Filed 7/9/12




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S048440
           v.                        )
                                     )
CHRISTOPHER CHARLES LIGHTSEY, )
                                     )                         Kern County
           Defendant and Appellant.  )                     Super. Ct. No. 56801A
____________________________________)



        A jury in Kern County Superior Court convicted defendant Christopher
Charles Lightsey in 1995 of the first degree murder of William Compton (Pen.
Code, § 187)1 and of burglary (§§ 459, 460, subd. (a)) and robbery (§§ 211, 212.5,
subd. (a)) related to the murder.2 As to each count, the jury found true the
allegations that defendant personally used a deadly weapon in committing the
offense (§ 12022, subd. (b)(1)) and that he had served a prior prison term (§ 667.5,
subd. (b)). In conjunction with the murder verdict, the jury found true three
special circumstance allegations: that the murder was committed in the course of
a burglary and a robbery (§ 190.2, subd. (a)(17)(A), (G)), and the murder was

1      All further statutory references are to the Penal Code unless otherwise
indicated.
2      Before trial, defendant also pleaded nolo contendere to being a felon in
possession of a firearm (§ 12021.1, subd. (a)) and admitted a prior-prison-term
sentence-enhancement allegation (§ 667.5, subd. (b)).




                                         1
intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury
returned a verdict of death, and the trial court, after denying defendant‟s motion
for a new trial and the automatic application to modify the verdict (§ 190.4,
subd. (e)), sentenced defendant to death.3 This appeal is automatic. (§ 1239,
subd. (b).) As discussed in part I.B.1.b., post, we conclude the trial court
committed reversible error by permitting defendant to represent himself during
proceedings to determine whether he was mentally competent to stand trial. To
remedy this error, we remand the case for further proceedings to allow the trial
court to determine whether a retrospective evaluation of defendant‟s competence
to stand trial is feasible and, if it is, to hold such a hearing. If the trial court
determines such a hearing is not feasible or defendant was incompetent, defendant
is entitled to a new trial.
                                    I. GUILT PHASE

       A. Facts

            1. Prosecution Evidence
       William Compton, 76 years old at the time of the murder, lived alone in his
house on Holtby Road in Bakersfield. Compton was an avid ham radio operator
and collector of firearms. He owned an extensive collection of handguns and
rifles, as well as equipment and materials related to the firearms, such as
ammunition and maintenance supplies, all of which he stored in his house. He
kept in a notebook a record of the various firearms he had purchased and sold over
the years. His radio equipment was set up in one room of his house, and his motor
home, which was parked in front of his house, contained more radio equipment.


3      The court stayed the sentences on the remaining counts pursuant to section
654.




                                             2
       Compton had been diagnosed with colon cancer that had metastasized to
other parts of his body. He had started a course of radiation treatment a few days
before the murder and had an appointment for his fourth session at 11:30 a.m. on
July 7, 1993. The medical office where Compton received his treatments was
located a 10-minute drive from his house, and on his previous three appointments
he had arrived approximately 15 minutes before his appointment‟s scheduled time.
Compton did not, however, make it to his appointment on July 7. A neighbor had
seen him in his backyard at approximately 7:45 that morning. About 9:30 a.m.,
another neighbor saw a person she thought was Compton walking in the driveway
in front of the house. The man was wearing khaki pants like those the first
neighbor described Compton as wearing. Two of Compton‟s friends telephoned
him on four occasions that day, but he did not answer any of the calls. The calls
were made at approximately 8:01 a.m., 8:49 a.m., 11:05 a.m., and 1:35 p.m.
George Miller, the friend who had made three of the calls, including the final one,
eventually called the medical office where Compton had his appointments and
learned that Compton had not arrived for his treatment. Miller, his wife, and the
other friend who had called Compton that day then went to his house to check on
him. The doors of the house were locked, and their knocking received no
response. On looking through a bedroom window, Miller‟s wife saw Compton‟s
body on the floor. The trio called 911, and the firefighters who responded to the
scene forced open a window and confirmed that Compton was dead. It was very
hot inside the house, and Compton‟s body, which was lying faceup on the floor
and clothed only in underwear, was stiff with rigor mortis. There were wounds to
Compton‟s torso, but their exact nature and number was not clear due to the blood
on the body.
       The police officers who responded determined that, other than where the
firefighters had entered, the house bore no sign of forced entry nor were there any

                                         3
obvious signs that any property had been removed. Still in the house were a pair
of pants containing Compton‟s wallet hanging on the towel rack in the bathroom,
Compton‟s ham radio equipment, tools, a television, a videocassette player, and a
rifle. The police officers and coroner‟s assistant at the scene theorized that
Compton may have committed suicide, based on information concerning his
serious medical condition and the circumstances that Compton‟s body bore what
appeared to be superficial, “hesitation wounds,” his body had not been moved
after his death, and there were no obvious indications that a robbery had occurred.
       Based on the initial uncertainty regarding the nature of Compton‟s death
and the possibility it might have been a suicide, the police did not conduct a full
forensic examination of the house and instead departed after sealing it. An
employee of the coroner‟s office notified Compton‟s sister-in-law, Margaret
Compton, of his death. The following day, July 8, 1993, Margaret went to the
coroner‟s office to obtain the keys to Compton‟s house and vehicles. The
coroner‟s assistant advised Margaret that she should secure Compton‟s belongings
and vehicles before potential burglars learned of his death. She and her son
Anthony then went to the house and removed a number of items, including five
firearms, a ceremonial sword, a telephone answering machine, a television, a
videocassette recorder, a computer, a ham radio, locksmith equipment, and a
number of power tools. They also took the notebook that contained Compton‟s
records of the firearms he had bought and sold, and two empty video camera
boxes.4
       The coroner conducted an autopsy of Compton‟s body on July 9, 1993.
Once the blood had been washed off the body and the full extent of Compton‟s

4      The cameras were not in the house.




                                          4
wounds became apparent, that his death was a homicide and not a suicide was
clear. There were 42 stab wounds grouped in three clusters in the front of his
abdomen, on his neck and upper chest, and on his face, and one more stab wound
in his right armpit. Two of the wounds in the chest had penetrated his heart, and
the wounds to his neck had severed his left jugular vein and left carotid artery. As
a result of the wounds to his heart and carotid artery, Compton would have lost
consciousness and then bled to death within 15 minutes. The wounds appeared to
have been inflicted more or less contemporaneously by a single object
approximately a half-inch wide and at least five inches long. The object might
have been a letter opener, a screwdriver, or a nonserrated metal file. The infliction
of these wounds would have caused “extreme physical pain and suffering.” There
also were some superficial abrasions and bruising on his forehead, face, and chin
that appeared to be slightly older than the stab wounds, but still fairly fresh. These
injuries were consistent with “blunt trauma,” such as being punched with a fist or
falling and hitting some object.
       A pathologist testified the handling of the body after it was found rendered
“some of the usual parameters to gauge time of death invalid.” In response to a
hypothetical question paralleling the circumstances of this case—including the
stage of the rigor mortis of the victim‟s body and environmental factors such as
the ambient temperature—the pathologist confirmed such circumstances would be
consistent with the victim‟s having died at 11:00 a.m. on the day his body was
discovered.5



5      The investigating officer later testified as a witness in the defense case that
he had written in a report that the pathologist had said the time of death “could be
as early as 08:30 hours [and] as late as 11:00 hours.”




                                           5
       After Compton‟s death was ruled a homicide, the police contacted Margaret
Compton and instructed her to return the items she and her son had removed from
the house. The police also conducted a more thorough search of the house, but did
not conduct a full forensic examination because they considered the scene to have
been contaminated. Using the records contained in Compton‟s notebook, the
police entered the serial numbers of a number of unaccounted-for firearms into a
computerized database of stolen property.
       On August 19, 1993, the investigating officer learned that a Jeffrey Mahan
recently had pawned in a local pawnshop a rifle with a serial number matching one
that had been entered into the system. Police arrested Mahan and questioned him
regarding the rifle. He told the police he had pawned the rifle at the request of his
friend, Brian Ray. The police then obtained and served a search warrant for Brian
Ray‟s residence, finding a total of 24 firearms, including 17 that were identified as
having belonged to Compton. Ray and Dane Palmer, who was present in Ray‟s
residence when the warrant was served, were arrested. Police later learned that
Palmer also had pawned another of Compton‟s firearms at the same pawnshop
Mahan had used.
       Ray initially was charged with Compton‟s murder and possession of stolen
property. He chose to cooperate with the police and, before the trial, the murder
charge was dismissed. Following his guilty plea to possession of stolen property,
he was granted a sentence of probation. His probation subsequently was revoked,
and he was in the midst of serving 16 months in prison when he testified at
defendant‟s trial. Ray confirmed at trial that he had not been promised anything in
return for his testimony.
       Ray testified that he had agreed to help defendant clean and store a number
of his firearms because defendant was scheduled to go into custody the next day
for a criminal matter unrelated to William Compton‟s murder. (See, post, fn. 6.)

                                          6
Defendant told Ray the guns belonged to him, that he had inherited them from
family members, and that he had proper documentation for them. While defendant
was in prison, he called Ray a number of times asking about his guns, which he
referred to as his “books.” Ray initially stored the guns in a storage locker, but
moved them to his apartment shortly before the police executed the search warrant
because he was planning to give the guns to defendant‟s girlfriend, Beverly
Westervelt. Ray had grown tired of defendant‟s repeated inquiries about the guns.
       Beverly Westervelt testified that she had an on-again-off-again romantic
relationship with defendant, which they had renewed in January 1992. After
living together in an apartment, they began looking for a larger place to live.
Defendant wanted to purchase a house near his mother‟s home on Holtby Road.
In the summer of 1992, defendant took Westervelt and her children to look at a
house on Holtby Road, although there was no indication the house was for sale.
The home‟s owner was not interested in selling the house but told defendant the
owner of the house across the street might be interested in selling his house. This
turned out to be victim William Compton‟s house.
       One evening, probably in September 1992, defendant took Westervelt and
her children to look at Compton‟s house, which also had no indication it was for
sale. After defendant parked in the driveway behind the house, they went to the
backdoor and knocked. Compton answered the door and, in response to
defendant‟s inquiry, said the house was not for sale. Compton nonetheless agreed
to let them come inside to look at the house. According to Westervelt, defendant
saw a rifle in a bedroom, and he and Compton proceeded to talk about Compton‟s
gun collection for approximately 20 minutes. Compton showed defendant several
other rifles. After staying about 45 minutes inside Compton‟s house, defendant,
Westervelt, and her children left. Defendant brought Westervelt back to
Compton‟s house approximately one week later to look at the backyard.

                                          7
Defendant approached from an adjacent driveway and looked over the fence into
Compton‟s yard.
       Defendant eventually purchased a house in a different part of Bakersfield,
and he, Westervelt, and her children moved into the house in October 1992.
Westervelt and her children moved out in April 1993, and she did not have any
contact with defendant for several months. On June 29, 1993, defendant was
arrested and jailed on unrelated charges and he contacted Westervelt for assistance
in helping him obtain bail. Defendant was released on bail on July 2; Compton
was killed five days later.
       At the end of July defendant agreed to stay away from his house and moved
into a rental cottage.6 He asked Westervelt to move some items out of his house
for him, including two video cameras. She had not seen the cameras before and
asked defendant where he had acquired them. He said he had purchased them at a
bargain sale. Defendant told her to take the cameras and use them, so she stored
them in her apartment. On her final visit to defendant‟s house, Westervelt, as
defendant had requested, left the burglar alarm off and one of the exterior doors
unlocked.
       On August 10, 1993, Westervelt accompanied defendant to a place where
he shot several handguns at bottles and cans. Westervelt had never seen defendant




6      Defendant‟s arrest stemmed from accusations he had molested his
neighbor‟s daughter. His agreement to stay away from his house, the court
proceedings related to defendant‟s alibi defense, and the prison sentence he began
serving in August 1993, which are discussed below, were related to the
molestation charges. In the guilt phase of the present case, the jury was not told
any of the specifics of the molestation charges and proceedings, and defendant
was simply referred to as being “in custody.”




                                         8
with those guns before. Defendant told her he had bought them through
newspaper advertisements.
       As a result of his arrest for molestation at the end of June, defendant was
scheduled to go into custody on August 12, 1993. In the days leading up to that
date, defendant repeatedly asked Westervelt to store a number of firearms for him,
but she refused and eventually suggested he ask Brian Ray to store the guns.
Defendant and Westervelt arranged to meet Ray at a friend‟s house. Defendant
parked in the garage, and he, Ray, and Ray‟s friend Dane removed more than 10
firearms from the trunk of defendant‟s car and proceeded to clean them.
Defendant, however, did not leave the guns with Ray at that time because he was
afraid something would happen to them. When Westervelt continued to refuse to
store the guns, however, defendant eventually telephoned Ray and asked if he
would store them. Defendant told Westervelt that Ray had agreed to store the
firearms.
       Westervelt later gave the police several items she said belonged to
defendant, including the two video cameras. The serial numbers on the video
cameras matched the serial numbers on the empty boxes found in Compton‟s
house, and they contained videotapes with footage of Compton. She also turned
over several letters defendant had written to her while he was in custody. In the
letters, defendant repeatedly referred to his “books,” which they had agreed would
serve as a code for the firearms Ray was storing. Defendant primarily expressed
his concern that nothing happen to his “books” and that they should be “preserved
in time” “like mummies in an Egyptian tomb.” At some point, Westervelt told
defendant that an investigator had come to defendant‟s mother‟s house.
Defendant‟s letters thereafter contained various statements that appeared to be
purposefully vague or misleading regarding his not having possessed any firearms
or video cameras, or having looked for a house in his mother‟s neighborhood. In

                                          9
addition, defendant now told Westervelt that the “accountant” (the keeper of his
“books”) “needs to clean house.” In another instance of a possible attempt to
destroy evidence related to Compton‟s murder, defendant told Westervelt to spend
the coins he had stored in a jar at his mother‟s house. Westervelt had never seen
such a jar of coins when she was living with defendant.
       Defendant‟s sister subsequently gave the police a jar of coins that had been
at defendant‟s mother‟s house, and a Masons‟ ring that had been inside
defendant‟s filing cabinet. The ring corresponded to the rank that Compton‟s
deceased father had obtained within the Masons.
       Karen Lehman, who was Brian Ray‟s sister, testified that in June 1993,
defendant asked her to stay at his house from time to time to help prevent it from
being vandalized. She thereafter spent some nights at the house, and on a few
occasions she and defendant had sexual intercourse. On or shortly before July 4,
1993, Lehman asked defendant about his plans for the Independence Day holiday,
and he told her he was planning to check in on a friend who was a sick, elderly
man—either 72 or 76 years old—who lived on Holtby Road near defendant‟s
mother‟s house.
       Around July 8 or 9 (i.e., a day or two after the murder), defendant asked
Lehman if he could store some items in the trunk of her car. When she asked why
he needed her to store the items, defendant said it was because he was being
“discriminated against.” Lehman agreed, and after placing the items (which
Lehman did not see) in the trunk, defendant had Lehman lock her car inside a
garage. A few days later, Lehman told defendant she needed to use her car, so
they drove the car to defendant‟s house. He removed the items from the trunk and
took them inside. During a subsequent visit to defendant‟s house, Lehman saw
more than 20 firearms in his bedroom. Defendant told her he had inherited some
of them from his father and had purchased others through newspaper

                                        10
advertisements. Defendant became intoxicated and threatened Lehman, saying he
would harm her if she told anyone about the guns and he could arrange for
someone else to harm her if he was unable to do it himself.
       Robert Rowland, a convicted felon who had spent most of his adult life in
prison, testified he was incarcerated with defendant in a correctional facility
around the end of 1993. Defendant told him about killing an elderly man for his
guns. Defendant mentioned a number of different types of guns and specifically
listed some that were consistent with firearms that belonged to Compton and were
recovered from Brian Ray. Defendant also told Rowland he had given the guns to
someone and that person was “snitching on him.” After telling the authorities
about defendant‟s statements, Rowland was transferred to another institution.
While at that institution, another inmate attempted to cut Rowland‟s throat,
resulting in an injury requiring 12 stitches. Although Rowland initially did not
want anything in return for testifying about what defendant had told him, after he
was attacked he did not want to testify against defendant until the prosecutor
agreed to request that prison authorities transfer him to an out-of-state facility.
       Evidence regarding the prior-prison-term enhancement allegation under
section 667.5, subdivision (b) was presented in a bifurcated proceeding after the
jury reached its verdicts on the substantive charges. The prosecution introduced
certified records showing that defendant had been convicted of possession of
cocaine in 1987 and, after a revocation of his parole, had been released from
prison on March 6, 1990, within five years of the murder.

           2. Defense Evidence
       The defense evidence centered on defendant‟s presence at a court
proceeding on the morning of July 7, 1993 (the morning the evidence established
Compton was murdered), when defendant‟s proceeding concluded, and whether it



                                          11
was possible for defendant to have committed the murder that morning.7
Defendant undisputedly was in court that morning seeking return of his bail bond
premium in his molestation case. The reporter‟s transcript of the proceeding and
various witnesses—including defendant‟s mother, his defense attorney, the
prosecutor, and the courtroom bailiff—verified this. Telephone records and other
testimony also indicated someone had placed a telephone call from defendant‟s
house to his bail bondsman at approximately 11:50 that morning. The evidence
and testimony did not, however, conclusively establish when defendant‟s court
proceeding concluded. Based on the witness testimony and the defense attorney‟s
notes from the other court proceeding he was involved in that day, defendant‟s
court proceeding could have been completed as early as within a few minutes after
10:30 a.m., or as late as a few minutes before 10:55 a.m. If it was the former,
there would have been sufficient (but not excessive) time for defendant and his
mother to walk from the courthouse to his mother‟s car, which was parked at the
defense attorney‟s nearby office, for defendant to drive them to his mother‟s
house, and then for defendant to drive to the victim‟s house (arriving before
Compton was to leave for his doctor‟s appointment and, presumably, before the
telephone call Compton‟s friend made to him at 11:05 a.m.) and thereafter to
commit the robbery and murder, leaving defendant enough time to return home to
make the telephone call to his bail bondsman at 11:50 a.m. If defendant‟s court
proceeding concluded closer to the later end of the range (i.e., 10:55 a.m.), it
would have been exceedingly difficult, if not impossible, for defendant to have
committed the murder.


