PEOPLE v. SOLOMON

arise after, rather than before, defendant formed the intent to kill. According to defendant, the prosecutor's statement that the first killing left "an impression in [defendant's] mind that [he would] never forget" suggested that premeditation and deliberation could begin while defendant was already engaged in the fatal act of asphyxiating the subsequent victims. We disagree. The thrust of the prosecutor's argument was that even if defendant did not premeditate and deliberate the first killing, premeditation and deliberation could be inferred when he killed again and again in the same manner. This, too, is a correct statement of law. ( People v. Steele, supra, 27 Cal.4th at p. 1244 [killing repeatedly under similar circumstances creates a reasonable inference the killing was intended and premeditated].) Further, the court properly instructed on premeditation and deliberation, and informed the jury that if the court's instructions conflicted with the arguments of counsel, it must follow the instructions. On this record, there is no reasonable likelihood the jury would have based its first degree murder verdicts on an erroneous theory of premeditation and deliberation. ( People v. Stitely (2005) 35 Cal.4th 514, 558-559 [ 26 Cal.Rptr.3d 1, 108 P.3d 182]; People v. Boyette (2002) 29 Cal.4th 381, 435-136 [ 127 Cal.Rptr.2d 544, 58 P.3d 391].)

B. Penalty Phase Issues

1. Jury selection

a. Excusal of prospective jurors for cause

Judge Virga declared a mistrial after the first jury deadlocked on penalty. Judge Mering presided over the penalty retrial.

Prospective jurors for the penalty retrial filled out a detailed questionnaire and returned to the courtroom later for individual, sequestered, voir dire. Over defense objection, the court granted five of the prosecution's challenges for cause based on the jurors' views concerning the death penalty. On appeal, defendant claims the court's excusal of Prospective Jurors C.G. and S.C. violated his federal constitutional rights to due process, an impartial jury, and a reliable penalty determination.

Under Wainwright v. Witt (1985) 469 U.S. 412 [ 83 L.Ed.2d 841, 105 S.Ct. 844] ( Witt), a trial court may excuse a prospective juror for cause based on his or her views in favor of or against capital punishment only when those views "`"would `prevent or substantially impair the performance of his [or her] duties as a juror'" in accordance with the court's instructions and the juror's oath.' [Citation.]" ( People v. Martinez (2009) 47 Cal.4th 399, 425 [ 97 Cal.Rptr.3d 732, 213 P.3d 77].) Prospective jurors sometimes provide equivocal or conflicting answers to questions about their ability to serve. When this occurs, the trial court is in the best position to determine the potential juror's true state of mind because it has observed firsthand the prospective juror's demeanor and verbal responses. ( Id. at p. 426.) "`"[A] trial judge who observes and speaks with a prospective juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record." [Citation.]' [Citation.]" ( People v. Bramit (2009) 46 Cal.4th 1221, 1235 [ 96 Cal.Rptr.3d 574, 210 P.3d 1171].) For this reason, "`[o]n review of a trial court's ruling, if the prospective juror's statements are equivocal or conflicting, that court's determination of the person's state of mind is binding. If there is no inconsistency, the reviewing court will uphold the court's ruling if substantial evidence supports it.' [Citation.]" ( People v. Hawthorne (2009) 46 Cal.4th 67, 80 [ 92 Cal.Rptr.3d 330, 205 P.3d 245]; see People v. Salcido (2008) 44 Cal.4th 93, 133 [ 79 Cal.Rptr.3d 54, 186 P.3d 437]; Witt, supra, at pp. 425-426, 428.)

In this case, we defer to the court's determination that the prospective jurors in question held views that would substantially impair the performance of their duties, and conclude that the court did not err in excusing them.

i. Prospective Juror C.G.

C.G.'s juror questionnaire conveyed uncertainty on the subject of the death penalty. In response to the question whether there was any reason she would like, or not like, to serve as a juror, C.G. wrote, "I do not know if I believe in capital punishment. . . ." When directly asked about her feelings regarding the death penalty, C.G. indicated she was "not sure. . . . Theoretically I'm against it. In practicality it may be justified." She likewise responded, "I don't know," to the question whether she held such conscientious opinions about the death penalty that she would never vote for a death verdict regardless of the evidence. She added, "I can't really think of myself as voting to take someone's life."

The court inquired about the latter point when C.G. appeared for voir dire three days after filling out her questionnaire. When the court asked, "Are you saying that almost certainly you would not return a verdict of death?" C.G. responded, "I — I — I don't — I don't really think I could. Um — and then my thoughts turn to a crime that's really hideous and in reality, I think, well, the person should be put to death. But then I don't want to do it." Defense counsel asked C.G. if she could consider voting for the death penalty. C.G. paused, then answered the question in abstract terms. When the court then asked C.G. whether, as a practical matter, she really would consider imposing a death sentence, she replied, "I don't know. I don't know."

