Carpenter

I concur in the majority’s conclusion that the trial court’s failure to instruct the jury sua sponte to “view with caution” evidence that defendant told attempted rape/murder victim Ellen Hansen he wanted to rape her while pointing his gun at her during the crime, if error, was clearly harmless. (Maj. opn., ante, at pp. 392-393.) However, I question whether the so-called “cautionary instruction” would have been appropriately given on the basis of this statement in the first instance.

Surviving victim Steven Haertle testified defendant stated to his companion Ellen Hansen while pointing his handgun at them both, “ T want to rape you.’ ” (Maj. opn., ante, at pp. 345, 392.) Moments later, after Hansen told defendant, “No, I’m not going to let you,” defendant killed Hansen with two gunshot wounds to the head and then shot Haertle in the neck, apparently leaving him for dead. Haertle survived. The initial question is whether Haertle’s testimony relating defendant’s statement to Hansen of his intent to rape her (which formed the basis of defendant’s conviction of the attempted rape of Hansen) is the type of evidence that required the giving of the cautionary instruction sua…

Evidence at the guilt and penalty trials established that defendant is the “Trailside Killer” who terrorized Californians in 1980 and 1981. Over several months, he assaulted hikers on remote paths in Santa Cruz and Marin Counties, shooting to death seven at close range with a .38-caliber Rossi revolver and raping some of them. An eighth shooting victim survived to testify against him.

In the case we now review, tried in Los Angeles County following a change of venue, a jury found defendant guilty of these crimes in Santa Cruz County: the first degree murders of Ellen Marie Hansen and Heather Scaggs, the attempted murder of Steven Russell Haertle, the attempted rape of Hansen, and the rape of Scaggs. The jury found true special circumstance allegations of multiple murder, rape murder as to both murders, and lying in wait as to the Hansen murder. As to the attempted murder, it found that defendant personally used a firearm and inflicted great bodily injury.

Following the penalty phase, a different jury returned a verdict of death. The court denied defendant’s automatic motion to modify the verdict and sentenced him to death. 1 This appeal is automatic. We affirm.

*345 I.…