Moore

I concur in the majority’s affirmance of the judgment of death. But I disagree with the majority’s analysis of an issue pertaining to a hypothetical question asked by the prosecutor.

Defendant was charged with bludgeoning and stabbing to death his 11-year-old neighbor, Nicole Carnahan, while burglarizing her house when she was home alone. Police found the victim’s body in her bedroom, which was stained heavily with blood. On the carpet in the living room was a single, small bloodstain.

That bloodstain became part of the prosecution’s theory of the crime: that Nicole saw defendant in her house and, presumably, cried out; that he hit her, and she fell; and that, as she lay on the living room carpet bleeding (and leaving a stain), defendant had what the prosecutor described to the jury as an “opportunity to think.” Calling that moment “the turning point” of the crime—at which defendant could have chosen to flee, but chose instead to kill Nicole and carry on with his burglary—the prosecutor used it to argue that the murder had been premeditated.

To support its theory, the prosecution called criminalist Greg Avilez, an expert on bloodstains, to testify about the lone stain in the…

Ronald Wayne Moore was convicted of and sentenced to death for the 1998 murder of 11-year-old Nicole Carnahan, which occurred *390 during the commission of burglary and robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17).) On automatic appeal, we affirm the judgment.

Factual and Procedural Background

Guilt Phase Evidence

Prosecution Evidence

Rebecca Carnahan lived with her daughter, Nicole, on Middlefield Road in Salinas. Defendant was their next-door neighbor. Carnahan was not friendly with defendant, had never invited him into her home, and had told Nicole to ignore him.

Carnahan worked during the day; Nicole, 11 years old when she was killed, took the bus to school and back. Nicole typically arrived home shortly after 3:00 p.m., let herself in with a front door key and, after changing her clothes, fed the animals she was raising in the backyard, had a snack, and started her homework. She always relocked the front door and had been told not to let anyone in, but she did not always relock the back door after tending the animals.

On the day of her murder, March 4, 1998, Nicole left for school around 7:00 a.m., and Carnahan went to work an hour later. Before leaving,…