C.G.'s pauses here and at other points during voir dire were noted by the court reporter.

As voir dire progressed, C.G.'s comments became somewhat less equivocal. For instance, in response to defense counsel's further inquiry, C.G. indicated, "Intellectually, I think I could" listen to both sides and reach a verdict that was not influenced by any preconceived opinion about the death penalty. She also stated, following a pause, that she "probably could vote for a sentence of death." C.G.'s equivocation returned, however, during the prosecutor's questioning. At one point, C.G. expressed the view that the death penalty is an act of violence. When the prosecutor asked C.G. whether she thought she could participate in that kind of act, there was a "long pause." C.G. then replied, "I don't know. I would find it extremely difficult." In a follow-up question, defense counsel elicited from C.G. that she could conceive of a case in which the death penalty would be appropriate, and could put aside her biases and follow the law.

Over defense objection, the court granted the prosecutor's challenge for cause. As the court observed, "There were long delays in a lot of [C.G.'s] answers and particularly when asked if she actually could return a death penalty, . . . on at least one and probably two occasions, after long hesitation, she said, `I don't know. I don't know.'" The court found that C.G. was fundamentally opposed to the idea of returning a death verdict and that she harbored "grave doubts" she ever could do so. It found there was only a "very, very remote" situation in which C.G. might consider or return a death penalty, no matter what the evidence. Under these circumstances, the court concluded, C.G. was substantially impaired within the meaning of Witt.

Here, the record shows that C.G.'s responses were hesitant and unclear. When asked directly whether she could consider imposing a death sentence, she was unable to say. But after personally questioning and observing C.G., the court determined she was fundamentally opposed to voting for death and found it unlikely she could consider doing so, regardless of the evidence. In light of C.G.'s equivocal responses, and the court's firsthand observations, we defer to the court's determination of C.G.'s state of mind and conclude there was no error in excusing her for cause. ( People v. Hawthorne, supra, 46 Cal.4th at p. 83; People v. Riggs (2008) 44 Cal.4th 248, 284 [ 79 Cal.Rptr.3d 648, 187 P.3d 363].) "[T]he reviewing court generally must defer to the judge who sees and hears the prospective juror, and who has the `definite impression' that [s]he is biased, despite a failure to express clear views. [Citation.]" ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 [ 47 Cal.Rptr.3d 467, 140 P.3d 775].)

Defendant asserts that the court applied an incorrect standard when it excused C.G. on the ground she "would find it extremely difficult" to impose the death penalty. He relies on People v. Stewart (2004) 33 Cal.4th 425 [ 15 Cal.Rptr.3d 656, 93 P.3d 271] ( Stewart) for support. In Stewart, the court excused five prospective jurors solely on the basis of their answers on a written questionnaire. The court largely relied on the jurors' responses to the question whether their views would "`prevent or make it very difficult . . . [¶] . . . [¶] . . . [t]o ever vote to impose the death penalty.'" ( Id. at pp. 442-443, italics added.) We concluded that the court erred in excusing the prospective jurors on this basis because the questionnaire answers provided insufficient information about the jurors' states of mind. ( Id. at pp. 446-452.) As Stewart explains, "the circumstance that a juror's conscientious opinions or beliefs concerning the death penalty would make it very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will `substantially impair the performance of his [or her] duties as a juror' under Witt, supra, 469 U.S. 412." ( Stewart, supra, at p. 447; see also People v. Avila (2006) 38 Cal.4th 491, 530 [ 43 Cal.Rptr.3d 1, 133 P.3d 1076] ["mere difficulty in imposing the death penalty does not, per se, prevent or substantially impair the performance of a juror's duties"].) This is so because individuals who firmly oppose the death penalty "`may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their own beliefs in deference to the rule of law.'" ( Stewart, supra, at p. 446, quoting Lockhart v. McCree (1986) 476 U.S. 162, 176 [ 90 L.Ed.2d 137, 106 S.Ct. 1758].)

Defendant's reliance on Stewart is misplaced. The court's inquiry in this case covered much more than C.G.'s conscientious opinions regarding the death penalty. For instance, the court asked C.G. whether, as a practical matter, she could consider imposing a death sentence. This is a correct formulation of the standard in Witt. (People v. Martinez, supra, 47 Cal.4th at p. 432.) Furthermore, the court did not base its ruling simply on C.G.'s remark that it would be "extremely difficult" for her to vote for a death sentence. Rather, after observing and assessing C.G.'s responses and demeanor firsthand, the court found that C.G.'s fundamental opposition to the death penalty created only a remote possibility that she might consider or return a death sentence, regardless of the evidence in the case. Its finding necessarily encompassed a determination that C.G. was unable to set aside her personal views and follow the law. In People v. DePriest (2007) 42 Cal.4th 1 [ 63 Cal.Rptr.3d 896, 163 P.3d 896], we deferred to the court's excusal of three jurors who indicated they would have "extreme difficulty" voting for the death penalty even in an appropriate case. ( Id. at p. 22.) In that case, as here, the court was left with the "`definite impression'" that the prospective jurors could not impartially apply the law. ( Ibid.) Contrary to defendant's assertion, the court applied the correct standard in excusing C.G.

