Opinion
MOSK, J.Defendant appeals from a judgment of death imposed under the 1977 death penalty law. (Former Pen. Code, §§ 190-190.6, Stats. 1977, *719ch. 316, §§ 4-14, pp. 1256-1263.) He principally contends that the trial court erred in admitting in evidence certain personal writings seized from his apartment. As will appear, we conclude that the contention is meritorious but that the error requires reversal of the judgment only as to penalty.
On March 14, 1978, Cheryl S. left her two-and-one-half-year-old daughter Amy at the home of her babysitter before going to work. The babysitter lived in a community about three miles from Camarillo State Hospital near Highway 101. Amy was dropped off at 6:30 a.m.; she napped until 9 or 9:30 a.m., then went outside to play in the backyard, next to an alley. She soon reentered the house and began watching television in the living room. About 10:15 a.m. the babysitter was in the bedroom when she heard the front door close. A few minutes later she went to look for Amy but was unable to find her. The child was not seen alive thereafter.
Chet Allen lives in a rural area off Topanga Canyon Road, some miles from defendant’s apartment. When the members of his family returned on March 14 they discovered their house had been broken into. The furniture was in disarray, the bedspread in one bedroom was rumpled, and a rag in the bathroom appeared to have blood on it. Allen did not call the police until two days later, however, when his dogs found the body of a little girl in the backyard, a few feet from a gully containing water from recent storms. A fingerprint analysis established that the dead child was Amy.
An autopsy revealed that Amy had sustained a number of injuries prior to her death. As a result of pressure from a pliers-like instrument, her nipples had been pinched and partially pulled away from her body. She had suffered three blows to her head, knife-like scratches on her chest and abdomen, and ligature marks on her wrist and ankles. The entrance to her vagina was torn and the hymen broken, possibly by insertion of a penis; her anus exhibited evidence of trauma indicating that a foreign object had been inserted there as well. Sperm were discovered in her vaginal area. Her blood had a .03 percent blood alcohol level, which could result if a child of her size had ingested two cans of beer shortly before death. The actual cause of death was strangulation.
Strong circumstantial evidence introduced at trial linked defendant with the abduction and death of Amy. In March 1978 defendant’s wife was working at Camarillo State Hospital. Defendant did not work, but was attending college classes at the time on Mondays, Wednesdays, and Fridays. He drove his wife to work on the morning of Tuesday the 14th from their home in Woodland Hills. If he took the most direct route home from Camarillo State Hospital, he would have passed close to the neighborhood from which Amy *720was abducted. He was scheduled to see his psychologist at 2 o’clock that afternoon, but did not keep the appointment.
Defendant was known to be a recidivist child molester; in fact, he had been released from the mentally disordered sex offender program at Atascadero State Hospital less than two months before Amy’s disappearance. The court admitted evidence of his involvement in two other acts of child molesting. The first incident occurred on May 15, 1973, when a four-year-old girl named Rynetta C. was abducted from an alley in East St. Louis, Illinois. The abductor pulled her into his car, covered her with a coat, and drove her to a secluded location near a body of water. There he made her drink beer, took her clothes off, and tied her hands. He scraped her stomach with a knife and inserted the knife into her vagina. He also attached what appeared to be locking pliers to her vaginal area and immersed her in the water. She escaped to a nearby house, whose occupant saw and identified defendant and placed him at the scene of the molestation.
The second incident took place on July 5, 1978, a few months after the death of Amy. An eight-year-old girl named Linda G. was taken from an alley in Panorama City, California, by a man who lured her into his car. The man drove her about 16 miles down Highway 101 to the Griffith Park area, forced her to drink four beers, and proceeded to molest her. He pinched her breasts, and inserted a pen into her vagina and a tire gauge into her anus. He also forced her to orally copulate him, and finally plunged her into a stream. Eventually, he left her alone long enough for her to summon help. Linda identified defendant as her assailant, and so testified at trial.
Defendant was also linked to an attempted abduction of a young child on the morning of Amy’s disappearance and in the same neighborhood. About 9 a.m. on March 14, 1978, Lillia Rocha, who lived near the home of Amy’s babysitter, interrupted an apparent attempt to abduct her four-year-old son from an alley next to her house. Mrs. Rocha gave a detailed description of the man that matched defendant’s appearance, but did not positively identify him.
A pair of vise-grips, a type of locking pliers, were found in defendant’s apartment. At trial, there was extensive expert testimony on the many points of similarity between the distinctive pattern of the teeth of these vise-grips and the marks left on Amy’s breasts. The witnesses concluded from the nature and extent of this correlation that defendant’s vise-grips were the same tool that had been clamped onto Amy’s body prior to her death.
After his arrest, defendant became friendly with another inmate named James Smith. He spoke with Smith on numerous occasions, admitting that *721he was a child molester. Defendant decribed his method of luring or coercing his preferred victims—little girls between the ages of three and five— into his vehicle, driving them to remote locations, molesting them, then returning them to the place where he had picked them up.