7     Because the jury necessarily rejected the alibi defense, we provide only an
abbreviated recitation of the supporting evidence.




                                          12
       Defendant‟s mother also testified she believed that, after arriving back at
her house from court that morning, defendant remained there until 11:30 a.m. or
noon, while he ate a sandwich and had a drink. She admitted, however (and other
witnesses confirmed), that at various times before trial she had told different
people she did not have a good memory of the events of that morning, including
even whether she had attended court with defendant. Defendant had tried to
convince her they were in court all day on July 7, 1993, but she knew this was
incorrect because she had attended a birthday party for another of her sons on that
day.
       Darren Howard and Alfred Stone testified they each sold a firearm that the
police subsequently seized from Brian Ray. Howard thought defendant might
have been the person who purchased his rifle. Stone did not remember the person
he had sold his rifle to, but defendant had a copy of the advertisement Stone had
placed in the local newspaper. Beverly Westervelt testified defendant routinely
kept significant amounts of cash on hand and often purchased items, including
large items such as a used car, with cash.8
       Vaughn Lehman testified he had been married to Karen Lehman for
22 years before their divorce and had known Brian Ray for approximately
25 years. In his opinion, both of them had bad reputations in the community for
truth and veracity.



8      Following an objection by the prosecution, the trial court excluded
proffered testimony to the effect that defendant had told Westervelt and his friend
Dutler Dauwalder he had purchased Compton‟s firearms and other belongings
from a person staying in a house across the street from defendant‟s mother‟s
house. Defendant‟s challenge to the trial court‟s ruling is discussed, post, in part
I.B.4.




                                         13
       B. Issues

           1. Defendant’s Mental Competence
       At a number of points in the pretrial and trial proceedings, questions arose
concerning defendant‟s mental competence to stand trial. (See § 1367, subd. (a)
[“A person cannot be tried or adjudged to punishment while that person is
mentally incompetent.”]; Pate v. Robinson (1966) 383 U.S. 375, 378 [“the
conviction of an accused person while he is legally incompetent violates due
process . . .”] (Pate).) On appeal, defendant contends the trial court committed
various errors in addressing this issue. We conclude the trial court‟s failure to
appoint counsel to represent defendant during one of the competency proceedings
violated his statutory rights, resulting in a reversible miscarriage of justice. We
further conclude the matter should be remanded for a determination of whether a
retrospective competency hearing is feasible and, if so, for the trial court to hold
such a hearing.

                  a. Background
       Throughout the proceedings in the trial court, defendant generally had
difficult relationships with the attorneys appointed to represent and assist him.
Indeed, defendant went through five attorneys—and represented himself for a
period of time—before settling on the two attorneys who eventually represented
him during the trial. Even those two attorneys, however, did not enjoy a
particularly amicable relationship with defendant, as he continually expressed
disagreement and dissatisfaction with them, to the point where, during his own
counsel‟s closing argument at the penalty phase, defendant‟s vocal interruptions
became so disruptive that the trial court ordered him removed from the courtroom.
Defendant‟s outbursts during the proceedings were not directed at defense counsel
only; he also consistently interrupted the court, the prosecutor, and various
witnesses (both defense and prosecution). Defendant‟s behavior led his attorneys


                                          14
on a number of occasions to express doubts concerning his mental competence to
proceed. Although the trial court twice suspended the proceedings to have
defendant examined by experts for competence, it found defendant competent both
times. At other times, the court disagreed that a doubt existed concerning
defendant‟s ability to understand the proceedings and assist his attorneys and
declined to suspend the proceedings for a psychiatric examination of defendant.
       Defendant‟s first appointed attorney was Stan Simrin, but the trial court
granted Simrin leave to withdraw because defendant was unwilling to waive the
statutory deadline for trial to commence (see § 1382, subd. (a)(2)) and Simrin
could not competently prepare for trial within that time period. Defendant‟s
second attorney, Donnalee Huffman, withdrew for the same reason only days after
she was appointed. On March 3, 1994, 10 days after he was appointed,
defendant‟s third attorney, Edward Brown, filed a “Motion for PC 1368(b) and PC
1368(c),” requesting that the trial court order a mental competency hearing for
defendant and suspend the proceedings until he was determined to be competent.
The motion did not provide any details concerning counsel‟s reasons for doubting
defendant‟s competence. Nevertheless, on March 7, 1994, the trial court granted
the motion, suspended the trial proceedings, and arranged for defendant to be
interviewed by a psychiatrist. In response to the court‟s order, defendant
questioned how the court could “suspend criminal proceeding[s] without giving
[him] an opportunity to speak,” and stated, “Cancel the doctor‟s appointment.
I don‟t need a doctor. I refuse.”9


9       In a declaration accompanying a motion for a continuance that was filed
after the trial court suspended the proceedings, Attorney Brown stated he had filed
the motion regarding his client‟s competence because of defendant‟s
“unwillingness to cooperate and his demand to go to trial within the statutory
                                                          (footnote continued on next page)


                                        15
        As promised, when the psychiatrist designated to evaluate him, Dr. Richard
Burdick, arrived for the interview, defendant refused to answer any questions.
Defendant informed Dr. Burdick that he was seeking to have his attorney removed
by “initiat[ing] a Marsden” (People v. Marsden (1970) 2 Cal.3d 118), and
therefore he needed to “protect his rights” and would speak only in court. In his
subsequent two-page report filed with the court, Dr. Burdick stated his “brief
encounter” with defendant was not sufficient to complete a “formal psychiatric
evaluation,” but from Dr. Burdick‟s limited observation of defendant “[i]t would
seem apparent at this point that this man is in control of his faculties and is not
demonstrating a psychiatric illness at this point.” Dr. Burdick noted the jail staff
had reported behavior suggesting defendant was “deliberately disruptive and a
trouble maker but [not] psychotic.” In conclusion, Dr. Burdick opined defendant
was “able to understand the nature and purpose of the proceedings taken against
him and if he so chooses, he is capable of cooperating in a rational manner with
counsel in presenting a defense.”
        At the competency hearing before the trial court on March 28, 1994,
Attorney Brown and the prosecutor both stated they would submit the matter of
defendant‟s competence based on Dr. Burdick‟s report, and the trial court, without
further discussion, found defendant competent to stand trial.
        Immediately after that finding, defendant personally filed a motion to
recuse the judge under Code of Civil Procedure section 170.6, which the court
granted. Defendant‟s Marsden motion was heard later that morning before a
different judge. In a long statement to the court, defendant accused Attorney

(footnote continued from previous page)

period runs afoul of sound reason,” and therefore counsel sought to resolve
whether there was a “clinical reason” for defendant‟s behavior.




                                          16
Brown of failing to take any steps to develop a defense to the charges. Brown, in
contrast, stated defendant had been hostile and uncooperative from the beginning
of the appointment. The court, in denying the motion to relieve counsel, stated
that in its view “this is more of an issue of cooperation between counsel and the
defendant[, a]nd the court is concluding very quickly that the defendant is not
cooperating with his counsel. That doesn‟t mean that he is entitled to the
appointment of other counsel and [to] keep going through a number of counsel
until such time as he is going to cooperate.” Later that day, Brown requested the
appointment of a second attorney to represent defendant due to the complexity of
the case and the circumstance that, because of “the client‟s attitude,” in counsel‟s
view “it‟s going to take at least two of us to handle this situation.” The court
agreed to appoint James Sorena as second counsel.
       Defendant next filed a motion to represent himself under Faretta v.
California (1975) 422 U.S. 806 (Faretta). At the hearing on that motion,
defendant gave a rambling statement criticizing his attorneys‟ performance and
accusing them of participating in a conspiracy against him. The trial court
considered defendant to have renewed his Marsden motion and conducted a
hearing on that issue. When questioned by the court, Attorney Brown again stated
defendant had refused to cooperate, except with regard to the preparation of the
Faretta motion, and communication between them concerning the case was
impossible because defendant “has an opinion that the system has absolutely
walked over him, that he hasn‟t been fairly represented.” The Marsden hearing
was continued to the next day, and defendant repeated his allegations of a
conspiracy against him, claiming the transcripts of various court proceedings had
been altered and his defense attorneys were helping the district attorney convict
him. During these hearings, defendant at times talked too fast for the court
reporter to record what he had said, and his answers to various questions from the

                                         17
court often strayed to other topics without answering the questions that had been
asked. The trial court ultimately denied the Marsden motion.
       At this point, Attorneys Brown and Sorena again asked the trial court to
declare a doubt regarding defendant‟s mental competence to proceed. They
observed that the first competency hearing might not have complied with the
statutory requirements because, despite defendant‟s apparent view he was not
incompetent, the court had appointed only one expert to assess his competence.
(See § 1369, subd. (a) [“In any case where the defendant or the defendant‟s
counsel informs the court that the defendant is not seeking a finding of mental
incompetence, the court shall appoint two psychiatrists, licensed psychologists, or
a combination thereof.”].) Further, in counsel‟s view, defendant‟s courtroom
statements and behavior indicated he was not mentally competent to proceed. The
trial court disagreed that defendant‟s competence was in doubt, stating it believed
defendant was able to communicate and cooperate with counsel in a rational
manner if he chose to do so.
       At a subsequent hearing on April 11, 1994, the trial court, after a very
lengthy discussion, granted defendant‟s Faretta motion and relieved Attorneys
Brown and Sorena. Two days later, at defendant‟s request, Attorney Ralph
McKnight, Jr., was appointed as advisory counsel for defendant. On June 29,
1994, Attorney McKnight, although serving only as advisory counsel, filed a
motion requesting that the trial court terminate defendant‟s self-representation due
to his asserted mental incompetence. Included with the motion were declarations
from McKnight and defendant‟s former attorney, Sorena. McKnight declared that
in his view, based on the eight times he had met with defendant, defendant was
“demonstrating signs of serious mental instability” and “appears to be unable to
comprehend and appreciate either the substantive or the procedural law which is
applicable in this matter.” According to McKnight, defendant‟s “prior waiver of

                                         18
counsel appears to be a direct outgrowth of his delusion that the justice system in
general, and defense attorneys in particular, are in league against him in an all
pervasive conspiracy. He also appears to have a belief in his own super
competence, which causes [him] to believe that he alone has the correct
interpretation of the law. These delusions render him incompetent to knowingly
and intelligently appreciate the difficulties he will face representing himself and
what is at stake.” McKnight reported that, as was the case with defendant‟s prior
attorneys, defendant “refuses to cooperate with myself as his advisory counsel,
refuses to accept advice from me, and remains hostile, accusatory and suspicious.”
Further, defendant had repeatedly asked counsel to make various motions or take
other actions which were “impossible, impractical or inconsistent,” and then cited
counsel‟s refusal to follow defendant‟s orders as further proof counsel was “part of
the conspiracy against him.”
       Attorney Sorena‟s declaration echoed these concerns. In their first meeting,
defendant could not focus his discussion, was very suspicious of Sorena, and by
the conclusion of the 45-minute meeting was convinced that Sorena was “part of a
pervasive conspiracy against him.” According to Sorena, defendant believed “all
members of the justice system were in collusion to execute him, including the
court reporters who falsified the transcripts of prior hearings.” Based upon
Sorena‟s contact with another criminal defendant who had been diagnosed with
paranoid and delusional disorders, Sorena “was convinced after my interview with
[defendant] that he was genuinely delusional to the point where his ability to assist
counsel was in substantial doubt.”
       On July 7, 1994, the trial court, based on Attorney McKnight‟s motion and
over defendant‟s objections, again suspended the proceedings for an assessment of
defendant‟s mental competence. The court, however, permitted defendant to



                                         19
continue to represent himself, including choosing one of the experts who would
interview him.
       The two resulting medical opinions concerning defendant‟s competence
presented to the court in written reports came to conflicting conclusions. The
expert chosen by the court, Psychiatrist Luis Velosa, concluded defendant was
“suffering from a psychiatric disorder which impairs his thinking process . . . best
classified as bipolar disorder (manic type) or a paranoid disorder. The defendant
at present is exhibiting psychotic symptoms characterized by a thought disorder in
which [he] experiences racing thoughts, looseness of associations, rambling of
thoughts, sometimes without any logical connection. In addition, the defendant
experiences paranoid thinking, persecutory delusions, [and] a false belief that there
is a conspiracy against him.” Dr. Velosa concluded that defendant “is at present
able to understand the nature and purpose of the proceedings taken against him.
However, because of his psychiatric symptoms, the defendant at present is unable
to cooperate in a rational manner with counsel in presenting a defense.
Furthermore, despite . . . the fact that the defendant has a vast knowledge of the
legal system and legal proceedings, because of his psychiatric symptoms, [he] is
not able to represent himself.” Dr. Velosa also noted that defendant‟s judgment
was “impaired and he [had] no insight into his mental disorder.”
       The expert chosen by defendant, Psychiatrist Sakrapatna Manohara, found
defendant to be “generally cooperative but . . . quite manipulative.” Defendant‟s
speech was “coherent but appeared to be circumstantial,” and he was “blaming all
his problems on the system.” Dr. Manohara found defendant “did not appear to be
really delusional although he was highly mistrustful of the system and the
attorneys.” According to Dr. Manohara, defendant “performed well” in tests
designed to assess his memory and concentration, and he “showed appropriate
affect to thought content.” Defendant exhibited “some anger and frustration” at

                                         20
being “railroaded” and believed he needed to “let go and let God take care of
things.” In Dr. Manohara‟s opinion, defendant had a “grandiose sense of self
importance,” tended to “exaggerate achievements and talents,” spoke in a manner
that was “excessively impressionistic and lacking in detail,” and believed “his
problems [were] unique and [could] only be understood by other special people.”
Defendant did not have a “clear-cut psychotic disorder,” but did appear to be
“excessively mistrustful of the system,” and exhibited a narcissistic personality
disorder. Dr. Manohara concluded that defendant‟s “personality disorder makes it
difficult to work with him as an attorney but . . . he is competent to stand trial.
However, he is not competent to represent himself because of his lack of
objectivity and his grandiose sense of self importance and his tendency to be
circumstantial with a sense of entitlement. He may over-react to criticism with
feelings of rage.”
       The trial court held a hearing concerning defendant‟s mental competence
on July 28, 1994. In summarizing the doctors‟ reports, the trial court noted
Dr. Manohara had found defendant competent to stand trial, while “Dr. Velosa,
although he reflects what I would suggest to be some reservation in that regard, he
does indicate that [defendant was] able to understand the nature and purpose of the
proceedings.” Defendant, who continued to represent himself at the hearing,
insisted he was competent to proceed and demanded a jury trial on the issue of his
mental competence. The prosecutor, also apparently desiring a finding defendant
was competent, suggested defendant waive his right to a jury trial and agree to
submit the matter on the experts‟ reports if the trial court was “inclined to find that
[defendant] is competent to stand trial, which I believe is what he wishes.” The
trial court then asked defendant whether he would “waive a jury trial on that issue
so we can get on with the show.” Defendant agreed to do so, and the court
proceeded to find defendant competent. Thereafter, Attorney McKnight, who had

                                          21
not participated in the hearing, asked to be relieved as advisory counsel based on
the complete breakdown of his relationship with defendant. The trial court
granted the request.
       Although the trial court had found defendant competent for purposes of
continuing with the proceedings, the court nonetheless expressed concerns
regarding whether defendant was competent to waive his right to counsel and to
represent himself, and on August 2, 1994, it held a hearing to address that issue.
At the hearing, defendant continued to represent himself. After the three doctors
(Drs. Burdick, Velosa, and Manohara) who previously had evaluated defendant‟s
mental competence testified, the trial court found defendant‟s waiver of the right
to counsel was valid. In the court‟s view, defendant‟s difficulties in focusing and
effectively communicating were the result of his excited state and his lack of
experience in courtroom proceedings. The court said it was “sure much of that
will settle down when you‟re in a trial situation, and I don‟t think that that in any
way would indicate to this Court that you cannot make a knowledgeable and
intelligent waiver as to your right to represent yourself.” The court then appointed
Attorney James Gillis as advisory counsel for defendant.
       Paralleling the experience of defendant‟s prior attorneys, Attorney Gillis,
on September 12, 1994, filed a motion to terminate defendant‟s self-representation
because defendant was not mentally competent. In the declarations submitted with
the motion, Gillis recounted defendant‟s delusions concerning the conspiracy
against him, which were negatively affecting counsel‟s ability to assist him and
defendant‟s own ability to prepare a defense. At the hearing on the motion,
defendant stated he would voluntarily waive his right to represent himself if the
court would agree to appoint Attorney William Dougherty as lead counsel, with
Gillis perhaps continuing as cocounsel. Defendant would accept the appointment
of Dougherty because he was an attorney who primarily practiced in a different

                                          22
county. The trial court appointed Dougherty and Gillis as suggested, and the case
proceeded to trial.
       Although Dougherty and Gillis continued to represent defendant through
the trial, their relationship with defendant was not an easy one. As the trial
progressed, defendant became more and more disruptive. He made faces and
comments during witnesses‟ testimony and the attorneys‟ arguments. He
repeatedly professed his innocence and proclaimed his belief there was a far-
reaching conspiracy against him that involved altering the transcripts of the court
proceedings he had attended on the day of the murder and the preliminary
examination in the present case. The trial court at times expressed its view that it
appeared defendant could not control himself and his outbursts in front of the jury
likely were detrimental to his defense. When the guilt phase verdict was
announced, defendant shouted that the case against him was a fraud and he was
innocent. His reaction was so riotous that the jury was cleared from the
courtroom, and after a several-minute tirade by defendant, the trial court
threatened to order defendant gagged if he could not control himself. After a
discussion with defense counsel, defendant agreed to remain silent for the
remainder of the reading of the verdict.
       Before the penalty phase began, counsel filed yet another motion to
suspend the proceedings due to defendant‟s asserted mental incompetence. At the
next court proceeding, counsel stated defendant had progressively become more
and more delusional and paranoid regarding the conspiracy against him, and at
that point defendant not only could no longer assist counsel in a rational manner
but was actually undermining the defense efforts. The prosecutor, however,
expressed the view that defendant was a “master manipulator” and, as the trial
court had consistently found in the past, was able to cooperate with counsel but,
for his own reasons, was choosing not to do so. The trial court refused to declare a

