People v. Weaver

Opinion

Ward Francis Weaver, Jr., was convicted in 1984 in Kern County Superior Court of the first degree murders of Robert Radford and Barbara Levoy. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) and two kidnapping-murder special-circumstance allegations (§ 190.2, former subd. (a)(17)(ii), now redesignated (17)(B)). In addition, the jury convicted defendant of kidnapping Levoy (§ 207) and sustained an enhancement allegation that defendant had used a deadly weapon in murdering Radford (§ 12022, subd. (b)). Defendant subsequently admitted he had served a prior prison term (§ 667.5, subd. (b)). After finding defendant sane following a separate sanity hearing, the jury considered evidence presented at the penalty phase of the trial. On March 7, 1985, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

After considering the claims raised on appeal, we affirm the guilt, sanity, and penalty judgments in their entirety.

I. Guilt Phase

A. Facts

Robert Radford, 18 years old, was assigned to basic training for the United States Air Force in Colorado. While there, he met 23-year-old *899 Barbara Levoy. When Radford completed his training, he traveled to his home in Edmonds, Washington, and Levoy accompanied him to meet his parents. The couple then drove south to Pinedale, California (near Fresno) to meet Radford’s grandmother. The couple’s ultimate destination was Las Vegas, Nevada, where Radford would begin his first tour of duty at Nellis Air Force Base. Levoy planned to fly home to Colorado from Las Vegas.

Radford and Levoy arrived in Pinedale on the afternoon of February 5, 1981, and visited with Radford’s grandmother. They left Pinedale around 7:00 p.m. the same day, anxious to get to Las Vegas. Unfortunately, their car broke down one mile east of Tehachapi. James Powell was coming home from work around 11:00 p.m. and encountered Radford, his disabled car on the side of the road with its emergency lights flashing. Powell saw a young woman in the car. He offered the couple a ride back to Tehachapi, but Radford declined because it was in the opposite direction from which he was traveling. Powell left.

Our knowledge of what happened next derives from defendant’s admissions to a cellmate, Ricky Gibson, defendant’s tape-recorded interviews with police, and defendant’s testimony at trial. Around 10:00 p.m., defendant, who was working as a long-haul trucker, saw Radford’s car on the side of the road as he drove by in the opposite direction. 1 Defendant exited the highway and circled back to offer his assistance. Radford and Levoy accepted his offer to drive them to Mojave. After driving about five miles, defendant pulled over and asked Radford to help him shift the load on the flatbed of his truck. Levoy stayed in the cab. While Radford was bent over with his back turned, defendant struck him on the back of the head with a “cheater pipe,” a three- to four-foot length of metal pipe truckers use to gain leverage when tightening the bindings that restrain a load on the truck. A later autopsy revealed 11 separate lacerations to Radford’s head.

Defendant rejoined Levoy in the truck cab, displayed a knife, and had her sit with her head between her legs and her hands behind her, a technique defendant had learned when transporting prisoners during his military service in Vietnam. Defendant reversed direction and drove to Bakersfield; near Kettleman City, he stopped and raped Levoy. He then drove towards San Francisco, pulled off the highway once more and again raped Levoy.

Meanwhile, a citizen reported having seen Radford on the side of the road where defendant had left him. Police responded to the scene and attempted *900 to keep Radford alive, but he died on the way to the hospital. Police found a large amount of blood at the crime scene. At the hospital, Radford’s wallet, with his Washington State driver’s license, was found, allowing police to link Radford to the disabled car a few miles away. The car contained a woman’s purse and several pieces of luggage. Correctly surmising that Radford had been traveling with a woman, police forced open the car and discovered identification belonging to Levoy. Police then issued a missing person report and organized a search effort to find her. Their efforts came too late to save Levoy.