Defendant also told Smith he had seen Amy on several occasions while driving his wife to work, and had twice attempted to pick her up. Both attempts occurred approximately one week before Amy’s death; both failed when other persons intervened. Nevertheless, defendant denied having committed the crimes against Amy, offering at various times three different alibis. Later, however, he asked Smith to find out for him about the defenses of diminished capacity and temporary insanity; when Smith asked defendant directly whether he was guilty, defendant did not deny it and replied only that “if he was to tell me that, ... it would be cutting his own throat.”
Defendant also talked frequently with an inmate named Donald Cummings. He told Cummings that he often drove around after dropping his wife off at work; he admitted spotting Amy “a couple of times” during such rides. When discussing why certain persons repeatedly committed the same crime, defendant said, “take for instance, a person like me ... I did this before, over and over, you get going doing something, your adrenalin builds up, the excitement is there.” He added, however, that “this time, I got carried too far” and “things got out of hand.” A third inmate testified that when asked how he could “do such a thing to a child,” defendant replied, “I was with her that day, but they aren’t going to know that.”
Defendant was charged with murder under the 1977 death penalty statute. As special circumstances, it was alleged that the murder of Amy was wilful, deliberate and premeditated, and that it (1) was committed during the commission of a rape (former Pen. Code, § 190.2, subd. (c)(3)(iii)), (2) was committed during the commission of a kidnaping (id., subd. (c)(3)(h)), (3) was committed during the commission of child molesting (id., subd. (c)(3)(iv)), and (4) involved the infliction of torture (id., subd. (c)(4)). Additional counts charged him with forcible rape (Pen. Code, § 261, subd. 2), kidnaping (id., § 207), and child molesting (id., § 288). The information further alleged that each of the latter three crimes involved the intentional infliction of great bodily injury. (Id., § 12022.7.)
The jury found defendant guilty of first degree murder, rape, kidnaping, and child molesting. It found the great bodily injury allegations and the kidnaping special circumstance to be true, but found the other three special circumstances not to be true. At the penalty phase the jury returned a verdict of death. This appeal is automatic. (Id., § 1239, subd. (b).)
*722I
While defendant was a patient at Atascadero State Hospital between October 1974 and January 1978 he used as personal notebooks a pair of pocket address books and a pocket datebook. In each he jotted down numerous random thoughts of an intimate nature, relating mainly to his emotional and sexual life. The notebooks were seized in a search of his apartment under color of a warrant, and portions of them were admitted in evidence against him at the guilt and penalty phases of his trial. His primary contention is that this evidence was the product of an unreasonable search and seizure.
This court, like the United States Supreme Court, seeks to encourage the use of warrants in preference to warrantless searches, however justifiable such a search may be as an exception to the warrant requirement. We therefore follow the rule that “ ‘courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” (People v. Mesa (1975) 14 Cal.3d 466, 469 [121 Cal.Rptr. 473, 535 P.2d 337], quoting from United States v. Ventresca (1965) 380 U.S. 102, 109 [13 L.Ed.2d 684, 688-689, 85 S.Ct. 741].) The same rule applies when deciding, in doubtful or marginal cases, whether the warrant’s description of the place to be searched or the things to be seized is sufficiently specific.
A close reading of the record, however, persuades us this is not such a doubtful or marginal case. On October 18, 1978, Officer Rogers presented an affidavit for a search warrant to a superior court judge. The judge issued a warrant to search defendant’s apartment, listing in 16 clauses numerous items of evidence to be seized. The existence of some of the items was properly inferred from the condition of the body and the circumstances of the crime. (E.g., pliers, blonde hair, bits of skin or flesh, rope or cloth used to bind hands and feet, and the victim’s clothing.) The existence of other items, however, could not have been deduced from known facts; rather, they were apparently boilerplate lists routinely incorporated into the warrant without regard to the evidence. (E.g., clothing of defendant that could contain “physiological matter” from the victim’s body, tire marks, soil or other debris that could have come from the place where the body was found, and burnt remnants of the victim’s clothing or hair.) Among the boilerplate clauses were three that authorized the police to search for and seize a wide variety of documentary evidence:
“1. Evidence tending to establish the identities of the occupants, users or owners of the residence, including, but not limited to utility bills or receipts, envelopes, traffic tickets, insurance papers or vehicle registration;
*723“2. Documentary evidence tending to show the whereabouts of Theodore Frank during March 14 and 15, 1978, including, but not limited to credit card receipts, receipts from businesses, records of telephone toll calls made during that period of time; cancelled checks made out or cashed on those dates, ledgers or personal diary notations which would indicate the whereabouts of Theodore Frank on those dates;
“8. Scrapbooks, newspaper clippings, photographs (developed or undeveloped), tape recordings or writings which could relate to the death of Amy [S.] and would indicate either participation and/or an interest in that death by Theodore Frank; ...”