                                           23
doubt concerning defendant‟s mental competence, stating it was “fully convinced
that [defendant] has a mental capacity—he may not have a mental discipline, but
he‟s got a mental capacity to be fully aware of what‟s happening, what‟s going on
with what the procedures are.” The court noted that, rather than there being a
breakdown in communication between defendant and counsel, it appeared
defendant was “constantly talking to his attorneys.” The court permitted
defendant to read a statement into the record in which he again made his
allegations of fraud and conspiracy. Later that day, during a conference outside
the presence of the jury, the trial court reiterated that “the court does not have any
doubt as to [defendant‟s] competency to stand trial in this matter.”
       When defendant expressed his intention to testify at the penalty phase,
despite defense counsel‟s fervent advice not to do so, the trial court attempted to
obtain an on-the-record waiver of defendant‟s right to remain silent. Defendant,
however, would not expressly agree to make such a waiver, and the court
ultimately stated that, in its view, defendant‟s testifying would be “very
detrimental” to his interests because “he can‟t seem to discipline his thought
processes, [and] respond to the simple questions I‟m asking him about his right to
remain silent.” Defense counsel reminded the court they believed defendant was
not mentally competent to proceed, but the court stated it believed defendant was
merely “in a position of denial” regarding the crimes. The trial court ultimately
found that defendant was validly waiving his right to remain silent.
       As defense counsel predicted, defendant‟s penalty phase testimony was
unhelpful. His testimony in general was rambling, and the court and his attorneys
repeatedly admonished him to answer the questions that were asked. He testified
the evidence presented at the guilt phase to support his alibi defense was entirely
fraudulent, and he actually had been in a different courtroom for the entire day of
the murder. During closing arguments, defendant became more and more

                                          24
boisterous, repeatedly interrupting both the prosecutor and defense counsel, to the
point where, during defense counsel‟s final argument, the trial court ordered
defendant removed from the courtroom for the remainder of the argument.
Defendant thereafter watched, from another courtroom, a video feed of the rest of
counsel‟s argument. The trial court, anticipating continued disruptive behavior,
instructed security personnel to gag defendant if he continued to have outbursts
that were likely to disrupt any proceedings in the courthouse.
       The next morning, defense counsel, citing the events of the previous day,
again requested that the trial court suspend the proceedings in order to evaluate
defendant‟s mental competence. The trial court again expressed its view that
defendant was voluntarily choosing not to cooperate with counsel and merely had
a bad “attitude.” The court declared, “There is no doubt in this Court‟s mind as to
the competence of [defendant], none whatsoever.”
       At the hearing on defendant‟s motion for a new trial, the automatic
application to modify the verdict, and the court‟s imposition of the sentence,
defendant continued to interrupt the proceedings. The court ultimately ordered
defendant gagged and restrained in his chair. Defendant nonetheless was able to
struggle free of the gag, at which point he requested a Marsden hearing.
Defendant was again gagged, and the sentencing proceeding continued. The court
ultimately allowed defendant to make a final statement in which he restated his
allegations of fraud and conspiracy.

               b. Failure to Appoint Counsel for Defendant During Second
                  Section 1368 Proceedings
       As recounted above, defendant‟s counsel moved five different times during
trial to have the trial court declare a doubt about defendant‟s mental competence to
stand trial. The court granted two of the motions—the first on March 7, 1994, and
the second on July 7, 1994—held hearings both times, and twice concluded


                                         25
defendant was not incompetent. On appeal, defendant makes a number of claims
related to his five motions and two competency hearings. One such claim is
meritorious: the trial court erred in allowing defendant to represent himself during
the competency proceedings following the trial court‟s second declaration of doubt
under section 1368. We conclude this error constitutes a reversible miscarriage of
justice and the appropriate remedy at this time is to remand to the trial court to
allow it to conduct a retrospective competency hearing, if feasible.

                    i. Standards of mental competence
       The United States Supreme Court has “repeatedly and consistently
recognized that „the criminal trial of an incompetent defendant violates due
process.‟ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) A defendant is
deemed incompetent to stand trial if he lacks “ „ “sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding . . . [or]
a rational as well as factual understanding of the proceedings against him.” ‟ ”
(Ibid., quoting Dusky v. United States (1960) 362 U.S. 402, 402 (Dusky).) “Even
when a defendant is competent at the commencement of his trial, a trial court must
always be alert to circumstances suggesting a change that would render the
accused unable to meet the standards of competence to stand trial.” (Drope v.
Missouri (1975) 420 U.S. 162, 181 (Drope).) State constitutional authority is to
the same effect. (See People v. Koontz (2002) 27 Cal.4th 1041, 1063.)
       The applicable state statutes essentially parallel the state and federal
constitutional directives. Section 1367, subdivision (a) provides: “A person
cannot be tried or adjudged to punishment while that person is mentally
incompetent. A defendant is mentally incompetent for purposes of this chapter if,
as a result of mental disorder or developmental disability, the defendant is unable




                                          26
to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.”
       Section 1368 provides in pertinent part: “(a) If, during the pendency of an
action and prior to judgment, a doubt arises in the mind of the judge as to the
mental competence of the defendant, he or she shall state that doubt in the record
and inquire of the attorney for the defendant whether, in the opinion of the
attorney, the defendant is mentally competent. If the defendant is not represented
by counsel, the court shall appoint counsel. At the request of the defendant or his
or her counsel or upon its own motion, the court shall recess the proceedings for as
long as may be reasonably necessary to permit counsel to confer with the
defendant and to form an opinion as to the mental competence of the defendant at
that point in time. [¶] (b) If counsel informs the court that he or she believes the
defendant is or may be mentally incompetent, the court shall order that the
question of the defendant‟s mental competence is to be determined in a hearing
which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court
that he or she believes the defendant is mentally competent, the court may
nevertheless order a hearing. Any hearing shall be held in the superior court.”
       As we stated in People v. Welch (1999) 20 Cal.4th 701, 737-738, a trial
court is obligated to conduct a full competency hearing if substantial evidence
raises a reasonable doubt that a criminal defendant may be incompetent. This is
true even if the evidence creating that doubt is presented by the defense or if the
sum of the evidence is in conflict. The failure to conduct a hearing despite the
presence of such substantial evidence is reversible error.

                    ii. Self-representation at competency proceedings is improper
       At the time the trial court declared a doubt regarding defendant‟s
competence to stand trial on July 7, 1994—thereby triggering the second



                                          27
competency hearing—defendant had been representing himself. Did the trial court
err by allowing defendant to represent himself during the resulting competency
proceedings?10 That the court violated state statutory law by failing to appoint
counsel is beyond question. The plain language of section 1368, specifically
addressing the procedures in criminal competency proceedings, provides that
when the trial court states on the record that a doubt exists concerning the
defendant‟s mental competence, “[i]f the defendant is not represented by counsel,
the court shall appoint counsel.” (§ 1368, subd. (a), italics added.) Nothing could
be clearer.
       The People raise three ultimately unpersuasive counterarguments to the
position that the trial court erred under section 1368 by failing to appoint counsel
to represent defendant during the competency proceedings. They first contend that
when a doubt about a self-represented defendant‟s competence is declared, section
1368 requires the appointment of counsel merely to allow the trial court to receive
preliminary argument—in advance of the decision whether to suspend the trial—
as to whether the defendant is competent or not, but does not require legal
representation of the defendant throughout any subsequent competency
proceedings. This interpretation of section 1368 is meritless, for the plain
meaning of the statutory language admits no such limitation. “ „Where the words
of the statute are clear, we may not add to or alter them to accomplish a purpose
that does not appear on the face of the statute or from its legislative history.‟ ” (In
re Jennings (2004) 34 Cal.4th 254, 265.)



10     We recently reserved this question in a case in which the defendant was
acting not as his own attorney but as cocounsel with an attorney. (People v.
D’Arcy (2010) 48 Cal.4th 257, 283, fn. 13.)




                                          28
       Moreover, section 1369, which sets forth the procedures for the
competency hearing, indicates the Legislature‟s intention that a criminal defendant
be represented by counsel at a competency hearing. That section provides: “The
counsel for the defendant shall offer evidence in support of the allegation of
mental incompetence.” (§ 1369, subd. (b)(1), italics added.) The Legislature thus
contemplated a defendant would be represented by counsel throughout the
competency proceedings.
       The People‟s second counterargument fares no better. Although section
1368 requires the trial court to “appoint counsel” if “the defendant is not
represented by counsel,” the People contend the appointment of Attorney
McKnight as advisory counsel for the competency proceedings satisfied the
statutory requirement. We disagree: Attorneys serving in an advisory or standby
capacity do not “represent” the defendant, which is the clear mandate of the
statute. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14 [“[I]f the
accused decides to represent himself under Faretta, he assumes primary control
of, and responsibility for, his defense.”]; cf. McKaskle v. Wiggins (1984) 465 U.S.
168, 179 [“Faretta rights are adequately vindicated in proceedings outside the
presence of the jury if the pro se defendant is allowed to address the court freely
on his own behalf and if disagreements between counsel and the pro se defendant
are resolved in the defendant‟s favor whenever the matter is one that would
normally be left to the discretion of counsel.”].)
       The instant case serves to illustrate the inadequacy of the presence of mere
advisory counsel. Although it was McKnight‟s motion that gave rise to the
competency proceedings, he had no opportunity to address the court when
defendant‟s competence was discussed at the July 28, 1994, hearing. His views
regarding the experts‟ reports, which reached opposing conclusions concerning
defendant‟s competence to stand trial, and the prosecution‟s suggestion that

                                          29
defendant waive a jury trial and submit the matter with the understanding the trial
court would find him competent, were never aired. (Cf. Wise v. Bowersox (8th
Cir. 1998) 136 F.3d 1197 [no error in allowing the defendant to represent himself
at a competency hearing because standby counsel was allowed to speak and
examine expert witnesses].) McKnight, who—as far as the record discloses—
never abandoned his belief that defendant was incompetent at least to represent
himself, clearly did not “represent” defendant in the competency proceedings.
       Third, we reject the People‟s novel assertion that section 1404, which
specifies that errors in failing to comply with the provisions of the Penal Code do
not invalidate the proceedings unless the defendant was prejudiced by the error,
excuses a trial court from following the statutory requirements. Section 1404 is a
harmless error rule to be applied in the review of a judgment (see People v. Cahill
(1993) 5 Cal.4th 478, 524-527); it is not, as the People contend, a license for the
trial court in the first instance to ignore or contravene the provisions of the Penal
Code so long as the court believes its actions will not prejudice the defendant.
       The People also rely on decisions of the federal courts of appeals that found
no error occurred when the trial courts in those cases allowed the defendants to
represent themselves while the court considered their mental competence.
Reliance on those authorities is misplaced because, unlike in the present case,
those cases (Porter v. Attorney General (11th Cir. 2008) 552 F.3d 1260; U.S. v.
Morrison (2d Cir. 1998) 153 F.3d 34; U.S. v. Nichols (2d Cir. 1995) 56 F.3d 403)
did not involve any statutory requirement that counsel represent the defendants in
the proceedings at issue. (See also People v. Robinson (2007) 151 Cal.App.4th
606, 614-616 [distinguishing Nichols and Morrison based on the proceedings at
issue constituting merely “ „precautionary measure[s]‟ ” rather than full
competency proceedings]; U.S. v. Zedner (2d Cir. 1999) 193 F.3d 562, 565
[distinguishing the holding of Morrison on the same ground].)

                                          30
          To the extent the People contend defendant was properly permitted to
circumvent the statutory requirement by purporting to waive representation by
counsel, we disagree. First, no language in the statutes authorizes such a waiver.
Second, as we have held for decades, neither the state constitutional right to the
assistance of counsel in criminal cases nor the general right to due process
guarantees a criminal defendant‟s right to waive counsel; accordingly, defendant
had no right to self-representation under the California Constitution that could
have overridden the statutory requirement of legal representation in competency
proceedings. (People v. Taylor (2009) 47 Cal.4th 850, 871-872; People v. Sharp
(1972) 7 Cal.3d 448, 457-461.) Finally, as we explain, the statutory requirement
that a defendant be represented by counsel during proceedings to evaluate his or
her mental competence does not violate the defendant‟s federal constitutional
rights.
          In Sharp, this court concluded that neither the state nor the federal
Constitution created a constitutional right of a criminal defendant to self-
representation. (People v. Sharp, supra, 7 Cal.3d at pp. 457-458.) In Faretta, the
high court, of course, overruled our interpretation of the federal constitutional
provision. (Faretta, supra, 422 U.S. at p. 819 [“Although not stated in the [Sixth]
Amendment in so many words, the right to self-representation—to make one‟s
own defense personally—is thus necessarily implied by the structure of the
Amendment.”].) As we stated in Taylor, “[i]n the wake of Faretta‟s strong
constitutional statement, California courts tended to view the federal self-
representation right as absolute, assuming a valid waiver of counsel.” (People v.
Taylor, supra, 47 Cal.4th at p. 872.) This absolutist view of the federal right was
further cemented by a common interpretation of the high court‟s subsequent
decision in Godinez v. Moran (1993) 509 U.S. 389, in which the court held the
constitutional standard for assessing a defendant‟s mental competence to waive the

                                            31
right to counsel was the same as the standard for assessing his or her competence
to stand trial. (Id. at p. 398 [“[W]e reject the notion that competence to plead
guilty or to waive the right to counsel must be measured by a standard that is
higher than (or even different from) the Dusky standard.”]; see Dusky, supra, 362
U.S. at p. 402.) It was generally believed by the courts of many jurisdictions,
including California, that because any defendant who was competent to stand trial
was also competent to waive counsel, a court therefore could not preclude a
defendant who was found competent under the Dusky standard from representing
himself or herself at trial. (See, e.g., People v. Welch, supra, 20 Cal.4th at p. 732-
734.)
        In Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), however, the high
court rejected the absolutist view of the right to self-representation and clarified
that the Faretta right may be restricted in circumstances other than when the
defendant is not competent to validly waive the assistance of counsel under the
Dusky standard. At issue in Edwards was whether the Indiana trial court had
properly denied the Faretta motion of a defendant who suffered from
schizophrenia. Evaluating how the defendant‟s mental illness affected him, the
trial court found him competent to stand trial, but not “ „competent to defend
himself.‟ ” (Edwards, at p. 169.) The high court ultimately concluded the trial
court‟s ruling was constitutionally permissible: “[T]he Constitution permits States
to insist upon representation by counsel for those competent enough to stand trial
under Dusky but who still suffer from severe mental illness to the point where they
are not competent to conduct trial proceedings by themselves.” (Id. at p. 178; see
also id. at p. 174 [“[T]he Constitution permits a State to limit [a] defendant‟s self-
representation right by insisting upon representation by counsel at trial—on the
ground that the defendant lacks the mental capacity to conduct his trial defense
unless represented.”].)

                                          32
       Recently, in People v. Johnson (2012) 53 Cal.4th 519, we adopted the
limitation on self-representation authorized in Edwards. In reaching the
conclusion that California courts have discretion to deny self-representation to
“gray-area defendants” meeting the Edwards standard, we concluded that
California courts are constitutionally permitted to restrict the exercise of the right
to self-representation to the extent permitted by the federal Constitution and that,
in fact, “to refuse to recognize such discretion would be inconsistent with
California‟s own law.” (Johnson, at p. 528.)
       As clarified in Edwards, the high court‟s decisions in this area establish that
(1) the federal constitutional right to the assistance of counsel in criminal cases
includes the right to waive the assistance of counsel (Faretta); (2) in determining
the validity of a purported waiver of the right to counsel, the federal Constitution
requires no more than that the choice be made voluntarily and intelligently by a
defendant who is found to be competent under the Dusky standard (Godinez v.
Moran); and (3) states may in some circumstances apply additional restrictions on
the defendant‟s exercise of the right to self-representation without violating
Faretta (Edwards). Consequently, even assuming the federal Constitution might
otherwise permit a criminal defendant to waive the assistance of counsel at mental
competency proceedings, we believe that, in light of Edwards, the California
statutory requirement of representation by counsel during competency proceedings
does not violate the defendant‟s Sixth Amendment rights.
       In reaching its conclusion in Edwards that the states may validly impose a
mental-illness-related limitation on the right to self-representation, the high court
acknowledged that allowing a mentally ill defendant to represent himself or
herself would be “at least as likely to prove humiliating as ennobling” to the
defendant‟s personal “ „[d]ignity‟ ” and “ „autonomy,‟ ” the interests that form the
basis of the right to self-representation. (Edwards, supra, 554 U.S. at p. 176.) The

                                          33
court also recognized the important constitutional value that “proceedings must
not only be fair, they must „appear fair to all who observe them,‟ ” a dubious
prospect, the court noted, when a mentally ill person is permitted to represent
himself or herself in a criminal trial. (Id. at p. 177.) These concerns are equally at
issue regarding self-representation during mental competency proceedings.
Insisting upon representation by counsel in such proceedings is consistent with
upholding the dignity and autonomy of the defendant and, more importantly,
protects not only the fairness of the proceedings, but also the appearance of
fairness.
       As an initial matter, we observe that the issue to be resolved in section 1368
proceedings is whether the defendant meets the minimum standard of mental
competence to stand trial under Dusky, an issue that would call into question, as
well, the defendant‟s competence to validly waive the right to counsel were he or
she attempting to make such a waiver at that time.11 For the same reason (i.e., an

11      A number of courts have so concluded. (See U.S. v. Frazier-El (4th Cir.
2000) 204 F.3d 553, 559 [the trial court properly refused to entertain the
defendant‟s Faretta motion before evaluating his competence to stand trial]; U.S.
v. Boigegrain (10th Cir. 1998) 155 F.3d 1181, 1186 [same]; see also People v.
Robinson, supra, 151 Cal.App.4th at p. 616 [concluding that “If the court has a
reasonable doubt as to the defendant‟s competency to stand trial, that doubt should
extend to the defendant‟s competency to waive counsel and represent himself.”];
U.S. v. Klat (D.C. Cir. 1998) 156 F.3d 1258, 1263 [finding it “contradictory to
conclude that a defendant whose competency is reasonably in question could
nevertheless knowingly and intelligently waive her Sixth Amendment right to
counsel”]; U.S. v. Purnett (2d Cir. 1990) 910 F.2d 51, 55 [stating that “Logically,
the trial court cannot simultaneously question a defendant‟s mental competence to
stand trial and at one and the same time be convinced that the defendant has
knowingly and intelligently waived his right to counsel.”]; cf. People v. Horton
(1995) 11 Cal.4th 1068, 1108 [when trial was suspended after the trial court‟s
declaration of doubt as to the defendant‟s competence, under state statutory
provisions, the court lacked jurisdiction to rule on the defendant‟s pending Faretta
motion].)



