People v. Turner , 37 Cal. 3d 302 ( 1984 )

Opinion

KAUS, J.

Defendant Richard Dean Turner was convicted under the 1978 death penalty law (Pen. Code, § 190 et seq.)¹ on two counts of first degree murder. Special circumstance allegations that the murders were committed during commission of burglary (§ 190.2, subd. (a)(17)) and that Turner was convicted of more than one offense of murder (§ 190.2, subd. (a)(3)) were found to be true. The jury fixed the punishment at death. The appeal is automatic. (Cal. Const., art. VI, §11; § 1239, subd. (b).) Codefendant William Souza, similarly charged and convicted, was sentenced to life imprisonment without possibility of parole.

I. Facts

1. Prosecution Case

Merle and Freda Claxton, 78 and 77 years old respectively, were killed on March 8, 1979. About 9:45 p.m. on that date, the San Bernardino Sheriff’s Department investigated a citizen’s report that two cars were being stripped in nearby bushes. Sheriff’s deputies found a Pinto station wagon and a Comet, both with lights on and doors open. On top of the vehicles, they saw a shotgun, a portable television, and a radio. Two rifles were found in one of the vehicles, and the deputies found another rifle in the bushes,² as well as a file cabinet, cans of paint, household goods (pots, pans, etc.), and frozen food. The cars were registered to Merle Claxton. The deputies found two wallets on the floorboard of the Comet: one had cards belonging to Merle Claxton, the other contained identification for a Richard Turner.

Deputy Jecusco arrived at the Claxton house about 11 p.m.; all the lights were on, the front and garage doors were open, and the window to the den was smashed. As he entered, Jecusco noted a bullet hole in the front door and a .22 cartridge on the threshold. The house had been ransacked. Jecusco saw a dog lying in a pool of blood on the floor of the den. Finally, in the kitchen, he found the bodies of a man and a woman.

Deputy Hurst, a footprints expert, preserved prints in and outside the house and backtracked from the Claxton residence to a small cabin about a half mile distant. The footprints found at the cabin and those found near the two vehicles were identical. They were followed for 12 miles into the desert where the deputies came upon Turner and Souza hiding behind a bush.

Deputy Hurst handcuffed Souza and asked if he had any weapons. Souza replied, “We left them behind at the cars.” At about the same time, Deputy Trumbull asked Turner where the guns were. Turner responded, “We don’t have any. They were all left there when we left.” The shoes worn by the suspects made prints which conformed with those observed earlier at the Claxton residence. In Souza’s pockets, Hurst found a .22 caliber cartridge, a wallet with the initials FMC, and a lighter inscribed “Freda and Merle 50th anniversary, 1918-1968.”

Bryan Lay, 11 years old and a neighbor of the Claxtons, recognized the newspaper pictures of Turner and Souza as two men he and a friend had met and talked with at the cabin near the Claxton residence. One of the men had identified himself as William; the other had told Bryan he used to live on Deep Creek Road.

An autopsy revealed that Merle Claxton had suffered two gunshot wounds, one to the chest that went through the heart, the other to the right side of his face near his mouth. The doctor concluded that the wound in the heart was inflicted first. Freda Claxton had suffered one gunshot wound to the back of the head. The wounds to both victims were consistent with having been caused by a .22 caliber weapon; the bullets retrieved from the victims were consistent with having been fired from the Marlin rifle.

2. The Defense

Turner did not testify and presented no evidence in his defense.

Souza testified: He met Turner at a halfway house in Stockton the month before the homicides; on the day of the murders, the two, in the company of other people, swam and drank beer (“more than a six-pack”) in the Deep Creek area; he and Turner each purchased and smoked a “Sherman,” described as “like PCP”; the Sherman made them very hungry and on the way back to the cabin in which they were staying, they decided to burglarize a house for food; they decided on the Claxton house because it looked as if nobody were home and because it was not easily seen from the road.

Souza knocked while Turner, armed with a rifle, waited around the corner of the house; when the lights came on and a dog barked, Souza became frightened and ran; he ran past Turner whom he described as looking “crazy” with eyeballs “punching out of his head”; when about 50 yards from the house, he heard three gunshots; thinking his friend was in trouble, he returned just in time to see Turner’s foot going into the house through a broken window; Turner let him in the front door, then ordered him to “get the stuff, get the hell out of here”; as he complied, Souza saw the victims lying on the floor; he picked up a rifle lying on the floor nearest to Merle Claxton, but not within his arm’s reach.³

Souza testified further that he did as he was ordered because Turner was pointing the gun at him and behaving very strangely: “His eyes were still popped out of his head, more or less. His eyes were real wide, real open, you know. I don’t know. It just didn’t look like it was Richard. Looked like he was tripping on that PCP that we smoked.” Souza also testified that it looked as though Turner had gone into “one of those wack attacks,” and described the behavior as “hallucinating or something.”

While in jail, Turner told Souza that he shot Merle Claxton because “he had a gun” and was about to shoot Turner; Freda Claxton was shot by accident—she jumped in front of her husband as Turner was attempting to shoot him the second time.

Souza admitted that, while in custody, he asked Turner to take responsibility for both killings. Souza was also aware that Turner told Detective Malmberg that he, Turner, was going to take the blame for both killings to take Souza off the hook.

This conversation was confirmed by Malmberg during rebuttal, when he testified to an encounter at the county jail in which Turner told him that he was going to “cop” to both murders to get his partner off the hook. Turner at no time told Malmberg that he was guilty of the murders nor did he ever say that he shot the Claxtons.

Detective Malmberg was also recalled by Turner and, on surrebuttal, testified that no footprints were seen on the side of the house where, according to Souza’s testimony, Turner was said to be waiting as Souza knocked on the door of the Claxton residence.

