Filed 8/29/11




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S045078
           v.                        )
                                     )
ROYAL CLARK,                         )
                                     )                        Fresno County
           Defendant and Appellant.  )                    Super. Ct. No. 446252-9
____________________________________)


      After a jury found Royal Clark competent to stand trial, another jury
convicted him of the first degree murder of Billie-Jo Laurie Farkas (Pen. Code,
§§ 187, subd. (a), 189),1 the premeditated attempted murder of Angie Higgins
(§§ 187, subd. (a), 664, subd. (a)), two counts of robbery (§§ 211, 212.5,
subd. (b)), the attempted rape of Farkas (§§ 261, subd. (a)(2), 664), assault upon
Higgins by force likely to produce great bodily injury (§ 245, subd. (a)(1)), and the
false imprisonment and kidnapping of Higgins (§§ 236, 207, subd. (a)). The jury
found true the three special circumstance allegations that the murder was
committed while defendant was engaged in the commission of robbery and
attempted rape (§ 190.2, subd. (a)(17)(A), (C)), and for the purpose of preventing
the victim‟s testimony in a criminal proceeding (§ 190.2, subd. (a)(10)). The jury

1      All further statutory references are to the Penal Code unless otherwise
indicated.




                                         1
also found true the allegations that defendant personally used a deadly weapon (a
rope) during the commission of the murder, attempted murder and assault
(§ 12022, subd. (b)), and that he intentionally inflicted great bodily injury on
Higgins during the commission of the attempted murder and assault (§ 12022.7).
The jury further found that defendant, who entered pleas of not guilty and not
guilty by reason of insanity, was sane when he committed all of the charged
crimes. Following the penalty phase of the trial, the jury returned a verdict of
death. Defendant moved for new guilt and penalty trials (§ 1181) and for
modification of his sentence to life without the possibility of parole (§ 190.4, subd.
(e)). The trial court denied the motions and sentenced defendant to death. The
court also sentenced defendant to consecutive determinate terms totaling 15 years
for the noncapital offenses, but stayed sentence on the premeditated attempted
murder. Defendant‟s appeal is automatic. (§ 1239, subd. (b).) For the reasons
that follow, we affirm the judgment.
                                     I. FACTS

       A. Guilt Phase Evidence

           1. Prosecution evidence
     At the time of the crimes in January 1991, defendant was 27 years old and
resided with Donna Kellogg and their young children in Kellogg‟s Fresno home.
The murder victim, 14-year-old Billie-Jo Laurie Farkas (Laurie), was Kellogg‟s
cousin. Laurie‟s mother, Venus Farkas, testified that Kellogg introduced
defendant to the family in 1986 when he and Kellogg moved to the Fresno area.
According to Mrs. Farkas, defendant visited the Farkases‟ residence often.
     In the year preceding the murder, family members noticed that defendant‟s
visits became more frequent and that he was paying particular attention to Laurie.
Mrs. Farkas testified that defendant often asked Laurie to go places with him and



                                          2
was teaching her to drive his car. According to Laurie‟s older sister, Angelique,
defendant sometimes commented on the tightness of Laurie‟s clothing. He also
once asked the girls whether they were virgins, how “far” they had “gone with
boys,” and if they had ever considered having an older, more experienced
boyfriend like him.
     Defendant‟s growing interest in Laurie also was apparent to individuals
outside the family. Defendant‟s friend Michael Hall testified that, in late August
1990, six months before the offenses occurred, he warned defendant to stay away
from Laurie‟s house. Defendant responded, “I know she wants me.” When Hall
pointed out that Laurie was Kellogg‟s cousin and that she was only 14 years old,
defendant replied, “So what?” or “I don‟t care.”
     Laurie‟s best friend was 15-year-old Angie Higgins (Angie). She was
acquainted with defendant because he was sometimes at the Farkases‟ home when
she was there with Laurie. Angie testified that defendant once appeared at their
school unexpectedly at the end of the day to give Laurie and her a ride home.
Laurie‟s father, William Farkas, Sr., testified that when he asked defendant why he
picked up the girls, defendant said he was “in the area.”
     On Saturday afternoon, January 26, 1991, Angie met Laurie at the Farkases‟
home and she and Laurie decided to go to a movie.
     Around the same time, defendant called the Farkases, saying he wanted to
come by the house with a new video game. According to Mr. Farkas, defendant
arrived about 45 minutes later and played the video game with Laurie‟s brother.
At some point he stopped playing, entered Laurie‟s bedroom, and spoke with her
as she was preparing to leave for the movie. Angie testified that she overheard
some of their conversation, including defendant asking Laurie if she wanted to go
“cruising.”



                                         3
        Mr. Farkas testified that he drove Laurie and Angie to the Festival theater
and dropped them off in front around 8:15 p.m. Laurie took $7 with her. Angie
had $10.
        According to Mrs. Farkas, about 10 to 15 minutes after Mr. Farkas left with
the girls for the movie theater, defendant asked her where they had gone. After
being informed, he then grabbed his jacket and left, telling Mrs. Farkas he was
going to meet a couple of friends. She found his abrupt departure unusual because
defendant ordinarily would stay and play the video games that he had brought
over.
        Meanwhile, Laurie and Angie discovered that the movie they wanted to see
had already started, so they decided to wait for the next showing. Angie testified
that to pass the time, they went into a nearby music store. When they left the
store, defendant drove up next to them and invited the girls to get inside his car,
which they did.
        As Angie recounted, defendant first drove to a nearby McDonald‟s restaurant
because Laurie said she was hungry. When they arrived, defendant asked Laurie
to buy him something. She refused his request saying, “Buy yourself something to
eat. You‟ve got your own money.” Defendant responded that he did not have any
money. While defendant stood near the doorway of the restaurant watching the
girls, Laurie bought a milkshake and french fries and put her change into her right
pants pocket. Angie spent $1.12 for a milkshake and put her remaining $8.88 into
her left pants pocket.
        The group returned to the car and defendant drove to Roeding Park.
According to Angie, defendant told them people he knew would be “kicking back”
there. They drove around the park for 20 minutes but saw only parked vehicles.
        By now, it was after 9:00 p.m. and, according to Angie, Laurie said she
wanted to return to the movie theater. Defendant responded there was another

                                            4
place where his friends would be “kicking back” and that he needed to talk with
one of them. With the girls‟ assent, defendant drove off, entering Highway 99 and
exiting at Herndon Avenue. They stopped briefly at a service station.
     Angie testified that after leaving the service station, defendant drove for a
while until they reached Lost Lake Recreation Area (Lost Lake). They traveled
along a winding road until it became a dead end. Seeing that the park was
deserted, the girls suggested they leave. Defendant said he needed to use the
restroom. He made a U-turn and headed back toward the park entrance, stopping
at the first toilet facility en route. Seeing a car parked in front, he said, “I don‟t
trust this car,” and continued driving. He pulled up to the next facility and went
into the restroom while the girls stayed in the car. After several minutes passed,
Laurie moved over to the driver‟s seat, started the car, and drove a short distance
to an area just beyond the restroom. Defendant then started yelling that he needed
something with which to wipe himself. At first, the girls ignored him. However,
after locating some paper towels in the backseat, Laurie drove the car to the other
side of the restroom. Angie went halfway to the restroom door with the paper
towels in hand, but then returned to the car, telling Laurie that she should deliver
them to defendant because she knew him better. Laurie drove to the other side of
the restroom. Meanwhile, defendant continued shouting for the girls to bring him
toilet paper and yelled at them to “stop messing with [his] car.”
     Laurie finally agreed to bring the paper towels to defendant. Angie testified
that almost immediately after entering the restroom, Laurie started screaming and
yelling, “Roy, stop” and “Roy, leave me alone.” Laurie then called out for Angie
to help her. As Angie neared the restroom‟s entrance, she heard a scuffling sound
and then silence. She went inside and saw Laurie lying facedown on the concrete
floor, motionless. Defendant was sitting on the back of his legs with Laurie‟s head
between his knees. Angie shouted at defendant and grabbed Laurie‟s legs to pull

                                            5
her away from him. But defendant jumped up, knocked Angie to the ground and
started choking her with his hands. When Angie struggled, defendant used his
knee to slam her head to the floor. As the attack continued, Angie‟s nose began to
bleed and her resistance waned. Defendant then let go of her and walked out of
the restroom.
     Angie crawled over to Laurie and shook her back to consciousness.
Meanwhile, defendant reentered the restroom with a small flashlight, which he
shone around the area. The floor was spattered with blood and strewn with rings,
earrings, and other small items that Laurie had been carrying in the inside pocket
of her jacket. The jacket, which Laurie had been wearing when she first entered
the restroom, was lying in the corner. Laurie picked up the jacket and put it back
on, then retrieved the items from the floor. Defendant walked out again.
     The girls were frightened and wondered what to tell their parents. They
decided to tell defendant that they would say they had gotten into a fight at the
movie theater.
     The next time defendant entered the restroom, he carried a small container,
which he filled with water and poured on the floor to rinse off the blood. At some
point, he hugged Laurie and told her he was sorry. When Laurie told defendant
about what they planned to say to their parents, defendant replied, “No, I don‟t
trust you. You‟ll tell like you did the last time.” Defendant left the restroom again
and returned holding a small rope, which he used to bind Angie‟s hands behind
her back. He then pulled Laurie off to the side, placed his hand around the back of
her neck, and tried to kiss her. Laurie twice pulled away, telling defendant, “I
can‟t. I‟m on the rag,” a statement Angie interpreted to mean she was having her
monthly period. Defendant again left the restroom.
     Defendant returned with another rope and tied Angie to a toilet. He then
directed Laurie to accompany him to find fresh water with which to clean Angie.

                                          6
Laurie initially refused to leave and held on to Angie‟s leg. Defendant insisted,
protesting that Laurie did not trust him. Laurie acquiesced and left the restroom
with him.
     Angie heard defendant and Laurie walk next door to the women‟s restroom.
Shortly after that, she heard Laurie screaming and pleading, “Roy, don‟t,” and
“Leave me alone,” and the sound of scuffling. Laurie also called out for Angie,
and started crying and then gasping for air. The gasping continued for a while,
then there was silence.
     According to Angie, defendant reentered the men‟s restroom and told her that
Laurie had run away and that he was going back out to look for her. Angie heard
footsteps and the shutting of a car door. Defendant then returned to the restroom
and announced they were going to leave without Laurie. He untied Angie from
the toilet but kept her hands bound. After wiping the blood from Angie‟s face,
defendant directed her to his car, which was now parked closer to the restroom.
     Defendant placed Angie in the front passenger seat and covered her with
Laurie‟s jacket, which he grabbed from the backseat. He then asked her, “Will
you do it?” which she understood to mean would she have sex with him. She
declined, saying that she was waiting for someone special, to which defendant
responded, “See, both of you don‟t trust me.” When Angie first got into
defendant‟s car, the clock on the dashboard showed 11:11 p.m.
     Angie testified that defendant initially drove back to the dead end, saying he
was looking for Laurie. He then turned around and drove to the park entrance.
Just outside the park, defendant stopped at a pay telephone. He said he wanted to
call Laurie‟s mother but did not have any change. When Angie mentioned that
she had money in her pocket, defendant reached in and removed all of it. He put
the dollar bills in the car‟s coin compartment and held the change in his hand.
Angie saw defendant insert the coins into the pay slot and enter a telephone

                                         7
number, but he hung up without speaking to anyone and retrieved the change.
Defendant returned to the car and explained to Angie that he did not know what to
say to Laurie‟s mother.
     After leaving the public telephone, defendant told Angie he would take her
back to Laurie‟s house. He entered the freeway, but drove past the exit. When
Angie pointed out to defendant that he had missed the turnoff, he told her he had
changed his mind and that they were going to Kellogg‟s house to get Angie
cleaned up. Defendant continued on the freeway and exited in the town of Selma.
After driving around a residential area, defendant informed Angie they were not
going to Kellogg‟s house because Kellogg would “kick him out.” Instead, he
would take Angie to Laurie‟s house.
     Before reentering the freeway, defendant pulled into a service station and
directed Angie to stay low so no one would see her. It was now almost 1:00 a.m.
Before defendant got out of the car, he retrieved the dollar bills he had taken from
Angie and placed in the coin compartment earlier that night.
     Defendant left the service station and entered the freeway. But instead of
traveling north toward the Farkases‟ home, he drove south, which Angie
immediately brought to his attention. Defendant exited and reentered the freeway
going in the opposite direction, but passed the exit for the Farkases‟ residence.
When Angie mentioned to defendant that he had once again missed the exit, he
replied that he wanted to go back to look for Laurie.
     Defendant exited the freeway at the Herndon Avenue turnoff, then turned
onto Ingram Avenue. Angie had no memory of what occurred at this point,
however, and her next recollection was of defendant driving around a rural area of
southwest Fresno called “Chateau Fresno.” Angie repeatedly asked defendant if
he was lost. He eventually admitted that he did not know where he was, pulling



                                          8
over to the side of the road to look for a map. When another car approached,
defendant quickly started the engine and drove off.
     Defendant soon pulled over again. Angie noticed it was now after 2:00 a.m.
By this time, she had managed to untie her hands. Defendant gave her a cigarette
lighter and directed her to get out of the car and walk to the trunk so he could look
for a map while she held the lighter. As she stood by the back bumper holding up
the lighter, defendant approached her from behind and choked her with a cord
until she lost consciousness.
     Defendant sped away from the scene around 3:00 a.m. when a motorist
approached his parked vehicle from the opposite direction. Joel Suarez testified
that as he drove past the car‟s former location, he saw a body lying on the side of
the road. When he made a U-turn and drove by again, he noticed movement and
went to a friend‟s house to notify police.
     Responding officers testified they had great difficulty communicating with
Angie because her voice was so raspy. But she was able to nod her head “yes”
when asked if she knew who had beaten her and shook her head “no” when asked
if she had been raped. Emergency personnel transported Angie to a nearby
hospital, where she was treated for her injuries and released three days later.
     The emergency department physician who treated Angie testified that her
eyes showed signs of hemorrhaging and her face and neck were swollen. An
abrasion encircled more than half her neck and she had bruises behind her ears.
Based on the nature and extent of Angie‟s injuries, the prosecution‟s medical
expert expressed the opinion that she had been strangled by someone who stood




                                             9
behind her and pulled a ligature against the front of her neck. He also noted a
marked abrasion on the left side of her face, but was uncertain what had caused it.2
     Between 1:00 and 1:30 a.m., several hours before Joel Suarez discovered
Angie, another motorist noticed Laurie‟s body lying on a rural road in nearby
Madera County. Gilbert Garcia testified that after realizing he had seen a body, he
stopped and exited his van. Pressing his fingers to Laurie‟s neck, Garcia found her
skin cold and detected no pulse. He also felt a rope encircling her neck. Garcia
left the scene to call police. According to one of the responding officers, Laurie‟s
blouse was pulled up and her bra was above her breasts. Another officer testified
there was no money in Laurie‟s pants pockets.
     Forensic pathologist Jerry Nelson, M.D., performed an autopsy shortly after
the discovery of Laurie‟s body. He measured Laurie‟s height as five feet, one and
one-half inches and estimated her weight as 110 to 115 pounds. Dr. Nelson
testified that he observed small petechial hemorrhages on Laurie‟s face and
eyelids and a larger “flare of hemorrhages” in the whites of her eyes. There also
was blood inside her nose and a “frothy, sanguinous stain” in the pharynx at the
back of her mouth. Given these findings, and the prominent ligature abrasion on
her neck, Dr. Nelson determined the cause of Laurie‟s death to be asphyxia due to
ligature strangulation. In his opinion, the strangulation rendered Laurie

2      The prosecutor pointed to this injury and other circumstantial evidence to
support his theory that after killing Laurie and loading her body into the trunk,
defendant placed Angie in the car and drove around with her while deciding where
to dispose of Laurie‟s body. The prosecutor theorized that once defendant had
devised a plan, he rendered Angie unconscious by hitting her on the left side of the
face, drove to nearby Madera County where he dumped Laurie‟s body on a
country road, and then drove to a rural area in Fresno County known as Chateau
Fresno, where Angie regained consciousness. At that point, the prosecutor argued,
defendant then strangled Angie and left her for dead on the side of the road.