Defendant also argues that the court erred in excusing C.G. based on her "long pause" and the response that followed it because these were attributable to trial court error, prosecutorial misconduct, and ineffective assistance of counsel. Defendant asserts, for instance, that new and contradictory information confused C.G. and thus slowed her response time. As defendant observes, C.G. was informed in introductory instructions and in the questionnaire that a juror is never required to vote for death, even if he or she found that aggravation substantially outweighed mitigation. But during voir dire, he points out, the court informed her that if she "intellectually, morally, and otherwise concluded this [was] an appropriate case for the death penalty, then it would be her obligation to bring back the death penalty in that situation." Defendant simply asserts without further support that C.G. required time to digest this new information. Defendant also contends that C.G.'s response after the long pause, in which she indicated it would be "extremely difficult" for her to participate in an "act of violence" by voting for the death penalty, was based on an apparent, and uncorrected, misconception that sentencing defendant to death meant he would die by the electric chair. If C.G. had been provided accurate information, he speculates, "there is an excellent chance" that she would have responded as she had during questioning by defense counsel, that she could follow the law and put aside her views about the death penalty.

C.G. wrote in three different sections of her questionnaire that she found the electric chair "cruel" and "inhuman[e]." According to defendant, when C.G. indicated during voir dire that she would have difficulty voting for the death penalty, it was death in the electric chair that she had in mind. He asserts that the prosecutor exploited C.G.'s misconception during the line of questioning that led to the "long pause" and its response, and he faults the court and defense counsel for not informing C.G. that, at the time of trial in defendant's case, the death penalty was carried out by lethal gas, not the electric chair.

We have reviewed the record of voir dire and conclude C.G's "long pause" and the response that followed were not the products of confusion and misconception engendered and perpetuated by the court and the attorneys. Contrary to defendant's assertion, C.G. was not given "new and contradictory information" that required time for reflection. There is no conflict between the principles that a juror is not required to find death the appropriate penalty but that, if she does conclude that death is appropriate, she must return a verdict of death. Nor do we agree that C.G.'s response following the long pause was tainted by her misconception that executions were carried out by electric chair. During questioning, the prosecutor noted that C.G. had written in her questionnaire that the electric chair is an inhumane punishment. He then asked her, "[B]eyond the way . . . that the penalty is imposed," is it improper "for the state to take someone else's life?" He also inquired whether C.G. thought the death penalty perpetuates violence. ( Ibid.) The prosecutor's questions may have been prompted by C.G.'s remark about the electric chair, but they were directed at her views regarding the death penalty generally, not about the manner of its execution. C.G.'s responses to those questions provided a proper basis on which the court could excuse her for cause.

The manner in which the death penalty is carried out is irrelevant to the penalty determination. ( People v. Lucas (1995) 12 Cal.4th 415, 499 [ 48 Cal.Rptr.2d 525, 907 P.2d 373].)

We also reject defendant's further argument that the court's reliance on C.G.'s long pauses as a reason to excuse her is contrary to People v. Heard (2003) 31 Cal.4th 946 [ 4 Cal.Rptr.3d 131, 75 P.3d 53]. In Heard, we reversed the defendant's death sentence because the court erroneously excused a prospective juror whose statements indicated that he would not automatically vote for life without parole, regardless of the evidence. ( Id. at pp. 963-966.) In so doing, we rejected the People's argument that the prospective juror's "`[l]ong period of silence'" before answering a question by the court supported excusal. ( Id. at p. 967, fn. 10.) We explained that reflection was appropriate in light of the court's imprecise questioning, and that the answer that followed did not amount to grounds for excusing the prospective juror for cause. ( Ibid.) Here, by contrast, C.G. paused numerous times before offering halting, equivocal responses to questions regarding her views on the death penalty. C.G.'s silence was an expression of her uncertainty, not of appropriate reflection. As our cases make clear, a prospective juror's noticeable pauses before answering questions properly informs the court's determination whether to excuse her for cause. In People v. Hawthorne, supra, 46 Cal.4th 67, we upheld the court's excusal of a prospective juror who took "`a long time in answering.'" ( Id. at p. 82.) In People v. Abilez (2007) 41 Cal.4th 472 [ 61 Cal.Rptr.3d 526, 161 P.3d 58], we found no abuse of discretion in the court's for-cause excusal of a prospective juror whose pauses of 20 to 30 seconds before answering led the court to reasonably conclude he was being evasive about his views. ( Id. at p. 498.) Likewise, in this case, the court properly relied on the manner in which C.G. responded to questions in determining whether her views would substantially impair her obligations as a juror.