The only theory of murder advanced by the prosecution was felony murder and the jury was instructed only on that theory. The jury was instructed that malice is express when there is manifested an intent to kill and that it is implied when the killing is a direct causal result of the perpetration or attempt to perpetrate a burglary. It was also instructed that “the unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a result of the commission or attempt to commit the crime of burglary, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.”

The jury found both Turner and Souza guilty of two counts of first degree murder. The jury also found the charged special circumstances to be true— one, multiple murders and, two, murder committed during commission of burglary.

II. Guilt Phase Issues

Turner raises numerous claims of error with respect to the guilt and special circumstances phase of the trial. We treat the issues in chronological order: first the pretrial issues relating to consolidation of the cases for trial and the selection of the jury; second, evidentiary rulings and other motions during the course of trial; third, alleged instructional errors; and finally, the validity of the special circumstances.

1. Motion to Consolidate

Turner contends that the trial court erred in consolidating his trial with that of Souza. Originally, Turner and Souza were jointly charged by complaint in municipal court. Illness of counsel resulted in separate preliminary hearings and separate accusatory pleadings. Thereafter, though technically severed, the cases proceeded through the courts together. Eventually, on motion of the People and over the objection of both defendants, they were formally consolidated for trial.

Penal Code section 1098 states the general preference for joint trials: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.”

The matter of granting separate trials nevertheless remains largely within the discretion of the trial court (People v. Graham (1969) 71 Cal.2d 303, 330 [78 Cal.Rptr. 217, 455 P.2d 153]), guided by the principles set out in People v. Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733, 428 P.2d 869]. The court should separate the trial of codefendants “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie, supra, 66 Cal.2d at p. 917, fns. omitted.)

Turner contends that the testimony offered by Souza conflicted with his defense and was gravely prejudicial to him in that it “supplemented” what, but for Souza’s testimony, was a case based merely on circumstantial evidence. Although what transpires at trial determines the prejudicial effect of an erroneous ruling on a motion for separate trials, “[wjhether denial of a motion to sever the trial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops.” (People v. Isenor (1971) 17 Cal.App.3d 324, 334 [94 Cal.Rptr. 746]; see also People v. Brawley (1969) 1 Cal.3d 277, 292 [82 Cal.Rptr. 161, 461 P.2d 361]; People v. Santo (1954) 43 Cal.2d 319, 332 [273 P.2d 249].) On that note, we examine the trial court’s ruling.

Potential justification for separate trials was dissipated when the prosecution assured the court that it did not intend to use extrajudicial confessions, statements, or filmed reenactments in which one defendant incriminated the other. (See People v. Aranda (1965) 63 Cal.2d 518, 530-531 [47 Cal.Rptr. 353, 407 P.2d 265].) Turner’s counsel then opposed joint trial on the basis of “likely confusion from evidence on multiple counts” and “conflicting defenses,” citing People v. Chambers (1964) 231 Cal.App.2d 23 [41 Cal.Rptr. 551], Chambers concerned the consolidation of separate charges against different defendants involving distinct and unconnected offenses. In contrast, the instant case provided the classic situation for joint trial—defendants charged with common crimes against common victims.

As to conflicting defenses, counsel could articulate no reason for separate trials except to point out that the prosecution would simply put on its case, then sit back and watch as defense counsel became the real adversaries. Of course, if that point has merit, separate trials would appear to be mandatory in almost every case.

In sum, at the time of the motion to consolidate, the court was faced with two men charged with murders under circumstances in which all the events surrounding the crimes and ultimate arrests involved them jointly. We conclude that the trial court did not abuse its discretion in ordering consolidation based upon the showing made at the time of the motion. After trial, of course, the reviewing court may nevertheless reverse a conviction v/here, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law. (People v. Simms (1970) 10 Cal.App.3d 299, 308-309 [89 Cal.Rptr. 1].) Simms supports the proposition that no denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution. (Id., at p. 314; see also People v. Terry (1970) 2 Cal.3d 362, 390 [85 Cal.Rptr. 409, 466 P.2d 961].)

2. Selection of Jury

Turner raises two issues regarding the voir dire and selection of the jury. He contends that (1) the People’s exclusion by peremptory challenge of all persons with reservations about capital punishment denied him his constitutional right to a jury chosen from a representative cross-section of the community, and (2) the trial court erred in failing to order in camera examination of jurors.

a. Exclusion of Jurors by Peremptory Challenge

In People v. Wheeler (1978) 22 Cal.3d 258, [148 Cal.Rptr. 890, 583 P.2d 748], on which Turner relies, we held that the prosecution may not systematically use peremptory challenges for the sole purpose of excluding members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. The prosecutor in Wheeler peremptorily challenged every black juror in the trial of a black defendant., Reversing the judgment of conviction, we concluded that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (22 Cal.3d at pp. 276-277.)

Representational cross-sectional analysis developed as a response to pernicious practices of eliminating identifiable groups from the jury pool, thus preventing their consideration as petit jurors. (E.g., Duren v. Missouri (1979) 439 U.S. 357, 364-368 [58 L.Ed.2d 579, 586-589, 99 S.Ct. 664] [women]; Taylor v. Louisiana (1975) 419 U.S. 522, 530 [42 L.Ed.2d 690, 698, 95 S.Ct. 692]; Peters v. Kiff (1972) 407 U.S. 493, 503-504 [33 L.Ed.2d 83, 94, 92 S.Ct. 2163] [blacks]; Ballard v. United States (1946) 329 U.S. 187, 193-194 [91 L.Ed 181, 185-186, 67 S.Ct. 261] [women]; Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181, 1184, 66 S.Ct. 984, 166 A.L.R. 1412] [wage earners]; Glasser v. United States (1942) 315 U.S. 60, 84-85 [86 L.Ed. 680, 706-707, 62 S.Ct. 457] [women not members of League of Women Voters]; People v. White (1954) 43 Cal.2d 740, 748 [278 P.2d 9] [blue-collar workers].) Petit juries selected from these pools were deprived at the outset of the spectrum of attitudes and beliefs shared by members of the excluded groups. Their unrepresentative nature was preordained, and the countervailing state interests advanced were generally insubstantial.