                                         10
unconscious in four to six seconds. Dr. Nelson also described lacerations above
Laurie‟s right eyebrow and abrasions on the left side of her neck. Based on these
injuries, Dr. Nelson surmised Laurie was conscious when the ligature was wound
around her neck three times and tied in place, and that she struggled to push it
away or loosen it.
     Dr. Nelson further testified Laurie sustained other, nonfatal injuries close in
time to her death based upon several hemorrhage sites of varying size within the
scalp and on the surface of the skull. In Dr. Nelson‟s opinion, these injuries could
have been caused by either multiple blunt blows to the head or the head striking
the concrete floor. Dr. Nelson also observed that although four ribs on Laurie‟s
left side were fractured, there was no bruising of the skin or soft tissue over the
area. In his view, the fractures were probably caused by blunt impact from a
smooth, rounded object, which could have been a person‟s knee. Dr. Nelson could
not determine, however, whether the fractures occurred before or after Laurie was
strangled.
     Dr. Nelson informed the jury that at the time of the autopsy, Laurie had a
sanitary pad in place and there was blood in her vagina. During a vaginal
examination, he found nothing consistent with sexual assault.
     Within 12 hours of the discovery of Laurie‟s body, officers from the Fresno
County Sheriff‟s Department located defendant at his residence and took him into
custody. Mr. Farkas had given defendant‟s address to the officers after asking a
relative to have defendant telephone him with that information. According to
Mr. Farkas, when defendant called the Farkases‟ residence as requested, he
inquired about the Super Bowl party that was scheduled for that afternoon and
indicated he was planning to attend.
     Officer Melinda Ybarra testified that when she and her partner arrived at
defendant‟s home around noon on January 27, 1991, he was standing in the

                                          11
driveway with a small child. In the garage there was a faded orange Datsun sedan,
which matched Suarez‟s description of the vehicle that sped away from the
location where he discovered Angie on the roadway.
     The officers transported defendant to the Fresno County Sheriff‟s
Department headquarters. There, Officer Ybarra noticed minor scratches on the
right side of defendant‟s face. Officer Souza testified that he collected the
clothing defendant was wearing at the time of his arrest, which included white
boxer shorts. He found 8 cents on defendant‟s person and no money in the wallet
seized from defendant‟s residence.
     Forensic testing of defendant‟s clothing and other items collected during a
search of his residence and vehicle, although not conclusive, linked him to the
crimes in important respects. For instance, according to crime scene technician
William Stones, the shoe tracks found at the Chateau Fresno and Lost Lake crime
scenes had similar characteristics, that is, the same length, width, tread wear
design and wear pattern, as the Nike shoes seized from defendant‟s residence.
Criminalist Allen Boudreau testified that tire marks, and pine needles and hair
found inside defendant‟s car likewise connected him to the crimes.
     Serology expert Andrea Van der Veer de Bondt testified extensively
concerning her testing of the bloodstains on various articles of clothing worn by
Laurie, Angie, and defendant. Several blood smears originating on the inside of
Laurie‟s blouse were consistent with Angie‟s blood and inconsistent with Laurie‟s
blood. She agreed with the prosecutor that a hand might have smeared the blood
but she could not say so conclusively. De Bondt believed that Laurie‟s bra had
been displaced when the blood was smeared or transferred onto it.
     De Bondt also testified about a three-inch off-white stain on the left front
area of the boxer shorts that defendant was wearing at the time of his arrest. The
shorts tested positive for the presence of P-30, a protein produced in the prostate

                                         12
gland that is one of the components of semen. De Bondt was unable to determine
the identity of the donor or how old the stain was.
     Urologist Gary Storey, M.D., testified regarding the physiological
significance of the semen stain. Based on the results of the P-30 analysis,
Dr. Storey was certain that the stain on defendant‟s shorts was the result of
ejaculation following sexual arousal.

           2. Defense evidence
     The defense presented evidence to support the theories of unconsciousness
and diminished actuality.3 Defendant testified in his own defense, providing his
account of the events leading up to the crimes and describing his background and
psychiatric history. The defense also called three mental health experts who
testified about defendant‟s brain damage and the mental disorders and complex
partial seizures that resulted from it.

                a. Defendant’s version of the crimes
     Defendant‟s account of his activities preceding the crimes was consistent in
some respects with the prosecution witnesses‟ version of events. Defendant
testified that on Saturday, January 26, 1991, he left his home around 7:00 p.m.,
made several stops, and then drove to the Farkases‟ home to play video games
with Laurie‟s younger brother. At one point, he spoke with Laurie in her bedroom
and asked her if she and Angie wanted to go “cruising,” but they did not make any
plans to get together that evening.



3      To support a defense of “diminished actuality,” a defendant presents
evidence of voluntary intoxication or mental condition to show he “actually”
lacked the mental states required for the crime. (People v. Steele (2002) 27
Cal.4th 1230, 1253, italics omitted.)




                                          13
     Defendant testified that he left the Farkases‟ house around 20 to 30 minutes
after speaking with Laurie, and drove to a bowling alley. He played an arcade
game using no more than $1 of the $5 in change that Kellogg had given him.
     According to defendant, as he drove home from the bowling alley, he noticed
Laurie and Angie walking on the sidewalk on the opposite side of the street. He
turned the car around and pulled up beside them, and the girls got inside.
Defendant briefly stopped at a nearby McDonald‟s restaurant because Laurie said
she wanted something to eat. Defendant stayed in the car while the girls went
inside to order their food; he could not recall conversing with either one of them
before they exited the vehicle. Several minutes later, defendant went inside to use
the restroom, but changed his mind after seeing the long line of people and waited
for the girls at the front door. When the group returned to the car, he suggested
they go to Roeding Park to look for parties. The girls said, “Let‟s go.”
     Defendant testified that he drove around Roeding Park but they saw no one
they knew and left a short time later. After stopping at a service station to
purchase about $2 worth of gasoline, defendant suggested they go to Lost Lake to
see if some of his friends might be there.
     Defendant explained that when the group arrived at Lost Lake, he drove to a
picnic spot but saw no one there. He turned around and headed back toward the
exit, then needed to find a restroom. About five minutes after using the toilet,
defendant realized there was no toilet paper and yelled for the girls to bring him
something with which to wipe himself. But as he sat on the toilet, he could hear
the girls laughing and driving his car around. He became upset and very angry.
When Laurie walked into the restroom with a smirk on her face, defendant became
enraged and filled with hate. He jumped on Laurie, then got onto his knees and
started choking her with both of his hands until she lost consciousness. In the
meantime, Angie entered the doorway and crawled toward Laurie. Defendant

                                         14
lunged at Angie and started hitting her in the face with his fists and choking her.
According to defendant, after that, everything went blank.
     Defendant testified that his memory of the remainder of the evening was
patchy. He remembered dragging Laurie‟s dead body outside the restroom, but
did not recall taking her to the women‟s restroom, tying a rope around her neck
and killing her, or placing her body in the trunk of his vehicle. Although he
believed he must have killed her, he did not know why he did so.
     As for the evening‟s other events, defendant remembered standing at a pay
telephone and driving with Angie in the fog, but he had no recollection of how he
ended up back at his own house. When he awoke around 9:00 a.m., he had a
feeling that “something wasn‟t right” but no memory of what had happened the
night before. Although defendant slept in the clothing he had been wearing the
previous night, he removed it and changed into a pair of previously worn white
boxer shorts, Raiders shorts, and blue jeans after Kellogg told him she was
collecting the dirty laundry to wash.

               b. Defendant’s background and mental health history
     Defendant testified that his parents separated in 1965 when he was three
years old. His mother moved him and his siblings first to San Francisco and then
to Los Angeles, where they lived on welfare in a one-bedroom house. When he
was 10 years old, he was hit accidentally in the head with a baseball bat and
rendered unconscious.
     At the age of 13 or 14, defendant suffered a seizure, began running away
from home, sometimes to travel across the country, and began to behave violently
toward family members. In October 1976, when defendant was 12 years of age,
he locked his brother and mother out of the house, then hurled a bottle at his
brother and threatened his mother with a butcher knife. He was apprehended after



                                         15
escaping through a second story window and committed to Los Angeles
County+University of Southern California Medical Center (LAC+USC) for
several weeks.
     Defendant was returned to LAC+USC in December 1977, again following an
incident in which he became angry at his mother. This time, defendant locked all
of the doors to the house and set fire to some curtains. His intention at the time
was to commit suicide, although he could not remember much of the incident
before setting the fire. During this hospitalization, defendant complained of
auditory hallucinations.
     When defendant was released from his second commitment at LAC+USC, he
failed to follow through with the recommended outpatient treatment. Within one
month, in January 1978, he was hospitalized again, this time at Camarillo State
Mental Hospital (Camarillo). In the incident leading to that hospitalization,
defendant‟s sister and her friend were making noise in the house while defendant
was trying to sleep. When he asked them to quiet down, they began to tease him
and call him names, which enraged him. Defendant locked the girls in the
bedroom, poured gasoline on the door, and set it on fire. Defendant was arrested
and taken to a juvenile detention facility. After feigning a suicide attempt, he was
first transferred to LAC+USC and ultimately placed in a voluntary program for
teenagers at Camarillo. Defendant testified that he did not remember walking to
the service station to fill a gasoline can or returning to the house. He also testified
that after setting fire to the door, things “went black” and he had a “funny feeling”
when he woke up the day after the incident.
     While at Camarillo, defendant attempted suicide by hanging himself with a
bed sheet. Although the teen program was designed to last six months, defendant
spent 11 months at the facility and was eventually discharged in January 1979
without having successfully completed all of the program‟s levels.

                                          16
     After his release from Camarillo, defendant returned to Los Angeles to live
with his mother. In late 1980 or early 1981, he set off by train to visit relatives in
New Orleans. When passing through Texas, however, defendant was arrested for
robbery.
     Defendant pleaded guilty to the robbery charge and served a prison term in
Texas. After his release in June 1983, at age 21, he returned to Los Angeles and
stayed in youth shelters. Shelter administrators helped him obtain employment in
the California Conservation Corps. He left that program after three months and
returned to Los Angeles in January 1984, this time moving into a garage converted
into a living space. Defendant admitted that during this period, he broke into other
garages, stealing tools to sell for money to buy food. He also acknowledged being
arrested for and/or being convicted of various crimes, including burglary, joy
riding, robbery, and battery against his former girlfriend. He served a two-year
prison term for the robbery.
     Following his release from prison in 1986, defendant lived in a halfway
house in Inglewood for three months and worked as a warehouse clerk. He left
that employment and relocated to Long Beach, where he met Donna Kellogg. He
eventually moved with her to Fresno, where they lived as husband and wife.

                c. Expert testimony
     Psychologist Paul S. Berg, Ph.D., examined defendant for the defense. After
his first interview with defendant, which included administering a series of
preliminary tests for brain abnormality, Dr. Berg suspected the possibility of brain
damage. He asked Neuropsychologist Ronald McKinsey, Ph.D., to determine
whether there was an organic component to defendant‟s mental status.
     Dr. McKinsey testified that he tested defendant using the Luria-Nebraska
Neuropsychological Battery. He concluded that defendant suffered brain



                                          17
dysfunction in the frontal and temporal lobes. As Dr. McKinsey explained,
individuals with frontal lobe damage exhibit poor judgment, poor control of
impulses and emotions, unreliability, and immaturity. They can also suffer from
organic personality syndrome, a disorder associated with recurrent outbursts of
aggression and rage.
     To further confirm the results of his evaluation, Dr. McKinsey asked
Neurologist Sateesh Apte, M.D., to administer a quantitative
electroencephalogram (qEEG), which detects and “maps” the brain‟s electrical
activity. Dr. Apte testified that testing showed moderate to severe dysfunction in
defendant‟s frontal and temporal lobes that more likely was caused by trauma than
by heredity. He explained that individuals with temporal lobe dysfunction can
suffer lack of emotional control and impaired memory indexing, which is an
inability to keep a series of events in sequential order in memory.
     Dr. Apte also found evidence suggesting defendant was vulnerable to
seizures. In his opinion, defendant more likely than not suffered from seizures,
including complex partial seizures. According to Dr. Apte, severe rage and
hyperventilation can trigger a seizure. During a complex partial seizure, an
individual can carry out “primitive” acts of violence, such as hitting, choking, or
pushing someone, but have no recollection of what occurred. A person
experiencing such a seizure cannot plan, reason, or consider the consequences of
his or her actions.
     Dr. Berg testified that the findings of Drs. Apte and McKinsey confirmed his
initial suspicions of neurological damage and supported his diagnosis that
defendant suffered from organic personality syndrome (hereafter sometimes OPS)




                                         18
manifested by rage reaction.4 Dr. Berg believed the diagnosis was substantiated
further by defendant‟s background and psychiatric history, which demonstrated a
recurrent pattern of becoming angry and losing control when emotionally
overstimulated. Dr. Berg found it significant that even when defendant was living
in a highly structured environment at Camarillo State Hospital, he had great
difficulty controlling himself. Dr. Berg also noted that defendant‟s physicians at
Camarillo prescribed chlorpromazine, which is contraindicated for individuals
with a history of seizures because it may lower the seizure threshold.
     Dr. Berg further believed that on the night the crimes occurred, defendant
suffered an OPS-induced rage reaction that interfered with his ability to form
intent and affected his mental processes. According to Dr. Berg, the significant
preexisting stressors in defendant‟s life at the time, coupled with his perception
that Laurie was teasing and mocking him when she entered the restroom, rendered
him explosive, impulsive, and out of control. In this mental state, defendant was
incapable of thinking, considering, or making a judgment. Dr. Berg explained that
defendant‟s claim to have no memory after lunging at Angie was consistent with
rage reaction; in essence, his impaired brain became “unplugged.” He also




4      The Diagnostic and Statistical Manual of Mental Disorders classifies
organic personality syndrome as a “Personality Change Due to a General Medical
Condition” and describes as its “essential feature . . . a persistent personality
disturbance that is judged to be due to the direct physiological effects of a general
medical condition. . . . [¶] Common manifestations of the personality change
include affective instability, poor impulse control, outbursts of aggression or rage
grossly out of proportion to any precipitating psychosocial stressor, marked
apathy, suspiciousness, or paranoid ideation.” (American Psychiatric Assn.,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. text rev. 2000)
p. 187.)




                                         19
believed it highly probable that defendant suffered a seizure and lost
consciousness at the time he first attacked Angie.

           3. Prosecution rebuttal evidence
     In rebuttal, the prosecution presented five medical and mental health experts
who disagreed with the methodology, findings, and opinions of the defense
experts. Testimony by lay witnesses contradicted the foundation of the defense
experts‟ opinions and supported the diagnoses of the prosecution‟s experts.
     The prosecution‟s experts challenged the efficacy of qEEG testing and the
Luria-Nebraska Neuropsychological Battery as diagnostic tools for determining
brain dysfunction, and disagreed with the defense experts‟ conclusions. For
instance, Neurologist Harvey Edmonds, M.D., testified that the qEEG has a high
incidence of false positives. The witnesses also disputed the defense expert‟s
interpretation of the test results. According to Neurologist Douglas Goodin, M.D.,
under the defense expert‟s analysis, “almost everybody in the normal population
will have some abnormality on [his or her] qEEG.” Similarly, Neuropsychologist
Bradley Schuyler, Ph.D., testified that the results of the Luria-Nebraska
Neuropsychological Battery could have reflected defendant‟s limited educational
background, not brain injury.
     The prosecution‟s expert witnesses also disputed the defense experts‟
opinions that defendant‟s blow to the head from a baseball bat caused a serious
brain injury that led to OPS. Dr. Schuyler testified that such an injury would
cause, at most, only mild dysfunction. Dr. Edmonds found that the likelihood
such a scenario would result in posttraumatic epilepsy was less than 1 percent.
     Psychiatrist James Missett, M.D., and Clinical Psychologist Michael
Thackrey, Ph.D., each found strong indications that defendant suffered from
antisocial personality disorder (hereafter sometimes APD) rather than OPS.



                                         20
Dr. Missett believed it significant that none of the records from any of defendant‟s
prior hospitalizations suggested a diagnosis of OPS. Drs. Missett, Thackrey, and
Schuyler further concluded that even if defendant suffered from OPS, his
organized, goal-directed behavior on the night of the crimes was inconsistent with
the rage reaction associated with that diagnosis. For instance, Dr. Schuyler found
that defendant‟s repeated trips in and out of the bathroom to clean up the mess
demonstrated that, once the initial attacks were over, he was no longer acting
impulsively or out of control. According to Dr. Schuyler, amnesia is not a feature
of rage reaction.
     The prosecution experts further testified that even if defendant suffered from
seizures, his sustained and goal-directed behavior on the night of the crimes could
not be considered seizure activity. Dr. Goodin explained that seizures are short in
duration and unprovoked. According to Dr. Edmonds, defendant‟s conduct
amounted to a complex group of actions that were responsive to his environment
and thus inconsistent with his being in seizure.
     Lay witnesses‟ testimony supported the prosecution experts‟ diagnoses of
antisocial personality disorder. For instance, Donna Kellogg testified that she was
defendant‟s sole source of income, he never expressed a desire to find a job, and
he habitually slept until noon each day. Kellogg and other witnesses also testified
that they had never seen defendant behave violently when provoked, nor were they
aware that he suffered from seizures or memory lapses. According to Kellogg and
her sister, Tina Edmonds, defendant never “flew off the handle,” even when
taunted with disparaging names.

           4. Defense surrebuttal
     Dr. Berg criticized the observations and conclusions of the prosecution‟s
expert witnesses, disputing Dr. Missett‟s assertion that amnesia is not a feature of



                                         21
OPS, and testifying that although amnesia is not one of the diagnostic criteria of
OPS, the literature documents cases in which individuals suffering from OPS
experience amnesia. He also disapproved of Dr. Missett‟s reliance on Angie‟s
testimony. Noting the significant differences between Angie‟s preliminary
hearing testimony and her testimony at trial, Dr. Berg believed Angie‟s memory of
events was no better than defendant‟s. Based upon the scientific literature,
Dr. Berg also disagreed with the experts‟ assertions that a seizure lasts only
minutes. Finally, Dr. Berg was unpersuaded by the experts‟ diagnoses of
antisocial personality disorder because none of the experts had spent much time
talking with defendant.

       B. Sanity Phase Evidence
     Dr. Berg testified for the defense again at the sanity phase. Drawing on the
same materials he used to prepare for his guilt phase testimony, Dr. Berg believed
that defendant became insane at the point he assaulted Angie and that he remained
in that state during the next four to six hours until he returned home. According to
Dr. Berg, at the time defendant killed Laurie and attempted to kill Angie, he was
unconscious as a result of a brain damage-induced rage reaction and/or a seizure.
Although unconsciousness is not the equivalent of insanity, Dr. Berg explained,
defendant‟s rage reaction “was so enormous and so beyond what we normally
even think of as anger or rage that he could not at that time understand and know
and appreciate . . . what he was doing or know the difference between right and
wrong . . . .”
     The prosecution called two mental health experts to testify, both of whom
disagreed with Dr. Berg‟s opinion that defendant was insane at the time he
committed the crimes. Guilt phase expert Dr. Missett, and Psychologist Mark
Brooks, Ph.D., found no indication that defendant suffered from a mental disease



                                         22
or disorder or that he was unconscious when he committed the crimes. In their
view, defendant was aware of the nature of his actions and their possible
consequences.