After he deposited his cargo in San Francisco, defendant drove towards his home in Oroville. At a secluded spot outside that town, he stopped and asked Levoy to get out of the truck. He tied her hands and feet with electrician’s tape, but when he attempted to gag her, Levoy struggled and bit defendant severely on the thumb. He then strangled her. He dug a grave and buried Levoy’s body there before driving into town to meet his wife, who was working a late shift in a local restaurant. It was suggested defendant move the body, so defendant took his wife’s car and returned to the grave, exhumed the body, put it in the trunk of the car and drove home. When he arrived, defendant’s three children were awake and asked him about his bloody thumb. He told them he had gotten in a fight and that they should stay in the house because his assailant might come looking for him.

With the children in the house, defendant moved Levoy’s body from the car to a shallow grave dug in his backyard. Defendant previously had begun digging trenches in his yard for a sewer line and had instructed his 10-year-old son and another boy to keep working on the digging project while he was away driving his truck. Some weeks later, defendant exhumed Levoy’s body again and moved it to a deeper grave elsewhere in his yard. He then built a wooden platform over the grave so his wife could stand on it and hang out the laundry without getting her feet wet in the grass.

Police were stymied in their attempt to solve Radford’s murder and Levoy’s disappearance. Then, 17 months after the crimes, prison inmate Ricky Gibson contacted authorities and reported that defendant, who was serving time in prison for subsequent unrelated (but similar) crimes, had told him the story of how he killed Radford and raped and killed Levoy.

Police went to defendant’s home in Oroville, interviewed defendant’s wife and son, and obtained consent to search the yard. Defendant’s son directed police to the platform, which they removed and discovered Levoy’s badly decomposed body. She was identified through her dental records. In addition, the body bore the same clothes Levoy had been wearing when she disappeared, with the exception that her panties were missing.

*901 An autopsy of Levoy’s body yielded no clues about the cause of her death, due to the advanced state of decomposition. Some electrician’s tape, however, was found stuck to the collar of her shirt.

Police proceeded to interview defendant at San Quentin State Prison. He agreed to waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974]) if he could first speak to his mother. Police agreed. After speaking with his mother, he agreed to talk to police. In two tape-recorded interviews, defendant admitted he had killed Radford and Levoy, and that he had raped Levoy. He drew a map of the place in rural Oroville where he had first buried Levoy. Following the map, police found an indentation in the ground where defendant said he had dug the first grave; police also found some black electrician’s tape on the ground nearby.

Defendant testified at trial. He claimed he had heard the voice of a female named Ladell in his head since he was 17 years old. He first heard a competing unnamed male voice when he served in Vietnam in 1968 and 1969. He trusted the male voice because it had warned him of danger in Vietnam and saved his life. Defendant explained that he often used amphetamines to stay awake while driving his truck, had taken amphetamines the day of the crimes and, at the time he killed Radford, had not slept in a week and a half.

When he picked up Radford and Levoy, he noticed how attractive Levoy was and became sexually aroused. The male voice started saying he should have sex with Levoy. Ladell told him to leave Levoy alone. The male voice assured him he would not get in trouble if he raped Levoy. Defendant testified, “I just couldn’t go against him. I just couldn’t help it. Had to go along with what sounded like the most logical thing to do.” The male voice said to knock Radford out so he could be alone with Levoy. Defendant decided to follow the male voice, but did not think Radford would die because defendant had assaulted someone with the “cheater pipe” in 1977 and the victim did not suffer serious injury. Defendant said that if he had wanted to kill Radford, he would have used the knife he kept in the truck or used some other, more silent means of killing that he had learned in the military.

Defendant testified that when he hit Radford, the young man fell off the truck screaming. Defendant told him to “shut up” and when he did not, defendant struck him “a couple” of times with the pipe, taking full swings with both hands on the pipe. He did not check to see if Radford was alive or dead; he just assumed Radford was “out.” He then rejoined Levoy in the *902 truck, displayed his knife, and started driving. The voice named Ladell was chastising him while the male voice was telling him to ignore Ladell. When they approached Kettleman City, the male voice reminded defendant to have sex with Levoy. He pulled over around 4:00 a.m., displayed his knife again, and then raped Levoy. He then drove north towards San Francisco. About an hour later, he pulled over and raped Levoy again.