In Wheeler, we recognized that a “representative” jury could sometimes be denied even though the jury pool was fairly composed. Thus, systematic exclusion of black persons during the petit jury selection process tended to eliminate the entire spectrum of attitudes they had developed from experiences as members of that group. (22 Cal.3d 258, 276.) Manifestly, no legitimate state interest could be served by permitting the government’s attorney to employ racism in the conduct of a trial.

On the other hand, peremptory challenges are a historic right, provided “to insure that criminal trials are conducted before jurors who not only proclaim their impartiality, but whose ability to be evenhanded is not seriously questioned by the parties. ...” (People v. Williams (1981) 29 Cal.3d 392, 401-407 [174 Cal.Rptr. 317, 628 P.2d 869], italics added.) For that reason, we recently overruled the longstanding doctrine that voir dire must be limited to questions reasonably calculated to discover challenges for cause. (Id., at p. 407, overruling People v. Edwards (1912) 163 Cal. 752, 753 [127 P. 58].) If jurors who “proclaim their impartiality” may be eliminated on the basis of counsel’s contrary suspicions, a fortiori a juror who openly professes a leaning or strong opinion on an issue presented by the pending trial may be excluded.

Wheeler supports that view. It affirmed that “the law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality,” however “trivial” or “speculative,” and even if based on “ ‘sudden impressions and unaccountable prejudices’ ...” (22 Cal.3d 258, 275, quoting 4 Blackstone, Commentaries *353). For example, said Wheeler, a prospective juror may be excluded, regardless of his or her group identification, if counsel believes he or she “evince[s] an excessive respect for authority” or “believe[s] strongly in law and order.” (Id., at pp. 275-276.)

Thus Wheeler merely condemned the use of peremptory challenges to indulge so-called “group bias”—the presumption that persons are biased “because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. ...” (Id., at p. 276, italics added.) But it affirmed that the right remained to eliminate a “specific bias . . . relating to the particular case on trial,” even if it does not warrant a challenge for cause.

Moreover, we see no other constitutional infirmity in permitting peremptory challenges by both sides on the basis of specific juror attitudes on the death penalty. While a statute requiring exclusion of all jurors with any feeling against the death penalty produces a jury biased in favor of death (Witherspoon v. Illinois (1968) 391 U.S. 510, 520-521 [20 L.Ed.2d 776, 784, 88 S.Ct. 1770]), we have no proof that a similar bias arises, on either guilt or penalty issues, when both parties are allowed to exercise their equal, limited numbers of peremptory challenges—26 apiece in this capital case (§ 1070, subd. (a))—against jurors harboring specific attitudes they reasonably believe unfavorable. (Cf. Hovey v. Superior Court (1980) 28 Cal.3d 1, 26 et seq. [168 Cal.Rptr. 128, 616 P.2d 1301].)

We recognize that a jury shorn of significant community viewpoints on an issue in the case is not ideally suited to the “purpose and functioning of a jury in a criminal trial.” (Ballew v. Georgia (1978) 435 U.S. 223, 239 [55 L.Ed.2d 234, 246, 98 S.Ct. 1029].) That, however, is a result inherent in the parties’ historic and important right to exclude a limited number of jurors for fear of bias. We conclude, therefore, that Turner’s objection to the use of peremptory challenges in this case must fail.

b. Examination of Prospective Jurors In Camera

Turner argues that the trial court should have ordered in camera examination of jurors throughout the jury selection process. Counsel for Souza moved for such sequestered examination of jurors. Turner’s counsel opposed the motion; the trial court denied it. After examining some of the jurors in the presence of each other, the court expressed concern that they seemed reluctant to express their views; it then reexamined some of them in camera. After the empaneling of 12 jurors, during the selection of alternate jurors, the court agreed to question the remaining prospective jurors in camera. Both defense counsel then moved for a mistrial based on the denial of Souza’s original motion for a sequestered examination. The motion was denied.

This case was tried before our decision in Hovey v. Superior Court, supra, 28 Cal.3d 1, requiring that “in future capital cases” voir dire on death qualification should be done “individually and in sequestration.” (Id., at p. 80.) The clear expression of prospectivity of the rule announced in Hovey is controlling.⁴

3. Evidentiary Rulings

Turner assigns error in the admission of statements made at the time of arrest and statements during his conversation with Detective Malmberg while in jail. He also complains that four photographs were improperly presented to the jury.

a. Statements Made at Time of Arrest

As noted, the tracking party discovered Turner and Souza some distance from the scene of the crime and the location of the stolen vehicles. The suspects were told to “freeze” and ordered to lie face down. During the handcuffing and pat-down for weapons, Souza was asked if he had any weapons and replied, “We left them back at the car.” Turner was asked where the weapons were and responded, “We don’t have any. They were all left there when we left.”

Turner moved pretrial to suppress his statements on Miranda grounds, i.e., that the officers’ inquiries were custodial interrogation and should have been preceded by Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) The trial court denied the motion and admitted the statements, concluding that the testimony of the officers, as well as the circumstances surrounding the incident, established that the question was asked to insure the deputies’ safety and was not.“interrogation designed to elicit incriminating statements.”

The Miranda decision contains no limitation requiring that the questioning be designed to “elicit incriminating statements.” The Miranda test was clearly stated; “. . . [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 U.S. at p. 444 [16 L.Ed.2d at p. 706], italics added.)