Armed with this warrant, six law enforcement personnel descended on defendant’s apartment at 7 o’clock the next morning. Defendant was not at home, but his wife opened the door and was served with the warrant. While two police officers apparently supervised the operation, four criminalists or “crime scene technicians” thoroughly searched the premises, looking through every room and closet, drawer and box, folder and envelope, that they could find. There is not the slightest showing that the criminalists ever referred to the warrant for guidance on what they could seize. Instead, they conceded at trial that their job was to search for anything that could conceivably link defendant to the crime, i.e., whether or not it was described in the warrant. For example, Sandra Taylor, one of the crime scene technicians, described her duties as follows: “we would go to a crime scene, we would photograph, we would search it for latents [i.e., fingerprints], and we would pick up any physical evidence that was there, package it and return it to the crime lab.” She frankly admitted that her purpose in entering defendant’s apartment on the morning in question was “To search the apartment for evidence that might link [defendant] in a case that we had.” And she agreed that her procedure was simply, “If somebody saw something, they’d call your attention to it, you’d pick it up and mark . . . where it was found on the bag, and place it in the bag.”
All the items thus seized were piled into a number of large “evidence bags” and taken to the police station. There a secretary went through the pile and made an inventory of its contents, after which they were sent to the crime laboratory. Apparently even the innocuous items were kept: near the end of the trial the prosecutor moved for admission of a number of his evidentiary offerings; when he reached the “evidence bags taken from [defendant’s] residence” he asked to “pass those at this point,” explaining frankly, “What I’m going to have to do, of course, is to go through the entire bags, which is very time-consuming, because there is [j/c] hundreds *724of documents in each, and separate what I want from what I don’t want. ... It will take me a half-hour to be prepared.”
In this process the police indiscriminately seized literally hundreds of documents of all kinds, including books, magazines, pamphlets, papers, cards, bills, handwritten notes of classes and therapy groups, examination answers, family letters, correspondence with attorneys, and the notebooks at issue here. The latter were found in the top drawer of the bedroom dresser of defendant’s wife. The chief criminalist testified that when a crime scene technician found the three notebooks, “He asked me to look at them; I did, and instructed him we would collect these three items.” It is apparent that the notebooks—like all the documents taken in this search—were seized not because they were listed in the warrant, but simply because after looking at them the officer suspected they might be incriminating.
On this record we are compelled to hold that as to the challenged notebooks the warrant was impermissibly overbroad in two respects. Article I, section 13, of the California Constitution declares that “a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Italics added.) (Accord, Pen. Code, §§ 1525, 1527, 1529.) We begin with the latter requirement. In Burrows v. Superior Court (1974) 13 Cal.3d 238, 249 [118 Cal.Rptr. 166, 529 P.2d 590], we restated the settled rule that “The requirement of particularity is designed to prevent general exploratory searches which unreasonably interfere with a person’s right to privacy. . . . [T]his requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized.” In short, “Nothing should be left to the discretion of the officer.” (People v. Dumas (1973) 9 Cal.3d 871, 880 [109 Cal.Rptr. 304, 512 P.2d 1208].)
In Burrows the warrant authorized search of a lawyer’s office for “ ‘all books, records, accounts and bank statements and cancelled checks of the receipt and disbursement of money and any file or documents referring to [four named persons].’ ” (Italics added, 13 Cal.3d at p. 241.) As here, the officers conducted an exhaustive search of the premises that was not limited to documents relating to the persons specified in the warrant, and seized hundreds of papers unconnected with the latter. We unanimously held the search unreasonable because the warrant description of the things to be seized “was so broad that it authorized a general search of petitioner’s offices” (id. at p. 248). “It is manifest that the warrant in the present case does not meet constitutional standards of specificity; it permitted the seizure of all of petitioner’s financial records without regard to the persons with whom the transactions had occurred or the date of [those] transactions.” (Id. at pp. 249-250.)
*725Again, in Aday v. Superior Court (1961) 55 Cal.2d 789 [13 Cal.Rptr. 415, 362 P.2d 47], the warrant authorized a search for the petitioners’ 1959 income tax returns, for two named books, and for seventeen other general categories of documentary evidence such as “Checks,” “Sales records,” “Customers’ correspondence,” and “Any and all other records and paraphernalia connected with” the petitioners’ business. In an opinion by Chief Justice Gibson, the court unanimously held the warrant description was fatally overbroad as to all items but the tax returns and the two named books: “Articles of the type listed in general terms in the warrant are ordinarily innocuous and are not necessarily connected with a crime. The various categories, when taken together, were so sweeping as to include virtually all personal business property on the premises and placed no meaningful restriction on the things to be seized. Such a warrant is similar to the general warrant permitting unlimited search, which has long been condemned.” (Id. at p. 796.)