                                         34
apparent lack of mental competence under Dusky), we reject any suggestion that,
by failing to object, a defendant who has been permitted to continue to represent
himself or herself during competency proceedings has forfeited or waived a claim
of error under the statute. (Cf. Medina v. California (1992) 505 U.S. 437, 450
[“The rule announced in Pate was driven by our concern that it is impossible to
say whether a defendant whose competence is in doubt has made a knowing and
intelligent waiver of his right to a competency hearing.”].)
         Further, in our view, if, as transpired in this case, a criminal defendant
whose mental competence is in question is permitted self-representation and to
maintain he or she is competent to stand trial, a breakdown occurs in the process
of meaningful adversarial testing central to our system of justice. (See United
States v. Cronic (1984) 466 U.S. 648, 655 [“ „The very premise of our adversary
system of criminal justice is that partisan advocacy on both sides of a case will
best promote the ultimate objective that the guilty be convicted and the innocent
go free.‟ ”]; U.S. v. Purnett, supra, 910 F.2d at p. 56 [recognizing an appointed
attorney‟s responsibility to ensure an adequate examination of the evidence
regarding the defendant‟s competence].) This absence of true adversarial testing
occurred here, where defendant—apparently wishing to be found competent—
acceded to the prosecutor‟s offer to forgo a jury trial and submit the issue of
competence on the experts‟ reports if the trial court was “inclined to find that
[defendant] is competent to stand trial, which I believe is what he wishes.” The
trial court then asked defendant whether he would “waive a jury trial on that issue
so we can get on with the show.” Defendant agreed to do so, and the court
proceeded to find defendant competent, despite conflicting expert opinion on the
issue.
         That an attorney representing defendant might similarly have chosen to
submit the question on the experts‟ reports, waive a jury, and forgo argument does

                                            35
not change the analysis. In such cases, the trial court, as well as other observers of
the proceedings, may presume such actions are reasonable tactical choices made
by trained counsel based on the evidence. The decision of a possibly incompetent
defendant not to contest the issue of his or her own competence is entitled to no
such credit. Indeed, such a decision ought to be considered inherently suspect,
especially when, as in the instant case, the evidence before the court is in conflict
regarding the defendant‟s mental competence. (Cf. People v. Samuel (1981) 29
Cal.3d 489, 495 [“[I]f counsel represents a defendant as to whose competence the
judge has declared a doubt sufficient to require a section 1368 hearing, he should
not be compelled to entrust key decisions about fundamental matters to his client‟s
apparently defective judgment.”]; Bundy v. Dugger (11th Cir. 1987) 816 F.2d 564,
566, fn. 2 [“Whether the defendant believed he was competent to stand trial is
irrelevant for, if a defendant is incompetent to stand trial, his belief that he is able
to do so is without import.”].) Although a prosecutor—regardless of the
defendant‟s position—might be said to have an interest in ensuring the
competency issue is adequately addressed in order to preserve the results of the
eventual trial, the prosecutor‟s interests are no substitute for the participation of an
advocate expressly tasked with promoting the defendant‟s right to a fair trial. And
if a defendant were to assert that he or she was incompetent, allowing such a
defendant to attempt to prove his or her own incompetence would be nonsensical.
As we stated in People v. Hill (1967) 67 Cal.2d 105, 115, footnote 4, “[w]hen
evidence indicates that the defendant may be insane it should be assumed that he is
unable to act in his own best interests.” Representation by counsel during mental
competency proceedings therefore fosters both the fairness and appearance of
fairness of the proceedings.
       In addition, the primary reasons underlying Faretta‟s recognition of the
right to waive counsel—the fundamental right to autonomy and the circumstance

                                           36
that it is “[t]he defendant, and not his lawyer or the State, [who] will bear the
personal consequences of a conviction” (Faretta, supra, 422 U.S. at p. 834)—are
not implicated in competency proceedings as in other parts of a criminal trial. As
a general matter, competency proceedings do not force a defendant to “bear the
personal consequences of a conviction” based on a defense to which he or she has
not consented. As the court stated in U.S. v. Purnett, supra, 910 F.2d at page 56,
“the unwanted participation of appointed counsel during pretrial hearings and
conferences is much less intrusive on the right to self-representation than such
participation at trial. [Citation.] Hence, appointing counsel for the limited period
needed to determine whether a defendant is competent to stand trial is not viewed
as a denial of the defendant‟s right to self-representation.” (Cf. People v.
Masterson (1994) 8 Cal.4th 965, 971 [observing that in competency proceedings,
“the defendant necessarily plays a lesser personal role”].) At the conclusion of the
competency proceedings, the trial court will find the defendant either competent to
stand trial—in which case the defendant may discharge counsel and represent
himself or herself if found competent to proceed under Edwards, supra, 554 U.S.
164, and People v. Johnson, supra, 53 Cal.4th at pp. 530-531, or incompetent to
stand trial—in which case the court will suspend the trial until the defendant‟s
competence is restored. The choice of what defense to the charges, if any, will be
presented at trial, and the concern the defendant might be convicted following the
presentation of a defense to which he or she has not consented, simply are not
implicated by the appointment of counsel to represent the defendant during mental
competency proceedings.
       Although we recognize, as the People assert, that the trial court at the time
of trial might have believed it had been placed between a rock (§ 1368) and a hard
place (Faretta), we nonetheless conclude the court‟s failure to appoint counsel to
represent defendant during the second competency proceedings violated

                                          37
defendant‟s statutory rights.12 As discussed post, we conclude the statutory error
is reversible, subject to the initial remedy of a remand for a retrospective
competency hearing. Because defendant would be entitled to no greater remedy
were we to conclude that the failure to appoint counsel to represent him during the
competency proceedings constituted either state or federal constitutional error, we
decline to decide whether defendant‟s constitutional rights were also violated.

                    iii. Failure to appoint counsel constituted reversible error
       Under article VI, section 13 of our state Constitution, trial error does not
merit reversal of a judgment unless “the error complained of has resulted in a
miscarriage of justice.”13 Typically, a defendant who has established error under
state law must demonstrate there is a reasonable probability that in the absence of
the error he or she would have obtained a more favorable result. (People v.
Weaver (2001) 26 Cal.4th 876, 968; People v. Watson (1956) 46 Cal.2d 818, 836.)
As we have explained, however, “under the California constitutional harmless-
error provision some errors . . . are not susceptible to the „ordinary‟ or „generally
applicable‟ harmless-error analysis—i.e., the Watson „reasonably probable‟
standard—and may require reversal of the judgment notwithstanding the strength


12    We observe, however, that the trial court appears to have anticipated
Edwards in subsequently conducting a hearing to determine whether defendant
was competent to represent himself during the trial, despite its finding he was
competent to stand trial.
13     Article VI, section 13 of the state Constitution provides in full: “No
judgment shall be set aside, or new trial granted, in any cause, on the ground of
misdirection of the jury, or of the improper admission or rejection of evidence, or
for any error as to any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.”




                                          38
of the evidence contained in the record in a particular case.” (People v. Cahill,
supra, 5 Cal.4th at p 493.) “[T]he kinds of errors that, regardless of the evidence,
may result in a „miscarriage of justice‟ because they operate to deny a criminal
defendant the constitutionally required „orderly legal procedure‟ . . . all involve
fundamental „structural defects‟ in the judicial proceedings, analogous to those to
which the United States Supreme Court referred in its [Arizona v. Fulminante
(1991) 499 U.S. 279] decision . . . .” (Cahill, at pp. 501-502.) We conclude the
error under section 1368 in failing to appoint counsel to represent defendant
during the mental competency proceedings is “analogous to” a structural error
referred to in Fulminante: “the total deprivation of the right to counsel at trial.”
(Fulminante, at p. 309.)
       With respect to violations of a defendant‟s Sixth Amendment right to
counsel at trial, the United States Supreme Court has held that “when a defendant
is deprived of the presence and assistance of his attorney, either throughout the
prosecution or during a critical stage in, at least, the prosecution of a capital
offense, reversal is automatic.” (Holloway v. Arkansas (1978) 435 U.S. 475, 489.)
The high court presumes a violation of the right to counsel had a prejudicial effect
on the trial “where assistance of counsel has been denied entirely or during a
critical stage of the proceeding. When that has occurred, the likelihood that the
verdict is unreliable is so high that a case-by-case inquiry is unnecessary.”
(Mickens v. Taylor (2002) 535 U.S. 162, 166; see also Arizona v. Fulminante,
supra, 499 U.S. at pp. 309-310 [describing the deprivation of counsel as a
“structural defect[] in the constitution of the trial mechanism, which def[ies]
analysis by „harmless-error‟ standards” and observing that the “entire conduct of
the trial from beginning to end is obviously affected by the absence of counsel for
a criminal defendant . . .”].) Thus, such a violation is not subject to harmlessness
review under Chapman v. California (1967) 386 U.S. 18, 23-24, whereby the

                                           39
People are provided an opportunity to prove beyond a reasonable doubt that the
constitutional error did not contribute to the verdict.
       In limited situations, however, where the denial of counsel was for a
discrete time or hearing only, the high court has recognized that the rule of
automatic reversal is inappropriate. In such circumstances, the denial of the right
to counsel, even during a critical stage in a capital case, does not require automatic
reversal but is instead subject to harmless error review. Satterwhite v. Texas
(1988) 486 U.S. 249 illustrates this point. In Satterwhite, a capital case, the
defendant‟s right to counsel was violated by the admission of testimony of a
psychiatrist who had examined the defendant without prior notification to the
defendant‟s attorney, in violation of the rule in Estelle v. Smith (1981) 451 U.S.
454. Rather than reverse the judgment, the high court distinguished between
violations of the right to counsel that “pervade the entire proceeding” and those
having the more limited effect of leading to the erroneous admission of evidence
at trial. Harmless error review is precluded in the case of pervasive violations, but
such review is permitted—even in capital cases—in the latter circumstances
because “a reviewing court can make an intelligent judgment about whether the
erroneous admission of [the evidence] might have affected [the jury].”
(Satterwhite, at p. 258.)
       The high court reiterated this distinction in Arizona v. Fulminante,
explaining that “[t]he common thread connecting [the circumstances in which
harmless error review is to be applied] is that each involved „trial error‟—error
which occurred during the presentation of the case to the jury, and which may
therefore be quantitatively assessed in the context of other evidence presented in
order to determine whether its admission was harmless beyond a reasonable
doubt.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308.) The court then
contrasted such “trial errors” with those “constitutional deprivations [constituting

                                          40
a] structural defect affecting the framework within which the trial proceeds, rather
than simply an error in the trial process itself. „Without these basic protections, a
criminal trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence, and no criminal punishment may be regarded as fundamentally
fair.‟ ” (Id. at p. 310.)
       Here, defendant was completely deprived of the assistance of counsel at a
critical stage of the trial proceedings in violation of section 1368. As with a
pervasive Sixth Amendment violation, the statutory violation here cannot be
likened to “trial error” akin to that at issue in Satterwhite v. Texas, supra, 486 U.S.
at pages 258-259. We cannot simply excise some item of evidence in order to
“make an intelligent judgment” (id. at p. 258) about whether the competency
determination might have been affected by the absence of counsel to represent
defendant. There are, in fact, myriad possible strategic choices counsel might
have made that could have affected the outcome, for example, by choosing a
defense expert different from the expert defendant chose, asking for a third expert
to break the tie between the two experts already consulted or, most notably,
declining to submit the matter for the trial court‟s determination based on the
written reports and instead demanding defendant‟s competence be tried to a jury.
(Cf. Rose v. Clark (1986) 478 U.S. 570, 579, fn. 7 [observing that structural errors
affect the very composition of the record and harmlessness review would require
“difficult inquires concerning matters that might have been, but were not, placed
in evidence”].) In addition, the evidence presented regarding defendant‟s
competence was conflicting. Attempting to assess the effect of the absence of
counsel on the trial court‟s finding of competence is, in truth, no different than
attempting to assess the effect on a jury‟s final verdict of the absence of counsel
during a trial on substantive charges: there is no reasoned manner in which to do
so because the lack of true adversarial testing denied defendant the basic

                                          41
procedure by which his competence should have been determined. (See id. at
p. 578, fn. 6; see also United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150
[stating a violation of a defendant‟s Sixth Amendment right to counsel of choice
carries “ „consequences that are necessarily unquantifiable and indeterminate, [and
therefore] unquestionably qualifies as “structural error” ‟ ”]; Neder v. United
States (1999) 527 U.S. 1, 8-9 [structural errors such as the complete denial of
counsel “deprive defendants of „basic protections‟ without which „a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or
innocence . . . and no criminal punishment may be regarded as fundamentally
fair‟ ”].)
        We also reject the People‟s assertion that subsequent competency-related
proceedings the trial court conducted rendered the error harmless. As we have
explained, allowing defendant to represent himself in the competency proceedings
was akin to structural error, rendering the result of the proceedings—the finding
that defendant was mentally competent to stand trial—unreliable. But even
assuming subsequent proceedings during a trial could in some circumstances
remedy this type of error, in this case the trial court‟s actions following the tainted
proceedings did not do so. The trial court did not again declare a doubt regarding
defendant‟s mental competence, suspend trial proceedings, and initiate formal
competency proceedings under the statutes. The People point to the hearing on
August 2, 1994, at which the trial court considered whether defendant should be
permitted to continue to represent himself, and during which the doctors who had
previously examined defendant testified. That hearing, however, was not focused
on defendant‟s mental competence to stand trial. In any event, because defendant
again represented himself at the hearing (and continued to maintain he was
mentally competent), to the extent the hearing shed any light on defendant‟s



                                          42
competence to stand trial, any finding on that subject would have been as
unreliable as the tainted section 1368 proceeding.
       Accordingly, we conclude the trial court‟s failure to appoint counsel to
represent defendant at the competency proceedings in violation of section 1368
constitutes a reversible miscarriage of justice under article VI, section 13 of our
state Constitution. (Cf. Holloway v. Arkansas, supra, 435 U.S. at p. 489; Mickens
v. Taylor, supra, 535 U.S. at p. 166.)

                    iv. A limited reversal and remand is the appropriate remedy
       Having concluded reversible error occurred, we consider what aspect of the
judgment against defendant must be reversed. Must it be the entire judgment,
requiring a new trial of the charges (if defendant presently is competent to stand
trial), or may reversal be limited to the trial court‟s competency finding?
Although we find statutory error only, we believe it appropriate to look to
analogous constitutional precedents in order to answer the question. Thus, with
respect to remedying a violation of a defendant‟s Sixth Amendment right to the
assistance of counsel, the high court provided guidance in United States v.
Morrison (1981) 449 U.S. 361. While the court acknowledged the seriousness of
such violations, it observed its decisions also had “implicitly recognized the
necessity for preserving society‟s interest in the administration of criminal justice.
Cases involving Sixth Amendment deprivations are subject to the general rule that
remedies should be tailored to the injury suffered from the constitutional violation
and should not unnecessarily infringe on competing interests. . . . [¶] Our
approach has thus been to identify and then neutralize the taint by tailoring relief
appropriate in the circumstances to assure the defendant the effective assistance of
counsel and a fair trial.” (Id. at pp. 364-365; see also Lafler v. Cooper (2012) 566
U.S. ___, ___ [132 S.Ct. 1376, 1391] [tailoring the remedy to the Sixth



                                          43
Amendment violation at issue].) Similarly, we have recognized a reviewing
court‟s general authority under sections 1260 and 1262, when remedying
reversible error, “to select among several dispositions, including but not limited to
reversal of the judgment and the granting of a new trial.”14 (Peracchi v. Superior
Court (2003) 30 Cal.4th 1245, 1254-1255.) For example, when reversible error
occurs during the sentencing phase of a criminal proceeding, reversing the
judgment as to the sentence only is generally appropriate. (See, e.g., People v.
Wilson (2008) 44 Cal.4th 758, 842 [reversing the penalty phase verdict because of
the erroneous discharge of a deliberating juror and affirming the guilt phase
verdict]; People v. Halvorsen (2007) 42 Cal.4th 379, 434 [reversing the penalty
judgment only because of the erroneous denial of the defendant‟s self-
representation motion made after conclusion of the guilt phase of the trial]; People
v. Morton (1953) 41 Cal.2d 536, 542-545 [rejecting the position that deficiency of
proof in support of a prior-conviction sentencing enhancement requires full
reversal of the judgment and concluding, instead, a limited remand for a retrial of
the prior conviction allegation is proper].)
       In determining the appropriate remedy in this case, we initially observe
what type of error is not involved. This is not a case where we can be sure
defendant was tried to conviction while actually mentally incompetent; that is,

14     Section 1260 provides: “The court may reverse, affirm, or modify a
judgment or order appealed from, or reduce the degree of the offense or attempted
offense or the punishment imposed, and may set aside, affirm, or modify any or all
of the proceedings subsequent to, or dependent upon, such judgment or order, and
may, if proper, order a new trial and may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances.”
       Section 1262 provides in relevant part: “If a judgment against the
defendant is reversed, such reversal shall be deemed an order for a new trial,
unless the appellate court shall otherwise direct.”