In Rhode Island v. Innis (1980) 446 U.S. 291 [64 L.Ed.2d 297, 100 S.Ct. 1682], the court addressed the precise meaning of “interrogation” under Miranda, repeated the definition contained in that decision— ‘' questioning initiated by law enforcement officers”—and concluded that the Miranda rules applied not only to police practices “that involve express questioning of a defendant while in custody,” but also to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (446 U.S. at pp. 298, 301 [64 L.Ed.2d at pp. 306, 308], fns. omitted.) Thus, Innis broadened, rather than narrowed, the definition of “interrogation” as employed in Miranda. Certainly the decision did not dispute the implication in Miranda that questioning is always likely to elicit a response, incriminating or not, from a suspect in custody.

In ruling that the statements were admissible, the trial court relied on People v. Superior Court (Mahle) (1970) 3 Cal.App.3d 476 [83 Cal.Rptr. 771], In Mahle, officers arrived at the scene of a stabbing and asked defendant, “What happened?” Defendant said, “I did it and I’m sorry.” When the defendant was arrested and handcuffed, an officer asked, “Where is the knife?” Defendant replied, “Over on the kitchen sink.” The Court of Appeal found no violation of Miranda and ruled the knife admissible. The court reasoned that the first inquiry, “What happened?” was purely investigatory and that the second inquiry, immediately following the first inquiry and arrest of defendant, “appears to be part of the investigatory process initiated by the first question, rather than the undertaking of a process of interrogation having for its purpose the eliciting of incriminating statements. ...” (Id., atp. 489.)

The trial court in this case also relied on People v. Sanchez (1967) 65 Cal.2d 814, 822-824 [56 Cal.Rptr. 648, 423 P.2d 800], vacated and reiterated in relevant part in People v. Sanchez (1969) 70 Cal.2d 562, 577 [75 Cal.Rptr. 642, 451 P.2d 74], in which at the scene of another stabbing, an officer arrived and asked, “Who did this?” When defendant, bloodied and with knife in hand, was pointed out, the officer asked, “Why did you do it?” We held defendant’s response admissible, concluding that the episode embraced “an almost miniscule time period,” occurring immediately after the officer arrived, and that the “primary, if not sole, concern” was apprehension rather than interrogation.

The trial in Sanchez, however, occurred before Miranda; the applicable standard was provided by Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]: An extrajudicial statement was inadmissible when “(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.” (Dorado, supra, 62 Cal.2d at pp. 353-354.) Until the decision in Miranda, it could be argued—and was—that “certain kinds of questioning of a suspect for the purpose of giving him a chance to explain incriminating circumstances were said not to be ‘a process of interrogations that lent itself to eliciting incriminating statements. ’ ” (People v. Woodberry (1968) 265 Cal.App.2d 351, 355 [71 Cal.Rptr. 165]; see also People v. Stewart (1965) 62 Cal.2d 571, 578 [43 Cal.Rptr. 201, 400 P.2d 97]; People v. Cotter (1965) 63 Cal.2d 386, 395 [46 Cal.Rptr. 622, 405 P.2d 862], vacated on other grounds sub nom. Cotter v. California (1967) 386 U.S. 274 [18 L.Ed.2d 43, 87 S.Ct. 1035], app. dism. by consent June 14, 1967; People v. Sanchez, supra, 65 Cal.2d 814, 824.)

After Miranda, however, no fine distinction can be made as to the officer’s intention when a suspect is subjected to express questioning. As stated in Rhode Island v. Innis, supra, 446 U.S. at page 301 [64 L.Ed.2d at page 308], “. . . Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” Under the dictates of Miranda, the officer’s question in Sanchez—" Why did you do it?”—would have resulted in an inadmissible statement.

In both Sanchez and Mahle, the officers came onto the scene of the crime with no information concerning the crime or its perpetrators. Therefore it is quite true that the initial question in each instance was investigatory. “What happened?” and “Who did this?” were questions directed to all persons who were present. Stated another way, the investigations were still “general inquiries” and had not focused on a particular suspect (People v. Dorado, supra, 62 Cal.2d at pp. 353-354) and the suspects were not yet “in custody” (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706]). At the time of the second questions—“Where is the knife?” and “Why did you do it?”—however, the investigation in both Sanchez and Mahle had focused on a particular individual and, in neither case, was the suspect free to leave. Warnings should have preceded the interrogation in Mahle and insofar as that opinion is inconsistent with the views expressed herein, it is disapproved.⁵

We come then to this case. When the officers came upon Souza and Turner in the desert, they had discovered the victims of the crimes, they had found evidence to incriminate the persons whose shoeprints conformed to those at the Claxton residence, at the location of the vehicles, and for 12 miles into the desert. The officers engaged in no “general inquiry” about the murders. With drawn guns, they apprehended the two suspects, handcuffed, and otherwise immobilized them. There appears to be no question that they were “in custody” when the officers questioned them.

While the trial court erred in admitting Turner’s statements to the arresting officer, their admission could not have affected the verdict. What proved to be the murder weapon had already been found, as well as other guns in the possession of Turner and Souza in the period just before and after the crime. Turner’s admission that he and his companion had left the weapons at the location of the stolen vehicles served to connect him with the murder, but other, overwhelming circumstantial evidence—even aside from Souza’s testimony—also connected him with the deaths of the Claxtons. The prosecution introduced fingerprint and ballistic evidence as to the guns themselves, Turner’s identification papers were found at the location of the weapons, footprints which proved Turner’s and Souza’s presence at the Claxton home, testimony of a youth who placed Turner and Souza at the cabin at the crucial time and, finally, the possession by Turner and Souza of the personal items of the Claxtons. Turner’s statements to the arresting officer, which tended to establish guilt only when considered with the remaining evidence in the case, pale in significance when so considered. We can say with confidence that the introduction of the statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; see also People v. McClary (1977) 20 Cal.3d 218, 230 [142 Cal.Rptr. 163, 571 P.2d 620].)

b. Statement to Detective Malmberg in Jail

In September 1979, while Detective Malmberg was at the jail on an unrelated matter, he was approached by Turner who started a conversation during which he stated that he was going to “cop” to both charges in order to get his partner off the hook. Malmberg advised Turner on the applicable law and told him to discuss the matter with his counsel. Turner at no time told Malmberg that he was guilty of both the murders or that he shot anyone. Malmberg’s testimony on the conversation was not introduced until the rebuttal phase of trial.