The same rule has been followed in our Courts of Appeal. Thus in People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69 [143 Cal.Rptr. 382], the warrant authorized a search, inter alia, for “bills and receipts for the purchase and repairs” of a certain kind of industrial equipment. The trial court ruled that in this regard the warrant violated the constitutional requirement of specificity, and the Court of Appeal agreed: “The papers found in a briefcase, box, and filing box were seized under the general description of ‘bills and receipts.’ Under the description in the warrant the police officers had too much latitude in their search. Without a narrower description of what types of bills and receipts were to be seized or where they were to be found, the officers could have seized any piece of paper in the house, regardless of its relevance, on the pretext that it was described in the warrant. Therefore, the warrant was too general and the papers seized were properly suppressed.” (Id. at p. 78; accord, People v. Tockgo (1983) 145 Cal.App.3d 635, 639-640 [193 Cal.Rptr. 503] [cigarettes, their containers, “invoices, cash receipts,” and “any and all goods, and merchandise owned by [the burglary victim] and determined by the [victim] to be stolen”]; Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 692-695 [103 Cal.Rptr. 679] [“Evidences of indebtedness” of the suspect, including “bills, contracts, checkstubs, checks”; “Telephone bills” showing calls between the suspect and other persons; and “Any papers showing names and addresses of associates” of the suspect].)
Whether the description in the warrant of the property to be seized is sufficiently specific is a question of law on which an appellate court makes an independent judgment. (People v. Tockgo, supra, at p. 641 of 145 Cal.App.3d; People v. Superior Court (Williams), supra, at pp. 76-77 of 77 Cal.App.3d; Thompson v. Superior Court (1977) 70 Cal.App.3d 101, *726108 [138 Cal.Rptr. 603].) In making that judgment, moreover, the appellate court is confined to the language of the warrant itself; it cannot speculate on the subjective intent of the magistrate in authorizing the search. (Thompson, supra, at p. 111.)
Applying these rules to the case at bar, we conclude that clause two of the warrant failed to satisfy the particularity requirement. Although it purported to limit the seizable “documentary evidence” to items showing the whereabouts of defendant on March 14 and 15, 1978, it did not otherwise describe or name those items except by impermissibly general categories such as “credit card receipts,” “records of telephone toll calls,” “cancelled checks,” and “personal diary notations.” In order to know whether defendant’s apartment contained any documents in any of these categories, it would inevitably be necessary for the police to rummage through all defendant’s personal papers and read enough of each to learn its contents—as the criminalist on the scene apparently did with respect to the three notebooks in issue. This is a far cry from authorizing a search for certain specifically named books, as in Aday, and it is unlawful for the reasons stated in Burrows and Aday.
The same analysis applies a fortiori to clause eight of the warrant. Again it described the papers to be seized only by general categories—“scrapbooks,” “photographs,” “tape recordings,” and “writings”—and purported to limit them to items that “could relate” to the victim’s death and “would indicate” either “participation” or “an interest” in that death by defendant. The vagueness of the latter language undermined any limiting effect it might have had; and in any event, as with clause two, to execute this clause it would be necessary for the police both to rummage through all defendant’s “writings” and to read enough of each to learn its contents. Neither of the clauses thus “impose[d] a meaningful restriction upon the objects to be seized,” within the meaning of Burrows (13 Cal.3d at p. 249) and Aday (55 Cal.2d at p. 796).
The vice of an overbroad warrant is that it invites the police to treat it merely as an excuse to conduct an unconstitutional general search. Applicable to the case before us is the following language of the dissent in People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 82 [157 Cal.Rptr. 716, 598 P.2d 877]: “The Constitution commands, however, that the warrant specify the ‘things to be seized’—not merely ‘enough of the seizable things to persuade the magistrate to allow the police to enter and search for more.’ Yet that is essentially what happened here. Although [Officer Rogers] went through the motions of obtaining a warrant, his ensuing actions prove that he intended to use it simply as a license to get inside defendant’s house; having done so, he admittedly ignored the list of property specified in the *727warrant, searched every nook and cranny of the premises, and seized every article selected for him by the [crime scene technicians]. In other words, after he had gained entry into the premises the officer was obviously no more interested in the warrant than a theatergoer is concerned with his ticket once he has been seated. No court in the land should countenance a scheme that reduces the high office of a search warrant to the level of a mere ticket of admission.”1
It is no answer to say that most of the papers seized in this search turned out to be innocuous and were not introduced into evidence against defendant. The very fact that many innocent items were taken itself demonstrates that the warrant was overbroad: as Justice Brennan reasoned in Andresen v. Maryland (1976) 427 U.S. 463, 493 [49 L.Ed.2d 627, 650, 96 S.Ct. 2737] (dis. opn.), a case in which many documents were indiscriminately seized in a lawyer’s office, “The question is not how those warrants are to be viewed in hindsight, but how they were viewed by those executing them. The overwhelming quantity of seized material that was either suppressed or returned to petitioner is irrefutable testimony to the unlawful generality of the warrants.”