Defendant claimed he did not intend to kill Levoy and, after the second rape, was looking all along the route for a safe yet deserted place to drop her off. As it began to get light, he abandoned this plan and took her to the Bay Area with him. He instructed Levoy to sit on the floor of his truck while he delivered his load. She obeyed, sitting quietly in the truck for 45 minutes. He then drove to Oakland to pick up another load for a local delivery. Defendant was stopped on the way to Oakland by a California Highway Patrol officer, but Levoy complied with defendant’s instructions and did not call out to the officer or try to escape. After stopping in Oakland, defendant drove home to Oroville, taking a long and winding route.

Defendant stopped four miles outside of Oroville. By now it was about 11:00 p.m. on February 6, 1981. Defendant told Levoy he would tie her up and leave her under a bridge, coming back the next day when he was scheduled to drive to Southern California. He would then release her in Los Angeles in a warehouse district. He bound her with electrician’s tape, but when he tried to gag her with some fabric diapers, she struggled and bit him on the thumb and would not let go. Defendant testified he twice hit her with his fist and then he blacked out and began jerking the diaper around Levoy’s neck. He stopped when he realized she was no longer biting him. She slumped over; defendant at first thought she was unconscious but then determined she was dead. He cried and asserted he had never intended to kill her, even when she bit him. The male voice told him to get rid of the evidence. As indicated, he buried her where he killed her, then exhumed her body twice before finally burying her in his yard.

The next morning, on February 7, 1981, Thomas Jenkins, an insurance adjuster, met with defendant and noticed facial abrasions and scratches, as well as a white bandage on his hand. Defendant said his thumb had been almost bitten off by another trucker.

Defendant’s first wife, Patricia Budrow, testified that defendant hates to be bitten. She testified she once bit his hand when they were wrestling in the car and he became very angry and began choking her. Another time, she bit his hand when they were wrestling on the floor. He grabbed her by the neck and looked dazed and glassy-eyed. He later told her he did not know why he *903 choked her, but that he hated being bitten, and that when he was a child his mother would bite him until he bled as a means of disciplining him. Budrow also testified that defendant’s mother confirmed the story and suggested Budrow use the same method to train her children.

B. Discussion: Pretrial Issues

1. Submission of Competency Determination on the Psychiatric Reports

On September 29, 1982, before defendant was arraigned, his defense counsel expressed a doubt as to defendant’s present competence. The trial court agreed and appointed two psychiatrists, Dr. Paul Cutting and Dr. Francis Criswell, to examine defendant. The proceedings were suspended until the two doctors could examine defendant and file their reports with the court. On October 27, 1982, the court was in possession of the reports of both doctors. Both found defendant was legally competent. Defense counsel and the prosecutor submitted the question of defendant’s competence on these two psychiatric reports, and the trial court found defendant competent. The proceedings then resumed.

Defendant contends the failure to hold a full-blown adversarial hearing on the question of his competence deprived him of due process and requires that we vacate his convictions. Essentially, defendant claims counsel could not waive a full jury trial with live witnesses. We rejected this precise claim in People v. McPeters (1992) 2 Cal.4th 1148, 1169 [9 Cal.Rptr.2d 834, 832 P.2d 146]: “Section 1368 entitles defendant to a ‘hearing’ on the issue of competence and he received one. Although defendant’s counsel, for understandable reasons, elected to waive certain available incidents of the hearing procedure, i.e., the right to jury trial and the rights to present oral testimony and to confront and cross-examine witnesses, defendant presented evidence and received an independent judicial determination of his competence to stand trial based on the stipulated record. [Citation.] [f] Defendant cites no authority holding that submission to the court of the issue of competence to stand trial based on psychiatric reports is per se unconstitutional or a violation of statute.”