At no time did trial counsel object to the introduction of the evidence. Indeed, at the pretrial hearing on the question of joint trials, when Aranda (People v. Aranda, supra, 63 Cal.2d 518) problems were being discussed and the prosecutor indicated she intended to use the statement, trial counsel stated he had no objection because it was “a spontaneous statement” which was not elicited by the police. Later, just before Souza took the stand, when it appeared that Souza might call Malmberg, counsel for Turner again indicated that he considered it a “voluntary statement.”

Now Turner argues for the first time that Malmberg “exploited” a relationship which existed between them as the result of an interrogation that had occurred six months earlier.⁶ The assertion is devoid of support in the record which, insofar as it reveals the circumstances under which the statement was made, establishes that it was entirely voluntary and uninfluenced by the interrogation of six months before. Neither Fioritto nor Miranda preclude use of statements voluntarily uttered by a defendant in a discussion initiated by him.

For the above reasons, we find no error. Besides, the introduction of the statement was undoubtedly harmless.

c. Admission of Photographs

Turner contends the trial court erred in admitting four photographs of the crime scene, depicting the bodies of the Claxtons and the dog.⁷ It is not urged that the photographs are gruesome or inflammatory—the usual complaint—but that they are more prejudicial than probative because they are unnecessary to prove any part of the prosecution’s case.

One photograph depicts the relative position of the bodies. Another depicts Mrs. Claxton alone. There is no visible wound; her head is resting in a large pool of drying blood—she was shot at the base of the skull. A third photograph depicts Mr. Claxton lying face up with bleeding wounds in his chest and one in his right cheek.

Relying on People v. Boyd (1979) 95 Cal.App.3d 577 [157 Cal.Rptr. 293], Turner asserts that it was error to admit these photographs because the prosecution based its case on felony murder.⁸ As such, the only issue was whether Turner committed burglary, i.e., whether he entered the house with felonious intent. The probative value of the photographs, it is urged, could go only to the intent to kill, a nonissue. We agree.

The prosecution’s stated purpose in submitting the photographs was to show the relative position of the bodies. The trial court ruled that one of the photographs was admissible on that basis while two others showed how the wounds were inflicted.⁹ Neither the court nor the prosecution articulated the relevance of the position of the bodies or the manner of the infliction of the wounds to the issues presented. Nor can the admission of the photographs be supported on the Attorney General’s theory—raised for the first time on appeal—that they serve to rebut a claim of self-defense. Though later hinted at in Souza’s testimony, that defense was never in issue.

Although the admissibility of photographs lies primarily in the discretion of the trial court (People v. Frierson (1979) 25 Cal.3d 142, 171 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Jackson (1980) 28 Cal.3d 264, 302-303 [168 Cal.Rptr. 603, 618 P.2d 149]), it has no discretion to admit irrelevant evidence. (Evid. Code, § 350.) Nevertheless, as the photographs are not gruesome and the evidence of guilt overwhelming, any error in admitting them was harmless.

4. Motion for Recess and for Appointment of Experts

Turner asserts that the trial court abused its discretion in denying a motion for a recess and appointment of an expert. An understanding of the time and circumstances in which these motions were made is crucial: Turner presented no evidence in his defense and rested. Souza took the stand on December 4, 1979, and testified, inter alia, that during the afternoon which preceded the killings he and Turner had each smoked a cigarette laced with PCP. He also testified that after the killings Turner appeared to be suffering a “wack attack,” to be “tripping on the PCP stuff we smoked.”

On the day following Souza’s testimony, during a discussion of instructions on diminished capacity,¹⁰ counsel for Souza indicated that he had known from the time of the preliminary hearing that his client had ingested “some type of hallucinogenic” but had, as a matter of trial strategy, rejected a possible diminished capacity defense in favor of the defense pursued (i.e., change of heart before burglary attempted), which he viewed as inconsistent with diminished capacity.

Counsel for Turner indicated that, after hearing Souza’s testimony, he too was prepared to offer diminished capacity instructions and felt that, in any event, in view of the evidence, the court would probably have to give them sua sponte. The court then speculated whether defense counsel can ever, under Frierson, supra, 25 Cal.3d 142, select one defense and not investigate another, possibly inconsistent one, without subjecting himself to charges of incompetency. The court also speculated as to its own responsibility in the matter. It was in response to those comments that counsel for Turner (1) moved for a mistrial, and (2) moved for a recess “so that [he could] fully investigate and have an expert appointed to explore the defense of diminished capacity as it relates to the smoking of the Shermans.” When the prosecution pointed out that counsel for Turner had not put on any testimony and was merely “spinning off” Souza’s testimony, counsel responded, “That’s true. I became aware of Mr. Souza’s testimony when he testified.” The prosecution then moved to have the defendants available for examination by a prosecution expert.