Deference to trial court findings and the requirement of timely objection are rules grounded in reason and practicality. The trial court and counsel are in a far superior position to evaluate a prospective juror's demeanor and its significance. A speculative argument, made years after the fact, and based solely on a cold record, is merely an exercise in revisionist history.

ii. Prospective Juror S.C.

Prospective Juror S.C. indicated in her questionnaire and during questioning that she supported the death penalty. She also stated she believed there are individuals who should be sentenced to death. However, in response to the question whether there was any reason she would like, or not like, to sit as a juror in the case, she wrote, "It would be hard for me to choose [the] death penalty." During voir dire, when S.C. was asked whether she was capable of making a sentencing decision that could involve imposing the death penalty, she indicated she did not think she was. S.C. explained that she would "hate to be the one who makes the decision" and "the thought of sending someone to death, taking somebody's life would disturb me."

As voir dire continued, S.C.'s responses to questions regarding her reluctance to serve on a capital sentencing jury became equivocal. She answered, "I don't know," when asked whether she could set aside her feelings about deciding punishment. S.C. agreed with defense counsel that most people have similar reservations. She also replied, "I guess if I have to, I would," when asked whether, if chosen to sit on the jury, she would listen to the evidence and instructions, and deliberate with fellow jurors. But in response to the court's question whether she would vote for life in order to avoid the pressure of sentencing someone to death, she responded, "I don't know. I just — I don't know what I would do, to tell you the truth." The court probed further by asking S.C. again if she probably would vote for a life sentence so she would not have to "face the tough decision of deciding the death penalty and voting for the death penalty." She responded, "Well, I might, I don't know. It's hard for me to say, you know."

Over defense objection, the court granted the prosecutor's motion to excuse S.C. for cause. The court observed that it was "hard to know what's going through her brain." It also noted that S.C. supports the death penalty, "at least academically." But in the court's view, S.C. had refused to commit herself to saying she could return a death verdict in an appropriate case: She "kept equivocating and kept backing off." Acknowledging that it faced a "difficult choice," the court determined that S.C. was "substantially impaired in her ability to consider, as an alternative in this case, the death penalty."

We will not second-guess the court's ruling excusing S.C. for cause. S.C. expressed support for the death penalty, but was unable to state that she could set aside her reluctance to be personally responsible for sentencing someone to death and vote for the death penalty in an appropriate case. After observing S.C.'s responses and demeanor, the court determined that her inability to say she could return a death verdict in an appropriate case rendered her substantially impaired. S.C.'s equivocal answers, combined with the court's firsthand assessment of her responses and demeanor, could give rise to a "definite impression" on the part of the court that S.C.'s views would substantially impair the performance of her duties as a juror. ( People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.) In People v. Bunyard (2009) 45 Cal.4th 836 [ 89 Cal.Rptr.3d 264, 200 P.3d 879], we deferred to the court's determination that the juror's reluctance to serve on the jury rendered her substantially impaired. ( Id. at pp. 845-846.) In People v. Cunningham (2001) 25 Cal.4th 926 [ 108 Cal.Rptr.2d 291, 25 P.3d 519], we concluded the court did not err in excusing a prospective juror who supported the death penalty but could not personally impose it. ( Id. at p. 981.) Similarly here, we defer to the court's determination of S.C.'s state of mind, and uphold her excusal for cause.

Defendant argues that S.C.'s responses showed only that her feelings would make it difficult for her ever to impose the death penalty, which is an improper basis for her excusal. ( Stewart, supra, 33 Cal.4th at p. 447.) That characterization misconstrues the record. S.C. was excused because she was unable to say she could return a death verdict in an appropriate case. The court was in the best position to determine the juror's true state of mind because it had observed her demeanor and oral responses firsthand. ( People v. Martinez, supra, 47 Cal.4th at p. 426.) We reject defendant's depiction of the basis for S.C.'s excusal and his claim of error.

b. Limitation of voir dire

By written motion, defense counsel submitted a questionnaire for prospective penalty retrial jurors to complete before voir dire questioning. Proposed question No. 103 asked prospective jurors to check "yes" or "no" as to whether they automatically would vote for the death penalty if presented with certain facts. The various facts appeared in five separate subparts. Subpart D asked about a case in which the accused "has been convicted of six murders of women plus has been to prison for sexually assaulting women." Subpart E asked, "Would your answers be the same if one or more murders involved sexual assaults on women?"

The court conducted extensive hearings on the proposed questionnaire and spent considerable time discussing question No. 103. Defense counsel argued in essence that providing basic information about the aggravating factors was necessary to determine whether the prospective jurors could be impartial and fair to both sides. The prosecutor did not oppose general questions touching on the issues that would arise during the case in aggravation, including multiple murder and defendant's extensive criminal history. But, he argued, asking jurors questions about all of the aggravators invited them to prejudge the case. He urged the court to exclude such questions from the questionnaire but allow them during individual questioning when appropriate.

