinion of each juror. It is the duty of each of you to consider the evidence for the purpose of arriving at a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after a discussion of the evidence and instructions with the other jurors. You should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision.” (4th ed. 1979.)