The second way in which this warrant was overbroad is even plainer. The Constitution and the statutes forbid the issuance of a warrant “except on probable cause.” In People v. Cook (1978) 22 Cal.3d 67, 84, footnote 6 [148 Cal.Rptr. 605, 583 P.2d 130], we carefully restated the standard of such probable cause as follows: for the purpose of issuing a search warrant the standard of probable cause is “whether the affidavit [1] states facts [2] that make it substantially probable [3] that there is specific property [4] lawfully subject to seizure [5] presently located [6] in the particular place for which the warrant is sought.” The first of these requirements is a precondition of all the others, and has been separately codified in our statutes: “The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.” (Pen. Code, § 1527, italics added.)
Again our decision in Burrows is in point. After finding the warrant description to be overbroad on its face, we reasoned: “An equally important *728reason for holding the search of petitioner’s office illegal is that the affidavit in support of the warrant was insufficient to justify a search of any of petitioner’s records except those relating to the persons named in the affidavit. It is axiomatic that a warrant may not authorize a search broader than the facts supporting its issuance. [Citation.] The testimony of [Deputy District Attorney] Davis in support of the warrant related only to petitioner’s alleged misconduct with regard to the statements made by Miller; Davis did not relate any facts supporting the issuance of the warrant authorizing an unlimited search for and seizure of all of petitioner’s records of the receipt or disbursement of money, even assuming arguendo that a warrant containing such broad language would be valid.” (Italics added.) (13 Cal.3d at p. 250; accord, Thompson v. Superior Court (1977) supra, 70 Cal.App.3d 101, 110; Griffin v. Superior Court (1972) supra, 26 Cal.App.3d 672, 694.)
The affidavit in the case at bar contained 24 pages of factual allegations. They described in detail the disappearance of Amy S., the condition of her body when found, and considerable circumstantial evidence pointing to defendant’s guilt, including prior and subsequent similar acts of child molesting in California and elsewhere. The affidavit concluded by describing the acts that defendant apparently committed on his victim, and reasonably inferred therefrom that he may have taken “the items which he used to perform these acts on her with him and, perhaps, also her clothes in his vehicle to his home.” The affidavit thus furnished probable cause to believe that certain specific items of real evidence—e.g., pliers, bits of skin, hair, and the victim’s clothes—might be found in defendant’s apartment. But nowhere in all these 24 pages was there alleged one single fact that gave probable cause to believe that any of the boilerplate allegations of the warrant were true. In particular, the affidavit failed to state any fact whatever to support an inference that defendant actually possessed the “personal diary notations” or “writings” listed in clauses two and eight of the warrant, or that if he did, they were “presently located in the particular place” to be searched, as the Constitution requires. In short, nothing in the affidavit gave any factual basis for the magistrate to find it was substantially probable that defendant’s apartment contained any documentary evidence either of his whereabouts at the time of the crime—more than seven months earlier—or of any special interest he may have had in that crime.2
“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched and seized are located on *729the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556 [56 L.Ed.2d 525, 535, 98 S.Ct. 1970].) With exceptions not here applicable (Theodor v. Superior Court (1972) 8 Cal.3d 77 [104 Cal.Rptr. 226, 501 P.2d 234]; People v. Cook (1978) supra, 22 Cal.3d 67), a court cannot resort to facts outside the affidavit to determine whether it furnishes such reasonable cause. If the necessary facts are not stated in the affidavit, it comes too late for the prosecution to attempt to fill the gaps after the defendant’s privacy has been invaded and his property seized, just as it cannot belatedly justify a warrantless search by facts of which the officer was unaware at the time (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 198 [101 Cal.Rptr. 837, 496 P.2d 1205], and cases cited). To hold otherwise would defeat the entire purpose of submitting the issue to an impartial magistrate before conducting the search. (See People v. Cook (1978) supra, 22 Cal.3d at p. 84.)
On this record, accordingly, we must conclude that the finding of probable cause to search for the challenged notebooks was based not on facts but on mere speculation—or worse, on boilerplate allegations routinely incorporated into the affidavit without regard to the evidence. it follows that as to those notebooks the warrant impermissibly “authorize[d] a search broader than the facts supporting its issuance,” within the meaning of Burrows. (13 Cal.3d at p. 250.)3
The question of prejudice remains. In the guilt phase, only a very small portion of the notebooks was introduced into evidence; approximately 98 percent of the entries were either not offered by the prosecution or were stricken by the court. The few entries finally admitted included reflections *730by defendant on his propensity to molest children, general remarks about his mpdus operandi, and specific references tending to link him with the Rynetta C. offense. But ample other persuasive evidence was introduced by the prosecution on each of these points. The fact that defendant is a child molester has never been in doubt. Linda G. identified him on the stand as her assailant, and in his own testimony he admitted molesting her in the manner she described. As to the Rynetta C. offense, the witness who found the victim of that attack saw and identified defendant as the perpetrator, and so testified at trial. Finally, defendant’s modus operandi was established by his conduct in the latter two cases; it included a number of distinctive and bizarre acts, such as forcing the children to drink beer, inserting metal objects into their vaginas or anuses, violently pinching their breasts with pliers or by hand, and immersing his victims in a body of water.