The court ultimately rejected questions about defendant's prior sexual assaults or the sexually assaultive nature of the capital crimes. It explained, "There are limits as to how much specificity and prejudgment we're to provide and . . . let's face it, [the] 800-pound gorilla in this case is six murders. . . . [I]f a juror can deal with that . . . that is a juror [who is] able to consider this case. . . ." In the court's view, the jurors' awareness that defendant stood convicted of "six murders of women" was a powerful enough reminder that the case was extraordinary and had enough of an impact to "give us a start."

Question No. 103 was renumbered to No. 90 and modified to read as follows.
"Are your feelings about the death penalty such that regardless of how powerful or impressive the evidence offered in mitigation may be, you would be in favor of the death penalty in every case in which the accused:
"A. Has been convicted of murder? Yes ___ No ___
"B. Has been convicted of six murders of women?
"Yes ___ No ___
"Please explain."

The court did permit some questions disclosing specific information about the capital crimes, however. For instance, the preface to a series of questions about pretrial publicity indicated that, between 1986 and 1987, seven women, some of whom were believed to be prostitutes, were found buried in backyards and in abandoned houses in the Oak Park area of Sacramento, and that defendant had been convicted of murdering six of them. The court also allowed question No. 20, which asked jurors their feelings about viewing coroner's and autopsy photographs "of several dead women." Although the court refused to allow questions based on the sexually violent nature of defendant's prior convictions, it did allow a question asking whether jurors had read, seen, or heard reports that defendant had a prior criminal record or had served time in state prison and, if so, whether they had formed an opinion about his sentence because of them.

The court revisited the issue just before voir dire began. After considering extensive defense argument, the court disallowed oral questioning about defendant's history of violent sexual crimes against women or the manner in which the capital murders occurred. The court reasoned, as it had before, that such questioning would invite a prejudgment of the case that the law does not allow. The court acknowledged that voir dire questioning is not confined to the abstract and that some consideration of the particular case is permitted. But it found that principle to mean that jurors could be questioned about the general nature of the charges and not the details that may aggravate them. The court told the venire in introductory remarks that defendant had been convicted of murdering six women and sexually assaulting two others. Defense counsel was permitted to ask prospective jurors whether the sheer number of convictions would cause them automatically to vote for death.

Defendant contends the court violated his rights to due process and an impartial jury by refusing to allow the defense to question prospective jurors about their ability to keep an open mind on penalty after hearing evidence about defendant's prior violent sexual assaults against women, a prior prison term, and the condition in which the murder victims' bodies were found. There was no error.

A trial court has wide discretion when conducting death-qualification voir dire in accordance with the commands of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776, 88 S.Ct. 1770] and Witt, supra, 469 U.S. 412. ( People v. Zambrano (2007) 41 Cal.4th 1082, 1120 [ 63 Cal.Rptr.3d 297, 163 P.3d 4].) We thus review the court's limitations on voir dire for abuse of discretion. ( Ibid.)

In 1992, when the court issued its rulings, our decisions emphasized that the voir dire inquiry in a capital case "is directed to whether, without knowing the specifics of the case, the juror has an `open mind' on the penalty determination." ( People v. Clark (1990) 50 Cal.3d 583, 597 [ 268 Cal.Rptr. 399, 789 P.2d 127].) Applying this principle, People v. Mason (1991) 52 Cal.3d 909 [ 277 Cal.Rptr. 166, 802 P.2d 950], held the court properly refused to allow questioning that gave prospective jurors substantial information about the defendant's elderly victims and the manner in which they were killed. ( Id. at pp. 939-940.) In explaining why such questioning was not proper on voir dire, the Mason court observed, "Many persons whose general neutrality toward capital punishment qualifies them to sit as jurors might, if presented with the gruesome details of a multiple-murder case, conclude that they would likely, if not automatically, vote for death." ( Id. at p. 940.)

After defendant's trial, we qualified the rule articulated in our earlier decisions: "[D]eath-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented." ( People v. Cash (2002) 28 Cal.4th 703, 721-722 [ 122 Cal.Rptr.2d 545, 50 P.3d 332] ( Cash.))

Although the court lacked the guidance of our later decisions, it struck the proper balance in death-qualification voir dire nonetheless. Prospective jurors were asked whether certain circumstances of the case would affect their ability to keep an open mind about penalty. To inform their answers to that inquiry, jurors were told that the first jury convicted defendant of murdering six women and sexually assaulting two others. Although the jurors were not informed about the nature of defendant's prior criminal conduct, a questionnaire item regarding pretrial publicity suggested to them that defendant may have committed other crimes. And although jurors were not informed that the murder victims had been bound and asphyxiated, they learned that some of the victims may have been prostitutes and that the bodies were found inside abandoned houses and buried in backyards. They were also asked how they would feel about viewing autopsy photographs of "several dead women." This questioning allowed sufficient inquiry into the jurors' views about particular facts in the case that could affect their ability to deliberate fairly. The court did not abuse its discretion in refusing counsel's request to further probe jurors' attitudes about defendant's having been sent to prison for violent sexual assaults and the condition in which the murder victims' bodies were discovered.