The trial court denied all the motions. As to Turner’s motion, the court reasoned: “. . .1 perceive that if Mr. Turner had consumed some hallucinogenic substance in all candor he would have told [defense counsel] that he didn’t know what he was doing, that he was under the influence of something called Shermans, and [counsel’s] trial strategy quite probably would have been very different. It wasn’t until Mr. Souza announced from the stand that Mr. Turner had consumed Shermans that [counsel] had heard that concept. It was not a defense that Mr. Turner in his candid discussions with [counsel] had made available to [him] . . . . ”

The court’s ruling was obviously based upon an understandable misunderstanding of the remarks of Turner’s counsel concerning Souza’s testimony. Counsel did not state that he was unaware of his client’s use of PCP prior to the crime, only that he was unaware that Souza would testify to the drug use. In fact, two doctors, both of whom later, during the penalty phase, described themselves as experts in the area of PCP usage, had examined Turner, at defense counsel’s request, before Souza testified.¹¹ The record does not disclose, however, when they reported their findings to counsel. Thus, counsel may have been aware that Turner used PCP prior to the crime but, as a matter of trial strategy and tactics, had decided to forego a diminished capacity defense and to rest his case on the prospect that the People’s case, based entirely on circumstantial evidence, would fail the reasonable doubt test.

Under the dictates of Frierson and in the interest of his client, however, counsel was not only entitled, but obligated, to reassess and change the strategy and tactics during the trial, and in some circumstances the frustration of counsel’s efforts in this regard could constitute an abuse of discretion.

In ruling on a motion for a recess—or continuance—in the midst of trial, the judge “must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for continuance cannot result in a reversal of a judgment of conviction.” (People v. Laursen (1972) 8 Cal.3d 192, 204 [104 Cal.Rptr. 425, 501 P.2d 1145].)

Whether any error with respect to the motion for a recess warrants a reversal of the judgment, therefore, requires an assessment of the prejudice to Turner from the court’s ruling. As noted, two doctors had already been appointed for the defense and had examined Turner; if counsel did not yet have their reports, a minimum of effort would have secured a report of their evaluation of Turner’s mental state at the time of the crime. We must assume that, upon a proper showing, the trial court would have permitted the reopening of Turner’s case to present the defense of diminished capacity.

The record reveals, however, that the doctors’ conclusions as to the effect of the drug on Turner did not portend a viable diminished capacity defense. They testified at the penalty phase that Turner told them of using PCP before the crime. Both described Turner as having a “schizoid personality”; Dr. Chapman, a psychiatrist, stated that, although Turner may have been partially intoxicated from his usage of PCP, he was in contact with reality, had the mental capacity to commit burglary, and had planned the burglary and committed it with knowing intent. Dr. Conrad, a psychologist, engaged to conduct a battery of psychological tests on Turner, made no attempt to determine his mental state at the time of the crime, but testified that Turner told him he intended to commit burglary when he approached the Claxton residence.¹²

Counsel thus had access to the testimony of two experts; that their testimony would or might be less than favorable to the defense did not entitle counsel to seek a third, perhaps more favorable opinion. Based on the entire record, therefore, and considering what the penalty phase revealed as to the viability of a diminished capacity defense, we reach the obvious conclusion that Turner suffered no prejudice in the denial of the motion to recess the trial.

5. Instructional Errors

Turner assigns three errors in the instructions to the jury at the guilt phase: (1) that the court failed to instruct on diminished capacity; (2) that the court instructed on first degree murder as a matter of law; and (3) that the court instructed on felony murder.

a. Instructions on Diminished Capacity

Turner contends that the trial court erred in refusing to give requested instructions on diminished capacity. (CALJIC Nos. 8.77 and 8.79.)¹³ He argues that such instructions might have prevented the jury from finding him guilty of murder under the felony-murder doctrine, i.e., the jury might have found that he could not form the specific intent to commit burglary.

The trial court must instruct on diminished capacity whenever there is substantial evidence presented that would negate the requisite criminal intent. (People v. Harris (1981) 28 Cal.3d 935, 957 [171 Cal.Rptr. 679, 623 P.2d 240]; People v. Flannel (1979) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Frierson, supra, 25 Cal.3d 142, 155-156.)

At the guilt phase the only testimony as to Turner’s mental state at the time of the crime was presented by codefendant Souza. We reexamine that testimony in more detail: on the day of the murders Turner and Souza went to Deep Creek where they swam, drank a six-pack of beer, and smoked two Shermans (cigarettes laced with PCP) between them. Afterwards, they “floated” around for awhile on a motorcycle they had stolen. At about 6 p.m. they got hungry. The motorcycle had broken down and was abandoned. They started to walk back to their cabin, speculated that the Shermans had made them hungry, and began to talk about “ripping off” food. At about that time they were passing the Claxton house and decided that Souza would knock on the door while Turner waited outside with a rifle. When the occupant responded, Souza panicked and ran. As he passed Turner, he urged him to leave also, noting that Turner’s eyes “seemed to be punching out of his head.” After hearing shots, Souza returned to the house. He described Turner’s appearance: “His eyes were real wide, real open, you know ... it just didn’t look like it was Richard. Looked like he was tripping on that PCP that we smoked.”

On cross-examination, Souza testified that they were “sort of high” as they walked toward their cabin from Deep Creek, but he did not notice the look in Turner’s eyes until after the shootings: “I thought he went into like one of those wack attacks that I heard about .... It seemed like he was hallucinating or something, put it that way.” Souza admitted that Turner seemed not at all unusual on the walk from Deep Creek before they reached the Claxton house—“I thought he was just regular old Turner.”

As noted, discussions concerning the propriety of diminished capacity instructions were interspersed with discussions on counsel’s motion for a recess. At that time the court made it clear that it found the evidence insufficient for diminished capacity instructions: “Mr. Souza was explicit that Mr. Turner showed no sign of wack attack until after Mr. Souza had seen the bodies in the kitchen. That was the first evidence, according to Mr. Souza, that Mr. Turner had lost possession of his faculties or was in any other way disabled in his cognitive ability.”

Later, the court summarily denied the requested diminished capacity instructions, obviously on the theory that at the time of entry—the crucial period for assessment of the requisite criminal intent for burglary—Turner was “just regular old Turner,” with no evident effects from the ingestion of PCP.