Additional evidence linked defendant to Amy’s murder. He drove near her neighborhood each time that he returned from taking his wife to work; on the day of the abduction, he failed to keep a medical appointment. An hour or so before Amy disappeared, Mrs. Rocha foiled an apparent attempt of a man to abduct her own child from an alley near the house where Amy was staying; she gave the police a detailed description of the suspect, and it closely matched defendant’s distinctive appearance. Perhaps most important, a pair of locking pliers were lawfully found in defendant’s apartment, and extensive expert testimony at trial established the very high probability that it was the same tool that had been used by the murderer on Amy’s body. Finally, while he was in jail awaiting trial defendant admitted to fellow inmates that he was a child molester and had twice attempted to abduct Amy; without expressly confessing, he impliedly also admitted his guilt of Amy’s death.
It is true that the prosecutor mentioned the notebooks several times in his argument to the jury, but a fair reading of that argument shows he placed far more emphasis on all the other evidence of defendant’s guilt discussed above. He particularly stressed the pliers found in defendant’s apartment, and the many points of similarity between the modus operandi in this case and in the two prior crimes proved against defendant.
The error in denying defendant’s motion to suppress the notebooks on the ground of warrant overbreadth was a violation of California statutory law (Pen. Code, §§ 1525, 1527) and the California Constitution (art. I, § 13). Its effect must therefore be judged by the California harmless error standard (id., art. VI, § 13) as explicated in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], (See, e.g., People v. Blair (1979) 25 Cal.3d 640, 667 [159 Cal.Rptr. 818, 602 P.2d 738].) Applying that test, we conclude after a review of the entire record that in the absence of the error it is not reasonably probable that a result more favorable to defendant would have been *731reached on the question of guilt. For similar reasons, whether or not the ruling also constituted federal constitutional error we are of the belief that on this record it was harmless beyond a reasonable doubt on the guilt issue. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065].)4
II
We next address defendant’s contention that the judgment should be set aside because the trial court erred in admitting evidence of the two similar uncharged offenses committed by him, i.e., against Rynetta C. and Linda G. Defendant does not challenge the admissibility of the other-crimes evidence under Evidence Code section 1101, subdivision (b): he expressly concedes that the evidence had probative value in establishing identity as a necessary element of the prosecution’s case-in-chief, and he does not argue that the court abused its discretion in admitting this evidence. Rather, he contends the court committed prejudicial error because it did not make an explicit, on-the-record finding that the probative value of the evidence substantially outweighed its potential prejudicial effect, which it must do when an objection is raised under Evidence Code section 352.5
Defendant relies primarily on People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468], in which we reaffirmed the rule that “on a motion invoking [section 352] the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value” (id. at p. 25). We explained that “the reason for the rule is to furnish the appellate courts with the record necessary for meaningful review of any ensuing claim of abuse of discretion; an additional reason is to ensure that the ruling on the motion ‘be the product of a mature and careful reflection on the part of the judge,’ i.e., to ‘promote judicial deliberation before judicial action’” (ibid.). In Green, the defendant argued that the probative value of certain evidence was outweighed by its prejudicial effect, impliedly invoking section 352 as a ground for excluding it. The court admitted the evidence *732and gave an appropriate limiting instruction, but it provided no explanation of the reasoning underlying its ruling. We held that the court erred in admitting the challenged testimony “without making an explicit determination that [the] risk of undue prejudice did not substantially outweigh the probative value of the evidence.” (Id. at p. 26; accord, People v. Holt (1984) 37 Cal.3d 436, 451-455 [208 Cal.Rptr. 547, 690 P.2d 1207]; People v. Leonard (1983) 34 Cal.3d 183, 187-189 [193 Cal.Rptr. 171, 666 P.2d 28].) Nevertheless, we concluded that the court’s error in admitting the evidence without articulating on the record its reasons for doing so was harmless because the evidence was merely cumulative; a subsequent witness testified to the same facts as those related in the improperly admitted testimony. (27 Cal.3d at pp. 26-27.)
Applying Green to the case at bar, we observe that during his argument in opposition to the admission of the other-crimes evidence defense counsel invoked section 352 several times. Although the objection was thus clearly before the court, it failed to make an explicit finding on the record that the probative value of the evidence outweighed the risk of prejudice. Under the rule of Green this was error.
However, on the record before us we find the error to be harmless. Undoubtedly the trial court was aware that the evidence in question was imbued with the substantial danger of prejudice that is inherent in proof of prior sexual offenses; such evidence obviously tended to label defendant as a recidivist sex offender in the minds of the jurors. Indeed, defense counsel did not even discuss why the challenged evidence was prejudicial, apparently because its inflammatory nature was never seriously in dispute. Instead, counsel for both parties devoted most of their argument to the question whether the other crimes were sufficiently similar to the offenses charged to warrant admission of the evidence. Thus, the issue whether the probative value of the evidence outweighed its prejudicial effect was before the court and plainly formed the basis of its ruling admitting the evidence. In fact, the other-crimes evidence in this case presented a paradigmatic example of the type of evidence the probative weight of which may justify admission despite its prejudicial effect. In the face of such a clear showing that the evidence was properly received, the court’s omission to recite for the record its implied finding that probativeness outweighed prejudice did not result in a miscarriage of justice. Accordingly, the error was harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) supra, 46 Cal.2d 818, 836.)