Defendant argues that Cash, supra, 28 Cal.4th 703, compels reversal. In Cash, the defendant was convicted of one count each of murder in the course of robbery and attempted murder. During the penalty phase, the prosecution presented evidence that the defendant killed his elderly grandparents when he was 17 years old. The jury returned a verdict of death. ( Id. at pp. 714, 717.) On appeal, the defendant claimed the court erred by refusing to allow defense counsel to ask prospective jurors whether they would automatically vote for death if the defendant had previously committed another murder. During jury selection, the court had imposed a blanket rule restricting voir dire solely to the facts appearing on the face of the charging document. ( Id. at p. 719.) We concluded that the court erred in refusing voir dire on the prior murder, and reversed the defendant's death sentence. The restriction on questioning was impermissible for two reasons. First, a trial court cannot absolutely bar mention of any fact or circumstance solely because it is not expressly pleaded in the charging document. ( Id. at p. 722.) Second, and relevant to the evidence in that particular case, a prior murder was "a general fact or circumstance that . . . could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances. . . ." ( Id. at p. 721.)

Contrary to defendant's argument, Cash does not compel reversal here. In this case, the court did not categorically bar questions on matters other than those appearing on the face of the charging document. For instance, the portion of the juror questionnaire asking whether pretrial publicity potentially affected the jurors' views on penalty disclosed that seven women, some of whom were believed to be prostitutes, were found buried in backyards and in abandoned houses, and that defendant had been convicted of murdering six of them. Nor did the prohibited lines of questioning involve facts that would cause some jurors invariably to vote for death. In People v. Zambrano, supra, 41 Cal.4th 1082, we held the court did not abuse its discretion in prohibiting defense counsel from questioning prospective jurors about evidence that the murder victim's body had been dismembered. ( Id. at pp. 1122-1123.) Under the circumstances of that case, we found the fact of dismemberment "does not appear so potentially inflammatory as to transform an otherwise death-qualified juror into one who could not deliberate fairly on the issue of penalty." ( Id. at p. 1123, italics omitted.) Likewise here, given what the prospective jurors knew about the case, we cannot say that evidence of defendant's prior, nonfatal sexual assaults and related prison term, or the fact the murder victims were found partially clad and bound, would cause an otherwise death-qualified juror to automatically vote for death, regardless of the mitigating evidence. The court did not err in prohibiting the proffered line of questioning.

2. Photographs showing condition of victims' bodies when discovered

Because we conclude that Cash does not support reversal in this case, we do not address respondent's argument that the decision should be overruled.

Language in People v. Roldan (2005) 35 Cal.4th 646 [ 27 Cal.Rptr.3d 360, 110 P.3d 289] does not call into question our conclusion in this case. In Roldan, as here, we rejected the defendant's argument that Cash compelled reversal of his death sentence. In so doing, we observed that the defendant had identified no particularized fact about his case comparable to the prior murders at issue in Cash: "There were in this case no prior murders, no sensational sex crimes, no child victim. . . ." ( Id. at p. 694, italics added.) The dictum in Roldan suggests that, in an appropriate case, evidence of "sensational sex crimes" might cause an otherwise death-qualified juror to automatically vote for death, regardless of the mitigating facts. As we have explained, however, this is not such a case.

The court held a pretrial hearing on the admissibility of photographs and videotapes depicting the murder victims when discovered, and showing their various states of decomposition. The defense argued that, under Evidence Code sections 350 and 352, the court must exclude any photographs or videotapes that were irrelevant, unduly gruesome, or cumulative.

Evidence Code section 350 provides, "No evidence is admissible except relevant evidence."

At the hearing, the prosecutor sought admission of only those photographs admitted at the guilt trial. For purposes of comparison, he provided the court with the photographs that had been excluded from the guilt phase. The court reviewed both sets of photographs and the videotapes, and ruled on each one individually, excluding some images as unduly gruesome or cumulative and admitting the rest, or portions of the rest, over defense objection.

Defendant contends the admitted photographs lacked probative value, inflamed the jury, and duplicated witness testimony, and that their admission rendered his penalty trial fundamentally unfair in violation of federal constitutional principles. The court did not abuse its discretion in admitting the photographs. ( People v. Lewis (2009) 46 Cal.4th 1255, 1284 [ 96 Cal.Rptr.3d 512, 210 P.3d 1119] [defendant's constitutional rights are not implicated by the routine application of state evidentiary law].)