       C. Penalty Phase Evidence

           1. Prosecution evidence
     The prosecution presented the following evidence of defendant‟s other
crimes of violence and prior convictions.

                a. 1980 aggravated robbery
     Retired train conductor Earl Bradley testified that at around 4:00 a.m. on
November 25, 1980, he observed an elderly man sitting in the lounge of a train
traveling through Texas. When the conductor returned 15 minutes later, he found
the man slumped in his seat with his throat slit. The victim reported to him, “A
[B]lack man cut my throat and took my wallet.” The conductor went in search of
the robber and discovered defendant locked inside the restroom in the next car.
According to court records, defendant later pleaded guilty to aggravated robbery
and received a five-year prison term.

                b. 1981 assault
     David Atwood, an inmate in the Texas prison where defendant was serving
his sentence for the 1980 aggravated robbery conviction, testified that in
September 1981, he was sitting in his cell rolling a cigarette. Defendant banged
on the wall of his cell next door, demanding a cigarette. Atwood did not respond
and defendant became abusive and called him names. When Atwood returned the
insults and told defendant he had no cigarettes to spare, defendant threatened him,
saying “When the door swing, you swing.” Atwood and defendant later
exchanged heated words while on their way to the dayroom. Defendant then




                                         23
knocked him to the ground with a blow to the mouth. A fight ensued, which
prison guards eventually defused.

                c. 1982 assault
     Edward Salazar also was an inmate in the Texas prison where defendant was
incarcerated. According to Salazar, in April 1982, defendant cut in front of him in
the “chow line,” and when Salazar shoved him, defendant told him, “We‟ll deal
with this later, mother fucker.” Several days later, while defendant and Salazar
were paired together in the prison‟s trade school, defendant directed Salazar to
pour water into a pot of hot lead. Another inmate warned Salazar that the lead
would blow up in his face if he did so. Salazar became angry and threw the water
aside. Defendant then struck him in the head with a ball-peen hammer, knocking
him to the floor and injuring his scalp. On cross-examination, Salazar disputed a
prison disciplinary report indicating that after the hot lead incident, Salazar
initiated a fight with defendant.

                d. 1985 assault
     Officer Dugan of the Long Beach Police Department testified that in
February 1985, he contacted 16-year-old Carrie Parks, defendant‟s girlfriend at
that time. He observed that she had a swollen lip, a lump over one eye, and an
abrasion on her arm.

                e. 1985 robbery
     Manuel Gutierrez testified that while driving home from a nightclub in the
early morning hours of July 27, 1985, he pulled off on a side street to sleep. He
was awakened by a man, later identified as defendant, poking him in the neck with
what he thought was a knife. Defendant directed Gutierrez to give him his wallet.
Gutierrez complied, but then tried to grab the weapon from defendant‟s hand and
exit the car. He managed to escape, but defendant followed and they continued to


                                          24
wrestle. During the struggle, defendant yanked a gold chain from Gutierrez‟s neck
and an accomplice struck Gutierrez on the back of the head with a hard object.
Court documents showed that defendant later pleaded guilty to robbery.

           2. Defense evidence
     The defense case in mitigation emphasized that defendant‟s upbringing in a
violent, destructive environment with a mother who was incapable of protecting
him interfered with his ability to develop coping skills, positive self-esteem, and
impulse control.
     Clinical Psychologist Gretchen White, Ph.D., expressed the opinion that
environmental and genetic factors had a profound, adverse affect on defendant‟s
psychological development. Based on her interviews with defendant and his
family members, former girlfriends and friends, Dr. White described for the jury
defendant‟s upbringing in a dangerous and frightening Los Angeles neighborhood.
From age three to 10, defendant and his two brothers and a sister lived with their
mother, Daisy Clark, in a community that was economically depressed but safe.
Daisy later moved the family to a neighborhood beset by poverty, crime and
violence, where defendant was constantly frightened. Defendant‟s sister Kim
joined a gang and his younger brother Ezra became involved with guns and
drugs.5 Although defendant was constantly pressured to become a gang member,
he joined the Explorer Scouts instead.
     According to Dr. White, Daisy was an ineffective parent. Daisy often left the
children unattended while she worked, sometimes locking them outside the house.


5     Both of defendant‟s brothers ultimately met violent deaths. In 1989, Ezra
was shot fatally with a shotgun. The following year, defendant‟s older brother
Larry was stabbed to death.




                                         25
From an early age, defendant and his brothers Ezra and Larry frequently ran away
to the Bay Area home of their father‟s wife and their two half siblings, Ricky and
Richelle. They behaved well during those visits. Daisy also was inappropriately
harsh on some occasions and overly indulgent on others, and was described as
having a “Jekyll and Hyde” personality. Dr. White also noted that Daisy had a
history of becoming disoriented and losing consciousness.
     Dr. White explained that defendant‟s upbringing in a violent neighborhood
by an ineffective parent interfered with his ability to develop coping skills and
impulse control. Instead, as his psychiatric and criminal history disclosed, he
developed paranoid tendencies, rage reactions, and low self-esteem. Dr. White
found it significant that teasing was often the triggering event for defendant‟s
violent acts. She also noted defendant‟s tendency to associate with individuals
who were younger than he, which she attributed to his low self-esteem and lack of
a male role model. Finally, she observed that, without adequate coping skills, the
recent stressors in defendant‟s life, which included the violent deaths of his two
brothers, had a tremendous impact on his psychological functioning.
     Testimony by members of defendant‟s family echoed the defense expert‟s
observations. Daisy begged the jury to spare her son‟s life, for the sake of his
children.6




6     Defendant fathered three children with Donna Kellogg, a daughter with
former girlfriend Tina Beamon, and another daughter with former girlfriend
Belinda Jones.




                                         26
                                  II. DISCUSSION

       A. Asserted Evidentiary Error at the Competency Hearing
     Prior to trial and pursuant to a defense request, the court conducted a jury
trial on defendant‟s competence to stand trial. Defendant contends the court erred
by admitting irrelevant and highly prejudicial lay testimony at the hearing. 7 As we
shall explain, there was no error.

           1. Background
     In September 1991, defendant entered pleas of not guilty as to all counts. In
June 1993, against the advice of counsel, he entered an additional plea of not
guilty by reason of insanity. Several days after the entry of that plea, the trial
court and the parties returned to the courtroom to discuss administrative matters.
The court remarked that defendant appeared withdrawn and depressed, inquiring

7       Defendant contends the admission of the evidence in question violated his
state and federal constitutional rights to confrontation, counsel, due process, fair
trial, and reliable guilt and penalty verdicts as guaranteed by the Sixth, Fourteenth
and Eighth Amendments to the United States Constitution and article I, sections 7,
15, and 17 of the California Constitution. He invokes the same constitutional
provisions in nearly every other claim raised in this appeal. “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 . . . 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.]”
(People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, italics omitted.) “ „No
separate constitutional discussion is required, or provided, when rejection of a
claim on the merits necessarily leads to rejection of any constitutional theory or
“gloss” raised for the first time here.‟ [Citation.]” (People v. Solomon (2010) 49
Cal.4th 792, 811, fn. 8; People v. Boyer, supra, at p. 441, fn. 17.)




                                          27
about his ability to stand trial. Defense counsel stated her belief that defendant
was not incompetent.
     At a subsequent hearing in June 1993, defendant requested permission to
absent himself from trial. When counsel stated she would not waive his presence,
defendant became disruptive. He later rose from his chair and raised his voice
when a member of the local media entered the courtroom. After the news reporter
departed, counsel voiced her concern that defendant would disrupt the proceedings
if ordered to be present. She suggested that his inability to remember portions of
the events at issue in the charged crimes might explain his angry outbursts in the
courtroom.
     The trial court was troubled by counsel‟s report of defendant‟s “aberrations
of memory.” Although counsel did not affirmatively request a competency
hearing, the court nonetheless declared a doubt regarding defendant‟s ability to
assist counsel in his defense and suspended proceedings pending evaluation of his
mental competence by two court-appointed mental health experts. (See §§ 1368,
1369.) Both experts later reported they found defendant competent to proceed to
trial. However, defendant asked for a jury trial on the question and the court
granted the request.
     Psychiatrist George Woods, M.D., testified for the defense. According to
Dr. Woods, defendant suffered from major depressive disorder with psychotic
features, which included profoundly paranoid delusions that almost everyone
involved in the court proceedings, including defense counsel, had turned against
him. Dr. Woods testified that defendant‟s psychotic symptoms directly related to
the pending legal proceedings and, in the four months preceding the competency
hearing, he had developed paranoid thoughts about his attorneys and refused to
talk with them. In Dr. Woods‟s opinion, although defendant understood the nature



                                         28
of the criminal proceedings against him, he was so overwhelmed by his psychosis
and paranoid delusions that he was unable to assist his attorneys.
     The prosecution called three mental health experts to testify, each of whom
expressed the view that defendant suffered no disease or defect that rendered him
incapable of cooperating with counsel. For example, Psychiatrist Charles Davis,
M.D., found defendant unwilling, not unable, to assist his attorneys. He believed
defendant‟s conduct to be a “manipulation rather than true paranoid delusion.”
Psychologist Frank Powell, Ph.D., testified that defendant suffered from
delusional disorder, persecutory type, but that he was capable of assisting his
attorneys “should he so desire, and if they can help him get beyond his
suspicions.”
     To further demonstrate defendant‟s present competence and rebut the defense
expert‟s opinion, the prosecution called a number of lay witnesses, most of whom
testified over defense objection. Court reporter Rudy Garcia, who recorded the
June 1993 proceeding in which defendant entered a plea of not guilty by reason of
insanity against counsel‟s advice, read into the record the eight-page
nonconfidential transcript of that proceeding. The transcript reflected that in
defendant‟s lengthy exchange with the court before entering the plea, he stated, “I
want to specify. I‟m not saying I‟m insane now; I‟m talking about as far as the
time the crime was committed.”
     Defense counsel challenged Garcia‟s proposed testimony on the ground that
whether or not defendant appeared normal was irrelevant to the competency
determination because the defense expert testified that defendant at times can act
normally. The court disagreed, finding the evidence of defendant‟s demeanor and
recent participation in a courtroom proceeding relevant to his demeanor in the
present proceeding and hence proper rebuttal to Dr. Woods‟s testimony.



                                         29
     The court likewise overruled defense counsel‟s relevancy and Evidence Code
section 352 objections to the proposed testimony of Deputy Randall Haw, the
bailiff who regularly accompanied defendant to and from the courtroom for
pretrial proceedings. Characterizing Deputy Haw‟s intended testimony as an
attempt to demonstrate that defendant was normal at times, counsel repeated her
argument that the defense already had conceded that point. What was at issue, she
asserted, was whether defendant could assist counsel when he was confronted with
a courtroom situation. The court found the proposed testimony proper rebuttal.
Deputy Haw later testified that when he engaged defendant in casual conversation,
he was responsive and appropriate in his manner. Deputy Haw also related that in
June 1993, three days before the court declared a doubt as to defendant‟s
competence, defendant informed him that he no longer wanted to attend the
proceedings and that, if forced to do so, and if television cameras or members of
the victims‟ families were present, he would disrupt the courtroom. Defendant
also told the bailiff that he wanted to plead guilty to the charged crimes but his
attorneys would not permit him to do so.
     Directly after Rudy Garcia‟s testimony and again before deliberations, the
trial court instructed the jurors that the only issue before them was defendant‟s
present mental competence, not the question of his guilt or innocence or his legal
sanity at the time of the crimes. The jury ultimately found defendant competent to
proceed to trial.

           2. Discussion
     The question presented in a competency proceeding is whether “as a result of
mental disorder or developmental disability, the defendant is unable to understand
the nature of the criminal proceedings or to assist counsel in the conduct of a




                                          30
defense in a rational manner.” (§ 1367, subd. (a); People v. Jablonski (2006) 37
Cal.4th 774, 807-808.)
     According to defendant, the sole issue at the competency hearing was
whether he could rationally assist counsel in the conduct of his defense; he did not
claim he lacked the ability to understand the nature of the court proceedings or the
charges against him. Thus, defendant asserts, the lay witnesses‟ testimony
regarding his courtroom behavior, his threat to disrupt the proceedings, his plea of
not guilty by reason of insanity against his attorney‟s advice, and his desire to
plead guilty to the charged crimes was irrelevant to any contested issue presented
at the competency trial and its admission amounted to prejudicial error requiring
reversal of the entire judgment.
     “Except as otherwise provided by statute, all relevant evidence is
admissible.” (Evid. Code, § 351; People v. Williams (2008) 43 Cal.4th 584, 633.)
“Evidence is relevant if it tends „ “logically, naturally, and by reasonable
inference” to establish material facts . . . .‟ ” (Williams, at p. 633.) We long have
recognized that “[t]he trial court has considerable discretion in determining the
relevance of evidence. [Citations.]” (Id. at p. 634.) We conclude there was no
abuse of discretion here.
     Contrary to defendant‟s assertion, the testimony of Rudy Garcia and Deputy
Haw was relevant to the issue of his ability to assist counsel in his defense.
Evidence of defendant‟s behavior and interactions with court personnel and his
attorneys in the courtroom setting tended to rebut Dr. Woods‟s opinion that for the
previous four months, defendant‟s psychotic symptoms and paranoia stemming
from the pending legal proceedings had interfered with his ability to rationally
assist his counsel. This evidence also presented the jury with a contrast between
defendant‟s demeanor at the competency hearing, which prosecution expert



                                          31
Dr. Powell described as “somewhat withdrawn or uninterested,” and his conduct
in the courtroom on other occasions.
     As for testimony that defendant entered an insanity plea against counsel‟s
advice and wanted to plead guilty to the charges but counsel refused to permit him
to do so, that evidence likewise was relevant because it buttressed the
prosecution‟s position that defendant was unwilling, rather than unable, to
cooperate with counsel. (See People v. Superior Court (Campbell) (1975) 51
Cal.App.3d 459, 464 [“the test, in a section 1368 proceeding, is competency to
cooperate, not cooperation”].) Defendant insists that evidence of his disregard of
counsel‟s advice not to plead insanity was irrelevant because the decision was one
for him, not counsel, to make. Defendant is correct that the choice to enter a plea
of not guilty by reason of insanity is a matter within the defendant‟s, rather than
counsel‟s, ultimate control. (§ 1018; People v. Medina (1990) 51 Cal.3d 870, 899-
900.) The principle does not advance his claim of irrelevance, however. That
defendant exercised his prerogative to enter a plea against counsel‟s advice tended
to show he was capable of intelligently participating in his defense.
     Defendant further claims the challenged evidence should have been excluded
because its prejudicial effect far outweighed its probative value in showing he was
capable of rationally assisting counsel with his defense. Evidence Code section
352 accords the trial court broad discretion to exclude even relevant evidence “if
its probative value is substantially outweighed by the probability that its admission
will . . . create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” “Evidence is substantially more prejudicial than probative
[citation] if, broadly stated, it poses an intolerable „risk to the fairness of the
proceedings or the reliability of the outcome‟ [citation].” (People v. Waidla
(2000) 22 Cal.4th 690, 724.) We review a trial court‟s ruling under Evidence
Code section 352 for an abuse of discretion. (People v. Williams, supra, 43

                                            32
Cal.4th at pp. 634-635; People v. Robinson (2005) 37 Cal.4th 592, 625.) Applying
this standard, we conclude there was no error in the court‟s implied finding that
the danger of prejudice did not substantially outweigh the probative value of the
challenged evidence.8
     Defendant argues the admission of evidence of his desire to plead guilty and
his entry of an insanity plea against counsel‟s advice created an overwhelming
temptation for jurors to base their competency determination on improper
considerations, such as defendant‟s beliefs about his own guilt and sanity. That
assertion is purely speculative, however. The court instructed the jurors that the
issue before them was defendant‟s present competence, not the question of his
guilt or innocence or his sanity or insanity at the time of the charged crimes. The
court‟s instruction diminished the risk that the jury, which had been impaneled to
determine only the question of defendant‟s competence, would misuse the
evidence in the manner defendant asserts, and we presume the jurors followed the
court‟s directive. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) Defendant
points to nothing in the record suggesting otherwise.
     Defendant also argues that even if the challenged evidence was probative of
his demeanor, it should have been excluded as “wholly unnecessary” because the
prosecutor presented other lay witnesses who described defendant‟s apparent
ability to function in the courtroom and jailhouse milieu. We disagree. That the
prosecutor could have relied on other testimony and evidence of defendant‟s


8       To the extent defendant argues the evidence that he entered an insanity plea
against counsel‟s advice should have been excluded on this ground, his claim is
forfeited because counsel did not object to Garcia‟s testimony on that basis.
(People v. Dykes (2009) 46 Cal.4th 731, 778-779.) The claim lacks merit in any
event, as we explain.




                                         33
demeanor in these settings does not diminish the probative value of the challenged
evidence or require its exclusion under Evidence Code section 352. As we have
observed, the prosecutor is not required “to present its case in the manner
preferred by the defense.” (People v. Salcido (2008) 44 Cal.4th 93, 150.)
     Finally, because defendant fails to point to anything in the record suggesting
any infirmity in the competency proceeding, we reject his argument that a
defective and unfair adjudication of his competence deprived him of due process
and a reliable guilt, sanity, and penalty determination in violation of the Eighth
Amendment to the United States Constitution and article I, section 17 of the
California Constitution.