Ill
Defendant contends the evidence is insufficient as a matter of law to support a finding of premeditation and deliberation. In People v. *733Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], we identified three types of evidence from which an inference of premeditation and deliberation may be drawn: (1) facts showing that the defendant engaged in planning activity before the killing; (2) proof of the defendant’s prior conduct with the victim from which the jury could infer a motive for a planned killing; and (3) evidence that the manner of the killing was so particular and exacting that the jury could conclude it was carried out according to a preconceived design and for a specific reason. (Id. at pp. 26-27.)
Here the evidence of planning activity is especially strong. One witness testified that defendant admitted two previous attempts to kidnap Amy for the purpose of molesting her. On the day of the successful abduction, defendant kidnaped the child, drove her a substantial distance to a secluded location, broke into an unoccupied house, and carried out a series of methodically sadistic acts on her before killing her. These acts included forcing her to ingest alcohol, binding her limbs, inflicting cuts on her body with a knife, pulling on her nipples with locking pliers, and raping her—all in a manner consistent with his established pattern of child molesting. Clearly he had prepared the attack. Defendant argues that his planning activities were directed only to the goal of satisfying his sexual urges on the child, and not to killing her. However, from such elaborate preparation and execution the jury could reasonably infer that defendant planned all aspects of his crime, including the murder in which it culminated.
The evidence of motive supports the conclusion that defendant’s purpose in planning to kill Amy was to escape detection and punishment. He undertook to molest the child at a secluded location where he would not be likely to be observed. From the fact that defendant had gagged Rynetta C. and thrust Linda G.’s panties into her throat to stifle the cries of each while he molested them, the jury could infer that he likewise intended to silence Amy by choking her. The severity of the wounds inflicted on her and the fact that defendant had previously been caught and punished for similar offenses further suggest he had a strong motive to prevent her from surviving to identify him and testify against him. To be sure, his remark to a fellow prisoner that “this time, I got carried too far” can be taken to imply that the killing may have been the result of a sudden explosion of violence, but the jury was not compelled to draw that inference. And in any event, defendant testified that in making that remark he was referring to an entirely different offense, his molestation of Linda G.
Citing evidence of trauma to the neck of the victim, the coroner testified that death resulted from strangulation. Such a manner of killing shows at least a deliberate intent to kill (People v. Rowland (1982) 134 Cal.App.3d 1, 9 [184 Cal.Rptr. 346]), although not necessarily premeditation and de*734liberation (ibid.). On the record of this case, however, strangulation is consistent with the conclusion that defendant killed Amy to conceal his crime; it would thus be more likely to support an inference of premeditation and deliberation than, for example, the haphazard infliction of multiple stab wounds that occurred in Anderson, supra, 70 Cal.2d 15. In any event, “the strong additional evidence of both planning and motive in the case is more than sufficient to sustain a finding of preconceived design.” (People v. Haskett (1982) 30 Cal.3d 841, 850 [180 Cal.Rptr. 640, 640 P.2d 776].)
IV
Defendant’s final contention relating to the guilt phase is that the exclusion for cause of persons unalterably opposed to the death penalty deprived him of the right to a jury chosen from a representative cross-section of the community. The contention was rejected by a majority of this court in People v. Fields (1983) 35 Cal.3d 329, 342-353 (plur. opn.), 374 [197 Cal.Rptr. 803, 673 P.2d 680] (conc. opn. of Kaus, J.).
V
Although the error in denying defendant’s motion to suppress the notebooks was not prejudicial on the guilt phase (Pt. I, ante), it had a very different effect on the penalty phase. In that stage of the trial the role of the notebooks was much greater than in the guilt phase, and much less other, untainted evidence was introduced. Thus in his opening statement on the penalty phase the prosecutor repeatedly told the jury that he intended to rely primarily on defendant’s own words, as they appeared in the notebooks, to justify the death sentence. He said, for example, that he would present “a great deal of evidence that the defendant has not one iota of remorse” and “most of that evidence is in the form of the notebooks.” True to his promise, the prosecutor called no witnesses, but simply agreed to a stipulation with defense counsel as to the facts of two additional child molestations committed by defendant. After defendant put on his evidence, however, the prosecutor moved for the admission not only of the portions of the notebooks introduced on the guilt phase, but also of a number of additional entries from each book. The motion was granted over defendant’s strong objections.
In his closing argument to the jury the prosecutor used the notebooks relentlessly for the purpose of obtaining a verdict of death. He referred to the notebooks dozens of times, quoted from them over and over again, and based his entire argument on repeated assertions that defendant deserved to die because the notebooks proved that he planned and executed these crimes deliberately, was not acting in the heat of passion, knew his conduct was *735wrongful but enjoyed inflicting pain on his victims, and had no remorse afterwards.6 After reading numerous passages to the jury, the prosecutor concluded, “There are other similar statements in his writings, they will all be given to you. I ask you to read them. Read them to determine what kind of a man this is.”