We found no substantial evidence of intoxication to merit the jury’s consideration in People v. Flannel, supra, 25 Cal.3d 668, where the defendant had consumed relatively small amounts of alcohol over a long period of time (a shot or two of gin at 10 a.m.; a couple of beers and a shot of whiskey between 2:30 and 4 p.m.), where the arresting officer recalled nothing indicating defendant was under the influence, and defendant’s testimony about his intoxication was equivocal.

In Frierson we found the evidence of defendant’s diminished capacity, as it pertained to the specific intent required for robbery, was too insubstantial to warrant sua sponte instructions on the subject: There was “no evidence whatever, expert or otherwise, regarding the intoxicating effect, if any, which his use of undetermined amounts of Quaalude and angel dust may have had upon his ability to form the necessary intent to rob or kill. ” (Frierson, supra, 25 Cal.3d at p. 156.)

We also concluded the evidence of diminished capacity was insubstantial in People v. Harris, supra, 28 Cal.3d 935. An officer testified that, while confessing to the murder, defendant told him, “ T was pretty loaded and I didn’t know what I was doing. I had smoked two joints [marijuana] before this came down ... I didn’t know what I was doing.’” (Id., at p. 958.) There was no indication how soon before the murder he smoked the marijuana, nor was there any expert testimony on the effect that amount of marijuana would have on a person such as defendant.

Comparing the evidence of drug use and intoxication in this case with the cases in which we have held the evidence too insubstantial to support instructions on diminished capacity, the conclusion is inescapable that here too the evidence did not merit the jury’s consideration. We must remember that it is not Turner’s capacity to deliberate, premeditate or harbor malice that is at issue: for our purposes, his precise state of mind concerning the killings is irrelevant. We are only interested in whether at the time he entered the residence he had the capacity to intend to steal.

The amount of drug use is stated: the codefendants split, more or less, a six-pack of beer and each smoked a “Sherman.” Souza described Turner’s demeanor at the time of entry into the residence. Even if some of the changes in Turner’s demeanor were apparent to Souza before Turner entered the house,¹⁴ none of the evidence suggests diminished capacity to harbor the simple intent to enter a residence to commit theft. Turner and Souza rationally discussed their hunger and the possibility of stealing food and made a conscious decision to choose the Claxton residence because it was set back from the road.

The trial court properly rejected the requested instructions on diminished capacity.

b. Instruction on First Degree Murder as Matter of Law

The court instructed: “If you should find the defendant guilty of murder, you are instructed that it is murder of the first degree.” On the evidence before the court, the instruction was entirely warranted. When the evidence points indisputedly to a homicide committed in the course of a felony listed in section 189 of the Penal Code, the court is justified in advising the jury that the defendant is either innocent or guilty of first degree murder. (People v. Lessard (1962) 58 Cal.2d 447, 452 [25 Cal.Rptr. 78, 375 P.2d 46]; People v. Turville (1959) 51 Cal.2d 620, 631 [335 P.2d 678]; People v. Riser (1956) 47 Cal.2d 566, 581 [305 P.2d 1]; see also People v. Beivelman (1968) 70 Cal.2d 60, 73-74 [73 Cal.Rptr. 521, 447 P.2d 913]; People v. Mabry (1969) 71 Cal.2d 430, 438 [78 Cal.Rptr. 655, 455 P.2d 759]; People v. Duren (1973) 9 Cal.3d 218, 236-237 [107 Cal.Rptr. 157, 507 P.2d 1365]; People v. Day (1981) 117 Cal.App.3d 932, 936 [173 Cal.Rptr. 9].)

c. Instruction on Felony Murder

Turner invites us to reexamine the felony-murder rule in California. We did so in People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] and upheld the rule: “After reviewing its legislative history we find that in California the rule is a creature of statute, and hence cannot be judicially abrogated. We also reject various constitutional challenges to the rule; we hold primarily that the rule does not deny due process of law by relieving the prosecution of the burden of proving malice, because malice is not an element of the crime of felony murder.” (34 Cal.3d at p. 450.)

III. Special Circumstances

1. Felony-Murder Special Circumstances (§ 190.2, subd. (a)(17).)

Both counts charging Turner with murder of the Claxtons alleged as a special circumstance that the murder was committed while he was engaged, or was an accomplice, in the commission of burglary (§ 190.2, subd. (a)(17)). In Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], we concluded that paragraph (17) of subdivision (a)—the felony-murder special circumstance—should be construed to require an intent to kill or to aid in a killing. The Carlos holding is retroactive and applicable here. (See People v. Garcia (1984) 36 Cal.3d 539, 547-549 [205 Cal.Rptr. 265, 684 P.2d 826].)

The jury was not instructed that the felony-murder special circumstances required an intent to kill or to aid in a killing. Neither the verdict on guilt nor the other special circumstance implies a finding on intent. The prosecution sought to prove only that the killing of the Claxtons occurred during a burglary; it emphasized in closing argument that it was immaterial whether Souza or Turner did the actual killings. Thus, the intentions of the perpetrator or perpetrators were not explored.

We cannot speculate as to what defenses might have been presented if the intentions of the perpetrator at the time of the killings had been relevant. Defenses of diminished capacity and self-defense, alluded to in Souza’s testimony, were not developed. There may have been no evidence to support these or other defenses which go to mitigation of the intent to kill, but we cannot assume on this record that none exists.

Under the prejudicial error standard set forth in Garcia (36 Cal.3d at pp. 554-557), it is obvious that in this case the failure to instruct on the element of intent to kill was prejudicial. The felony-murder special circumstances must, therefore, be set aside.

2. Multiple Murder Special Circumstances (§ 190.2, subd. (a)(3).)

The jury found a third special circumstance to be true—that Turner had “in this proceeding been convicted of more than one offense of murder in the first or second degree.” (§ 190.2, subd. (a)(3).) The question is whether two first degree felony-murder convictions, neither of which alone can justify imposition of the death penalty absent a finding of intent to kill, can together open the door to a death penalty hearing.