       B. Jury Selection Claims

           1. Rulings on challenges for cause
     Defendant asserts that his death sentence must be reversed because the trial
court erroneously granted the prosecutor‟s challenges for cause against three
prospective jurors and improperly overruled defense challenges for cause to eight
prospective jurors. He argues that the court‟s rulings failed to meet the
constitutional standards articulated in Wainwright v. Witt (1985) 469 U.S. 412
(Witt) and other pertinent United States Supreme Court precedent. He further
asserts that because the court engaged in an assertedly discriminatory pattern of
favoring the prosecution when ruling on the parties‟ challenges for cause, its
rulings are not entitled to deference on appeal. We reject these arguments.

                a. Governing principles
     Under both the state and federal Constitutions, a criminal defendant is
guaranteed the right to be tried by an impartial jury. (Cal. Const., art. I, § 16; U.S.
Const., 6th & 14th Amends.) A prospective juror may be excused for cause only
if his or her views in favor of or against capital punishment “would „prevent or


                                          34
substantially impair the performance of his [or her] duties as a juror in accordance
with [the court‟s] instructions and [the juror‟s oath.]‟ ” (Witt, supra, 469 U.S. at
p. 424; see Uttecht v. Brown (2007) 551 U.S. 1, 9.) Although opposition to the
death penalty does not necessarily afford a basis for excusing a juror for cause
(People v. Martinez (2009) 47 Cal.4th 399, 425), the prosecutor may properly
challenge those prospective jurors whose opposition to the death penalty “would
not allow them to view the proceedings impartially, and who therefore might
frustrate administration of [the] death penalty scheme.” (Witt, supra, at p. 416.)
     We will uphold a trial court‟s ruling on a challenge for cause “ „ “ „if it is
fairly supported by the record.‟ ” ‟ ” (People v. Lewis (2008) 43 Cal.4th 415,
483.) The trial court is in the best position to determine the potential juror‟s true
state of mind because it has observed firsthand the prospective juror‟s demeanor
and verbal responses. (People v. Martinez, supra, 47 Cal.4th at p. 426; see also
Uttecht v. Brown, supra, 551 U.S. at p. 9.) Thus, “ „ “[o]n review of a trial court‟s
ruling, if the prospective juror‟s statements are equivocal or conflicting, that
court‟s determination of the person‟s state of mind is binding.” ‟ ” (People v.
Solomon, supra, 49 Cal.4th at p. 830; Witt, supra, 469 U.S. at pp. 425-426, 428.)
     The erroneous excusal of even a single prospective juror under the principles
of Witt and its progeny requires reversal of the penalty judgment. (Gray v.
Mississippi (1987) 481 U.S. 648, 663-666; People v. Stewart (2004) 33 Cal.4th
425, 454-455.) To prevail on a claim that the court erroneously denied a challenge
for cause, however, the defendant must show “ „that the court‟s rulings affected
his right to a fair and impartial jury.‟ [Citation.]” (People v. Mills (2010) 48
Cal.4th 158, 187.)




                                          35
                b. Exclusion of prospective jurors for cause

                    i. Prospective Juror L.C.
     Prospective Juror L.C. wrote in his questionnaire that he was “not really for”
the death penalty but that he could “consider it.” He repeated the point when
responding to the court‟s question whether he believed the death penalty should be
automatic for any type of crime. He answered, “Yes, sir” to the court‟s questions
whether he could look at the evidence and law and then decide the appropriate
penalty, and whether he could vote for either death or life without the possibility
of parole if he felt one sentence was more appropriate than the other.
     The prosecutor asked L.C. to clarify what he meant when he stated that he
was “not really for” the death penalty. L.C. explained that although some cases
deserved the death penalty, “that would be a tough issue to vote on.” When asked
whether he believed he could actually cast a vote to impose a death sentence on
another human being, L.C. replied, “I probably could,” but added that it was a
“heavy responsibility” to have a man‟s life in his hands. The prosecutor probed
further, asking L.C., “When you say . . . „I probably could,‟ does that mean that
you have a doubt that you could?” L.C. replied, “I probably would have a doubt.”
When the prosecutor then inquired if being frightened of the penalty decision
would affect his ability to vote for the death penalty, L.C. responded that he
“probably could.”
     The court resumed questioning L.C., asking, “[A]ssuming . . . the evidence is
very substantial that death is deserved . . . and you personally feel that death is
deserved . . . would you vote for it?” L.C. replied, “Yeah.” The prosecutor
followed up with a similar question, asking L.C. whether he could put aside his
personal beliefs “and actually impose the death penalty on another human being.”
L.C. responded, “Yes.”




                                          36
     The prosecutor challenged L.C. for cause, arguing that his answers were
conflicting and equivocal and that he generally was unable to say whether he
could ever impose the death penalty in an appropriate case. Defense counsel
objected to the challenge, arguing that none of L.C.‟s responses rose to the level of
substantial impairment. In counsel‟s view, L.C.‟s responses expressed the
seriousness and difficulty of the penalty determination, not an inability to follow
the law.
     The court observed that toward the end of the voir dire examination, L.C.
expressed more certainty in his ability to apply the death penalty in an appropriate
case. It found, however, that L.C.‟s declaration that he could apply the law fairly
and impartially was contradicted by his equivocal responses and his demeanor. It
appeared to the court at several points that L.C. “might lose emotional control over
himself” and it noted L.C. had difficulty swallowing and was “visibly upset and
nervous.” In the court‟s view, L.C. “would find it difficult, if not impossible, to
impartially apply the law.”
     We defer to the trial court‟s determination of L.C.‟s true state of mind and
conclude there is ample support for its ruling excusing him for cause. The record
shows the court “supervised a diligent and thoughtful voir dire” (Uttecht v. Brown,
supra, 551 U.S. at p. 20, italics omitted), which enabled the court to engage with
L.C., hear his responses, and observe his demeanor. (People v. Stewart, supra, 33
Cal.4th at p. 451.) Although at the end of the voir dire questioning L.C. expressed
greater certainty concerning his ability to vote for the death penalty in an
appropriate case, the court was entitled to find those assurances were severely
undercut by his demeanor and his hesitant, inconsistent, and equivocal responses.
Those answers, “combined with the court‟s firsthand assessment of [his] responses
and demeanor could give rise to a „definite impression‟ on the part of the court
that [L.C.‟s] views would substantially impair the performance of [his] duties as a

                                          37
juror.” (People v. Solomon, supra, 49 Cal.4th at p. 836; People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1007.)
     Defendant argues that the court‟s determination of L.C.‟s true state of mind is
not deserving of deference because the prospective juror‟s responses were neither
conflicting nor ambiguous. The record, however, shows that L.C. equivocated and
contradicted himself numerous times. For instance, when the prosecutor asked
L.C. whether he believed he could actually vote to impose a death sentence, he
first responded that he “probably could,” then stated he “probably would have a
doubt,” and indicated finally he “probably could” vote for death.
     Defendant complains it was improper for the court to rely on L.C.‟s
emotional state and nervousness in granting the prosecutor‟s challenge for cause,
citing Adams v. Texas (1980) 448 U.S. 38. (See id. at p. 50 [“neither nervousness,
emotional involvement, nor inability to deny or confirm any effect whatsoever is
equivalent to an unwillingness or an inability on the part of jurors to follow the
court‟s instructions and obey their oaths, regardless of their feelings about the
death penalty”].) Contrary to the premise of defendant‟s argument, the court did
not excuse L.C. simply on the basis of his nervousness and emotional state.
Rather, the court excused him because his responses and demeanor demonstrated
his views on the death penalty would substantially impair his duties as a juror.
Visible emotion and nervousness are factors a trial court properly may consider in
evaluating a juror‟s demeanor, which is highly relevant to a trial court‟s ultimate
determination. (People v. Martinez, supra, 47 Cal.4th at p. 438; Uttecht v. Brown,
supra, 551 U.S. at p. 9.)

                    ii. Prospective Juror A.K.
     Prospective Juror A.K. wrote in her questionnaire that she supported the
death penalty and believed most death sentences were appropriate. During



                                         38
questioning, she confirmed her strong support for capital punishment. When
asked by the court whether she could vote to impose death if she felt the death
penalty was appropriate, however, she stated, “I think so. I can‟t tell for sure,” and
she acknowledged she would “feel a little uncomfortable.” A.K. voiced similar
views when questioned by the parties, saying, for instance, she “would probably
have a little problem with the death penalty” that she would have to “work
through.” When asked whether she could choose either of the two penalties if it
was warranted, A.K. replied, “I think so. I think so,” but then indicated she would
“have a hard time” voting for the death penalty even though she believed in it.
She also responded, “I don‟t know,” when asked whether she could see herself
actually voting to impose the death penalty on a person. A.K. explained that she
probably would rather “have someone else make that decision instead of me.”
After pointing out to A.K. that her responses seemed inconsistent, the court
inquired whether she could set aside her personal beliefs. She replied, “I probably
would not.”
     Over defense objection, the court granted the prosecutor‟s motion to excuse
A.K. for cause. The court remarked that A.K.‟s responses were equivocal and
conflicting: Although she initially stated she could set aside her problem with the
death penalty, her later responses indicated that those problems would
substantially interfere with her ability to vote for the death penalty. The court
stated it had the “definite impression” that A.K. would be unable to truthfully and
impartially apply the law.
     We again defer to the court‟s determination of A.K.‟s state of mind and
conclude its decision to excuse her finds ample support in the record. Defendant
observes, and we agree, that A.K. voiced no opposition to the death penalty.
Indeed, she characterized her support for capital punishment as “strong.” But
A.K. also indicated she would “have a hard time” voting to impose death and

                                         39
would rather have someone else make that decision for her. When asked whether
she could set aside those feelings and vote for the death penalty in an appropriate
case, she offered conflicting and equivocal responses. Those answers, coupled
with the court‟s observations of A.K.‟s responses and demeanor, could create a
“ „definite impression‟ ” that her “views would substantially impair the
performance of her duties.” (People v. Solomon, supra, 49 Cal.4th at p. 836.)

                    iii. Prospective Juror P.Y.
     Prospective Juror P.Y., a middle school social science teacher, provided
lengthy, rhetorical, and sometimes cynical responses to many of the death
qualification questions on the questionnaire. For instance, when asked about his
general views on the death penalty, he wrote, “Not a yes or no, simple question.
I am not a vengeful, vindictive person, and strive to be understanding and
compassionate. The only reason someone should be killed by the state is if it
brings a greater good.” When asked whether the death penalty is imposed too
often, too seldom, or randomly, he found the question “too simplistic” and wrote,
“There are probably better alternatives. . . . But society must also be assured of
safety.” To the question whether he held any religious or philosophical principle
that would affect his ability to vote for the death penalty, he replied, “Of course!
What person could decide a question of this magnitude without profound
examination of one‟s thoughts?” As to whether he could set aside his personal
feelings regarding what he thought the death penalty law should be and follow the
law as given by the court, he wrote, “Anybody who answers yes to this is a liar.
When people are arguing in the jury room, it‟s very heavily based on personal
feelings, regardless of what they say.” P.Y. also wrote that he would do his best to
examine and hear all sides, and that he deplored “simplistic thinking.” Finally, in
response to the question whether there were any reasons he might not be a



                                          40
completely fair and impartial juror in the case, he queried, “What‟s impartial in
today‟s society? I will do my best to be fair.”
     During questioning, P.Y. expressed his view that the “most obvious”
consideration in deciding whether to impose the death penalty was “to know if
someone can cause damage again if they‟re out of prison or if they‟re in prison.”
In response to that comment, the court asked P.Y. whether he could set aside his
personal criteria for when death is appropriate and follow the court‟s instructions.
P.Y. answered, “I think I could follow . . . the directions of the court.” However,
he then reiterated his belief that persons who state they are able to set aside their
feelings about the death penalty are lying. When the court again asked P.Y.
whether he could set aside his views, P.Y. posed questions of his own about
whether imposition of the death penalty was mandatory. The court explained the
penalty determination was not automatic, and the jury had wide discretion in
reaching its verdict. Instead of answering the court‟s inquiry, however, P.Y.
“wondered what it would be like to be in a jury room with 12 people and the
amount of logic there. And to be honest, I don‟t hold a real high opinion of my
fellow human beings as far as — look who we put in public office over and over
again. Eleven more of those together, actually how many folks will follow the
letter of the law and won‟t bring in their own personal prejudices . . . .”
     The prosecutor moved that P.Y. be excluded for cause, arguing that his
responses were framed to avoid shedding light on his attitudes about the death
penalty. The court found P.Y.‟s answers “basically incomprehensible and
illogical,” observing that P.Y. “never gave a straight answer” as to whether he
could set aside his own opinions, and that his questionnaire answers made it “very
clear” he had no intent to do so. Defense counsel objected, arguing that unless
P.Y.‟s personal feelings were such that he could never vote for the death penalty,
or never vote for life without parole, he could not be disqualified for refusing to

                                          41
set aside his personal feelings. The court disagreed, noting that some of P.Y.‟s
views might be impermissible considerations in the penalty determination. For
instance, the court pointed out, P.Y. suggested that the death penalty is an
appropriate sentence when there is a potential for future dangerousness. The court
also noted that P.Y. was 35 minutes late to the courtroom and that he “jabber[ed]
away.”
     The record fairly supports the court‟s determination that P.Y.‟s views on
capital punishment would substantially impair his performance as a juror. P.Y.
declared in his questionnaire that his philosophical beliefs would affect his penalty
decision. He also gave equivocal, conflicting, nonresponsive, and confusing
answers when asked about his ability to set aside his personal views and follow the
law. And in his statements at the end of voir dire he expressed a deeply cynical
and presumptuous view of his fellow jurors, suggesting among other things that
few individuals, perhaps himself included, were capable of setting aside their own
personal prejudices. Because the court was in the best position to observe P.Y.‟s
responses, demeanor, tone of voice, and other cues not readily apparent to the
reviewing court (People v. Stewart, supra, 33 Cal.4th at p. 451), we defer to its
determination that P.Y. “had no intent” to set aside his personal opinions and
follow the court‟s instructions on the law.
     Defendant takes issue with the court‟s remark that P.Y. “never would give a
straight answer” about whether he could set aside his own opinions, claiming any
uncertainty as to P.Y.‟s views was due partly to the court‟s vague questioning, as
in People v. Heard (2003) 31 Cal.4th 946. (See id. at pp. 963-966 [the trial court
improperly excused for cause a prospective juror who clearly and unambiguously
stated he would follow the law; any vagueness in his answers was attributable to
the court‟s imprecise questioning].) In the present case, unlike in Heard, the court
made repeated attempts to ascertain from P.Y. whether he could set aside his

                                         42
personal opinions and follow the court‟s instructions, but P.Y. responded to the
court‟s clear, comprehensible inquiries by offering lengthy answers expounding on
his views on human nature. Because the court was able to see and hear P.Y. and
assess his demeanor and other nonverbal cues during questioning, its “ „definite
impression‟ ” that he would be unable to carry out his duties as a juror is entitled
to deference here. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.)
     To the extent defendant suggests that a court may not properly excuse a
prospective juror for cause in a capital case for reasons other than his or her
unyielding support for, or opposition to, the death penalty, he is wrong. A juror
whose personal views on any topic render him or her unable to follow jury
instructions or to fulfill the juror‟s oath is unqualified. (See People v. Tate (2010)
49 Cal.4th 635, 667-672 [a prospective juror‟s apparent misstatement of her
academic credentials on the juror questionnaire called into doubt her general
qualifications for jury service].) Witt identifies a particular, but not exclusive,
ground for doubting a juror‟s ability to follow instructions. The Witt standard
comports with “traditional reasons for excluding jurors and with the circumstances
under which such determinations are made. . . . Here, as elsewhere, the quest is
for jurors who will conscientiously apply the law and find the facts.” (Witt, supra,
469 U.S. at p. 423.) In any event, contrary to defendant‟s argument, the court
properly could and did conclude that P.Y. harbored views on capital punishment
and other issues that, “would „prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath.‟ ” (Id. at
p. 424.)
     Defendant complains finally that the court based its decision to excuse P.Y.
on irrelevant factors, such as his tardiness to court and his “jabbering away.” His
assertion fails, however, because its premise is belied by the record, which
discloses the court did not base its ruling on such factors but rather mentioned

                                          43
them as an afterthought following its determination that P.Y. was unable to set
aside his opinions and follow the law.

                  c. Denial of defense challenges for cause
     Defendant claims he was denied his right to a fair and impartial jury by the
court‟s assertedly erroneous denial of defense challenges for cause against eight
prospective jurors who, he asserts, exhibited strong anti-defense or pro-death-
penalty biases.
     The record shows that the defense used five of its 20 peremptory challenges
to excuse some of the complained-of jurors from the petit jury, Prospective Jurors
V.D., D.M., L.M., C.W., and S.L. Later, after expressing dissatisfaction with the
jury as then constituted, counsel declined to use her final peremptory challenge
because Prospective Juror M.L., whom she had unsuccessfully challenged for
cause, was in line to fill the next vacancy in the jury box. Counsel asked for
additional peremptory challenges, but the court denied the request. During
selection of alternate jurors, counsel exhausted all three of her allotted peremptory
challenges, using two of them to excuse M.L. and Prospective Juror S.F, whom
she also had unsuccessfully challenged for cause. Prospective Juror M.K., another
unsuccessful challenge, was not called to the jury box.
     Defendant‟s claim of error does not succeed because he fails to show he was
prejudiced by the court‟s denial of his challenges for cause. As previously noted,
to prevail on his claim, defendant must show the court‟s denial of the challenges
for cause “affected his right to a fair and impartial jury.” (People v. Mills, supra,
48 Cal.4th at p. 187; People v. Yeoman (2003) 31 Cal.4th 93, 114.) Here, none of
the eight prospective jurors actually sat on the jury.9 Thus, none of the court‟s

9      For a similar reason, we reject defendant‟s additional argument that the
court improperly prevented counsel from asking D.M. whether he would
                                                              (footnote continued on next page)


                                          44
rulings could have affected defendant‟s right to a fair and impartial jury. (People
v. Yeoman, supra, at p. 114.)
        Defendant nonetheless asserts that because the court‟s rulings compelled him
to use his peremptory challenges to excuse jurors who should have been excused
for cause, he was deprived of his federal constitutional right to a state-created
liberty interest in 20 peremptory challenges. (See Code Civ. Proc., § 231.) We
have repeatedly rejected the identical argument. (See People v. Weaver (2001) 26
Cal.4th 876, 913; People v. Gordon (1990) 50 Cal.3d 1223, 1248, fn. 4.)
Defendant provides no persuasive basis for revisiting our prior pronouncements
here.

                   d. Asserted unfairness in applying the Witt standard
        Defendant claims that deference to the trial court‟s for-cause rulings is
inappropriate because the court exhibited bias in favor of the prosecution.10
        “[T]rial courts should be evenhanded in their questions to prospective jurors
during the „death qualification‟ portion of the voir dire, and should inquire into the
jurors‟ attitudes both for and against the death penalty to determine whether these
views will impair their ability to serve as jurors.” (People v. Champion (1995)


(footnote continued from previous page)

automatically vote to impose the death penalty on a defendant who had “some
prior bad acts or prior convictions in their life.” (People v. Carter (2005) 36
Cal.4th 1114, 1178; People v. Roldan (2005) 35 Cal.4th 646, 692.)
10      Respondent asserts that we should reject as forfeited defendant‟s contention
that the trial court engaged in a discriminatory pattern of ruling on challenges for
cause because he failed to raise a claim of judicial bias below. We have reached
the merits of similar claims in other decisions (People v . Martinez, supra, 47
Cal.4th at p. 439, fn. 8; People v. Thornton (2007) 41 Cal.4th 391, 419-425), and
shall do so again here.




