Holt

John Lee Holt was convicted by a jury in the Kern County Superior Court of the July 6, 1989, first degree murder (Pen. Code, § 189) *639 (count 1) of Marie Margie Axtell; 1 first degree robbery (§ 212.5, subd. (a)) (count 2) of Axtell; rape (§261, former subd. (2)) (count 3) of Axtell; sodomy (§286, subd. (c)) (count 4) of Axtell; and first degree burglary (§ 460, subd. (a)) (count 5) of the Axtell residence. The jury also found true special circumstance allegations charging that the murder occurred during the commission or attempted commission of robbery, rape, sodomy, and burglary (§ 190.2, former subd. (a)(17)(i), (iii), (iv), and (vii)), and returned a penalty phase verdict of death for the murder. On May 30, 1990, the trial court denied an application for modification of the penalty verdict and imposed a judgment of death. (§ 190.4.) 2

This appeal is automatic. (§ 1239, subd. (b).)

We shall reject defendant’s several claims of prejudicial error at the guilt and penalty phases of the trial and affirm the judgment in all respects.

I

Guilt Phase Evidence

A. The Prosecution Case

Defendant had been employed for one month in door-to-door sales of household cleaning…

I concur in the majority opinion’s affirmance of the judgment of guilt. With due respect, however, I conclude the majority fails to appreciate the seriousness of the trial court’s misunderstanding of Penal Code section 190.3, factor (d) (hereafter factor (d)), when ruling on the automatic motion for modification of the verdict (Pen. Code, § 190.4, subd. (e) (hereafter section 190.4(e)); further statutory references are to this code). As I explain, because I cannot conclude the court’s misunderstanding had “no impact” on the trial court’s decision to deny the modification motion (People v. Jones (1997) 15 Cal.4th 119, 201 [ 61 Cal.Rptr.2d 386 , 931 P.2d 960 ] (conc, and dis. opn. of Werdegar, J.); People v. Cooper (1991) 53 Cal.3d 771, 848 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ]), I would vacate the penalty judgment and remand for a new hearing on the automatic modification motion.

The applicable law is stated in People v. Ashmus (1991) 54 Cal.3d 932, 1006-1007 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 ]: “‘In ruling on a verdict-modification application, the trial judge is required by section 190.4(e) to “make an independent determination whether imposition of the death penalty upon the…