In view of the dramatically greater role of the notebooks—and lesser role of other evidence—at this phase of the trial, it is impossible to conclude that the error in their admission was harmless on the issue of penalty. The error infected the entire proceeding on this question, and was therefore prejudicial under any test.
Because the judgment must be reversed as to penalty, we do not reach defendant’s other claims of error.
The judgment is reversed insofar as it imposes the penalty of death and is affirmed in all other respects. The petition for habeas corpus is denied.
Broussard, J., concurred.
Reynoso, J., concurred in the judgment.
The search thus violated guidelines set forth in a manual jointly published by the California District Attorneys Association and the Los Angeles County District Attorney’s office. Reflecting settled rules of law, the manual advises police officers that “A search warrant cannot be used as a pretext for a general exploratory search,” and that “Each officer searching must know what items are listed on the warrant and can search for those items only. ” (Italics added.) (Chrystie & Schirn, Search Warrants (3d ed. 1984) pp. 10-7, 10-8.)
The same is true of the first clause of the warrant: the affidavit fails to allege any fact, for example, to support the warrant’s authorization to search for “traffic tickets” in defendant’s apartment. Nor would it have been reasonable for the magistrate to assume that all child molesters are ipso facto traffic scoffiaws.
Because the evidence here challenged was obtained under color of a warrant, defendant bore the burden of demonstrating that the search was unreasonable because the warrant was invalid. (See Theodor v. Superior Court (1972) supra, 8 Cal.3d 77, 101.) We recognize that his objection to this evidence on the ground of the overbreadth of the warrant could have been more specific. But while in a noncapital case a claim of erroneous admission of evidence will not be reviewed in the absence of a timely and proper objection (e.g., People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048]), we have long followed a different rule in capital cases. On an appeal from a judgment imposing the penalty of death, a technical insufficiency in the form of an objection will be disregarded and the entire record will be examined to determine if a miscarriage of justice resulted. (People v. Bob (1946) 29 Cal.2d 321, 328 [175 P.2d 12].) The Bob rule is even more relevant today, in light of the recognition by the United States Supreme Court of the fact that death is “ ‘profoundly different from all other penalties’ ” (Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [71 L.Ed. 1, 8, 102 S.Ct. 869]) and its repeated holdings that a capital defendant is therefore entitled to enhanced procedural protections against arbitrary infliction of the supreme penalty. Indeed, this court recently cited Bob in support of its promise that in capital cases it will review trial errors even when defense counsel has failed to complain of them on appeal. (People v. Easley (1983) 34 Cal.3d 858, 864 [196 Cal.Rptr. 309, 671 P.2d 813].)
In a petition for habeas corpus filed in conjunction with the appeal, defendant contends he was denied effective assistance of counsel because his trial attorney failed to object on the ground that admission of the notebooks also violated certain other constitutional guarantees. (U.S. Const., 1st & 5th Amends.; Cal. Const., art. I,§§1, 2, 15.) Whether or not such objections would have been well taken, counsel’s failure to make them was evidently not prejudicial in view of our holding that the admission of these notebooks, although error, was harmless. Any such failure to object thus does not provide a basis for reversal on the ground of ineffective assistance of counsel. {People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)
Section 352 provides in part: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .”
The prosecutor’s unremitting emphasis on defendant’s own writings as the basis for his demand for the death penalty is illustrated by the following typical portion of his argument:
“[Defendant] analyzed himself and sat there and reviewed his thoughts and reviewed his sordid activities and wrote about them. [1] He wrote them down. He wrote them down, his motives, his feelings or lack of feelings, his knowledge of the pain that he inflicted, his full knowledge and awareness of the suffering that he was visiting onto these children. [5] And he’s well aware of it. And he writes it down in his own writing. In his own writing, he says, in effect, T know what I do is wrong. I know it is very painful. I know it is horrible. I know that I’m visiting great horror on these children. But by golly, I like it. And I choose to do it again.’ That’s who we have here. That’s who is before you.
“When you ask yourself a question, is this the type of crime, is this the type of person that is the worst, among the worst? Is this the type of person, the factors, when you add them up, add up to a conclusion that, in fact, he is the worst type of person. He committed the worst type of crime. [1] He did so knowingly, with what’s called malice aforethought, as you found, and rightfully so. Premeditation as you found, and rightfully so. With present knowledge that it’s wrong, and how wrong it is, what he did.
“But he didn’t care, because he enjoyed it. That is all that matters to you. He writes of it. He writes statements, for instance—and by the way, we have the evidence of this in the form of the notebooks. [|] Now, the major portions of those notebooks were, of course, not presented to you. And we presented additional evidence in this hearing which is relevant to the question of penalty. [1] These will be provided to you at the time you go to the jury room, these additional entries into the notebooks. ” (Italics added.)