Of course, trial of an incompetent defendant violates an accused’s right to due process. (Medina v. California (1992) 505 U.S. 437, 448 [112 S.Ct. 2572, 2578-2579, 120 L.Ed.2d 353]; Pate v. Robinson (1966) 383 U.S. 375, 378 [86 S.Ct. 836, 838, 15 L.Ed.2d 815]; People v. Hale (1988) 44 Cal.3d 531, 539 [244 Cal.Rptr. 114, 749 P.2d 769]; People v. Pennington (1967) 66 Cal.2d 508 [58 Cal.Rptr. 374, 426 P.2d 942].) But contrary to defendant’s *904 arguments, neither Hale nor any of our other precedents precludes a defense attorney from waiving a jury, forgoing the right to present live witnesses, and submitting the competency determination on the psychiatric reports filed with the court. The statutory references to a “hearing” (§ 1368, subd. (b)) or a “trial” (§ 1369) simply mean that a determination of competency must be made by the court (or a jury if one is not waived), not, as defendant contends, that there must be “a court or jury trial, at which the criminal defendant’s rights of confrontation, cross examination, compulsory process and to present evidence are honored by the court and counsel.” Unlike in People v. Marks (1988) 45 Cal.3d 1335, 1343 [248 Cal.Rptr. 874, 756 P.2d 260], defense counsel did not attempt to waive the competency issue; he merely submitted the matter on the psychiatric reports.

To the extent defendant attempts to impugn the validity of the appointed experts’ conclusions on grounds they failed to consider the effect of defendant’s medication on his competency, the time to raise such a challenge has long since passed. Having submitted the competency determination on the two psychiatric reports, defendant may not now relitigate that question with arguments he did not make below. We also reject the further claim that defense counsel was constitutionally ineffective under the state and federal Constitutions for waiving a jury trial and submitting the matter on the reports. We have examined the reports and conclude counsel’s decision against challenging the conclusions therein was a reasonable one. 2

Defendant cites two appellate opinions in support, but neither assists him. To the extent defendant contends Moore v. United States (9th Cir. 1972) 464 F.2d 663, 666, indicates the Ninth Circuit Court of Appeals applies a per se reversal rule to a competency determination submitted on medical reports rather than pursuant to a full-blown jury trial, we agree with respondent that defendant misconstrues the federal appellate court’s position on this issue. (Greenfield v. Gunn (9th Cir. 1977) 556 F.2d 935, 939 [submission of competency question on doctor’s reports permissible].) Finally, People v. Ramirez (1979) 25 Cal.3d 260 [158 Cal.Rptr. 316, 599 P.2d 622], also cited in support, is manifestly distinguishable; Ramirez concerned the procedural due process that must be afforded before an inmate can be excluded from the California Rehabilitation Center. Ramirez sheds no light on whether a defense attorney validly may waive the trial authorized by section 1369 and submit the competency determination on the psychiatric reports.

*905 In sum, we have already decided a defense attorney may validly submit a competency determination on the available psychiatric reports (People v. McPeters, supra, 2 Cal.4th at p. 1169), and defendant fails to persuade us McPeters was decided incorrectly. We thus reject this claim, finding no error under section 1368, no violation of either the state or federal Constitution, and no showing counsel was constitutionally ineffective for deciding to submit the competency determination on the psychiatric reports.

2. Change of Venue

Citing prejudicial pretrial coverage of his trial in the local media, defendant moved for a change of venue from Kern County. In support, he submitted to the trial court a survey of public opinion about the case and 12 articles from the Bakersfield Californian, the area’s major newspaper. After a hearing, the trial court denied the motion. Defendant now claims the trial court erred.