                                          44
when “as a result of mental disorder or developmental disability, [he was] unable
to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.” (§ 1367, subd. (a).) That type of
substantive error clearly would require reversal of the entire judgment.
       Nor does the error at issue involve a procedural constitutional due process
violation of the type in which the trial court has failed to hold a hearing despite
sufficient triggering evidence showing the defendant might be mentally
incompetent. (§ 1368; Pate, supra, 383 U.S. 375; People v. Pennington (1967) 66
Cal.2d 508.) The trial court here properly suspended the trial proceedings for an
evaluation of defendant‟s mental competence, had experts examine him,
conducted a competency hearing, and then made a finding on the record that
defendant was mentally competent to proceed. Although the trial court violated
defendant‟s statutory right under section 1368 by failing to appoint counsel to
represent him during the competency proceedings, this violation is fundamentally
different from a trial court‟s failure to hold a hearing, resulting in a complete
failure to address a defendant‟s competence at the time of trial despite substantial
triggering evidence of incompetence. Because the appropriate analysis and course
of remedial action in a case of true Pate error is complex and subject to debate,15
we do not express any view on how that error should be remedied. But decisions

15     We acknowledged this complexity in People v. Ary (2011) 51 Cal.4th 510.
(See id. at pp. 516-517 [due to the applicability of the law-of-the-case doctrine, the
court assumed without deciding that a remand for a retrospective competency
hearing was a permissible remedy for Pate error]; id. at pp. 521-523 (conc. opn. of
Werdegar, J.) [noting that whether the failure to assess a defendant‟s competence
to stand trial despite substantial evidence of incompetence can be cured by a
retrospective hearing is a “significant and unresolved” issue]; see also post, fn. 16
[observing the potentially different treatment of Pate error on direct and collateral
review].)




                                          45
involving Pate error provide a useful starting point for the analysis of whether a
complete reversal is mandated or whether a more limited reversal is justified in the
instant case.
       Pate error was once generally considered automatically reversible,
requiring a new trial of the charges (were the defendant found competent to stand
trial at that time). In Pate, having found the failure to hold a hearing violated the
defendant‟s constitutional rights, the high court specifically rejected a proposal to
remand the case for a retrospective hearing on the defendant‟s competence: “It
has been pressed upon us that it would be sufficient for the state court to hold a
limited hearing as to [the defendant‟s] mental competence at the time he was tried
in 1959. If he were found competent, the judgment against him would stand. But
we have previously emphasized the difficulty of retrospectively determining an
accused’s competence to stand trial. [Citation.] The jury would not be able to
observe the subject of their inquiry, and expert witnesses would have to testify
solely from information contained in the printed record. That [the defendant’s]
hearing would be held six years after the fact aggravates these difficulties. This
need for concurrent determination distinguishes the present case from Jackson v.
Denno, 378 U. S. 368 (1964), where we held that on remand the State could
discharge its constitutional obligation by giving the accused a separate hearing on
the voluntariness of his confession.” (Pate, supra, 383 U.S. at p. 387, italics
added.) The high court echoed this position in Drope, supra, 420 U.S. at page
183: “The question remains whether petitioner‟s due process rights would be
adequately protected by remanding the case now for a psychiatric examination
aimed at establishing whether petitioner was in fact competent to stand trial in
1969 [i.e., six years previously]. Given the inherent difficulties of such a nunc pro
tunc determination under the most favorable circumstances, see Pate v. Robinson,
383 U. S., at 386-387. . . , we cannot conclude that such a procedure would be

                                          46
adequate here. [Citation.] The State is free to retry petitioner, assuming, of
course, that at the time of such trial he is competent to be tried.” (Italics added.)
       This court has treated the failure to comply with section 1368 as also
requiring complete reversal and retrial of the charges, most likely because the
statutory scheme implements the due process guarantee not to be tried while
mentally incompetent. In People v. Hale (1988) 44 Cal.3d 531, we stated the error
“rendered the subsequent trial proceedings void because the court had been
divested of jurisdiction to proceed pending express determination of the
competency issue” (id. at p. 541, italics added), and therefore “[b]ecause the trial
court failed to hold a competency hearing pursuant to section 1368 after
specifically ordering one, the entire judgment must be reversed” (id. at p. 533,
italics added, fn. omitted). (See also People v. Pennington, supra, 66 Cal.2d at
p. 521 [“That error requires reversal of judgment here.”].) In Welch, we
concluded that where there is substantial evidence of incompetence and “a full
competence hearing is required but the trial court fails to hold one, the judgment
must be reversed.” (People v. Welch, supra, 20 Cal.4th at p. 738, italics added.)
       At some point, however, courts parsed the language of Pate and subsequent
high court decisions addressing the constitutional violation (like Drope, supra, 420
U.S. 162) and discerned that the problem of remanding for the limited remedy of
conducting solely what has been termed a “retrospective competency hearing” as a
remedy for Pate error was not the nature of the constitutional injury itself but was
instead the inherent difficulty of making a nunc pro tunc determination of the
defendant‟s mental state. Consistent with this emerging view, this court noted in a
1995 opinion that we need not reach the question whether a remand for a
retrospective determination of competence was permissible in the case of Pate
error. (People v. Stanley (1995) 10 Cal.4th 764, 818.) Other states and lower
federal courts, however, began permitting such retrospective competency hearings

                                          47
as a permissible remedy. In Com. v. Santiago (Pa. 2004) 855 A.2d 682, 693, for
example, the Supreme Court of Pennsylvania opined: “[W]e find that the
decisions from the high [c]ourt act simply as an admonition that there are inherent
difficulties in retrospectively determining a defendant‟s competency, difficulties
that in some cases may be insurmountable. Drope and Pate do not, however,
announce a per se rule that such retrospective hearings are forbidden. We now
hold that whenever a court can conduct a meaningful hearing to evaluate
retrospectively the competency of the defendant, such a hearing is permissible.”
(Second italics added.)
       Similarly, in Moran v. Godinez (9th Cir. 1995) 57 F.3d 690, 696, the Ninth
Circuit Court of Appeals held that “although retrospective competency hearings
are disfavored, [citations], they are permissible whenever a court can conduct a
meaningful hearing to evaluate retrospectively the competency of the defendant.”
(See also Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, 1089 [“The state court
can nonetheless cure its failure to hold a competency hearing at the time of trial by
conducting one retroactively.”].)16
       People v. Ary (2004) 118 Cal.App.4th 1016, 1030 was the first California
case to recognize the limited remand procedure for Pate error,17 as we observed in

16     We note, however, the Ninth Circuit evidently accepts the permissibility of
conducting retrospective competency hearings for Pate error only in habeas corpus
and other collateral proceedings, while it applies a rule of automatic full reversal
in direct criminal appeals. (See Morris v. U.S. (9th Cir. 1969) 414 F.2d 258, 259,
citing Meador v. U.S. (9th Cir. 1964) 332 F.2d 935, 938-939; see also U.S. v.
Taylor (4th Cir. 1971) 437 F.2d 371, 382, fn. 3 [listing cases distinguishing
between direct appeals and collateral review]; but see U.S. v. Makris (5th Cir.
1973) 483 F.2d 1082, 1092, fn. 8 [observing that that court had “consistently
rejected” the Ninth Circuit‟s rule of automatic reversal in direct criminal appeals].)
17     As noted ante, in footnote 15, in a later appeal we accepted this ruling as
law of the case and thus did not pass judgment on whether the limited remand
                                                           (footnote continued on next page)


                                         48
People v. Young (2005) 34 Cal.4th 1149. In Young, after stating that where
substantial evidence of incompetence is presented “ „and a full competence
hearing is required but the trial court fails to hold one, the judgment must be
reversed‟ ” (id. at p. 1217), we noted in a footnote: “But see People v. Ary[,
supra,] 118 Cal.App.4th [at pp.] 1025-1029 . . . (in some circumstances, a remand
may be appropriate and reversal for such error might be unnecessary)” (Young, at
p. 1217, fn. 16). Since the Court of Appeal‟s decision in People v. Ary, one
additional California appellate court has held that, on a showing of feasibility, a
limited remand to conduct a retrospective competency hearing can serve as an
adequate remedy for Pate error. (People v. Kaplan (2007) 149 Cal.App.4th 372,
388-389; but see People v. Murdoch (2011) 194 Cal.App.4th 230, 239 [declining
to remand for a retrospective competency hearing in light of Young].)
        Although defendant appears to concede that a retrospective competency
hearing might in some cases constitute a constitutionally permissible remedy for
the failure to appoint counsel in competency proceedings, he contends that, as in
Pate and Dusky, primarily because of the passage of time the only permissible
remedy in his case is to reverse the entire judgment and remand for a new trial.
(See Pate, supra, 383 U.S. at pp. 386-387; Dusky, supra, 362 U.S. at p. 403.) We
disagree. Instead, we conclude for the reasons discussed, post, that in the
circumstances of this case, ordering a limited reversal and remand for the trial
court to determine whether a retrospective competency hearing is feasible and, if
so, to conduct such a hearing is both appropriate and permissible. In so
concluding, we agree with the Court of Appeal‟s decision in People v. Robinson,

(footnote continued from previous page)

procedure was a permissible remedy for Pate error. (People v. Ary, supra, 51
Cal.4th at pp. 516-517.)




                                          49
supra, 151 Cal.App.4th at pages 617-618, to order a limited remand in similar
circumstances.
       First, as we observed above, we cannot be sure defendant in fact was
mentally incompetent to stand trial, which, of course, means he may have been
competent, and if so there is no infirmity in the judgment against him. An
automatic full reversal with a remand for a new trial on the criminal charges would
impose severe costs on the justice system in remedying a violation that, while
considered a miscarriage of justice in the context of the competency proceedings,
might not have affected the guilt and penalty verdicts. In contrast, if it remains
possible to give defendant that to which he was entitled at trial—a fair and reliable
opportunity to prove his incompetence with the assistance of counsel—a remand
to explore the feasibility of a retrospective hearing would appropriately tailor the
remedy “to the injury suffered from the . . . violation [without] unnecessarily
infring[ing] on competing interests.” (United States v. Morrison, supra, 449 U.S.
at p. 364.) In other words, if placing defendant in a position comparable to the one
he would have been in had the violation not occurred is possible, and a finding is
made that he did not bear his burden to prove he was incompetent to stand trial,
we would then have no reason to question the fundamental fairness and reliability
of the remainder of the judgment against him. (See People v. Ary, supra, 51
Cal.4th at pp. 520-521 [in the case of Pate error, “[R]equiring a criminal defendant
to prove at a retrospective mental competency hearing that he was incompetent
when tried earlier does not „ “offend[] some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.” ‟ ”]; Tate
v. State (Okla.Crim.App. 1995) 896 P.2d 1182, 1188 [inherent in the decision to
conduct a retrospective competency hearing in the case of Pate error “is the
conclusion that the defendant will be placed in a position comparable to the one he
would have been placed in prior to the original trial”].) In this sense, a limited

                                          50
remand for the purpose of conducting, if feasible, a retrospective competency
hearing is akin to a limited remand to remedy a sentencing error that has not
affected the judgment of guilt.
         Second, in the circumstances of the error in this case, the “inherent
difficulties” in conducting a nunc pro tunc evaluation of defendant‟s competence
to stand trial are potentially reduced compared to those arising in the case of Pate
error. Here, despite the error in the manner in which the competency proceedings
were conducted, the subject of defendant‟s mental competence actually was
reviewed at the time of the trial and contemporaneous evidence specifically
addressing that issue presumably still exists. In addition, individuals who formed
opinions on defendant‟s competence based on their observations of his mental
state at that time may be available to testify at a retrospective hearing. In contrast,
in the circumstances of Pate error, where there was substantial evidence of
incompetence but no proceedings to develop the record further, there is by
definition a shortcoming in the evidence, and the trier of fact at a retrospective
competency hearing would have to rely on after-the-fact opinions and evidence in
the record (such as the defendant‟s courtroom behavior) that might only
circumstantially assist in determining the defendant‟s mental state at the time of
trial. Although, as the high court observed in Pate, the trier of fact at a
retrospective competency hearing “would not be able to observe the subject of [its]
inquiry” (Pate, supra, 383 U.S. at p. 387), the factual basis for arriving at a fair
and reliable decision in defendant‟s case is more fully developed than had no
competency hearing been held. With the caveats discussed below concerning the
necessity of establishing the feasibility of conducting a retrospective competency
hearing, we cannot say the only acceptable remedy for the statutory violation in
this case is an outright reversal of the entire judgment and a remand for a new
trial.

                                           51
       Our discussion regarding whether to order a limited remand in People v.
Johnson (2006) 38 Cal.4th 1096 provides additional support for the conclusion a
limited remand is appropriate in the present case. Johnson involved the issue of
the standard for judging whether, in support of a claim under Batson v. Kentucky
(1986) 476 U.S. 79, the defendant had made a prima facie showing that the
prosecutor had improperly exercised peremptory challenges based on
discrimination against prospective jurors. The United States Supreme Court had
determined that the standard articulated by the California courts—whether “ „it is
more likely than not the . . . peremptory challenges, if unexplained, were based on
impermissible group bias‟ ”—was an “ „inappropriate yardstick by which to
measure the sufficiency of a prima facie case.‟ ” (Johnson, at p. 1098, quoting
Johnson v. California (2005) 545 U.S. 162, 168.) The high court reversed and
remanded the matter “for further proceedings not inconsistent with this opinion”
(Johnson v. California, at p. 173), and we subsequently considered whether a
complete reversal of the judgment for a new trial was required, or if a remand
limited to further review of the remaining steps of the Batson analysis was
appropriate. (People v. Johnson, at p. 1099.)18



18     We explained the three-step procedure followed in adjudicating a Batson
claim as follows: “ „First, the defendant must make out a prima facie case “by
showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” [Citation.] Second, once the defendant has made out a
prima facie case, the “burden shifts to the State to explain adequately the racial
exclusion” by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.” [Citation.]‟ ” (People v. Johnson, supra, 38 Cal.4th at p. 1099.)
The limited remand at issue would be for the purpose of the trial court‟s
conducting steps two and three of the procedure. (Ibid.)




                                          52
       This court concluded a limited remand was appropriate under federal law,
rejecting a number of challenges to the propriety of that remedy, in large part
because other courts had undertaken such remedial proceedings, and in doing so
the various shortcomings alleged had not proven to be of great concern. We
pointed out that the high court had concluded only that improper discrimination
“ „may have occurred,‟ ” not “that discrimination did occur.” (People v. Johnson,
supra, 38 Cal.4th at p. 1101.) We observed that numerous federal courts had
adopted the limited remand procedure for this federal constitutional error, and we
concluded that various factors, such as the unavailability of the challenged jurors
and the trial court judge, as well as the general passage of time since the trial,
would not necessarily make it impossible to conduct a fair hearing. (Id. at pp.
1100-1103.) Evidence in the record existed that might assist in the review of the
challenges at issue, such as the juror questionnaires and the transcripts of voir dire,
and the prosecutor‟s notes from jury selection might provide additional insight.
(Id. at p. 1102.) Although it was “certainly possible that due to the passage of
time or other reasons, the trial court will find that it cannot reliably determine
whether the prosecutor exercised his peremptory challenges in a permissible
manner” (id. at p. 1103), we were not convinced it would be improper to “at least
attempt to have the trial court resolve the matter on remand” (id. at p. 1100).
Accordingly, we remanded the matter with directions that the trial court “attempt
to conduct the second and third Batson steps. . . . If the court finds that, due to the
passage of time or any other reason, it cannot adequately address the issues at this
stage or make a reliable determination, or if it determines that the prosecutor
exercised his peremptory challenges improperly, it should set the case for a new
trial. If it finds the prosecutor exercised his peremptory challenges in a
permissible fashion, it should reinstate the judgment.” (Id. at pp. 1103-1104.)



                                          53
       The circumstances of Johnson are analogous to those of the present case in
several important respects. First, we have concluded only that defendant might
have been incompetent and was denied a fair opportunity to establish that fact, not
that he was incompetent. Second, contemporaneous evidence regarding his mental
competence presumably exists. Third, the passage of time since the trial, while a
significant concern, does not necessarily make it impossible for a fair and reliable
retrospective competency hearing to be held. Accordingly, as in Johnson, we see
no reason not to “at least attempt to have the trial court resolve the matter on
remand.” (People v. Johnson, supra, 38 Cal.4th at p. 1100.) If the trial court
determines that conducting a retrospective competency hearing is not feasible, or
if a retrospective competency hearing is held at which defendant proves he was
incompetent by a preponderance of the evidence (see People v. Ary, supra, 51
Cal.4th at p. 520), then the only permissible remedy would be to let stand our
reversal, subject to defendant‟s being retried if he is at that time mentally
competent to stand trial. If a fair and reliable retrospective competency hearing
can be conducted, and at that hearing defendant fails to prove he was incompetent,
the judgment will be reinstated.19

                    v. The feasibility determination
       Before conducting the retrospective competency hearing, the trial court
must determine whether such a hearing will be feasible. What we stated in People
v. Ary, supra, 51 Cal.4th 510, regarding a retrospective competency hearing to
remedy Pate error is equally applicable here: “Feasibility in this context means
the availability of sufficient evidence to reliably determine the defendant‟s mental


19     As discussed in the remaining parts of this opinion, we conclude no other
reversible errors occurred during defendant‟s trial proceedings.