The court has broad discretion to determine the admissibility of photographs challenged under Evidence Code section 352 as unduly gruesome or inflammatory. ( People v. Zambrano, supra, 41 Cal.4th at p. 1149.) In a capital case, however, the court's discretion to exclude such evidence is more circumscribed at the penalty phase than at the guilt phase. ( People v. Salcido, supra, 44 Cal.4th at p. 158.) As we noted in People v. Bonilla (2007) 41 Cal.4th 313 [ 60 Cal.Rptr.3d 209, 160 P.3d 84], "the prosecution has the right to establish the circumstances of the crime, including its gruesome consequence. . . ." ( Id. at p. 353.) "To determine whether there was an abuse of discretion, we address two factors: (1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in finding that the probative value of each photograph outweighed its prejudicial effect. [Citation.]" ( People v. Whisenhunt (2008) 44 Cal.4th 174, 211-212 [ 79 Cal.Rptr.3d 125, 186 P.3d 496].)

The photographs depicting the victims' bound, decomposing bodies were highly relevant to the circumstances of the crimes. (§ 190.3, factor (a); hereafter factor (a).) They disclosed the manner in which the victims died and substantiated that defendant intended and deliberated the murders. ( People v. Loker, supra, 44 Cal.4th at p. 705; People v. Wilson (1992) 3 Cal.4th 926, 937-938 [ 13 Cal.Rptr.2d 259, 838 P.2d 1212].) They demonstrated the callousness and cruelty of defendant's acts. ( People v. Thompson (1990) 50 Cal.3d 134, 181-182 [ 266 Cal.Rptr. 309, 785 P.2d 857].) And they corroborated the pathologists' testimony and assisted the jury's understanding of it. ( People v. Riggs, supra, 44 Cal.4th at p. 304; People v. Bonilla, supra, 41 Cal.4th at p. 354.) Defendant complains that the photographs confuse his criminal conduct with its postoffense effects, which falls outside the scope of factor (a). We disagree. The "circumstances of the crime" include what happened to the victims' bodies as a result of defendant's actions. ( People v. Bonilla, supra, at p. 354.) The consequences of criminal conduct often extend beyond the immediate result of an isolated act.

Nor did the court abuse its discretion in determining that the probative value of each photograph outweighed its prejudicial effect. Defendant claims that five of the images were "particularly revolting" and likely to trigger an "unguided emotional response" from jurors that rendered his penalty trial unfair. ( Penry v. Lynaugh (1989) 492 U.S. 302, 328 [ 106 L.Ed.2d 256, 109 S.Ct. 2934].) We have reviewed the five 8-by-10-inch color photographs in question and conclude that they are "not of such a nature as to overcome the jury's rationality." ( People v. Whisenhunt, supra, 44 Cal.4th at p. 212.) The photographs are unpleasant, but any "revulsion they induce is attributable to the acts done, not to the photographs." ( People v. Brasure, supra, 42 Cal.4th at p. 1054.) The prosecution was entitled to have the penalty jury consider the real-life consequences of defendant's actions. ( People v. Bonilla, supra, 41 Cal.4th at p. 354.) Defendant complains that the photographs were simply an adjunct to the pathologists' testimony and, therefore, unnecessary. As we have explained, however, "prosecutors . . . are not obliged to prove their case with evidence solely from live witnesses." ( People v. Lewis, supra, 46 Cal.4th at p. 1282; see People v. Brasure, supra, at p. 1054.)

Exhibit 23 depicts Yolanda Johnson's upper torso and head; her bloated face is turned to its side. Exhibit 114 shows Maria Apodaca trussed into a fetal position with her wrists bound together under the back of her knees. Her skin and clothing are dirty, and her facial features have "melted" due to decomposition. Exhibits 168-A and 225 show Sheila Jacox's duct-taped mouth and tightly bound, severely decomposed body. Finally, exhibit 298 depicts the dirt-covered, decomposing body of Sharon Massey trussed at the wrists and ankles into a fetal position. A red sock protrudes from her mouth.

The court conscientiously considered the admissibility of each proffered photograph. Weighing prejudice against probative value, it excluded several images as unnecessary or grotesque. We find no abuse of discretion in the court's decision to admit the others.

3. Challenges to California's death penalty law

We reject defendant's "routine instructional and constitutional challenges" to California's death penalty statute, and decline his invitation to reconsider our prior decisions. ( People v. Schmeck (2005) 37 Cal.4th 240, 303 [ 33 Cal.Rptr.3d 397, 118 P.3d 451]; see id. at p. 304.)

California's death penalty statute, including the multiple-murder special circumstance, adequately narrows the class of murderers eligible for the death penalty, as required by the Eighth Amendment. ( People v. Loker, supra, 44 Cal.4th at p. 755; People v. Beames (2007) 40 Cal.4th 907, 933-934 [ 55 Cal.Rptr.3d 865, 153 P.3d 955]; People v. Rogers, supra, 39 Cal.4th at p. 893.)