The applicable principles are settled. A trial court should grant a change of venue when the defendant demonstrates a reasonable likelihood that in the absence of such relief, he cannot obtain a fair trial. (People v. Jennings (1991) 53 Cal.3d 334, 359 [279 Cal.Rptr. 780, 807 P.2d 1009]; People v. Williams (1989) 48 Cal.3d 1112, 1125 [259 Cal.Rptr. 473, 774 P.2d 146].) On appeal, “we make an independent determination of whether a fair trial was obtainable.” (Jennings, supra, at p. 360; People v. Balderas (1985) 41 Cal.3d 144, 177 [222 Cal.Rptr. 184, 711 P.2d 480].) To make that decision, we examine five factors: the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim. (People v. Douglas (1990) 50 Cal.3d 468, 495 [268 Cal.Rptr. 126, 788 P.2d 640].)

Because this is a capital case and a double murder, the nature and gravity of the offense tilts strongly in favor of granting a change of venue, although this factor is not dispositive. (People v. Jennings, supra, 53 Cal.3d at p. 360.) The size of the community is relatively neutral; as defendant asserts, Kern County is “neither large nor small.” At the time of trial, the county had a population exceeding 450,000 and Bakersfield, where the trial was held, had a population of 200,000. The key consideration is “whether it can be shown that the population is of such a size that it ‘neutralizes or dilutes the impact of adverse publicity.’ ” (Jennings, supra, at p. 363, quoting Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, 609 [89 Cal.Rptr. 154].) As explained, post, the adverse publicity in this case was neither relentless nor virulent. The moderate size of Kern County thus does not undermine the trial court’s decision to deny the change of venue motion.

*906 Both defendant and the victims were strangers to the community, and neither held any position of prominence or popularity. Although defendant argues the fact that the victims were a young couple starting their life together and were “religious, church-going people” necessarily enhanced their status in the community, nothing in the record suggests these factors had any effect on the jury pool.

The nature, extent, and penetration of the news coverage, especially from the Bakersfield Californian, was the most heavily litigated of the five factors. Defendant contends the press coverage “flowed evenly for months, was vituperative in nature, pandered to base instincts, and referred to innuendoes that never proved true but which severely prejudiced [defendant].” By contrast, respondent argues “[t]he coverage of the murders in the newspaper in question was factual, not sensational.” The truth lies somewhere between these two characterizations.

Defendant submitted 12 articles from the Bakersfield Californian. They ranged from a short mention on February 7, 1981, of Radford’s murder and Levoy’s disappearance (Man Found Beaten To Death On Desert Highway), to an article on July 28, 1982, reporting that defendant had been linked to the crimes (San Quentin Inmate Linked To Kern Homicide Victim), to a June 7, 1983, article describing defense attorney’s request for a pretrial gag order (Gag Order Asked In Murder Trial). The period of time in which the 12 articles were published was 29 months, hardly a flood of information. Jury selection began on October 9, 1984, 16 months after publication of the last article submitted by defendant. This interval suggests that any possible prejudice flowing from the press coverage was blunted by the passage of time.

With two significant exceptions, the 12 articles are largely factual and not sensational, although the reader is naturally swayed by reports of the anguish of the victims’ friends and relatives. Two articles went beyond mere factual reporting. On August 12, 1982, the Bakersfield Californian published an article bearing the headline Suspect Expresses Regret At Raping Virgin. The article noted Levoy was “good-looking,” a Mormon, and a virgin. Defendant was reported as regretting raping her because “he thought that meant she wouldn’t go to heaven.” The same article noted that in addition to the two murders and kidnapping, defendant was charged with rape, sodomy, and oral copulation, charges that were later dropped.