                                            45
9 Cal.4th 879, 908-909.) Contrary to defendant‟s assertion, there was no lack of
evenhandedness and no misapplication of the Witt standard here.
      Defendant‟s argument is premised on the record of voir dire of eight
prospective jurors whom the defense unsuccessfully challenged for cause
compared to three prospective jurors whom the court excused for cause over
defense objection. Our review of the pertinent portions of the record shows that
although the eight prospective jurors whom the court declined to excuse for cause
generally favored the death penalty, all of them stated unequivocally that they
could set aside their views and consider both penalty alternatives with an open
mind. Each of the three prospective jurors excused for cause demonstrated an
inability either to consider or vote for the death penalty in an appropriate case, or
to set aside his or her personal opinions and follow the law. (See ante, pt.
II.B.1.b.) Nothing in the record discloses that in ruling on the parties‟ challenges
for cause, the court applied the Witt standard in a disparate manner, as defendant
insists.
      We also disagree with defendant that the court was not evenhanded in its
assessments of the prospective jurors‟ demeanor. Defendant points out that
Prospective Jurors L.C., whom the court excused for cause, and C.W., whom the
defense unsuccessfully challenged, both were visibly emotional during
questioning. He complains that although the court found L.C.‟s emotional state a
factor detracting from his credibility, it ignored the same factor when determining
C.W.‟s suitability to serve as a juror in the case. Defendant‟s assertion is belied by
the record, however. Defense counsel challenged C.W. for cause on a number of
grounds, including that her demeanor and body language conveyed hostility to the
defense. In denying the challenge, the court did not ignore C.W.‟s demeanor.
Rather, it credited her explanation that she was nervous because of having “all
these people watching me”—not hostile. Contrary to defendant‟s assertion,

                                          46
“[n]othing in the court‟s conduct of voir dire indicates we should withhold
deference to its ability to evaluate and rely upon the jurors‟ demeanor in making
its rulings in this matter.” (People v. Martinez, supra, 47 Cal.4th at p. 446.)

           2. Prosecutor’s exercise of peremptory challenges
     Defendant contends the trial court erred in denying two defense motions
under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky
(1986) 476 U.S. 79, which asserted that the prosecutor impermissibly used
peremptory challenges to remove four African-American prospective jurors based
on their race. We find no error.
     “ „Under Wheeler, supra, 22 Cal.3d 258, “[a] prosecutor‟s use of peremptory
challenges to strike prospective jurors on the basis of group bias—that is, bias
against „members of an identifiable group distinguished on racial, religious,
ethnic, or similar grounds‟—violates the right of a criminal defendant to trial by a
jury drawn from a representative cross-section of the community under article I,
section 16 of the state Constitution. [Citations.]” [Citation.] “Such a practice also
violates the defendant‟s right to equal protection under the Fourteenth
Amendment. [Citations.]” ‟ ” (People v. Taylor (2010) 48 Cal.4th 574, 611.)
     In ruling on a motion challenging the exercise of peremptory strikes, the trial
court follows a three-step procedure. “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.‟ [Citations.] 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




                                          47
purposeful racial discrimination.‟ [Citation.]” (Johnson v. California (2005) 545
U.S. 162, 168, fn. omitted (Johnson).)
     Under Johnson, a defendant establishes a prima facie case “by producing
evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred.” (Johnson, supra, 545 U.S. at p. 170; see also People
v. Taylor, supra, 48 Cal.4th at p. 614.) In Johnson, the United States Supreme
Court concluded that California courts had been applying too rigorous a standard
in deciding whether defendants made out a prima facie case of discrimination.
(Johnson, supra, at pp. 166-168.) When, as here, it is unclear from the record
whether the trial court employed this disapproved-of standard, “ „we review the
record independently to “apply the high court‟s standard and resolve the legal
question whether the record supports an inference that the prosecutor excused a
juror” on a prohibited discriminatory basis.‟ [Citations.]” (People v. Bonilla
(2007) 41 Cal.4th 313, 342, italics omitted.)
     The prosecutor exercised his fifth and sixth peremptory challenges against
two African-American women, J.J. and S.B. When the prosecutor used his 15th
challenge to excuse an African-American man, A.M., defense counsel moved for
mistrial under Wheeler/Batson. Counsel complained that the prosecutor had
excused three of the four African-American prospective jurors seated in the jury
box, and argued that the only reason they were dismissed was because they, like
defendant, were African-American. The court denied the motion on the ground
the defense failed to state a prima facie case. It found “no particular racial bias” in
the prosecutor‟s exercise of the three peremptory challenges in question, and noted
the prosecutor had used a total of 15 challenges so far. It also observed the
prosecutor had not challenged an African-American woman who was then in the
jury box. Although the court made clear it found no prima facie case, it asked the
prosecutor to make a record of the reasons for his excusals, in the event a “higher

                                          48
authority” disagreed with its conclusion. After the prosecutor‟s explanations, the
court repeated its ruling denying the Wheeler/Batson motion.
     The following day, after the prosecutor challenged another African-American
prospective juror, T.C., the defense again moved for mistrial under
Wheeler/Batson. Counsel noted T.C. was the only African-American to come into
the jury box since the first motion. The court again found no prima facie case, but
again invited the prosecutor to explain the basis of his challenge. After the
prosecutor‟s explanation, the court repeated its ruling denying the motion. One
African-American woman, J.C., remained on the panel. She ultimately served on
the guilt phase jury but was excused for hardship during the sanity phase.
     Defendant rests his claim of error on the statistical frequency with which the
prosecutor excused African-Americans from the jury pool. He points out that at
the time the court heard the second Wheeler/Batson motion, the prosecutor had
used 20 percent of his total peremptory challenges (four of 20) to excuse 80
percent of the eligible African-Americans (four of five), even though African-
Americans comprised only 5 percent of the jury panelists not excused for cause.11
     Standing alone, defendant‟s statistics do not raise an inference of
discrimination. Notably, African-Americans comprised 5 percent of the jury pool
but represented nearly 10 percent of the selected jury. (See People v. Hartsch
(2010) 49 Cal.4th 472, 694 [the defendant‟s statistics showed Whites were
actually underrepresented on the panel as compared with African-Americans].)
     Nor does the totality of the relevant facts provide a basis for inferring that the
prosecutor challenged the four prospective jurors in question because of their race.

11     Of the 250 prospective jurors who were individually questioned,
approximately 95 persons, including five African-Americans, remained in the jury
pool after hardship excusals and challenges for cause.




                                          49
Wheeler, supra, 22 Cal.3d 258, describes the type of evidence that may be useful
in determining whether a defendant has carried his or her burden of showing an
inference of discriminatory excusal. Such an inference may arise, for example,
when the record shows the prosecutor “struck most or all of the members of the
identified group from the venire, or has used a disproportionate number of his
peremptories against the group.” (Id. at p. 280.) Also relevant is whether the
excused jurors have little in common other than their membership in the group,
and whether the prosecutor engaged in “desultory voir dire” or no questioning at
all. (Id. at p.281.) Although a “defendant need not be a member of the excluded
group,” it is significant if he is and if, in addition, his victims are members of the
group to which the majority of the remaining jurors belong. (Ibid. ; see also
People v. Kelly (2007) 42 Cal.4th 763, 779-780.) “[T]he burden rests on the
defendant to „ “show[] that the totality of the relevant facts give rise to an
inference of discriminatory purpose.” ‟ [Citations.]” (People v. Carasi (2008) 44
Cal.4th 1263, 1292.)
     In the present case, the fact that defendant and the prospective jurors in
question are African-American supports an inference of discrimination. (Wheeler,
supra, 22 Cal.3d at p. 281.) In addition, although defendant points to no definitive
evidence regarding the race or ethnicity of the seated jurors, we shall assume for
argument that most of them were White, like the victims. (People v. Taylor,
supra, 48 Cal.4th at p. 615.) However, other circumstances appearing in the
record dispel any inference of discriminatory motive. Although the prosecutor
ultimately excused four of the five African-Americans called to the jury box, there
was no discernable pattern from which to infer discrimination. (People v. Bonilla,
supra, 41 Cal.4th at p. 343, fn. 12.) Notably, the prosecutor passed J.J. and S.B.
during several rounds of peremptory challenges before finally excusing them.
Moreover, the prosecutor repeatedly passed J.C., an African-American woman

                                          50
who ultimately served as a juror in the guilt phase.12 (See People v. Cornwell
(2005) 37 Cal.4th 50, 69-70 [no inference of bias in excusing one of two African-
American prospective jurors, given that the other African-American prospective
juror was passed repeatedly by the prosecutor and sat on the jury].) Although the
circumstance that the jury included a member of the identified group is not
dispositive (People v. Snow (1987) 44 Cal.3d 216, 225-226), “it is an indication of
good faith in exercising peremptories” and an appropriate factor to consider in
assessing a Wheeler/Batson motion. (People v. Turner (1994) 8 Cal.4th 137, 168;
People v. Howard (1992) 1 Cal.4th 1132, 1156.) Further, defendant points to
nothing in the record suggesting that the four challenged jurors shared no
characteristics other than their race. And although he asserts the prosecutor asked
few questions of J.J. before excusing her, that factor is of limited significance in a
case such as this one, in which the prosecutor reviewed the jurors‟ questionnaire
answers and was able to observe their responses and demeanor, first, during
extensive individual questioning by the court and later, during group voir dire.
(People v. Taylor, supra, 48 Cal.4th at pp. 615-616.)
     In addition, the record of voir dire suggests race-neutral reasons for excusing
each of the four jurors in question. J.J. indicated in her questionnaire and during
questioning that she was an administrative law judge. The prosecutor reasonably
could believe that, given J.J.‟s profession, she might consciously or unconsciously
exert undue influence during the deliberative process, or that fellow jurors would
ascribe to her a special legal expertise. (People v. Reynoso (2003) 31 Cal.4th 903,

12      During the sanity phase, J.C. requested to be excused from jury service due
to stress at home and the need to seek employment. The court excused her for
cause, finding that, under the circumstances, it would be difficult, if not
impossible, for J.C. to pay attention to the case.




                                          51
924-925, fn. 6 [noting that a prosecutor properly may excuse a prospective juror in
the belief that his or her occupation renders him or her ill-suited to serve as a juror
on the case]; People v. Buckley (1997) 53 Cal.App.4th 658, 667-668 [prosecutor
stated race-neutral grounds for excusing a prospective juror who had a history of
working in various legal departments].)
     Similarly, the record shows race-neutral reasons for excusing S.B., who
reported on her questionnaire that she had taken college courses in psychology,
and expressed the view during voir dire questioning that someone who commits
murder must have “something wrong with them in their mind.” (See People v.
Gutierrez (2002) 28 Cal.4th 1083, 1124-1125 [prosecutor‟s belief that the
prospective juror would place too much weight on the opinion testimony of mental
health experts justified the peremptory challenge]; People v. Landry (1996) 49
Cal.App.4th 785, 790-791 [that a prospective juror‟s educational background and
experience in psychiatry or psychology might cause him to favor the defense
constituted a valid explanation for his excusal].)
     A.M. explained during voir dire that he had no problem with the death
penalty but believed that facts could be manipulated and anyone could be
“hoodwinked” by corrupt attorneys. A prospective juror‟s distrust of the criminal
justice system is a race-neutral basis for his excusal. (People v. Turner, supra, 8
Cal.4th at pp. 170-171.)
     Finally, the record discloses ample race-neutral reasons for excusing T.C. He
wrote on his questionnaire that he was a licensed pastoral counselor. During voir
dire questioning, he indicated he had a master‟s degree in theological studies and
was working toward a Ph.D. Two Sundays a month he and his wife led religious
services for the homeless and also helped them obtain social service benefits.
Peremptory challenges based on a juror‟s experience in counseling or social
services is a proper race-neutral reason for excusal. (People v. Trevino (1997) 55

                                          52
Cal.App.4th 396, 411-412.) Further, T.C. indicated that serving on the jury might
be problematic because he recently had been promoted to a management position
in the company where he worked as a truck driver, and he was scheduled in the
following month to begin 15 weeks of training. The court asked T.C. whether the
impending promotion would cause him to be distracted if he were selected as a
juror. T.C. replied that he felt he “could be conscious of what‟s happening around
here,” but emphasized how much the promotion meant to him and that it was “a
great step” for him in his career. Although the court found T.C.‟s promotion
obligations an insufficient ground on which to excuse him for hardship, the
prosecutor reasonably could have believed T.C.‟s divided loyalties to jury service
and career would impair his ability to give the former his full attention. (See
People v. Jenkins (2000) 22 Cal.4th 900, 994 [the risk of detriment to the
prospective juror‟s employment if he was required to serve on a lengthy trial was a
proper race-neutral ground for his excusal].)
     In sum, based on our independent review of the entire record of voir dire, we
conclude the record fails to support an inference that the prosecutor excused the
four jurors in question because of their race. Rather, the record reflects race-
neutral grounds for the peremptory challenges at issue. The trial court did not err
in denying defendant‟s Wheeler/Batson motions.13

13      Because defendant failed to establish a prima facie case, we reject his
assertion that reversal is required on the ground that the trial court assertedly
“failed to make a „ “sincere and reasoned effort to evaluate” ‟ ” the genuineness of
the prosecutor‟s explanations for his peremptory challenges. (People v. Mills,
supra, 48 Cal.4th at p. 180.) The court‟s invitation to the prosecutor to state for
the record his reasons for excusing the prospective jurors in question did “ „not
convert [this] first-stage Wheeler/Batson case into a third-stage case.‟
[Citations.]” (People v. Taylor, supra, 48 Cal.4th at p. 616.) For a similar reason,
“we decline his request that we engage in comparative juror analysis. [Citations.]”
(Id. at p. 644, fn. 20.)



                                         53
           3. Cumulative effect of asserted errors
     We have concluded above that the court did not err in granting the challenges
for cause to Prospective Jurors L.C., A.K., and P.Y., or in denying defendant‟s
Wheeler/Batson motions. We also have concluded that defendant was not
prejudiced by the court‟s denial of his challenges for cause against eight
prospective jurors who did not sit on the jury. We thus reject defendant‟s claim
that the cumulative prejudicial effect of the asserted errors in the jury selection
process infringed his state and federal constitutional rights to a fair and impartial
jury, due process, and a reliable guilt, sanity, and death judgment.

       C. Requests for Substitution of Counsel Before and During the Guilt
          Phase
     Defendant was represented at trial by Deputy Public Defenders Barbara
O‟Neill and Margarita Martinez. In a series of motions beginning midway
through jury selection, defendant sought to discharge O‟Neill and Martinez and
substitute new counsel. The court conducted hearings on each of the motions and
denied all of them. Defendant contends the court‟s rulings violated his Sixth
Amendment right to counsel. As we shall explain, there was no error.

           1. Denial of pretrial motions

                a. Background
     One morning in late September 1993, shortly before prospective jurors were
scheduled to appear for individual questioning, the court conducted a hearing
pursuant to People v. Marsden (1970) 2 Cal.3d 118. Defendant claimed lead
defense counsel O‟Neill did not want “to fight for [him]” at trial because she had
already decided the jury would convict him of first degree murder and find the
special circumstance allegations true. He pointed out that O‟Neill twice urged him
to plead guilty in exchange for a sentence of life without the possibility of parole,
which he strongly opposed. He also complained about O‟Neill‟s failure to keep


                                          54
him informed. According to defendant, he had been told about only the penalty
phase witnesses; he had not been informed about the defense guilt phase witnesses
or strategy.
     In response, O‟Neill acknowledged she had strongly encouraged defendant to
offer to plead guilty, but said she dropped the subject when defendant made it
clear he absolutely opposed the idea. She also disclosed that she had tried for
more than two years to convince defendant to testify on his own behalf at the guilt
phase of trial, but he refused that suggestion as well. O‟Neill refuted defendant‟s
claim that he was unaware of the defense guilt phase plans. According to O‟Neill,
defendant knew which witnesses would be called and had “known all along” that
the defense strategy was to convince the jury that the special circumstance
allegations could not be proved. As for defendant‟s claim that she would not
“fight for [him],” O‟Neill emphasized that she sought dismissal of the special
circumstances “all the way up to the Supreme Court” and she assured the court the
defense team would do all it could for defendant.14 O‟Neill suggested that part of
the problem between her and defendant was due to defendant‟s mental illness and
paranoia, noting defendant told the mental health evaluators that he believed she
was trying to poison him. Defendant admitted making such a claim, but indicated
he no longer believed that to be true.
     The court denied the Marsden motion, finding no basis for defendant‟s belief
that O‟Neill would not vigorously advocate for him at trial or for his claim he was
uninformed about the guilt phase witnesses and strategy. As the court explained,

14     On June 18, 1992, this court denied review of the Fifth District Court of
Appeal‟s summary denial of a defense petition for writ of prohibition challenging
the sufficiency of the three special circumstance allegations. (Clark v. Superior
Court, S026590.)