Allowing the capital sentencing jury to consider evidence of unadjudicated offenses involving force or violence under section 190.3, factor (b) does not infringe a defendant's rights to due process or a reliable penalty determination. ( People v. Harris, supra, 43 Cal.4th at pp. 1315-1316; Tuilaepa v. California (1994) 512 U.S. 967, 976-977 [ 129 L.Ed.2d 750, 114 S.Ct. 2630].) Nor does the jury's consideration of the circumstances of the crime under factor (a) result in the arbitrary application of the death penalty in violation of federal constitutional principles. ( People v. Bennett (2009) 45 Cal.4th 577, 630-631 [ 88 Cal.Rptr.3d 131, 199 P.3d 535]; Tuilaepa v. California, supra, at pp. 973, 975-976.)

Defense counsel did not render ineffective assistance by failing to challenge the admission of evidence of unadjudicated crimes on the constitutional grounds defendant presents here. The Sixth Amendment does not require counsel to raise futile motions. ( People v. Gutierrez (2009) 45 Cal.4th 789, 804-805 [ 89 Cal.Rptr.3d 225, 200 P.3d 847]; People v. Frye, supra, 18 Cal.4th at p. 985.)

The due process and reliability guarantees of the Fifth, Eighth, and Fourteenth Amendments do not require the jury to find, either beyond a reasonable doubt or by a preponderance of the evidence, that an aggravating factor (other than a prior crime) exists, that the aggravating factors outweigh the factors in mitigation, or that death is the appropriate penalty. ( People v. Butler (2009) 46 Cal.4th 847, 873-874 [ 95 Cal.Rptr.3d 376, 209 P.3d 596]; People v. Loker, supra, 44 Cal.4th at p. 755.) Likewise, the federal Constitution does not require the prosecution to bear the burden of persuasion on penalty. ( People v. Bramit, supra, 46 Cal.4th at p. 1249; People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137 [ 12 Cal.Rptr.3d 592, 88 P.3d 498].) Neither the equal protection clause, nor the United States Supreme Court's recent pronouncements on the Sixth Amendment jury trial right, compel a different conclusion. ( People v. Burney (2009) 47 Cal.4th 203, 260, 268 [ 97 Cal.Rptr.3d 348, 212 P.3d 639]; People v. Hovarter, supra, 44 Cal.4th at pp. 1029-1030; People v. Loker, supra, at p. 755.)

Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856, 127 S.Ct. 856]; United States v. Booker (2005) 543 U.S. 220 [ 160 L.Ed.2d 621, 125 S.Ct. 738]; Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403, 124 S.Ct. 2531]; Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556, 122 S.Ct. 2428].

That the jury is not instructed to make explicit, written findings or to unanimously agree on the particular combination of aggravating factors warranting a death verdict does not violate the due process, equal protection, jury trial, or reliability guarantees of the Fifth, Sixth, Eighth, and Fourteenth Amendments or analogous state constitutional provisions. ( People v. Burney, supra, 47 Cal.4th at pp. 267-268; People v. Loker, supra, 44 Cal.4th at p. 755.) The high court's decision in Ring v. Arizona, supra, 536 U.S. 584 does not alter our conclusion. ( People v. Burney, supra, at pp. 259-260.)

California's death penalty statute does not violate the equal protection clause by denying capital defendants various procedural safeguards that apply to sentencing determinations in noncapital trials, such as juror unanimity. ( People v. Martinez, supra, 47 Cal.4th at p. 456; People v. Smith (2005) 35 Cal.4th 334, 374-375 [ 25 Cal.Rptr.3d 554, 107 P.3d 229].)

Intercase proportionality review for death penalty judgments is not constitutionally required. ( People v. Butler, supra, 46 Cal.4th at p. 885; Pulley v. Harris (1984) 465 U.S. 37, 50-51 [ 79 L.Ed.2d 29, 104 S.Ct. 871].)

The death penalty law is not contrary to international norms of human decency in violation of the Eighth and Fourteenth Amendments. ( People v. Thornton (2007) 41 Cal.4th 391, 470 [ 61 Cal.Rptr.3d 461, 161 P.3d 3]; see People v. Demetrulias (2006) 39 Cal.4th 1, 43 [ 45 Cal.Rptr.3d 407, 137 P.3d 229] [California does not use capital punishment as "` regular punishment for substantial numbers of crimes'"].) Nor does imposition of the death penalty violate international law, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, or the American Declaration of the Rights and Duties of Man. ( People v. Hamilton (2009) 45 Cal.4th 863, 961 [ 89 Cal.Rptr.3d 286, 200 P.3d 898].) "International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. [Citations.]" ( People v. Hillhouse, supra, 27 Cal.4th 469, 511.)

III. DISPOSITION

For the foregoing reasons, we affirm the judgment.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.

Appellant's petition for a rehearing was denied September 15, 2010.