Then, on Sunday, May 29, 1983, the main headline on the front page of the Bakersfield Californian stated, Man Boasts About His Killings’, the subheading read, Trucker Suspected In Rapes, Murders Of Two Dozen Hitchhikers. The article reported on revelations from “court documents” that defendant had told cellmate Ricky Gibson that “although it takes a long time to *907 strangle someone, it’s exciting, very exciting, to watch a woman turn blue after she has taken her last breath.” (Defendant later testified at trial he generally exaggerated his crimes to Gibson to appear more dangerous and intimidating, and that he did not realize he was strangling Levoy, but blacked out when she bit him. He specifically denied telling Gibson that he liked to watch women turn blue when they were dying.) The article continued, reporting that “law enforcement officers in seven states suspect [defendant] may be involved in as many as two dozen hitchhiker homicides,” including “numerous rapes.” Defendant has not, however, been charged with or convicted of any other hitchhiker-related crimes, with the exception of his crimes against David Galbraith and Michelle D., discussed post, which occurred after Radford’s and Levoy’s murders.

The same article reported that in one incident, when defendant drove off with Michelle D. and raped her, he “kept her for several days, raping and sodomizing her in the sleeper compartment of his truck-trailer rig as he drove to his home in Oroville. [H] He locked her in the closet in Oroville, taking her out only for sex.” This lurid tale proved largely untrue, as the victim’s own testimony at the penalty phase shows.

In short, neither defendant’s nor respondent’s characterization of the publicity leading up to the trial is accurate. Two newspaper articles that went well beyond mere factual reporting created a potential for prejudice. These articles emphasized the more sensational aspects of the case, aspects that the evidence presented at trial showed were either not true or not proved. Did publication of these two articles tip the balance, requiring the trial court to grant defendant’s motion for a change of venue?

We conclude they did not. Although the potential for prejudice was certainly present, almost 17 months had elapsed from the time of the most inflammatory article to the commencement of jury selection. More importantly, the evidence of public opinion presented by defendant’s own expert demonstrated that the effect of the two sensationalistic articles was minimal. Defendant employed Terry Newell, Ph.D., a licensed psychologist, to conduct a poll of public opinion. Of 377 persons contacted at random, only 187, or 53 percent, had even heard of the case. Of those 187 persons, only 18 percent recalled defendant was suspected of crimes in other states, 14 percent thought their knowledge of the case would affect their verdict if they were to serve on defendant’s jury, and 17 percent already thought he was guilty. The survey, moreover, was conducted on July 22-24, 1983, more than a year before jury selection began. Because the record does not indicate additional articles were published, we assume the public’s recollection of the case diminished over time.

*908 Examination of the voir dire proceedings also supports the conclusion that pretrial publicity failed to penetrate the public’s consciousness to such an extent as to compromise defendant’s ability to obtain a fair trial. Although many prospective jurors averred they recalled something about the case, the vast majority assured the court they could set aside their impressions and judge the case fairly. Although defendant emphasizes the number of prospective jurors who recalled something about the case, jurors need not be wholly ignorant of the facts of a case. It is sufficient if the jurors can, as here, assure the court they can set aside their prior impressions and render a decision based solely on the evidence presented in court. (People v. Bean (1988) 46 Cal.3d 919, 941 [251 Cal.Rptr. 467, 760 P.2d 996].)

In sum, although the gravity and nature of the crime support a change of venue, the size of the community is a neutral factor, and the status of both defendant and his victims in the community supports a denial of a change of venue. The critical factor, the extent and nature of the pretrial publicity, was—considering the totality of the evidence—mildly supportive of a denial of a change of venue despite the publication of two potentially prejudicial articles. Weighing all these factors, we conclude the trial court correctly denied the motion. 3

3. Failure to Admonish the Prospective Jurors

In preliminary proceedings, the court organized the jury pool into groups, telling certain prospective jurors to return for voir dire after lunch, while assigning others future times and days in which they were to return to court for voir dire. Before the latter jurors left the courtroom, the trial court did not admonish them against discussing the case, reading or listening to media accounts, or visiting the scene of the crimes. Defendant acknowledges that the statutory requirement that jurors be admonished (§ 1122) applies only after a jury is sworn and thus does not expressly apply to this preliminary period in the jury selection process. (People v. Horton (1995) 11 Cal.4th 1068, 1094 [47 Cal.Rptr.2d 516, 906 P.2d 478].) Nevertheless, he contends the trial court’s failure to admonish the jury violated his federal constitutional rights to a fair trial, an impartial jury, and a reliable guilt and penalty verdict, as well as his analogous rights under the state Constitution.