                                          54
competence when tried earlier. In the words of the Oklahoma Court of Criminal
Appeals: „[T]he defendant will be placed in a position comparable to the one he
would have been placed in prior to the original trial.‟ ” (Id. at p. 520, fn. omitted.)
In assessing whether a retrospective competency hearing is feasible, the trial court
should consider “ „ “ „(1) [t]he passage of time, (2) the availability of
contemporaneous medical evidence, including medical records and prior
competency determinations, (3) any statements by the defendant in the trial record,
and (4) the availability of individuals and trial witnesses, both experts and non-
experts, who were in a position to interact with [the] defendant before and during
trial‟ ” ‟ ” (Ary, at p. 520, fn. 3), as well as any other facts the court deems
relevant. We stress that the focus of the feasibility determination must be on
whether a retrospective competency hearing will provide defendant a fair
opportunity to prove incompetence, not merely whether some evidence exists by
which the trier of fact might reach a decision on the subject. In making its
feasibility determination, the court must consider the fairness of requiring
defendant, who has already established a reversible statutory violation, to prove
his incompetence to stand trial in 1994 with the now 18-year-old evidence of his
prior mental condition still available to him today. As the United States Supreme
Court stated in an analogous situation in Swenson v. Stidham (1972) 409 U.S. 224,
229, regarding the process to rectify a constitutional violation retroactively (the
failure to provide a judicial determination of the voluntariness of a confession
under Jackson v. Denno, supra, 378 U.S. 368), the remedy provided must be
“procedurally adequate and substantively acceptable under the Due Process
Clause.” (See also de Kaplany v. Enomoto (9th Cir. 1976) 540 F.2d 975, 986, fn.
11 [“The threshold question is whether the circumstances surrounding the case
permit a fair retrospective determination of the defendant‟s competency at the time
of trial.”].) Because of the inherent difficulties in attempting to look back to the

                                           55
defendant‟s past mental state (see Pate, supra, 383 U.S. at p. 387), the burden of
persuasion will be on the People to convince the trial court by a preponderance of
the evidence that a retrospective competency hearing is feasible in this case. (See
Baker v. State (Ga. 1982) 297 S.E.2d 9, 14; Tate v. State, supra, 896 P.2d at
p. 1187; Lokos v. Capps (5th Cir. 1980) 625 F.2d 1258, 1268, fn. 5.)
       We further observe that even if the trial court initially determines a
retrospective competency hearing is feasible, the trial court may later revisit the
issue of the fairness and reliability of the resulting hearing. In other words, our
reversal would stand and defendant would be entitled to a new trial if the trial
court were to determine in hindsight that, despite its initial feasibility finding, the
actual hearing had not met the feasibility requirements set forth in People v. Ary,
supra, 51 Cal.4th at page 520 and footnote 3 (see also text, ante, at p. 55).

                c. Remaining Claims Concerning Competency Proceedings
       Defendant raises several other claims of mental-competency-related error,
such as errors occurring during the first section 1368 proceedings and at the
second competency proceedings, as well as the trial court‟s failure to declare a
doubt regarding defendant‟s competence at other times during the trial
proceedings. We conclude we need not address defendant‟s remaining
competency claims in light of our reversal of the judgment subject to the initial
remedy of a limited remand for a retrospective competency hearing. Ultimately,
either our reversal will stand and defendant will be entitled to a new trial, or he
will be found to have been competent to stand trial following fair and reliable
proceedings.

           2. Exclusion of Evidence Regarding Defendant’s Alibi
       Defendant presented an alibi defense at trial, arguing he was in court the
morning of the murder for a bail reduction hearing in a criminal matter unrelated



                                           56
to Compton‟s murder. The prosecution theorized that defendant could have left
court as early as a few minutes past 10:30 that morning, driven home with his
mother, and had just enough time to drive to the victim‟s home nearby, arriving
shortly before 11:00 a.m., the approximate time of the murder. Defendant, by
contrast, sought to establish he left court closer to 11:00 a.m., which would have
left him no time to commit the crimes. To support his theory of the case,
defendant presented evidence from witnesses who saw him in court that morning.
In addition, defense counsel mentioned the transcript of the proceedings in
department 10, Kern County Superior Court, for the morning of July 7, 1991, as a
possible aid in establishing that defendant did not leave court that morning until
almost 11:00 a.m. On appeal, defendant contends the trial court violated his
statutory and constitutional rights by excluding the transcript.20 We conclude


20      “In this claim and most others on appeal, defendant contends the asserted
error or misconduct he raises infringed various of his state and federal
constitutional rights to a fair and reliable trial. What we stated in People v. Boyer
(2006) 38 Cal.4th 412, 441, footnote 17 . . . , applies in the present case: „In most
instances, insofar as defendant raised the issue at all in the trial court, he failed
explicitly to make some or all of the constitutional arguments he now advances.
In each instance, unless otherwise indicated, it appears that either (1) the appellate
claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction
affecting defendant‟s substantial rights) that required no trial court action by the
defendant to preserve it, or (2) the new arguments do not invoke facts or legal
standards different from those the trial court itself was asked to apply, but merely
assert that the trial court‟s act or omission, insofar as wrong for the reasons
actually presented to that court, had the additional legal consequence of violating
the Constitution. To that extent, defendant‟s new constitutional arguments are not
forfeited on appeal. [Citations.] [¶] In the latter instance, of course, rejection, on
the merits, of a claim that the trial court erred on the issue actually before that
court necessarily leads to rejection of the newly applied constitutional “gloss” as
well. No separate constitutional discussion is required in such cases, and we
therefore provide none.‟ ” (People v. Alexander (2010) 49 Cal.4th 846, 866,
fn. 6.)




                                          57
defendant forfeited this claim because he failed to formally ask the court to admit
the transcript into evidence, and he did not object to any limitations the trial court
suggested it might impose on the admission of evidence or defense counsel‟s
arguments.
       The transcript for department 10, Kern County Superior Court, for the
morning of July 7, 1991, contained no obvious indications when certain
proceedings began or ended. Defendant initially argued the transcript should be
admitted because it would have allowed the jury to deduce how long the overall
proceedings took, and then to estimate the time when defendant‟s case was called
and continued. This information, he claimed, would in turn have allowed the jury
to estimate the time defendant actually left the courthouse. Following the
prosecutor‟s objection that drawing such an inference would be speculative, the
trial court, with the parties‟ agreement, postponed its ruling on the matter. At the
close of the guilt phase, when the subject of the transcript again was raised,
defense counsel did not seek to introduce the transcript itself, but instead informed
the court the parties had agreed to simply inform the jury of the number of pages
in the transcript coming before defendant‟s final appearance that day. The
prosecutor, expressing concern that the defense was attempting to draw the same
speculative inference that the size of the transcript represented a particular amount
of time having passed, decided to withdraw from the stipulation. Defense counsel
then advised the court: “The only thing I was requesting, your Honor, is to take
judicial notice that the transcript of July 7th is marked numerically beginning on
Page 2 and sequentially through Page 60.” (Italics added.) The trial court agreed
to “take judicial notice of the number of pages but [stated it would not] allow any
argument as related to these time factors.” Defendant did not object to this
limitation on the argument to the jury, and defense counsel‟s subsequent argument
to the jury did not mention the number of pages in the transcript.

                                          58
       From this record, that defendant failed to preserve the issue he raises on
appeal is clear. Although defense counsel initially sought to introduce the entire
transcript into evidence, counsel agreed to discuss the matter with the prosecutor
rather than having the trial court rule on the request at that time. Counsel
ultimately declined to renew his original request to introduce the entire transcript,
but instead asked the court to take judicial notice of the number of pages it
contained, which the court agreed to do. Contrary to defendant‟s assertion on
appeal, defendant never clearly advised the trial court that he sought to introduce
or argue matters beyond that which the court had allowed, and why doing so
would be proper. Nor did he argue below that the trial court was required to admit
the transcript as a matter of law, or that the court had unfairly allowed other
witnesses to testify as to some matters relating to the transcript. As we stated in
People v. Valdez (2004) 32 Cal.4th 73, 109, “we cannot hold the trial court abused
its discretion in rejecting a claim that was never made.”

           3. Exclusion of Impeachment Evidence Regarding Prosecution
              Witness Karen Lehman
       Defendant contends the trial court abused its discretion by precluding
defense counsel from impeaching prosecution witness Karen Lehman with both
her misdemeanor conviction for assault with a deadly weapon (§ 245, subd. (a)(1))
and her alleged past drug use. Both claims are meritless.
       When defense counsel attempted to impeach Lehman with her
misdemeanor conviction, the prosecutor objected. The prosecutor conceded a
conviction for assault with a deadly weapon involved moral turpitude, but asserted
(1) Lehman‟s misdemeanor conviction was inadmissible under People v. Wheeler
(1992) 4 Cal.4th 284, 297, which held that a misdemeanor conviction is
inadmissible hearsay when offered for impeachment purposes, and (2) the court
should exclude any evidence concerning the conduct underlying the conviction


                                          59
under Evidence Code section 352.21 The prosecutor also proposed as a fallback
position that “if the court rules against me, allows impeachment, I‟ll stipulate that
. . . on February 6th, 1992, Karen Lehman assaulted Vaughn Lehman with a rock.”
Defense counsel, agreeing with the prosecutor‟s description of the underlying
conduct, did not attempt to explain further how this evidence could impeach
Lehman‟s credibility. The court excluded the conviction itself under Wheeler and
the underlying conduct under Evidence Code section 352.
       We review a court‟s ruling under Evidence Code section 352 by applying
an abuse of discretion standard. (People v. Mills (2010) 48 Cal.4th 158, 195.)
“This discretion allows the trial court broad power to control the presentation of
proposed impeachment evidence „ “ „to prevent criminal trials from degenerating
into nitpicking wars of attrition over collateral credibility issues.‟ [Citation.]” ‟ ”
(Ibid.) Here, evidence of Lehman‟s misdemeanor conduct—striking her ex-
husband with a rock during a dispute—does not strongly demonstrate moral
turpitude, i.e., a “ „general readiness to do evil‟ ” (People v. Castro (1985) 38
Cal.3d 301, 315), and thus would not have provided the jury much assistance in
assessing Lehman‟s credibility. “This was a routine matter of weighing the
evidence‟s probative value against the probability its admission would „necessitate
undue consumption of time‟ (Evid. Code, § 352), and the trial court‟s ruling was
both reasoned and reasonable.” (Mills, at pp. 195-196.)




21     “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)




                                           60
       Nor did the trial court err in precluding defendant from impeaching Lehman
with her past drug use. During cross-examination, Lehman testified she did not
recall the details of various events. At one point, defense counsel asked her,
“Have you taken any drugs today?” After she answered no, counsel asked, “When
was the last time you used drugs?” Lehman replied, “Oh, gosh, I don‟t remember.
It‟s been a long time.” Counsel then asked, “Have you found that the use of drugs
has affected your memory?” Lehman answered, “No. I would say I haven‟t had a
good memory since I can remember, which hasn‟t been a long time ago.” The
prosecutor then asked to be heard and, outside the presence of the jury, objected to
the line of questioning concerning Lehman‟s past use of drugs on the ground of
irrelevance. In response to the court‟s request for an offer of proof, defense
counsel stated the view that drug use could affect a witness‟s perception and
memory, that an individual other than defendant had provided counsel information
concerning Lehman‟s supposed drug use, but that counsel did not plan on calling
the individual as a witness. The trial court ruled that questions about Lehman‟s
drug use were improper and stated it would admonish the jury to disregard the
questions and testimony but, at the prosecutor‟s request, agreed not to strike the
testimony, and the cross-examination continued.
       Because defense counsel never made an offer of proof concerning what
other evidence regarding Lehman‟s supposed drug use could have been admitted
and, indeed, even declined to identify the potential witness who might have
offered such evidence, the trial court did not abuse its discretion by foreclosing
further questioning on the subject. (See People v. Thornton (2007) 41 Cal.4th
391, 448 [concluding no abuse of discretion occurred when “[c]ounsel made no
offer of proof, did not attempt to lay any factual foundation for the view she
expressed, and was not speaking on a subject on which judicial notice could be
taken.”].)

                                         61
             4. Exclusion of Evidence Regarding Defendant’s Statements
                Concerning the Firearms
         During presentation of his defense, defendant sought to introduce testimony
from Beverly Westervelt and Dutler Dauwalder that defendant had told them he
had purchased the victim‟s firearms and other belongings from a person who was
staying at a house across the street from defendant‟s mother‟s house. Defense
counsel argued Westervelt‟s and Dauwalder‟s evidence was admissible despite the
hearsay rule because it constituted an admission by a party, a declaration against
penal interest, and an expression of defendant‟s state of mind. The trial court
rejected these arguments and excluded the testimony. Defendant contends the trial
court violated his federal constitutional rights to due process and compulsory
process by applying the statutory hearsay rule in an improperly “mechanistic”
manner. We conclude defendant forfeited this claim and, in any event, it lacks
merit.
         Although defendant now argues Westervelt‟s and Dauwalder‟s testimony
was admissible under the federal Constitution irrespective of whether their
evidence qualified under an exception to the state‟s hearsay rule, defense counsel
did not make this argument at trial. Nor is the claim merely a “gloss” on the
grounds he raised in the trial court. (Cf. People v. Boyer, supra, 38 Cal.4th at
p. 441, fn. 17 [appellate claims are not forfeited if they “merely assert that the trial
court‟s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional legal consequence of violating the Constitution”].)
Accordingly, he failed to preserve this issue for appeal. (People v. Ervine (2009)
47 Cal.4th 745, 779.)
         In any event, defendant‟s claim is without merit. In Chambers v.
Mississippi (1973) 410 U.S. 284, upon which defendant primarily relies, the high
court held the exclusion of testimony regarding a third party‟s confession to the



                                           62
crime for which the defendant was being prosecuted violated the defendant‟s
constitutional right to present witnesses in his own defense. In the court‟s view,
“[t]he testimony rejected by the trial court here bore persuasive assurances of
trustworthiness and thus was well within the basic rationale of the exception for
declarations against interest. That testimony also was critical to Chambers‟
defense. In these circumstances, where constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.” (Id. at p. 302; see also Chia v.
Cambra (9th Cir. 2004) 360 F.3d 997 [following Chambers]; Tinsley v. Borg (9th
Cir. 1990) 895 F.2d 520 [same].)
       The instant case is distinguishable from Chambers and its progeny both
because defendant‟s alleged statements to Westervelt and Dauwalder did not bear
persuasive assurances of trustworthiness akin to typical declarations against penal
interest, and because the statements were not critical to his defense. Far from
being trustworthy, defendant‟s statements were self-serving and inherently
suspect. Defendant could not reasonably dispute he possessed Compton‟s
firearms and other belongings. The mere circumstance that, in confirming to his
friends that he possessed the victim‟s firearms, he might have subjected himself to
criminal liability for a less serious offense than murder (that of being a felon in
possession of firearms) did not necessarily render the statements trustworthy. That
defendant supposedly made these statements before he was formally charged with
Compton‟s murder does not mean they were made when he had no motive to lie.
One might easily surmise defendant anticipated the police might someday learn of
his possession of the items and he therefore attempted to plant these statements as
a way to throw off suspicion that he had committed the murder. The statements
simply were not “well within the basic rationale of the exception for declarations
against interest.” (Chambers v. Mississippi, supra, 410 U.S at p. 302; see People

                                          63
v. Elliot (2005) 37 Cal.4th 453, 483 [the defendant‟s statements in a letter that he
was “intoxicated” and “just „snapped‟ ” when he killed the victim “plainly come
across as exculpatory rather than inculpatory in light of the defendant‟s
prosecution for first degree murder”].)
       Moreover, neither Westervelt‟s nor Dauwalder‟s testimony concerning
defendant‟s statements was critical to the defense. Defendant himself was
available to testify as to how he obtained the victim‟s belongings. It has long been
the law that a defendant cannot make himself or herself “ „unavailable‟ ” for
purposes of the statutory hearsay provisions by exercising a privilege not to testify
at trial. (People v. Elliot, supra, 37 Cal.4th at p. 483; People v. Edwards (1991)
54 Cal.3d 787, 819.) Although defendant might have been placed in the position
of being forced to decide between exercising his constitutional right to testify and
his opposing right to remain silent, “[a]s we have observed, „ “The criminal
process . . . is replete with situations requiring the „making of difficult judgments‟
as to which course to follow. [Citation.] Although a defendant may have a right,
even of constitutional dimensions, to follow whichever course he chooses, the
Constitution does not by that token always forbid requiring him to choose.” ‟
[Citations.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 153.)
       In sum, the high court‟s decision in Chambers v. Mississippi, supra, 410
U.S. 284, did not obligate the trial court to allow defendant to present evidence of
his own hearsay statements as a means to, in effect, testify without subjecting
himself to cross-examination. (See People v. Edwards, supra, 54 Cal.3d at
p. 820.) The trial court‟s decision to exclude the testimony concerning
defendant‟s statements did not violate his constitutional rights.




                                          64
            5. Eliciting Testimony Regarding Defendant’s Imprisonment
       Before the trial began, the trial court granted defendant‟s request and
directed the prosecutor not to elicit evidence that defendant was incarcerated in
prison. Instead, references to defendant‟s custodial status were to be couched in
the more generic term of his being “in custody.” At trial, during Beverly
Westervelt‟s testimony concerning her contacts with defendant after he went “into
custody on August 12, 1993,” the prosecutor asked her if, after visiting him one
time “at Lerdo,” defendant then was “transferred to Wasco.” Westervelt agreed.
Later, when questioning her about a letter from defendant, the prosecutor asked
Westervelt whether the “return address is Wasco.” She once again agreed. At this
point defense counsel, outside the presence of the jury, expressed his concern that
the references to “Wasco” were improper because counsel believed “the only thing
in Wasco is a state prison.” After the court observed that defense counsel had not
objected when Wasco had been mentioned, counsel moved for a mistrial. The
court denied the motion, stating its view that there was nothing “so prejudicial [in]
the reference to Wasco [that] it would be a basis for a mistrial. As I pointed out
before, . . . [t]here‟s a lot of places in Wasco. We know that the defendant was
writing these letters from someplace in custodial status.” The court offered to
instruct the jury to disregard the references to Wasco, but defense counsel
declined.
       The following day, defense counsel renewed the motion for a mistrial,
asserting that the references to Wasco implied “that [defendant] has a felony
conviction, and it‟s a way of impeaching [him] without him having to take the
stand.” The trial court again expressed its view that any possible prejudice arising
from the references to Wasco was insignificant.
       Later, during the testimony of the informant Robert Rowland, the
prosecutor asked whether, because Rowland had testified as an informant in other


                                         65
cases, he was serving his “thirteen year sentence” in “some type of protective
housing unit.” Rowland confirmed this was true. He subsequently testified that
for approximately one month at the end of 1993 to the beginning of 1994 he was
housed with defendant in a correctional facility in Kern County. During this time,
according to Rowland, defendant confessed to having killed an old man for his
guns. Defendant did not object to this portion of the testimony.
       Defendant contends these references, contrary to the trial court‟s pretrial
order, informed the jury that he was not merely “in custody,” but was imprisoned,
and therefore was a convicted felon. He asserts that the prosecutor committed
misconduct by eliciting this information and that the trial court abused its
discretion by denying his motion for a mistrial. Both claims lack merit.
       The law is settled. A prosecutor‟s behavior does not violate the federal
Constitution unless his or her actions comprise a pattern of conduct that is serious
and egregious, such that the trial is rendered so unfair that the resulting conviction
violates the defendant‟s right to due process of law. Short of rendering the trial
fundamentally unfair in the federal sense, the prosecutor‟s actions may still violate
the state Constitution if he or she engaged in deceptive or reprehensible tactics in
order to persuade the trier of fact to convict. (People v. Abilez (2007) 41 Cal.4th
472, 494.)
       As the trial court explained, the prosecutor‟s questions referencing the town
of Wasco as defendant‟s place of residence, and Westervelt‟s confirmation, were
vague, as defendant may have been in custody somewhere in the town of Wasco
other than in Wasco State Prison. Moreover, any possible prejudice was minimal,
as the jury already knew defendant was “in custody” somewhere. While it might
have been better for the prosecutor to have refrained from such questions, we
cannot conclude such questions constituted an egregious pattern of misconduct or
that defendant‟s trial was rendered fundamentally unfair as a result.