                                         55
O‟Neill‟s advice to settle the case did not mean she would not work hard to
convince the jury that it should reject the special circumstance allegations. The
court also noted, and defendant agreed, that he was able to communicate well with
cocounsel Martinez.
     Later that day, the court conducted a second Marsden hearing after defendant
indicated he wanted to raise additional points. Noting that O‟Neill was strongly
opposed to his plea of not guilty by reason of insanity, defendant believed she
would not assist him in that defense. He also declared he could not communicate
with her because he did not trust her. In response to the court‟s questioning,
defendant again acknowledged he communicated easily with Martinez.
     O‟Neill explained that none of the eight experts who had examined defendant
concluded he had a viable insanity defense. She also indicated, however, that she
was seeking a reexamination by the expert who concluded defendant was
incompetent to stand trial, and she assured the court that if the defense could find
an expert to support the insanity plea, “that expert will be here.” As for the
asserted breakdown in communication, O‟Neill noted she had visited defendant
more than 70 times over a three-year period and had spent countless hours with
him. She acknowledged that sometimes they did not communicate well, which
she attributed to defendant‟s paranoia about her. But she believed Martinez
bridged the gap. Martinez confirmed she had no problem communicating with
defendant and that she passed along to lead counsel anything of significance. Both
O‟Neill and Martinez reiterated their reasons for proposing to defendant that he
enter into a plea bargain, which included their belief that a majority of the
prospective jurors strongly supported the death penalty. But they reassured the
court that, notwithstanding their advice to plead guilty, they were convinced that
they could mount a successful defense against the special circumstance
allegations.

                                          56
     The court again denied defendant‟s request to relieve O‟Neill and appoint
new counsel, repeating its earlier conclusion that she would fight for him “tooth
and nail.”
     The court conducted a third hearing on October 8, 1993, when defendant
asked the court to appoint independent counsel to assist him in discharging his
attorneys. The court denied the request, finding no authority for such an
appointment in the absence of any credible evidence that his present counsel were
incompetent.
     Later that day, defendant sought another Marsden hearing to discharge both
of his attorneys. Defendant asserted he could not communicate with O‟Neill, and
Martinez was not qualified to serve as counsel in a capital case. According to
defendant, he was entitled to communicate with both lawyers, not just the one who
lacked experience and control over his case. He further complained that neither
attorney had discussed defense strategy with him, even though trial was set to
begin in four days, and that for more than a month they had not visited him.
Defendant also renewed his request for the appointment of independent counsel.
     The court again denied the request for independent counsel. It then asked
counsel to respond to defendant‟s latest complaints. As Martinez was outlining
the extent of her communication with defendant and her preparedness in the case,
defendant angrily blurted out, “They‟re saying all this stuff to cover their asses,”
and he angrily insisted he did not want “these bitches” for his attorneys. He
repeated the latter point several times as his outburst continued. He also reprised
his earlier claims that counsel would not give him “a proper defense” and that he
could not communicate with lead counsel. When O‟Neill observed that their
communication had deteriorated as defendant had grown increasingly paranoid,
defendant commenced another tirade in which he asserted he was “not fucking
paranoid either” and claimed paranoia was O‟Neill‟s “main excuse.”

                                          57
     O‟Neill expressed the view that “defendant would not be happy with any
woman attorney,” a point defendant confirmed to the court. She also advised the
court that she had received a letter from defendant‟s treating psychologist warning
her and Martinez of the possible danger posed by the fact that two women were
controlling defendant‟s case because the same dynamic was at work when
defendant set fire to his sister‟s bedroom and when he committed the charged
crimes.
     O‟Neill explained further, as she had in earlier hearings, that communication
with defendant became a problem soon after she urged him to plea bargain for a
sentence of life without the possibility of parole. She also indicated that their
communication continued to deteriorate. For instance, she explained, defendant
never wanted to discuss the penalty phase and became upset whenever she
scheduled an interview for such purposes. Further, defendant categorically
refused to testify, despite repeated efforts by counsel and defendant‟s treating
psychologist to convince him to do so. As in the earlier hearings, O‟Neill asserted
that defendant was fully informed about the defense strategies.
     The court found defendant was represented by competent counsel who had
his best interests at heart, and denied the Marsden motion. In so doing, the court
encouraged defendant to start communicating with O‟Neill and to assist both of
his attorneys.

                 b. Discussion
     Settled principles guide our resolution of defendant‟s claim that the court
erred in denying his three Marsden motions. Once a defendant is afforded an
opportunity to state his or her reasons for seeking to discharge an appointed
attorney, the decision whether or not to grant a motion for substitution of counsel
lies within the discretion of the trial judge. The court does not abuse its discretion



                                          58
in denying a Marsden motion “ „unless the defendant has shown that a failure to
replace counsel would substantially impair the defendant‟s right to assistance of
counsel.‟ ” (People v. Taylor, supra, 48 Cal.4th at p. 599; People v. Crandell
(1988) 46 Cal.3d 833, 859.) Substantial impairment of the right to counsel can
occur when the appointed counsel is providing inadequate representation or when
“the defendant and the attorney have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result [citation].” (People v.
Smith (1993) 6 Cal.4th 684, 696; People v. Crandell, supra, at p. 854.)
     Applying these principles, we conclude defendant fails to show the court
abused its discretion in refusing his requests to substitute counsel. Defendant‟s
primary complaint at the September hearings was his belief that O‟Neill would not
fight for him because she had urged him to plea bargain for a sentence of life
without the possibility of parole, which defendant strongly opposed, and that she
disapproved of his plea of not guilty by reason of insanity. However, “ „[t]actical
disagreements between the defendant and his attorney do not . . . constitute an
“irreconcilable conflict” ‟ ” unless they portend a complete breakdown in the
attorney-client relationship. (People v. Jackson (2009) 45 Cal.4th 662, 688; see
People v. Freeman (1994) 8 Cal.4th 450, 481 [defendant‟s distrust of counsel who
suggested he plead guilty did not state an adequate basis for substitution of
counsel].) Although O‟Neill acknowledged a recent breakdown in communication
with defendant, the record suggested that Martinez ably filled the gap.
Notwithstanding defendant‟s complaint that counsel failed to keep him informed
of the defense strategy at the guilt phase, the court was entitled to accept O‟Neill‟s
assertion that defendant had “known all along” about the intended approach.
(People v. Abilez (2007) 41 Cal.4th 472, 488; People v. Smith, supra, 6 Cal.4th at
p. 696.)



                                          59
     The court also acted within its discretion at the hearings in October, despite
defendant‟s insistence that he could not communicate with O‟Neill because he no
longer trusted her. “A trial court is not required to conclude that an irreconcilable
conflict exists if the defendant has not made a sustained good faith effort to work
out any disagreements with counsel . . . .” (People v. Crandell, supra, 46 Cal.3d at
p. 860.) Given defendant‟s frequent repetitive attempts to replace O‟Neill, the
court reasonably could find he had made insufficient efforts to resolve his
disagreements with her. Indeed, defendant‟s proclamation during an angry tirade
that he did not want “these bitches” for his attorneys strongly suggests that any
breakdown in his relationship with counsel was attributable to his own attitude and
refusal to cooperate. (People v. Michaels (2002) 28 Cal.4th 486, 523 [a defendant
cannot compel a substitution of counsel by simply refusing to cooperate].)
     Defendant counters that O‟Neill admitted an irreconcilable conflict when she
informed the court that she believed the breakdown in communication was the
result of defendant‟s mental problems involving women, specifically, his feelings
of paranoia and distrust engendered by having two female attorneys in control of
his case. He also relies upon O‟Neill‟s report that defendant‟s psychologist
warned her that the dynamics of such representation placed her and Martinez in
potential danger.
     Defendant‟s argument notwithstanding, O‟Neill‟s suggestion that the
deterioration in the attorney-client relationship was attributable to defendant‟s
paranoia did not entitle him to new counsel. Nor was he entitled to decline
representation by a female attorney. The court was not required to accept
O‟Neill‟s assessment of defendant‟s mental illness or her view that “defendant
would not be happy with any woman attorney.” Despite O‟Neill‟s concerns, she
repeatedly assured the court she would fight hard for defendant and she expressed
her firm belief that the special circumstance allegations could be defeated.

                                         60
Further, defendant informed the court that although he once told a mental health
evaluator that O‟Neill was trying to poison him, he no longer believed this was
true. On this record, the court reasonably could conclude that any conflict
between defendant and his counsel was not irreconcilable.
     Defendant gains no ground relying on People v. Stankewitz (1990) 51 Cal.3d
72, a case in which we approved—in dictum—a trial court‟s decision to substitute
counsel based upon our own suggestion in a prior appeal that, under those
particular facts, substitution of counsel might have resolved a conflict between the
mistrustful and highly emotional defendant and counsel. (Id. at pp. 86-87.) The
decision certainly does not state a broad rule that trial courts are required to grant
substitution of counsel to defendants whose paranoia concerning defense counsel
has impaired communication. Furthermore, given O‟Neill‟s report that
communication with defendant broke down after she strongly encouraged him to
enter into a plea bargain, the court reasonably could conclude the lapse in
communication was caused by unwelcome legal advice, not mental illness.

           2. Denial of midtrial motion
     Defendant asserts that the court erred in denying his midtrial request for
substitution of counsel. As we explain, there was no error.

                a. Background
     Defendant renewed his Marsden motion when the guilt phase of trial began
on October 12, 1993, asking the court to reconsider his request to appoint
independent counsel to assist him in discharging his attorneys. The court denied
the request on the ground that it found no merit to defendant‟s reasons for wanting
new counsel. The court then inquired of counsel whether they had visited
defendant. O‟Neill informed the court they had met with defendant the previous
day, but that he had communicated poorly with them. According to O‟Neill,



                                          61
defendant reiterated his belief that they were not working in his best interests and
indicated he wanted a male attorney. After O‟Neill and Martinez both assured the
court that they were making every effort to gain defendant‟s cooperation, the court
called a recess.
     The court revisited the matter later in the afternoon, after opening remarks
and testimony by two prosecution witnesses, this time granting defendant‟s
request for independent counsel to represent him in a Marsden motion. The court
explained it had reversed its earlier ruling “just to make sure every possible point
will be brought forth that legally can be brought forth” on defendant‟s behalf.
However, the court also warned defendant against any “false hopes,” noting that
all of the grounds he had raised so far lacked merit. The trial then resumed.
     The next day, October 13, 1993, an attorney from the firm of Barker and
Associates was appointed independent counsel. The following day, in a hearing
held outside the prosecutor‟s presence, defendant asked the court not to proceed
with trial until he had the opportunity to consult with independent counsel. The
court denied the request, reiterating that it found defendant‟s grounds for
requesting new counsel lacking in merit.
     On October 15, 1993, the court conducted another hearing outside the
prosecutor‟s presence. After defendant confirmed that independent counsel had
met with him the previous night, he again asked the court to halt the proceedings
until the conflict with his defense attorneys had been resolved. The court again
denied the request. When defendant complained that counsel were ignoring him,
the court disagreed, noting for the record that Martinez was seated next to
defendant and that they were conversing back and forth continuously.
     Four days later, on the morning of October 19, 1993, independent counsel
filed a Marsden motion on defendant‟s behalf and the court immediately
conducted a hearing. The motion claimed a total breakdown of communication

                                         62
between defendant and counsel, which was caused to some extent by defendant‟s
difficulty relating to women. Many of the specific complaints articulated by
independent counsel in support of the motion were the same points defendant
raised in earlier Marsden motions. New complaints presented by independent
counsel included defendant‟s assertion that counsel were distancing themselves
from him by excluding him from bench conferences and failing to seek his input
on matters such as juror excusals. Finally, independent counsel emphasized
defendant‟s feelings of enmity toward, and distrust of, his attorneys.
     The court explained to defendant that the bench conferences held in his
absence concerned administrative matters or were later summarized on the record.
The court also remarked that independent counsel‟s main points already had been
raised and rejected.
     O‟Neill primarily addressed defendant‟s complaint about lack of
communication. She acknowledged that for the past eight months, she and
defendant had not been communicating, but noted they had related well for the
first two years of her representation. O‟Neill disagreed with defendant‟s claim
that she ignored him, except when he attempted to talk with her during witness
testimony. She also disagreed that counsel were not sharing with defendant
information about the defense strategy and witnesses.
     In O‟Neill‟s view, the biggest breakdown in their communication had come
approximately two months earlier, when she and Martinez urged defendant to
offer to plead guilty in exchange for a sentence of life imprisonment without the
possibility of parole. She also attributed the communication problem in part to
defendant‟s mental illness and his deep dislike of women, and she suggested
defendant might be better served by a male attorney. O‟Neill pointed out that one
of the mental health experts who evaluated defendant for the June 1993
competency hearing expressed a similar view. Noting her concern that

                                         63
defendant‟s paranoia and inability to communicate with women could prevent him
from providing important information in his own defense, O‟Neill proposed that
the court appoint a male attorney to meet with defendant daily for several weeks to
“see if we can get something out of him.” The court questioned whether a
paranoid dislike of women was an appropriate ground for such an arrangement,
but granted O‟Neill‟s request that she be permitted to consult with her supervisors
at the Fresno County Public Defender‟s Office about it. The court then asked her
to respond to defendant‟s other complaints. In relevant part, O‟Neill conceded
that she and Martinez had made only two jail visits in the past two months because
they found such visits futile. But she pointed out that, during that period, they had
spoken with defendant almost daily in the courtroom. O‟Neill assured the court
that if defendant‟s “barriers [came] down,” she would speak with him.
     The court granted O‟Neill‟s request to continue the hearing until after the
noon recess, which would allow her to consult with defendant‟s psychologist and
her supervising attorneys. Trial resumed with testimony from two more
prosecution witnesses.
     The court denied the Marsden motion at a hearing conducted the following
day. The court reiterated its earlier conclusion that counsel were providing
effective representation. It also found that counsel were attempting to
communicate with defendant. In the court‟s view, the lack of communication was
the result of defendant‟s willful failure to communicate. As the court observed,
even at the present hearing, defendant talked back and forth with O‟Neill and
Martinez. The court also noted it had seen defendant pointing out matters to
counsel that he believed they had overlooked and passing notes to Martinez who
then passed them to O‟Neill.