*909 We have explained that “the giving of the admonition to prospective jurors during the voir dire process constitutes a sound judicial practice” (People v. Horton, supra, 11 Cal.4th at p. 1094), but that failure to do so does not constitute error. Because our Horton opinion makes no mention of whether we considered all the constitutional bases defendant now asserts, Horton does not fully dispose of defendant’s claim. We nevertheless find three reasons why the claim is meritless.

First, defendant failed to object or call the trial court’s attention to the lack of an admonishment. The issue is thus forfeited on appeal. (Cf. People v. Heishman (1988) 45 Cal.3d 147, 175 [246 Cal.Rptr. 673, 753 P.2d 629] [where § 1122 applies, a timely objection is necessary].) Second, even assuming the issue were preserved for appeal, we are unaware of any constitutional requirement that our trial courts admonish prospective jurors so far in advance of a trial. Certainly defendant does not cite any authority to that effect.

Third, any prospective jurors who discuss the case, form opinions, view the crime scene, or do legal research can be discovered during the voir dire process and be either excused or rehabilitated at that time. Although defendant directs our attention to a few jurors who may have acquainted themselves with the law after being notified they might be chosen for the jury, he fails to explain why his right to a fair trial and an impartial jury could not be protected by rehabilitating those jurors or excusing them for cause or peremptorily if they could not be rehabilitated. He thus fails to show prejudice. (People v. Heishman, supra, 45 Cal.3d at p. 175.) Defendant’s ability to strike such jurors also protects his rights under both the state and federal Constitutions to a reliable verdict.

Defendant also contends his trial attorney provided ineffective assistance of counsel by failing to ask the court to admonish the prospective jurors. He claims his counsel could have had no conceivable tactical reason for the omission. Even assuming that to be true, defendant fails to demonstrate how he was prejudiced. Accordingly, he does not show his trial attorney was constitutionally ineffective under either the state or federal Constitution. (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164]; Strickland v. Washington (1984) 466 U.S. 668, 691-692 [104 S.Ct. 2052, 2066-2067, 80 L.Ed.2d 674].)

4. Failure to Excuse Jurors for Cause

During voir dire, two venirepersons questioned by defense counsel expressed the general belief that the death penalty was the appropriate *910 penalty for all murders. Defendant challenged the prospective jurors for cause. In each instance, the prosecutor questioned the prospective juror and rehabilitated him somewhat. The trial court denied defendant’s challenges for cause, leading defendant to excuse each venireperson by exercising a peremptory challenge. Defendant now contends the trial court’s failure to excuse the two prospective jurors for cause violated his rights under the state and federal Constitutions. We disagree.

The state and federal constitutional guarantees of a trial by an impartial jury include the right in a capital case to a jury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence. (People v. Crittenden (1994) 9 Cal.4th 83, 120-121 [36 Cal.Rptr.2d 474, 885 P.2d 887].) “[A] juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (Id. at p. 121, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841].) If the death penalty is imposed by a jury containing even one juror who would vote automatically for the death penalty without considering the mitigating evidence, “the State is disentitled to execute the sentence.” (Morgan v. Illinois (1992) 504 U.S. 719, 729 [112 S.Ct. 2222, 2230, 119 L.Ed.2d 492].)

Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1146 [36 Cal.Rptr.2d 235, 885 P.2d 1].) The trial court must determine whether the prospective juror will be “unable to faithfully and impartially apply the law in the case.” (Id. at p. 1147.) A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause. The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. (Ibid.) “[W]here equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court. [Citations.]” (People v. Ghent (1987) 43 Cal.3d 739, 768 [