                                          66
       Defendant‟s claim that the court abused its discretion by denying his
motion for a mistrial on this ground fares no better. “ „ “A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by admonition
or instruction. [Citation.] Whether a particular incident is incurably prejudicial is
by its nature a speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions.” ‟ ” (People v. Lucero (2000) 23 Cal.4th
692, 713-714.) Accordingly, “[w]e review a trial court‟s denial of a motion for
mistrial for abuse of discretion.” (People v. Williams (1997) 16 Cal.4th 153, 251.)
       Regarding the references to “Wasco” during Westervelt‟s testimony, we
cannot conclude the trial court abused its broad discretion in ruling that a mistrial
was not warranted. (People v. Panah (2005) 35 Cal.4th 395, 453 [a trial court is
obligated to declare a mistrial only when there has been irreparable damage to a
party‟s chance of receiving a fair trial].) Defendant asserts that Wasco “is a
nearby California State Prison located in Kern County and well-known to Kern
County residents including jurors in this case.” There is, however, no evidence in
the record establishing that the only correctional institution in Wasco is a state
prison or that any juror in this case would have believed that was the case.
Nothing in the record contradicts the trial court‟s view that there were “a lot of
places in Wasco,” and therefore these references would not have prejudiced the
jury against defendant.
       To the extent he makes the same claims with regard to Rowland‟s
testimony, defendant did not object or move for a mistrial based on asserted
prosecutorial misconduct in violating the trial court‟s order. Accordingly,
defendant forfeited this aspect of his claim. (People v. Riggs (2008) 44 Cal.4th
248, 298.) The trial court would not in any event have been obligated to declare a
mistrial had defendant requested one. Rowland did not testify that defendant and
he were housed together in a protective unit in a prison. Accordingly, there is no

                                          67
likelihood the jury, who were not lawyers familiar with custodial arrangements,
would have inferred from Rowland‟s testimony that defendant was not merely “in
custody,” but was imprisoned. Rowland‟s testimony did not irreparably damage
defendant‟s chance of receiving a fair trial, and granting a mistrial therefore was
not appropriate.

           6. Refusal to Give Defendant’s Proposed Instruction Concerning
              Alibi Defense
       Defendant requested a special instruction informing the jury: “Where it is
claimed that the defendant was not at the scene at the time the alleged crime was
to have been committed, the defendant is not required to prove the alibi beyond a
reasonable doubt or by a preponderance of the evidence, rather the prosecution has
the burden to prove beyond a reasonable doubt the defendant was present on the
premises when the crime was committed.” Defendant asserted that CALJIC
No. 4.50—the standard jury instruction regarding an alibi defense the trial court
intended to give the jury—did not adequately explain that defendant did not bear
the burden of proving the truth of his alibi.22 The trial court rejected defendant‟s
proposed instruction, finding it potentially confusing and that it did not “say[]
anything more than what CALJIC 4.50 says.”
       Before the court instructed the jury at the close of the guilt phase, defense
counsel renewed his request, this time buttressed by citations to cases purportedly
supporting the proposed special instruction. After a recess during which the court


22      CALJIC No. 4.50, as was given in this case, provided: “The defendant in
this case has introduced evidence for the purpose of showing that he was not
present at the time and place of the commission of the alleged crime for which he
is here on trial. If after consideration of all the evidence, you have a reasonable
doubt that the defendant was present at the time the crime was committed, you
must find him not guilty.”




                                         68
examined those decisions, the court again rejected the instruction because it
“would at least imply . . . that there is some burden on the defendant to do
something, even though [he] may not be required to prove the alibi beyond a
reasonable doubt,” and the court did not “want the jurors to think that the defense
has the burden to prove anything.” The court stated: “If the alibi [the defense
submits] raises a reasonable doubt regarding the defendant‟s presence at the scene
of the crime, then the jurors would have to find the defendant not guilty of the
offense, otherwise there would be a reasonable doubt in their mind[s] in that
regard. [¶] So I think it‟s superfluous, it‟s redundant, and it‟s confusing.”
       Defendant contends the proposed special instruction was a proper “pinpoint
instruction” regarding his alibi defense, and the trial court‟s refusal to give the
instruction to the jury violated his statutory and constitutional rights. We rejected
a similar claim in People v. Richardson (2008) 43 Cal.4th 959, 1026. In that case,
we concluded the trial court did not err by rejecting a modification of CALJIC
No. 4.50 that, like defendant‟s proposed special instruction, attempted to
emphasize the defendant bore no burden to prove his alibi.23 We stated the
modification “went far beyond emphasis and strayed into the argumentative,” and,
in light of “other instructions relating to reasonable doubt, such as CALJIC No.
2.90, it was properly rejected as repetitious.” (Richardson, at p. 1026.)
Defendant‟s proposed special instruction was similarly argumentative and


23     The proposed instruction in Richardson was similar to that proposed by
defendant here and would have added the following sentences after the first
sentence of CALJIC No. 4.50: “ „The burden of proof is always on the
prosecution. It never shifts to the defendant. The defendant is not required to
prove beyond a reasonable doubt or even by a preponderance of the evidence that
he was not present at the time and place of the commission of the alleged
crimes.‟ ” (People v. Richardson, supra, 43 Cal.4th at p. 1026, italics omitted.)




                                          69
repetitious in light of the trial court‟s other instructions. In addition, the absence
of the proposed instruction did not preclude defendant from arguing to the jury
that, in light of his alibi evidence, the prosecution had failed to prove his guilt
beyond a reasonable doubt. The trial court did not err by refusing to give the
proposed instruction.

           7. Absence of Instruction to the Jury at the Guilt and Penalty Phases
              Regarding Restraints
       Based on information from jail staff concerning defendant‟s behavior while
in custody, the trial court ordered defendant physically restrained during the trial
by means of leg irons and a waist belt attached by a chain to an eyebolt in the floor
under the defense table. The restraints were hidden from the jury‟s view by a
shroud around counsel‟s table, and the chain connecting defendant to the floor was
wrapped in tape to prevent it from making sounds when defendant moved. The
court further explained that, if defendant testified, his chains would be removed
and he would be placed in the witness chair outside the presence of the jury.
       Defendant contends the trial court erred by failing on its own motion to
instruct the jury with CALJIC No. 1.04, at both the guilt and penalty phases,
concerning its duty not to consider the circumstance that defendant was physically
restrained while in the courtroom.24 This claim fails because there is no factual
support in the record for the necessary preliminary finding that any juror was


24     CALJIC No. 1.04 provides: “The fact that physical restraints have been
placed on defendant [_____] must not be considered by you for any purpose.
They are not evidence of guilt, and must not be considered by you as any evidence
that [he] [she] is more likely to be guilty than not guilty. You must not speculate
as to why restraints have been used. In determining the issues in this case,
disregard this matter entirely.”




                                           70
aware of defendant‟s physical restraints. Defendant‟s citations to various
mentions of the restraints by the court and counsel, primarily made during the
pretrial proceedings, in no way establishes that, despite the trial court‟s
precautions, the jury was aware of the restraints during the trial. In the absence of
any indication in the record that the jury was aware of the physical restraints, or a
request from defendant for an instruction on this subject, the trial court did not err
by failing to instruct the jury with CALJIC No. 1.04. (People v. Medina (1995)
11 Cal.4th 694, 732 [“[N]o sua sponte instruction is required if the restraints are
not visible by the jury.”].)
                        II. PENALTY PHASE AND POSTTRIAL

       A. Facts

           1. Prosecution Evidence
       The prosecution presented evidence of four incidents involving assaultive
conduct by defendant. Beverly Westervelt testified that on December 17, 1990,
she and defendant were living together in her apartment, and defendant came
home very early in the morning after being out all night. Defendant became
enraged when Westervelt asked him where he had been and hit her with an ironing
board, grabbed her by her neck and dragged her across the room, and punched her
in the chest. Defendant later apologized, but told her that if he had wanted to hurt
her, he could have “put his fist right straight through” her. Westervelt‟s chest hurt
for several days, and she eventually went to the hospital, although an X-ray
examination disclosed no injury requiring treatment.
       John Turner testified that on the night of December 5, 1991, he was at a
nightclub in Bakersfield and defendant would not let Turner pass him when Turner
was on his way to the bar. Defendant challenged Turner to go outside, and Turner
agreed. On the way out of the bar, Turner, who was walking in front of defendant,



                                          71
was struck and rendered unconscious. When he regained consciousness, his lip
and chin were bleeding; his chin was permanently scarred. Approximately two
weeks later, defendant came to Turner‟s apartment and apologized for hitting him
at the nightclub. Defendant asked Turner not to press charges, and Turner agreed.
       A prison corrections officer testified that on November 12, 1993, at Folsom
State Prison, defendant and another inmate engaged in a fistfight in a cellblock.
Defendant refused to attend the resulting disciplinary hearing and was found to
have violated prison rules by fighting. The disciplinary charges against the other
inmate were dismissed, which indicated he had been acting in self-defense during
the fight.
       A detention officer in the Kern County Jail testified that on April 2, 1995,
he saw an extra set of jail clothing in defendant‟s cell, which was a violation of jail
regulations. The officer entered the cell and directed defendant, who was lying on
his bed, to stand up and face the wall so the officer could search the bed for other
contraband. Defendant did not immediately comply, and the officer repeated his
command. Defendant eventually got up but, contrary to the officer‟s orders,
turned toward the officer and “squared up,” clenching his fists by his side.
Interpreting defendant‟s actions as “combative,” the officer restrained defendant in
a “wrist lock,” placed him prone on the floor, handcuffed him and, pursuant to
standard procedures when a detainee has been restrained in this manner, took him
to the jail‟s infirmary.
       The prosecution also introduced records of defendant‟s three prior felony
convictions, for possession of amphetamine for sale and for possession of
marijuana for sale, both occurring in 1976, and for possession of cocaine in 1987.
       Finally, the prosecution presented the testimony of Compton‟s nephew,
Anthony Compton, regarding the murder victim‟s characteristics, activities, and
hobbies. Although his uncle had been diagnosed with serious cancer, Anthony

                                          72
testified Compton remained very energetic and enthusiastic, and never gave up
hope. About a week before the murder, he told Anthony that “everything was
looking good.”

           2. Defense Evidence
       Against the advice of his defense attorneys, defendant testified at the
penalty phase, mostly to dispute the veracity of the guilt and penalty phase
evidence presented against him. Defendant claimed that most of the prosecution
witnesses had lied, and maintained he could not have committed the murder
because the court proceeding he had attended on the day of the murder began in
the morning and lasted all day, until 5:45 that evening. He claimed the reporter‟s
transcript and the telephone records indicating otherwise were fraudulent and had
been doctored as part of a conspiracy against him. Although defendant admitted
he had possessed the victim‟s guns and belongings, he contended he purchased all
the items on July 17, 1993, from a person who was staying at a house across the
street from his mother‟s house. After he learned of the murder by reading
Compton‟s obituary, defendant realized he had purchased the victim‟s belongings,
but did not contact the police because he was afraid the person who had sold him
the items might retaliate, or the police would charge him with possession of stolen
property or being a felon in possession of firearms. According to defendant,
before he was arrested for Compton‟s murder, he told several people he had
bought the items. Defendant denied he threatened to harm Karen Lehman if she
told anyone about the guns.
       Defendant testified that in the three incidents in which he was accused of
assaulting Westervelt, Turner, and the prison inmate, he was only responding to
the other person‟s aggressive actions. As to the incident in his jail cell, he claimed
he had complied with the detention officer‟s order to stand and face the wall, but



                                         73
the officer nonetheless grabbed defendant‟s hand, pushed him to the floor, kicked
him in the ribs, and handcuffed him. According to defendant, the officer broke
bones in defendant‟s hand and several of his ribs, and the medical records from the
incident, which did not indicate such injuries, were forgeries. Defendant admitted
his prior convictions, but largely denied he had committed the crimes or
minimized their significance. He acknowledged that his probation for one of the
charges had been revoked based on subsequent charges he had molested a student
at a school where he was teaching. Although defendant had been acquitted of
those charges, he claimed his probation nonetheless was revoked because he had
refused to admit he was a sex offender when he was not. He also denied he
committed the subsequent molestation of which he was accused, which was
related to the court proceeding on the day of the murder. He said he ultimately
pleaded no contest to the charges in order to receive a greatly reduced sentence.
       Defendant also recounted his difficulties with the various attorneys who
represented him in the early stages of these proceedings. In defendant‟s view, his
defense attorneys were working with the prosecution to convict him, and the
prosecutors and court employees involved in his case were biased against him.
       Defendant also discussed his personal and family history, including his
having graduated from the California State University at Bakersfield and having
been gainfully employed by several large companies. Defendant said his
relationship with Beverly Westervelt generally was peaceful. He had purchased a
house for them to live in and provided other support for her and her two children.
Other than the incident that had been brought up at trial, there had never been
physical altercations between them. Defendant described his relationship with his
father as their being “best friends,” although his father was a strict disciplinarian.
In 1978, defendant‟s father committed suicide by shooting himself with a shotgun,
and defendant was the one who had found the body.

                                          74
       Defendant‟s older brother, Richard Lightsey, who was a minister in the
Episcopal Church, also testified concerning defendant‟s family life. Richard
described two instances in which their father had physically attacked their mother.
After the first attack, their father moved to a separate room in the house and began
starving himself, which eventually resulted in his being hospitalized for
malnutrition and scurvy. Later, after the second attack, their mother moved out of
the house. Richard came to his father‟s house the day his father committed suicide
and saw defendant crying hysterically and banging his head and arms against a
wall. According to Richard, after defendant was released from prison following
his cocaine possession conviction, he seemed to be quite successful in getting his
life back on track, as he obtained gainful employment and bought a house. The
subsequent molestation charges greatly upset defendant because his progress in
reestablishing his life was placed in jeopardy. Defendant was very focused on
proving his innocence of the molestation.
       Clinical Psychologist William Pierce interviewed defendant and several of
his family members and reviewed various records related to this case, including
the reports of the three experts who had previously evaluated defendant‟s
competence to stand trial. Dr. Pierce opined defendant suffered from a severe
emotional disturbance, with paranoid, persecutory, delusional, and narcissistic
personality disorders and depressive characteristics involving a sense of
hopelessness and despair. Defendant, however, had refused to participate in a
suggested series of clinical psychological tests to further evaluate his personality
and the possibility of any organic impairment of his central nervous system.
       Although defendant described his childhood to Dr. Pierce as positive and
happy, the other members of his family presented a less cheerful situation, mainly
revolving around the violent behavior of the father. The family members reported
that at one point the father stated he had a religious vision and believed he had

                                         75
magical powers and would not die. Unlike other members of the family,
defendant appeared to accept his father‟s beliefs as rational, and although
defendant acted as though everything was fine after his father‟s suicide, he
actually was denying his feelings as a way to minimize his emotional problems.
Dr. Pierce believed defendant‟s suppression of his true feelings about his father‟s
death fostered his distorted view of the world, including his feelings of
persecution. Defendant‟s psychological problems had been present for several
years and might have affected his thinking at the time of the murder. In Dr.
Pierce‟s opinion, a sentence of life without the possibility of parole would curb
defendant‟s criminal behavior. His personality disorders could be treated, but
successful treatment might be difficult.