                                         64
                b. Discussion
     At the outset, we reject defendant‟s assertion that the court erred when it
allowed trial to continue while his October 12 motion was pending. It is well
settled that a court “must promptly consider a motion for substitution of counsel
when the right to effective assistance „would be substantially impaired‟ if his
request were ignored.” (People v. Stankewitz, supra, 51 Cal.3d at p. 88, italics
omitted; see also Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1025 [under Cal.
law, a Marsden motion must “be resolved on the merits before the case goes
forward”].) Here, however, the record shows that on October 12, defendant did
not seek the discharge of his attorneys but rather requested appointment of
independent counsel to assist him in bringing such a motion. Because there was
no pending Marsden motion, the court did not err in proceeding with trial. (See
People v. Majors (1998) 18 Cal.4th 385, 411-413 [the court did not err in failing to
conduct a Marsden hearing before the penalty phase because no motion was
before the court at that time].)
     Defendant correctly points out that the court proceeded with trial even after
independent counsel filed the October 19 Marsden motion. As the record shows,
the prosecutor examined two witnesses after the Marsden hearing on October 19
and continued questioning the second witness on October 20 before the court
formally denied the Marsden motion. But although defendant expressly objected
to resuming trial before he could consult with independent counsel on his Marsden
motion, he said nothing when trial proceeded after the Marsden hearing on
October 19, during which time the court and defense counsel pursued the
possibility of adding a male attorney to the defense team. Furthermore, defendant
fails to show that he was prejudiced by the resumption of proceedings. The
testimony presented during the period between the October 19 Marsden hearing
and the court‟s ruling on October 20 helped establish defendant‟s identity as the


                                         65
perpetrator, an issue uncontested by the defendant. And defendant points to
nothing in the record suggesting that his relationship with counsel or their
performance was compromised at any point during the testimony of the two
prosecution witnesses on October 19 and 20.
     Nor are we persuaded by defendant‟s argument that the court erred in
granting his request for independent counsel to assist him in renewing his Marsden
motion. A trial court is not required to appoint separate counsel to press a
Marsden claim for a defendant (People v. Barnett (1998) 17 Cal.4th 1044, 1112;
People v. Hines (1997) 15 Cal.4th 997, 1024-1025), but a trial court has discretion
to make such an appointment. (People v. Memro (1995) 11 Cal.4th 786, 858-859;
People v. Hardy (1992) 2 Cal.4th 86, 132.) Here, the court thoughtfully
considered defendant’s insistent and repeated pleas for independent counsel and,
with defense counsel‟s assent, eventually granted the request “just to make sure
every possible point will be brought forth that legally can be brought forth” on
defendant‟s behalf. The court did not abuse its discretion in appointing
independent counsel in this case.
     We have warned that appointment of independent counsel for purposes of a
Marsden motion could “cause unnecessary delay, and may damage the attorney-
client relationship in those cases in which the trial court ultimately concludes the
motion should be denied.” (People v. Hines, supra, 15 Cal.4th at p. 1025.)
Neither of those concerns is implicated here, however. First, there was no delay
because trial resumed immediately after the appointment of independent counsel.
Nor was there any likelihood of damage to the attorney-client relationship.
Defense counsel supported defendant‟s request for the appointment, independent
counsel‟s role was to serve as a conduit for defendant‟s point of view, and the
Marsden motion was based not on defense counsel‟s asserted incompetence but on
an assertedly irreconcilable conflict. (Cf. People v. Stanley (1995) 10 Cal.4th 764,

                                         66
805 [no error in the court‟s unopposed appointment of an additional attorney at a
competency hearing to represent the defendant‟s point of view that he was not
incompetent].)
     In sum, defendant fails to demonstrate that the trial court abused its discretion
in denying his midtrial request for substitution of counsel. The request was based
primarily on points raised in the previous Marsden hearings. The court was
entitled to credit once again O‟Neill‟s assertions that she was keeping defendant
informed about defense strategy and was not ignoring him, and that she wanted to
communicate with him. (People v. Abilez, supra, 41 Cal.4th at p. 488.) The court
also properly could rely on its own observations of defendant‟s frequent,
collaborative interactions with counsel to find untenable defendant‟s assertion that
counsel had “distanced themselves.” (People v. Hines, supra, 15 Cal.4th at
p. 1026 [when the defendant‟s dissatisfaction with counsel was based on his
attorney‟s courtroom performance, the court did not err when it relied on its
personal observations to reject the defendant‟s complaints].) After permitting
defendant to fully air his complaints with counsel, inquiring into those complaints,
and evaluating them against counsel‟s explanations and the court‟s own
observations of defendant‟s in-court communication with his attorneys, the court
reasonably could find defendant‟s claimed inability to communicate was volitional
and contrived. A defendant “cannot simply refuse to cooperate with his appointed
attorney and thereby compel the court to remove that attorney.” (People v.
Michaels, supra, 28 Cal.4th at p. 523; People v. Smith, supra, 6 Cal.4th at p. 697
[a defendant may not manufacture a conflict by his own conduct to force the
substitution of counsel].)
     Defendant claims the trial court was required to substitute counsel because
O‟Neill conceded that communication had deteriorated and that defendant‟s
paranoia prevented him from cooperating with a female attorney. Although

                                         67
counsel‟s evaluation of the attorney-client relationship is important (People v.
Memro, supra, 11 Cal.4th at p. 855; Cuyler v. Sullivan (1980) 446 U.S. 335, 347),
it is not binding in the face of the court‟s own observations and appraisal. (See
People v. Smith (2003) 30 Cal.4th 581, 605-606 [defense counsel‟s agreement
with the defendant‟s claim of a breakdown in communication did not compel the
court to grant new counsel].) It is the trial court’s duty at a Marsden hearing to
“listen to and evaluate a defendant‟s claim that counsel are failing to perform
adequately.” (People v. Memro, supra, at p. 859.) Moreover, a defendant is not
entitled to substitution of counsel on the ground he is unable to cooperate with a
female attorney. A “ „ “lack of trust in, or inability to get along with, an appointed
attorney” ‟ ” is an inadequate basis on which to substitute counsel. (Id. at p. 857;
People v. Berryman (1993) 6 Cal.4th 1048, 1070.)

           3. Appointment of a third attorney to the defense team
     Defendant claims the court erred by appointing Ernest Kinney to facilitate
communication between him and his other attorneys. We disagree, as explained
below.

               a. Background
     When the October 19, 1993, hearing on independent counsel‟s Marsden
motion resumed after a midday break, the court noted that O‟Neill had agreed to
explore the possibility of replacing Martinez with a male attorney from her office.
The following morning, O‟Neill informed the court that Martinez could not be
replaced with a male attorney, nor did the Fresno County Public Defender have the
personnel to add another member to the defense team. The court then proposed
the appointment of a third attorney from outside the public defender‟s office who
would act as an intermediary between defendant and defense counsel. The court
explained that although it saw no solid evidence that the breakdown in attorney-



                                         68
client communication was the result of defendant‟s mental illness, it was “trying to
lean over backwards” to attempt to overcome the communications barrier. O‟Neill
and Martinez indicated they would discuss the proposal with defendant.
     The court denied the Marsden motion later that afternoon. In so doing, the
court stated it was willing to appoint a male attorney to the defense team to serve,
not as a replacement, but rather as an intermediary between defendant and his
deputy public defenders. After defendant agreed to such an arrangement, the court
reminded him that the new attorney‟s role was to facilitate his communication
with O‟Neill and Martinez and he would have no authority over either of them.
     The following day, the court informed defendant that a seasoned attorney,
Ernest Kinney, had expressed an interest in the facilitator role and would visit
defendant during the weekend. The next week, on October 25, 1993, the court
appointed Kinney as “special counsel” with “absolutely no responsibility for any
part of the defense except to facilitate communications between defense counsel
and the defendant.” Defendant indicated to the court he was satisfied with
Kinney.
     As the prosecution‟s case-in-chief progressed, Kinney undertook a more
active role on the defense team, sometimes addressing the court directly during
defense objections. On November 1, 1993, after Kinney interjected several
comments during an evidentiary dispute between the parties, the court reminded
him about his limited responsibilities in the case and suggested he pass a note to
O‟Neill. Kinney informed the court he would be asking permission to assume a
“regular role” on the defense team.
     The next day, the prosecutor filed a written objection to the “dual
representation” of defendant and the apparent conflict between the defense
lawyers. He asked the court to “take a position” on whether the “defense team”
was the deputy public defenders or Kinney.

                                         69
     The following week, on November 8, 1993, the court conducted what it
described as a “follow-up” to the October 19 Marsden motion. In response to the
court‟s inquiry about the present arrangement with Kinney, defendant indicated it
was “working out fine” and that they were communicating well. After confirming
with O‟Neill, Martinez, and Kinney that there was no conflict among them, the
court then addressed Kinney‟s request to be appointed as a third member of the
defense team. Kinney confirmed his understanding that O‟Neill had final
authority for defense strategy and he emphasized that his primary focus would be
the direct examination of defendant and the defense psychiatric expert. After
defendant, O‟Neill, and Martinez each agreed that Kinney should join the defense
team, the court appointed him counsel of record.

               b. Discussion
     Defendant contends the court‟s midtrial appointment of Kinney to facilitate
communication between him and his female deputy public defenders was an
“unauthorized experiment” that disrupted the already strained relationship between
him and his legal team and violated his constitutional rights to due process, the
effective assistance of counsel, and a reliable death verdict. Had there been no
breakdown in communication between him and his deputy public defenders, he
argues, there would have been no need for the court to appoint a “facilitator.”
     Defendant‟s claim is untenable. As previously discussed, the court acted
well within its discretion in concluding that any conflict between defendant and
O‟Neill and Martinez was not irreconcilable and in denying his repeated motions
to replace them. The court‟s subsequent appointment of Kinney to facilitate
communication between defendant and his female attorneys does not undermine
those rulings. It was within the court‟s discretion to appoint a third lawyer to
further ensure the adequacy of defendant‟s representation, especially when his



                                         70
existing attorneys and defendant himself unequivocally supported the
arrangement. A discretionary action will not be set aside on appeal so long as
there exists “ „ “a reasonable or even fairly debatable justification, under the law,
for the action taken . . . .” ‟ [Citations.]” (People v. Crandall, supra, 46 Cal.3d at
p. 863, see id., at p. 861.) Here, although the court was not required to appoint a
third attorney, we cannot say there simply was no justification for its attempt to
“lean over backwards” to help break down the communication barrier, regardless
of its source. (See People v. Panah (2005) 35 Cal.4th 395, 425 [trial court
appointed second counsel as a “ „special benefit bestowed‟ ” on the defendant to
facilitate a settlement].)15
     Characterizing Kinney‟s role as a “watch dog” over his deputy public
defenders, defendant cites cases describing the risks posed to the primary attorney-
client relationship by the appointment of independent counsel to assist a defendant
in a Marsden motion. (See, e.g., People v. Smith, supra, 6 Cal.4th at p. 695.) The
record does not support the premise of his argument, however. The court made
clear from the outset that Kinney‟s role was limited to facilitating communication
and was subject to the authority of O‟Neill. Even when Kinney later was
appointed counsel of record, he confirmed his understanding that O‟Neill, as lead
counsel, had final authority.
     Defendant complains that difficulties between Kinney and his deputy public
defenders surfaced later during trial after Kinney‟s gradual transformation into a

15     For similar reasons, we reject the claim that the court erred in denying
Kinney‟s post-sanity-phase motion for mistrial on the ground the court should not
have appointed him as facilitator of communications, but instead should have
granted defendant‟s Marsden motions. The court was within its discretion in
concluding defendant was not incurably prejudiced by the addition of a third
attorney to the defense team.




                                          71
full-fledged member of the defense team, but we review defendant‟s complaint
regarding the appointment of a third attorney in light of the evidence that was
before the court at the time it took such action. (People v. Martinez, supra, 47
Cal.4th at p. 423, fn. 5.) Kinney‟s expanded role and his subsequent conduct in
that regard are of little consequence to the question whether the court erred at the
outset in appointing him to facilitate communications between defendant and his
female attorneys.

       D. Asserted Evidentiary Errors at the Guilt Phase

           1. Semen stain
     At the time of his arrest, defendant wore unwashed boxer shorts, which the
police collected.
     Prior to trial, defense counsel sought to exclude evidence of a semen stain on
the shorts, arguing, in part, that such evidence was irrelevant because there was no
showing that defendant was wearing the shorts during the commission of the
crimes. The court deferred ruling on the admissibility of the evidence pending
expert testimony on the stain‟s significance.
     Two of the prosecution‟s experts testified at trial about the three-inch, off-
white stain on the left front area of the shorts. Urologist Gary Storey, M.D.,
testified regarding the physiological significance of the semen stain. As he
explained, except in certain clinically induced situations, sexual arousal is
necessary to produce ejaculation of semen. He acknowledged on cross-
examination that masturbation could have produced the sexual arousal resulting in
ejaculation. Serologist Andrea Van der Veer de Bondt testified that the shorts
tested positive for the presence of P-30, a protein produced in the prostate gland
that is one of the components of semen. However, although she employed three
different methods to type the stain, all of the results were inconclusive and she was



                                         72
unable to determine the identity of the donor. Nor could she determine the age of
the stain.
     At the end of the prosecutor‟s direct examination of de Bondt, defense
counsel moved to strike the testimony of Dr. Storey and de Bondt as irrelevant.
The court overruled the objection without comment.
     Defendant renews on appeal his earlier challenge to the admissibility of the
semen stain evidence. We conclude the evidence was properly admitted.
     “The trial court has considerable discretion in determining the relevance of
evidence. [Citations.]” (People v. Williams, supra, 43 Cal.4th at p. 634.) Under
Evidence Code section 210, relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” Put another way, “[e]vidence is relevant if it tends
„ “logically, naturally, and by reasonable inference” to establish material facts
such as identity, intent, or motive.‟ ” (People v. Williams, supra, at p. 633.)
     Here, the semen stain evidence was relevant to the jury‟s consideration of the
attempted rape charge and the rape-murder special-circumstance allegation, both
of which require a showing of intent to rape. (§§ 21a, 190.2, subd. (a)(17)(C).)
Specifically, the evidence tended to prove, by reasonable inference, defendant‟s
intent to engage in intercourse with Laurie. There was no dispute that the boxer
shorts belonged to defendant. That evidence therefore tended to prove that the
semen had come from him. There also was evidence tending to prove, by
reasonable inference, that defendant wore the shorts at the time of the crimes.
Defendant would have arrived home well after 3:00 a.m., when Joel Suarez
noticed him speed away from the side of the road in Chateau Fresno where Angie
was lying. He arose early the same morning and was arrested around noon. Given
this relatively brief period between the crimes and the arrest, it could be inferred



                                          73
that at the time of his arrest defendant was still wearing the clothes he had worn
the night before.
     Defendant argues nonetheless that because there was no proof he was
wearing the boxer shorts at the time of the crimes, the semen stain evidence was
irrelevant and should have been excluded. Defendant points out, for instance, that
he testified he was wearing briefs, not boxer shorts, on the night of the crimes, and
that he had removed most of his clothing the next morning after Kellogg told him
she was going to do the laundry. Notably, however, that testimony was not before
the trial court at the time of its ruling. In any event, Kellogg testified on rebuttal
that she did not ask for, and defendant did not give her, the clothes he was wearing
that morning and that he was wearing those clothes at the time of his arrest.
Defendant‟s argument goes to the weight, not the admissibility, of the semen stain
evidence.
     Although defendant correctly observes that the serology expert was unable to
determine the age of the semen stain, that deficiency in the evidence likewise goes
to its weight and not its admissibility. Nor is it significant that the expert was
unable to identify defendant as a possible source of the semen. As explained
above, because the underwear belonged to defendant, it could be inferred he was
the source of the semen. Defendant‟s citation to People v. Schultz (Ill. App. Ct.
1987) 506 N.E.2d 1343 does not advance his argument. In that case, the
prosecution presented expert testimony that the defendant could not be excluded
as a donor of seminal fluid found on the victim‟s rectum. Noting that the group of
possible donors was 20 percent of the population, the appellate court concluded
that the evidence should have been excluded as irrelevant because it had no
tendency to prove the defendant committed the crime. (Id. at pp. 1346-1348.)
Here, notwithstanding the expert‟s inability to type the semen stain, the evidence



                                           74
tended to show defendant‟s guilt of attempted rape. The court did not abuse its
discretion in admitting it.

              2. Defendant’s preoffense sexual activity
     During direct examination, the prosecutor asked Donna Kellogg when, before
the night of the crimes, she and defendant last had sexual relations. Over defense
objection, she testified it was “a couple of weeks” earlier. Also over objection, the
prosecutor was permitted to ask Kellogg whether, around the time of the crimes,
defendant had admitted to her he was having sexual relations with any other
person. She answered, “No.” The issue arose again during testimony by Deputy
Sheriff Caudle, who testified over objection that Kellogg told him several days
after defendant‟s arrest that she had had sexual relations with him approximately
two weeks earlier.
     Defendant contends the testimony about his sexual inactivity two weeks prior
to the crimes was irrelevant and thus inadmissible. Specifically, he argues that
whether he had not engaged in consensual sexual intercourse with Kellogg or any
other person in the weeks preceding January 26, 1991, had no tendency in reason
to prove the charge of attempted rape or the rape-murder special-circumstance
allegation.
     We agree, and respondent essentially concedes, that even were such evidence
probative of motive or intent, the testimony presented here was far too speculative
to allow its use for that purpose. (People v. Stitely (2005) 35 Cal.4th 514, 549;
People v. Lewis (2001) 26 Cal.4th 334, 373.) Kellogg testified only that she and
defendant had not engaged in sexual intercourse during the two weeks preceding
the crimes and that she was unaware whether he had done so with any other
woman. To infer from such testimony that at the time of the crimes defendant was




                                          75
sexually frustrated and thus motivated to rape Laurie was highly speculative and
thus irrelevant.
     Any error was harmless, however, because there is no reasonable probability
that defendant would have obtained a more favorable outcome had the evidence
been excluded from trial. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) The
prosecution presented substantial evidence that defendant‟s sexual interest in
Laurie had arisen long before the events that led to her death. According to family
members, one year before Laurie was killed, defendant‟s visits to the Farkases‟
home became more frequent and he began to pay particular attention to Laurie.
During such visits, defendant complimented Laurie on her tight-fitting clothes,
asked about her virginity, and once recommended to her that she consider an
older, more experienced boyfriend like him. When a friend warned defendant to
stay away from Laurie, he rebuffed him, saying, “She wants me.” Furthermore,
the prosecutor did not discuss any “sexual deprivation” evidence during closing
argument. On this record, any error unquestionably was harmless.

           3. Defendant’s threat to kill the victims
     Defendant contends the trial court erred in allowing an emergency room
physician to testify that Angie reported to her that the person who had inflicted her
injuries threatened to kill her. As we explain, the admission of the testimony did
not violate state evidentiary law or offend constitutional principles.
     During Angie‟s testimony, the prosecutor elicited from her that she had only
a vague recollection of the events occurring between the time she lost
consciousness after being strangled and when she awoke in the hospital. She
remembered that people asked her questions, but could not recall who they were,
where she was, or what they asked. Later, during the testimony of Ann Fisher,
M.D., the defense renewed an earlier objection to the admission of a statement



                                          76
Dr. Fisher had recorded in her sexual assault examination report. On the
standardized form, Dr. Fisher marked “Yes” to the question whether the victim
reported “threats of harm,” and wrote in the space provided, “To kill them if not
quiet.” The court held a sidebar conference at which Dr. Fisher was questioned
further. She indicated that she first saw Angie at 4:50 a.m., asked her the
questions on the form, and recorded Angie‟s answers at approximately 9:45 a.m.
The court determined that the statement recorded by Dr. Fisher was admissible as
a spontaneous utterance. (Evid. Code, § 1240.)16 Dr. Fisher was then permitted to
testify that when she asked Angie if she had been threatened with harm, Angie
told her “that the person who injured her would kill them if not quiet.”
     We conclude that the court correctly admitted the evidence under the
“spontaneous utterance” exception to the hearsay rule. A “spontaneous
utterance[]” is considered trustworthy, and admissible at trial despite its hearsay
character, because “in the stress of nervous excitement, the reflective faculties
may be stilled and the utterance may become the instinctive and uninhibited
expression of the speaker‟s actual impressions and belief.” (People v. Farmer
(1989) 47 Cal.3d 888, 903.) Evidence Code section 1240 provides that
“[e]vidence of a statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.”
For admission of a spontaneous statement, “ „(1) there must be some occurrence
startling enough to produce this nervous excitement and render the utterance


16     The court ruled the statement also was admissible under Evidence Code
section 1237 as a past recollection recorded.