In reaching the conclusion that an intent to kill is an essential element of the felony-murder special circumstance, Carlos relied on the history of the initiative and its wording: “The adoption of a law to permit infliction of the death penalty upon an accidental killing would be a momentous step, raising grave moral questions. Nothing in the ballot arguments suggested that the framers intended to take such a step; certainly nothing communicated any such intention to the voters.” (Carlos, supra, 35 Cal.3d at p. 145.) The point is equally valid where there are two victims.

The best evidence of the framers’ intent was found in subdivision (b) of section 190.2 which provides that “[e]very person whether or not the actual killer found guilty of intentionally aiding ... in the commission of murder in the first degree” shall suffer death or life imprisonment without parole. The proponents of the initiative relied on this subdivision for their claim that an accomplice would face the death penalty only if he intentionally aided a killing.

As pointed out in Carlos, the subdivision is equally applicable to the “ ‘actual killer.’” (Id., at p. 145.) Neither is it limited to the felony-murder special circumstance (subd. (a)(17)) at issue in Carlos. By its terms, the subdivision has equal application to subdivision (a), paragraph (3), the multiple murder special circumstance at issue here.¹⁵

Carlos is helpful in other respects in our analysis and interpretation of the multiple murder special circumstance. Carlos noted that substantial constitutional questions are posed by a statute that imposes the death penalty for an unintentional killing: “A statute which threatens to impose the death penalty, or life without possibility of parole, upon a defendant who did not intend to kill, while permitting some deliberate killers to escape with lesser punishment, might on its face violate the cruel and unusual punishment or equal protection clauses.” (Carlos, supra, 35 Cal.3d at p. 136.) Again, no different analysis is required because two persons instead of one were unintentionally killed.

Inasmuch as the three special circumstances findings must be vacated, the punishment of death cannot stand. We therefore need not reach Turner’s claims of error relating to the penalty phase of the trial.

Disposition

The findings of special circumstances are set aside and the judgment is reversed insofar as it relates to penalty; in all other respects the judgment is affirmed.

Broussard, J., and Grodin, J., concurred.

1 Except as otherwise indicated, all statutory references are to the Penal Code.

2 The rifles were identified as a Sears Ted Williams .22 caliber semi-automatic, a Marlin ,22 caliber semi-automatic, and a Winchester 30-30 caliber lever action rifle.

3 The rifle taken by Souza, the Sears Ted Williams .22 caliber rifle, was later identified as belonging to Merle Claxton who kept it in his bedroom.

4 We need not decide what effect, if any, the decision in Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501 [78 L.Ed.2d 629, 104 S.Ct. 819] will have on Hovey.

5 As noted above, Sanchez was decided under pre-Miranda standards.

6 In March 1979, following his arrest, Turner made certain statements to Malmberg which were suppressed at the preliminary hearing on Miranda and Fioritto (People v. Fioritto (1968) 68 Cal.2d 714, 719 [68 Cal.Rptr. 817, 441 P.2d 625]) grounds.

7 He also challenges the admission of two photographs of the Claxtons taken a year earlier, but made no objection to their admission at trial.

8 In Boyd, the court held that photographs of the victim had little, if any, probative value on the .issues of malice, intent, or the degree of the offense since the prosecution was pursuing a felony-murder theory. The prosecution had argued that the photographs were relevant on the issue of whether the victim died as a result of a beating inflicted by someone other than the defendant. The court held that because the photographs could shed no light on when the beating occurred or by whom, their probative value was outweighed by the prejudicial effect on the jury.

9 The court stated: “. . . They are far from gruesome in the usual sense. They are very mild. They, of course, show blood and wounds on the part of Mr. Claxton and same goes for the dog. ... I think each has a different significance. Photograph No. 10 shows, without showing any details of the wounds or anything of that nature, shows the relative position of the bodies quite well. The other two are not adequate to show the relative positions of the bodies but do show how the wounds or to some extent how the wounds were inflicted.”

10 Both counsel indicated that they intended to seek diminished capacity instructions.

11 We leave aside the question whether defense counsel was not under some obligation to advise the court that its ruling was based on a mistake of fact.

12 Dr. Conrad was asked, “Did he [Turner] tell you that they approached the house with the intent to commit the crime of burglary?” and responded, “Yes.” When the prosecutor inquired whether Turner told him that it was a “predetermined plan that they’d talked about?” Conrad responded, “I had the impression that it was a predetermined plan. I don’t remember him telling me in the exact words, but, yes-, I have the impression.”

13 CALJIC No. 8.77 reads: “Furthermore, if you find that as a result of mental illness, mental defect, or intoxication, his mental capacity was diminished to the extent that he neither harbored malice aforethought nor had an intent to kill at the time the alleged crime was committed, you cannot find him guilty of either murder or voluntary manslaughter.” CALJIC No. 8.79 reads: “Before the defendant may be found guilty of the unlawful killing of a human being as a result of the commission or attempt to commit the crime of _, you must take all the evidence into consideration and determine therefrom if, at the time of the commission or attempt to commit such crime, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent to commit such crime. [([] If from all the evidence you have a reasonable doubt whether the defendant was capable of forming such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.”

14 Souza’s testimony was ambiguous (see ante, p. 310). Although he first described Turner as “looking crazy” before entering the house, on cross-examination Souza stated that he first noticed the “strange” look in Turner’s eyes while the two were in the house. It was only after Souza “went into the house and found the bodies” that he noticed that Turner was “hallucinating or something”—“. . . I think I thought that he went into like one of those wack attacks that I heard about. ”

15 Section 190.2, subdivision (b) provides: “Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraphs (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), or (19) of subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.”