       B. Issues

           1. Limitations on Dr. Pierce’s Penalty Phase Testimony
       Defendant contends the trial court erred by limiting the penalty phase
testimony of his psychiatric expert, Dr. Pierce, in two respects. As we explain,
neither claim has merit.
       During his penalty phase testimony, defendant discussed his difficulties
with his previous attorneys and mentioned there had been delay in the proceedings
while his competence to stand trial was evaluated. The prosecutor objected to
further testimony regarding the earlier competency proceedings on the ground
such testimony would be irrelevant. Defense counsel explained the evidence of
defendant‟s competency evaluations was intended to address section 190.3,
factor (d), concerning “[w]hether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional disturbance.”
Counsel advised the court he intended to “lay the foundation [for the reports]
through [defendant] and then take that matter through Dr. Pierce when he



                                           76
testifies.” Referring to the three mental health experts who had previously
examined defendant in connection with the two earlier competency hearings,
defense counsel clarified he was “not going to call [any of those doctors] as a
witness and I‟m not going to give the doctors‟ conclusion.” In response to the
prosecutor‟s continuing objection, defense counsel stated, “I don’t plan to ask Dr.
Pierce what was in those reports. I‟m going to ask Dr. Pierce if he read those
reports, . . . and I‟m going to ask him if he relied on those reports partially in
forming his opinion. . . . [¶] I’m not going to ask what these doctors said.” The
trial court thereafter stated: “I don‟t have any problem with your making an
inquiry as to whether or not he was evaluated by those doctors. And if at some
point in time you‟re going to call Dr. Pierce to come in here and testify that,
amongst other things, in addition to his education, in addition to his experience,
he‟s going to rely upon the reference to the reports previously made by Dr. Velosa,
Dr. Burdick and Dr. Manohara and stops at that, I don‟t have any particular
problem with that and I don‟t think the People do.” The prosecutor agreed.
Defense counsel then proceeded to question defendant concerning his meetings
with the psychiatrists.
       Later, during the direct examination of Dr. Pierce, defense counsel asked
whether Dr. Pierce had made “some psychiatric evaluations,” and he replied, “No,
I didn‟t, but I read some.” Dr. Pierce then continued: “There were other
psychiatric evaluations, reports that were done by other psychiatrists that I read
subsequent to my coming to an opinion, and he was evaluated by these
psychiatrists [in] July 1994 for a couple of reasons. One—.” At this point the
prosecutor objected, and the trial court reminded counsel of its earlier ruling.
Defense counsel explained his intention was “the doctor was going to explain that
he read these psychiatric evaluations as part of the foundation for arriving at his
conclusion.” The trial court reminded counsel this “was to be a general

                                           77
reference,” and counsel agreed to “be general.” Counsel then asked Dr. Pierce:
“And after having read these reports and having read all the other material
provided to you, having had your interviews with members of the family and
[defendant], did you come to a professional opinion as to [defendant‟s]
personality?” Dr. Pierce stated he had reached a conclusion and then proceeded to
explain it to the jury.
       Defendant contends the trial court improperly limited Dr. Pierce‟s
testimony regarding his evaluation of the reports of the three psychiatrists. As the
record demonstrates, however, defendant did not seek to have the trial court admit
into evidence anything more than what it ultimately did admit. Defendant‟s
contention the court erred by excluding testimony concerning the specific contents
of the reports of those three doctors lacks merit because he never sought to
introduce such testimony at trial. (Cf. People v. Valdez, supra, 32 Cal.4th at
p. 109 [when a defendant on appeal argues a theory of admissibility of evidence
not raised at trial, “[W]e cannot hold the trial court abused its discretion in
rejecting a claim that was never made.”].) Indeed, if defendant actually had been
seeking to introduce the opinions expressed in the reports, no reason appears why
he could not have simply called those doctors to testify concerning their own
evaluations.
       Defendant also contends the trial court “abused its discretion by excluding
Dr. Pierce‟s expert opinion regarding whether [defendant‟s] father‟s conduct was
symptomatic of mental illness around the time of his involuntary commitment to
the psychiatric facility at the Kern County Hospital,” asserting there is
“widespread acknowledgment and „clear evidence‟ that genetic influences and a
person‟s background contribute greatly to the etiology of mental illness.” The
record shows defense counsel first established that defendant‟s father had been
admitted to a psychiatric ward of the Kern County Hospital as a result of some

                                          78
apparently disturbed behavior. Counsel then asked Dr. Pierce whether he had “an
opinion about [the] father‟s conduct at [the] time [of his hospitalization].” The
prosecutor objected, and the court sustained the objection, advising counsel to “go
back to the main theme.” Counsel then asked the doctor whether defendant had
“give[n] you any impression of the effect of his father‟s conduct at this time on
him.” Dr. Pierce replied, “[The i]nteresting thing about [defendant‟s] description
of, and relationship with, his father is that he never gave me the indication that this
was as bizarre, and what I call psychotic in my opinion, as the other family
members,” and he then proceeded to discuss the difference in defendant‟s
perception from “the reality that other family members clearly agreed on.”
       Although defendant now contends the trial court abused its discretion in
sustaining the prosecution‟s objection and excluding Dr. Pierce‟s opinion about
the mental problems of defendant‟s father, defendant made no offer of proof
concerning what Dr. Pierce‟s testimony on this subject would have been. We
cannot conclude the trial court abused its discretion by sustaining the objection to
this question when defendant made no offer of proof at trial explaining why the
witness should have been permitted to answer the question.25 (Cf. People v. Whitt
(1990) 51 Cal.3d 620, 648 [even if a trial court has erred in sustaining an objection
to a question that is relevant on its face, the reviewing court “must know the
„substance‟ or content of the answer in order to assess prejudice,” which requires
that “the wording or context of the question makes the expected answer clear, or
. . . the proponent of the evidence makes an offer of proof”].)



25      We also observe that, despite the court‟s ruling, defendant was, in fact, able
to elicit in Dr. Pierce‟s subsequent testimony that, in his opinion, the father‟s
behavior was “psychotic.”




                                          79
            2. Admission of Section 190.3, Factor (b) Evidence Concerning the
               Incident in Jail
       Defendant contends the trial court erred by admitting, over his objection,
testimony concerning the incident in the Kern County Jail in which he failed to
comply with a detention officer‟s commands and then “squared up” to the officer
by facing him with his fists clenched at his sides, in what the officer described as a
“combative stance,” prompting the officer to take him to the floor, handcuff him,
and remove him from the cell. In rejecting defendant‟s motion to strike this
testimony, the trial court agreed with the prosecutor‟s assertion that, if the jury
accepted the officer‟s testimony, defendant‟s conduct constituted resisting or
obstructing a law enforcement officer in the performance of his duties, in violation
of section 148,26 with an implied threat of force or violence, and therefore the
testimony was admissible under section 190.3, factor (b).27 In the court‟s view,
“That‟s a jury question. They can figure that out themselves, make a
determination as to whether or not that conduct which was testified about by [the
officer] falls within . . . that category.”



26      Section 148, subdivision (a)(1) provides: “Every person who willfully
resists, delays, or obstructs any public officer, peace officer, or an emergency
medical technician, as defined in Division 2.5 (commencing with Section 1797) of
the Health and Safety Code, in the discharge or attempt to discharge any duty of
his or her office or employment, when no other punishment is prescribed, shall be
punished by a fine not exceeding one thousand dollars ($1,000), or by
imprisonment in a county jail not to exceed one year, or by both that fine and
imprisonment.”
27      Section 190.3 provides in relevant part: “In determining the penalty, the
trier of fact shall take into account any of the following factors if relevant: [¶] . . .
[¶] (b) The presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or implied
threat to use force or violence.”




                                              80
       On appeal, defendant asserts his behavior constituted merely a failure to
respond to the officer‟s orders with “alacrity,” not resistance or obstruction, and
his “passive actions” did not involve violence. We agree with the trial court,
however, that the jury could reasonably find from the officer‟s testimony that after
the officer found contraband in defendant‟s cell, he tried to search the cell for
other improper items, but defendant only reluctantly complied with his orders to
move from his bed and then assumed a threatening stance, which the officer
viewed as combative. As a result of these actions, the officer could not at that
time complete the search of defendant‟s cell, but instead determined it was
necessary to restrain defendant before the incident escalated. From this, the jury
could find the incident constituted obstructing the officer during his lawful duties,
and defendant‟s actions carried an implied threat of violence. (See People v. Sapp
(2003) 31 Cal.4th 240, 314 [the trial court properly instructed the jury it could
consider unadjudicated criminal acts in aggravation “only if they found beyond a
reasonable doubt that defendant had committed the act or activity, and that it
involved the use or attempted use or express or implied threat to use force or
violence”].) Accordingly, we conclude the trial court did not err in admitting this
evidence under section 190.3, factor (b).

           3. Refusal to Permit Defendant to Address the Jury Before
              Announcement of the Penalty Verdict
       Defendant contends the trial court erred by denying his request to
personally address the jury after the jury announced it had reached a verdict and
before the verdict was read in court. This claim lacks merit: “[B]ecause a
defendant has the right to testify at the penalty trial, we have repeatedly „held that
the defendant does not have the “ „right to address the sentencer without being
subject to cross-examination‟ in capital cases.” ‟ ” (People v. Cleveland (2004) 32
Cal.4th 704, 766; see also People v. Evans (2008) 44 Cal.4th 590, 592-593


                                          81
[“California law gives a defendant the right to make a personal statement in
mitigation of punishment but only while under oath and subject to cross-
examination by the prosecutor.”]; People v. Clark (1993) 5 Cal.4th 950, 1036-
1037 [rejecting due process and equal protection challenges to the rule that capital
defendants have no right to make statements in mitigation without being subject to
cross-examination].) We reject defendant‟s request to revisit these decisions.

           4. Ruling on the Motion for New Trial
       Defendant moved for a new trial under section 1181, raising several
grounds. Section 1181 states in pertinent part that, “[w]hen a verdict has been
rendered or a finding made against the defendant, the court may, upon his
application, grant a new trial, in the following cases only: [¶] . . . [¶] 5. When the
court has misdirected the jury in a matter of law, or has erred in the decision of
any question of law arising during the course of the trial, and when the district
attorney or other counsel prosecuting the case has been guilty of prejudicial
misconduct during the trial thereof before a jury[.]” The trial court denied the
motion in its entirety but did not specifically mention two grounds defendant had
included in the motion: that a prosecutor previously assigned the case who
testified at trial regarding defendant‟s alibi had committed “misconduct” by
testifying untruthfully,28 and that the trial court erred by denying defendant‟s
section 995 motion to dismiss the charges. Defendant now claims the trial court‟s
failure to reject these claims specifically requires we reverse the judgment and


28      Defendant‟s motion pointed out that the prosecutor testified at trial that
defendant‟s bail matter in department 10 on the morning of the murder was called
for the final time shortly after 10:30 a.m. and concluded a few minutes later, but at
the preliminary hearing in the murder case had testified defendant‟s matter in
department 10 concluded about 10:45 that morning.




                                          82
remand the matter to the trial court with directions to reconsider the new trial
motion.
       “ „We review a trial court‟s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.‟ [Citations.] „ “A trial court‟s ruling on a
motion for new trial is so completely within that court‟s discretion that a
reviewing court will not disturb the ruling absent a manifest and unmistakable
abuse of that discretion.” ‟ ” (People v. Thompson (2010) 49 Cal.4th 79, 140.) In
the present case, the trial court denied defendant‟s new trial motion, stating: “I‟ve
had a substantial amount of time to review the pleadings in this matter, in
particular addressing the particular matters before the Court right now, which is
the motion for new trial. And the Court, of course, heard all the evidence in this
case. And through an independent process of evaluating the evidence and the
alleged alibi, the Court is not convinced that the motion should be granted.
[¶] The verdict was not contrary to the law nor the evidence presented, and it‟s in
light of that and in light of the review of the various arguments presented here
today, along with the written motion and the written response of the People, the
Court‟s going to deny the motion for new trial.”
       In light of the trial court‟s comprehensive statement denying the motion, we
presume the court considered and rejected each ground raised in defendant‟s
motion. Defendant‟s claim is similar to one we addressed in People v. Lewis and
Oliver (2006) 39 Cal.4th 970. There, a defendant argued the trial court‟s denial of
his new trial motion was “so perfunctory that we cannot be confident that the court
properly exercised its discretion, or exercised any discretion at all.” (Id. at
p. 1062.) We rejected the argument, explaining that “[a]lthough the trial court‟s
rejection of [the defendant‟s] . . . argument was stated succinctly, we infer from
the record of the hearing itself that the court properly „discharge[d] [its] duty to
conscientiously consider [the] motion for new trial . . . . The hearing transcript

                                          83
reveals that [the court] was well acquainted with the briefs and the transcript of the
trial and carefully considered those claims before denying the motion.‟ ” (Id. at
p. 1063.)
       The same reasoning applies here. When the trial court denied the new trial
motion “in light of [the court‟s] review of the various arguments presented here
today, along with the written motion,” we assume the court considered and
rejected all grounds defendant raised, including the two grounds defendant now
argues were omitted from the court‟s consideration. Moreover, the court‟s failure
to embellish its ruling by referring to the specific claims included in the motion is
not particularly surprising in light of the minimal presentation defendant made
below, particularly regarding the claims he now raises on appeal: they were raised
only briefly in a conclusory fashion in the written motion and were not orally
addressed at the hearing. We therefore conclude defendant has not demonstrated
the trial court failed to rule on these grounds.
       Although defendant does not specifically address the merits of his new trial
motion, we also conclude the court did not abuse its discretion in denying it. As to
the claim of prosecutorial misconduct, defendant did not establish that the former
prosecutor‟s testimony at trial, to the extent it might have been inconsistent with
his testimony at the preliminary hearing, was false and therefore constituted
misconduct. Moreover, even if defendant had established misconduct, he did not
establish he was denied a fundamentally fair trial or that a reasonable probability
existed he would have obtained a more favorable outcome, especially in light of
the fact defense counsel questioned the witness about this possible inconsistency
during redirect examination. As to the claim the trial court erred in denying his
section 995 motion, the court‟s finding the evidence at trial was sufficient to prove
defendant‟s guilt rendered moot the challenge to the magistrate‟s finding of
probable cause. (People v. Crittenden (1994) 9 Cal.4th 83, 137 [“Where the

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evidence produced at trial amply supports the jury‟s finding, any question whether
the evidence produced at the preliminary hearing supported the finding of
probable cause is rendered moot.”].)

           5. General Challenges to the Death Penalty
       Defendant raises a number of challenges to the validity of the California
statutes and procedures relating to capital cases. We previously have rejected
these claims, and do so again here.
       “The set of special circumstances qualifying a first degree murder for
capital sentencing (§ 190.2) is not impermissibly broad. [Citation.] Nor is section
190.3, factor (a), under which the jury may consider the „circumstances of the
crime‟ as a factor in aggravation (or mitigation) of penalty, so broad as to make
imposition of a death sentence arbitrary and capricious.” (People v. Moore (2011)
51 Cal.4th 386, 415.) The range of factual circumstances involved in the murders
in which the death penalty has been upheld establishes that the sentencing scheme
properly allows for each case to be “ „ “ „judged on its facts, each defendant on the
particulars of his offense‟ ” ‟ ” (ibid.), not that the death sentence is applied in this
state in a “wanton” or “freakish” manner.
       We also have rejected the argument that various asserted “safeguards” in
the sentencing process are constitutionally compelled. Thus, the jury is not
required to reach a unanimous verdict or issue a written verdict regarding the
existence of aggravating factors. (People v. Moore, supra, 51 Cal.4th at p. 415.)
There is no requirement, even in light of the United States Supreme Court‟s
decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, that the
jury be convinced beyond a reasonable doubt (1) of the existence of any
aggravating factors, (2) that the factors in aggravation outweigh those in
mitigation, or (3) that the death penalty is the appropriate sentence. (Moore, at pp.



                                           85
415-416.) Because the penalty decision is inherently normative, not factual, there
is no requirement the jury be instructed regarding the existence or absence of a
burden of proof regarding its determination of the appropriate sentence. (Id. at
p. 415.) Nor must the trial court amend the standard jury instruction regarding the
sentencing determination, CALJIC No. 8.85, specifically to delete factors the
defendant claims are inapplicable, or designate certain factors as mitigating only
(Moore, at p. 417), or inform the jury that mitigating factors must be considered
only in mitigation and the absence of proof of a mitigating factor cannot be
considered an aggravating factor (People v. Gamache (2010) 48 Cal.4th 347, 406).
The trial court is not required to give additional instructions “to establish a tie-
breaking mechanism” regarding the jury‟s weighing of the applicable factors and
its ultimate sentencing decision. (Id. at p. 407.) “ „The use of the limiting
adjectives “extreme” and “substantial” in the instruction on section 190.3, factors
(d) [(referring to „extreme mental or emotional disturbance)‟] and (g) [(referring to
„extreme duress‟ and „substantial domination‟ by another)] does not
unconstitutionally prevent the jury from considering mitigating evidence.‟ ”
(Moore, at p. 416.)
       “Comparative intercase proportionality review of death sentences is not
constitutionally required. [Citations.] „Because capital and noncapital defendants
are not similarly situated in the pertinent respects, equal protection principles do
not mandate that capital sentencing and sentence-review procedures parallel those
used in noncapital sentencing.‟ ” (People v. Moore, supra, 51 Cal.4th at p. 417.)
Defendant‟s citations to various statistics and other extra-record materials such as
death judgment affirmance rates and various law journal articles, even if properly
before us, do not establish that our review of defendant‟s appeal specifically, or of
all automatic appeals in general, has been affected by “political considerations,”



                                           86
resulting in a denial of his right to due process. (See People v. Kipp (2001) 26
Cal.4th 1100, 1140-1141.)
       “ „California‟s use of capital punishment as an authorized sentence for
certain specified types of first degree murder does not constitute cruel and unusual
punishment merely because most nations have chosen not to employ the death
penalty at all. [Citations.]‟ ” (People v. Moore, supra, 51 Cal.4th at p. 417.)

            6. Cumulative Error
       Defendant contends the judgment should be reversed based on the asserted
cumulative effect of the guilt and penalty phase errors he has raised. Other than
the conclusion that reversible (but potentially curable) error occurred when the
trial court permitted defendant to represent himself during the competency
proceedings, the other errors we have found or assumed were harmless. Even
when considered cumulatively, these other errors do not support a conclusion that
defendant was denied a fair trial.
                                    III. DISPOSITION
       We reverse the judgment and remand to the trial court with directions to
determine whether holding a retrospective competency hearing is still feasible. If
it is not, the trial court must set the case for a new trial. Prior to that trial, the trial
court must determine defendant‟s present competence to stand trial.




                                             87
       If the trial court initially finds a retrospective competency hearing is
feasible, it will conduct appropriate competency proceedings, in accordance with
this opinion. If after such proceedings the court finds that the hearing was not
procedurally adequate and substantively acceptable, or that defendant proved he
was incompetent, the trial court must set the case for a new trial. If it finds the
hearing was adequate and defendant failed to prove he was incompetent, the trial
court will reinstate the judgment.
                                                   WERDEGAR, J.

WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lightsey
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S048440
Date Filed: July 9, 2012
__________________________________________________________________________________

Court: Superior
County: Kern
Judge: John I. Kelly

__________________________________________________________________________________

Counsel:

Erik N. Larson and Manuel J. Baglanis, under appointments by the Supreme Court; Law Office of E.
Michael Linscheid and E. Michael Linsheid for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Judy Kaida and
Kari Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Erik N. Larson
Law Office of E. Michael Linscheid
345 Franklin Street
San Francisco, CA 94102
(415) 782-6002

Manuel J. Baglanis
Law Office of Manuel J. Baglanis
P. O. Box 70035
San Jose, CA 95170
(408) 446-3987

Kari Ricci
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-0306