                                         77
spontaneous and unreflecting; (2) the utterance must have been before there has
been time to contrive and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in abeyance;
and (3) the utterance must relate to the circumstance of the occurrence preceding
it.‟ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.) Whether the
statement was made before there was “time to contrive and misrepresent” is
informed by a number of factors, including the passage of time between the
startling occurrence and the statement, whether the statement was a response to
questioning, and the declarant‟s emotional state and physical condition. (People v.
Lynch (2010) 50 Cal.4th 693, 113; People v. Raley (1992) 2 Cal.4th 870, 894.)
     Defendant argues that Angie could not have been under the “stress of
excitement” when she spoke with Dr. Fisher because the examination occurred
many hours after the asserted threat, giving Angie ample time for reflection and
fabrication. As defendant points out, the threat would have been made between
11:00 p.m. and 2:00 a.m. on the night of the crimes, but Dr. Fisher first saw Angie
in the emergency room around 5:00 a.m. and questioned her sometime before
9:45 a.m.
     It is undisputed that Angie related defendant‟s threat many hours after it was
made. However, “[t]he amount of time that passes between a startling event and
subsequent declaration is not dispositive, but will be scrutinized, along with other
factors, to determine if the speaker‟s mental state remains excited.” (People v.
Gutierrez (2009) 45 Cal.4th 789, 810; see People v. Poggi, supra, 45 Cal.3d at
p. 319 [although lapse of time is relevant, a statement remains spontaneous if
made under the stress of excitement while the reflective powers were still in
abeyance].)
     Here, the record shows that over the course of the six-hour period between
approximately 9:00 p.m. and 3:00 a.m., Angie heard and saw her best friend

                                         78
injured by defendant. Also during this time, defendant severely beat Angie and
later placed her in the front seat of his car bound at the wrists, drove around for
several hours, then left her for dead after strangling her. The motorist who
discovered Angie lying on the road in Chateau Fresno testified that when
responding officers arrived at 3:30 a.m. and tried to question Angie, she “really
wasn‟t there” and seemed as if she had been drugged. Dr. Fisher testified that
when Angie first arrived in the emergency room at 4:50 a.m., she alternated
between sleepiness and agitation. For instance, she would lie quietly for a time
and then, with minimal stimulus, would become anxious and move around on the
gurney. Dr. Fisher also observed that Angie‟s responses to her questions were not
“normal conversation-type answers” and that if left alone, she frequently drifted
off to sleep.
     This evidence, coupled with Angie‟s testimony that the only questioning she
vaguely recalled was that in the ambulance, amply supports the conclusion that
she was still under the influence of the stress and shock of the night‟s events when
she told Dr. Fisher that defendant threatened to kill her and Laurie. Although
Angie‟s statement came two to seven hours after the shocking and disturbing
events, it retained its spontaneity because, as the evidence showed, her mental and
physical condition prevented her from reflecting on and fabricating her account of
what had happened. (See People v. Ledesma (2006) 39 Cal.4th 641, 709 [the
determination that the victim‟s statement about the robbery occurred while under
the stress of that event was supported in part by testimony that he seemed nervous
and scared]; People v. Raley, supra, 2 Cal.4th at pp. 893-894 [concluding that,
notwithstanding the lapse of time, the declarant who suffered a traumatic head
injury, 18 hours of blood loss, and periods of unconsciousness was in no condition
to fabricate the statement that she had been raped].) We are not persuaded by
defendant‟s further assertion that the serious nature of Angie‟s injuries, which

                                          79
included transient global amnesia and temporary deficits in brain function, raise
questions about the reliability of her statement to Dr. Fisher. This argument is one
that goes to the weight, not the admissibility, of the evidence. The court did not
abuse its discretion in allowing Angie‟s statement.17
     Defendant also claims error under the United States Supreme Court‟s
decision in Crawford v. Washington (2005) 541 U.S. 36 (Crawford), which held
that the admission of a testimonial out-of-court statement violates a defendant‟s
confrontation clause rights unless the declarant is unavailable at trial and the
defendant has had a prior opportunity for cross-examination. (Id. at p. 59.)
     We need not decide whether statements collected as mandated by California
law as part of a sexual assault investigation are testimonial, because even if they
were, there would be no confrontation clause violation here. Crawford makes
clear that “when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial
statements. . . . The Clause does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it.” (Crawford, supra, 541 U.S. at
p. 59, fn. 9.) In this case, Angie appeared as a witness at trial and was subjected to
extensive cross-examination. No more was constitutionally required.
     Defendant acknowledges Angie‟s presence at trial, but points out that she
could not remember the interview with Dr. Fisher. In United States v. Owens
(1988) 484 U.S. 554, however, the high court held that the admission of a prior
out-of-court statement does not violate the confrontation clause even when the

17     Because we conclude that Angie‟s statement to Dr. Fisher was properly
admitted as a spontaneous utterance under Evidence Code section 1240, we do not
discuss defendant‟s argument that the court erred in admitting it as a past
recollection recorded under Evidence Code section 1237.




                                          80
witness is unable to remember making the prior statement or the circumstances the
statement described so long as the declarant is present at trial and the defense is
provided an opportunity for effective cross-examination. As the Owens court
explained, “ „The Confrontation Clause guarantees only “an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” ‟ [Citations.]” (United
States v. Owens, supra, at p. 559.) In the present case, defense counsel cross-
examined Angie extensively and elicited from her that she could not remember
various details of the crimes. Her inability to recall making the statement to
Dr. Fisher was a factor for the jury to consider in determining the weight to give
that evidence, but did not render its admission a violation of the confrontation
clause. (People v. Cowan (2010) 50 Cal.4th 401, 463.) For similar reasons, we
reject defendant‟s further argument that admission of evidence that he threatened
to kill Laurie and Angie deprived him of a fundamentally fair trial. (See ibid.)

           4. Request for a psychiatric consultation
     Angie‟s treating physician, Jack Sharon, M.D., testified concerning the cause
and extent of her injuries. He also indicated he requested that Angie be provided a
follow-up psychiatric consultation. When the prosecutor asked Dr. Sharon what
his purpose was in requesting such a consultation, defense counsel objected on
relevance grounds. The court overruled the objection without comment.
Dr. Sharon explained that, given Angie‟s injuries, he felt she would be at risk for
posttraumatic stress disorder and that psychiatric involvement would benefit her in
the long run.
     Characterizing Dr. Sharon‟s testimony about the request for a psychiatric
consultation as “victim impact testimony,” defendant complains it was irrelevant
to the charged crimes and their related sentencing allegations and therefore



                                          81
inadmissible. We need not decide whether the court erred in allowing
Dr. Sharon‟s testimony on this point because even if the evidence should not have
been permitted, its admission was harmless. (People v. Redd (2010) 48 Cal.4th
691, 731-732; People v. Watson, supra, 46 Cal.2d at p. 836.) Dr. Sharon‟s
testimony regarding his request for a psychiatric consultation involved only a few
brief questions, and the prosecutor did not argue the point during closing remarks.
Furthermore, given what the jurors already knew about the extent of Angie‟s
physical injuries and the ordeal she endured, they reasonably would have expected
her to have sustained psychological trauma as well. There is no reasonable
probability that defendant would have obtained a more favorable result had the
challenged evidence been excluded.

             5. Defendant’s poverty
     Defendant contends the court erred in allowing the prosecutor to present
evidence of his poverty to show a motive for the robberies. We agree, but
conclude that the error was harmless.
     During the prosecution‟s case-in-chief, the prosecutor asked Donna Kellogg
whether defendant was employed at the time of the crimes. She answered that he
was not. When the prosecutor then inquired into defendant‟s means of support,
defense counsel objected on relevance grounds and the court sustained the
objection.
     At the prosecutor‟s request, the court excused the jury to consider the point
further. The prosecutor argued that defendant‟s employment status and means of
support at the time of the crimes were relevant to the robbery charges and the
robbery-murder special-circumstance allegation, but defense counsel contended
that Kellogg‟s disclosure that the family lived on Aid to Families with Dependent
Children (AFDC) would be highly prejudicial. The court ruled it would allow the



                                        82
prosecutor to elicit evidence that defendant and Kellogg were both unemployed
and lived solely on her income and the amount of that income, but not its source.
When questioning resumed, Kellogg testified that at the time of the crimes, she
had a monthly income of approximately $700 and that defendant had no income
other than what she gave him.
     Ordinarily, “[e]vidence of a defendant‟s poverty or indebtedness, without
more, is inadmissible to establish motive for robbery or theft because it is unfair to
make poverty alone a ground of suspicion and the probative value of the evidence
is deemed to be outweighed by the risk of prejudice.” (People v. Edelbacher
(1989) 47 Cal.3d 983, 1023-1024; accord, People v. Cornwell, supra, 37 Cal.4th at
pp. 95-98.)
     We conclude the court erred in allowing the prosecution to present evidence
during its case-in-chief that defendant was unemployed and living on Kellogg‟s
monthly income of $700. Although this court has recognized circumstances under
which evidence of a defendant‟s unemployment or financial status is relevant and
admissible to a charge of robbery, none of those scenarios is shown here. For
instance, the prosecutor elicited the testimony in question before defendant
testified in his own behalf. The evidence of defendant‟s poverty thus was not
admitted for the limited purpose of rebutting an assertion that he did not commit
the charged robberies because he did not need money.18 (See People v. Harris
(2005) 37 Cal.4th 310, 345-346; People v. Koontz (2002) 27 Cal.4th 1041, 1076-
1077.) Nor was there any evidence that defendant suddenly had come into
possession of a greater than usual sum of money after the crimes. (See People v.

18   Defendant later testified that he and Kellogg and their children were living
on AFDC, Kellogg handled all their finances, and he did not have a need for
money.




                                         83
Cornwell, supra, 37 Cal.4th at pp. 95-98 [evidence of the defendant‟s depleted
bank balance and modest income was relevant circumstantial evidence properly
admitted to eliminate legitimate explanations for his sudden possession of an
unusually larger amount of money after the robbery].)
     Respondent argues that the purpose of the challenged evidence was not to
establish a motive for taking the girls‟ money. Rather, it was presented to show
defendant had little or no money when he picked up Laurie and Angie and needed
cash for gas in order to drive them to remote areas to commit the crimes and
dispose of the bodies. We fail to see the distinction respondent attempts to draw.
(See People v. Wilson (1992) 3 Cal.4th 926, 938-939.) We conclude, however,
that the error did not prejudice defendant. The improper evidence of defendant‟s
employment status and dependence upon Kellogg‟s limited monthly income was
presented for proper purposes later at trial, first, when defendant testified that he
was living on general assistance and had no other means of support and then again
during rebuttal to support the prosecution experts‟ testimony that defendant
suffered from antisocial personality disorder. (See post, pt. II.D.8.) Notably, the
prosecutor did not refer to defendant‟s unemployment or poverty during closing
remarks when urging the jury to convict him of robbery. Finally, as discussed in
part II.F.1., post, there was ample evidence other than defendant‟s limited
financial means to establish his guilt of robbing Laurie and Angie.

           6. Impeachment with prior felony convictions, misdemeanor offenses,
               and other misconduct
     Defendant argues the trial court violated state law and constitutional
principles by permitting the prosecutor to impeach him with assertedly irrelevant,
prejudicial evidence of two prior robbery convictions, two misdemeanor offenses,
and his out-of-court admissions of deceitful conduct. We disagree.




                                          84
     At the close of the prosecution‟s case-in-chief, the court conducted an
extensive hearing on the admissibility of certain evidence for impeachment
purposes in the event defendant testified in his own behalf. Over defense
objection, the court ruled that it would allow the prosecutor to impeach defendant
with a 1985 California robbery conviction and a 1981 Texas robbery conviction.
The court acknowledged that the prior convictions were for the same crime as two
of the charged offenses, presenting a risk that the jury would infer defendant is the
type of person who robs. But it found that the prior convictions‟ probative value
in showing dishonesty and moral turpitude substantially outweighed the
prejudicial effect of that evidence.
     The court also ruled it would allow evidence demonstrating that defendant
(1) acknowledged feigning a suicide attempt in a juvenile detention facility,
(2) admitted traveling around the country without paying for transportation,
sometimes by robbing people, and (3) made false statements to gain admission to
the psychiatric unit at LAC+USC. In the court‟s view, the evidence of
wrongdoing was probative of untruthfulness, was neither remote nor similar to any
of the charges, and would not confuse the issues. Finally, the court permitted
evidence that defendant committed a vehicle theft and an act of burglary involving
an intention to steal. Finding both acts were theft-related offenses showing
dishonesty and neither was remote in time, the court concluded that the probative
value of the evidence exceeded any prejudicial effect.19



19     The court ruled that the prosecutor could not impeach defendant with any
crimes he committed as a juvenile or with two acts of misdemeanor battery
committed in 1985, because admission of such evidence would be more
prejudicial than probative.




                                         85
     In anticipation of the prosecutor‟s cross-examination, defendant admitted on
direct examination that he pleaded guilty to robbery in 1981 and 1985, and that in
1984 he pleaded guilty to joyriding and took tools from someone‟s garage to sell
for food. He also admitted that while in juvenile lockup, he once cut his wrists but
not for the purpose of killing himself, and testified that he “may have told” a
prison doctor that he had begged and robbed for food while in Texas.
     A witness may be impeached with any prior conduct involving moral
turpitude whether or not it resulted in a felony conviction, subject to the trial
court‟s exercise of discretion under Evidence Code section 352.20 (People v.
Wheeler (1992) 4 Cal.4th 284, 290-296 [Proposition 8 allows impeachment with
conduct amounting to a misdemeanor offense]; see also People v. Mickle (1991)
54 Cal.3d 140, 168 [jailhouse informant could be impeached with evidence he had
threatened witnesses in his own case].)
     “[T]he admissibility of any past misconduct for impeachment is limited at the
outset by the relevance requirement of moral turpitude. Beyond this, the latitude
[Evidence Code] section 352 allows for exclusion of impeachment evidence in
individual cases is broad.” (People v. Wheeler, supra, 4 Cal.4th at p. 296; see also
People v. Castro (1985) 38 Cal.3d 301, 316.) When determining whether to admit
a prior conviction for impeachment purposes, the court should consider, among
other factors, whether it reflects on the witness‟s honesty or veracity, whether it is
near or remote in time, whether it is for the same or similar conduct as the charged

20     The passage of Proposition 8 in 1982 led to the enactment of article I,
section 28 of the California Constitution. Article I, section 28, subdivision (f)(2)
provides in pertinent part that “relevant evidence shall not be excluded in any
criminal proceeding.” Subdivision (f)(4) allows prior felony convictions to “be
used without limitation for purposes of impeachment.” (Cal. Const., art. I, § 28,
subd. (f)(4).)




                                          86
offense, and what effect its admission would have on the defendant‟s decision to
testify. (People v. Beagle (1972) 6 Cal.3d 441, 453; People v. Green (1995) 34
Cal.App.4th 165, 183.) Additional considerations apply when the proffered
impeachment evidence is misconduct other than a prior conviction. This is
because such misconduct generally is less probative of immoral character or
dishonesty and may involve problems involving proof, unfair surprise, and the
evaluation of moral turpitude. (People v. Wheeler, supra, at p. 296.) As we have
advised, “courts may and should consider with particular care whether the
admission of such evidence might involve undue time, confusion, or prejudice
which outweighs its probative value.” (Id. at pp. 296-297.)
     Because the court‟s discretion to admit or exclude impeachment evidence “is
as broad as necessary to deal with the great variety of factual situations in which
the issue arises” (People v. Collins (1986) 42 Cal.3d 378, 389), a reviewing court
ordinarily will uphold the trial court‟s exercise of discretion. (Ibid.; see People v.
Hinton (2006) 37 Cal.4th 839, 888 (Hinton), People v. Stewart (1985) 171
Cal.App.3d 59, 65.)
     Defendant does not dispute that the evidence at issue here involved moral
turpitude suggesting “a willingness to lie.” (People v. Wheeler, supra, 4 Cal.4th at
p. 295; People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [prior convictions for
burglary, robbery, and other theft-related crimes are probative of credibility].) He
argues, however, that the court abused its discretion in permitting the prosecutor to
impeach him with prior convictions that were identical to the charged offenses.
His argument does not succeed. Although the similarities between the prior
convictions and the charged offenses is a factor for the court to consider when
balancing probative value against prejudice, it is not dispositive. (Hinton, supra,
37 Cal.4th at p. 888; see People v. Green, supra, 34 Cal.App.4th at p. 183.) In the
present case, the court found the robbery convictions highly probative of

                                          87
defendant‟s credibility. The court also weighed the prejudicial impact that
admission of the robbery convictions might have on the jury‟s consideration of the
robbery counts and determined that its potential for prejudice did not outweigh its
probative value. As in Hinton, there were no other prior felony convictions
involving moral turpitude that could have been admitted for impeachment
purposes. (Hinton, supra, at p. 888.) Thus, to exclude the robbery priors would
have clothed defendant in a “ „ “false aura of veracity.” ‟ ” (Ibid.) Defendant
counters that the availability of the misdemeanor burglary and misdemeanor
vehicle theft convictions supports his argument that the court abused its discretion
when it allowed impeachment with the robbery convictions. We have observed,
however, that a misdemeanor offense or other misconduct not amounting to a
felony is less probative of moral turpitude or dishonesty than is a felony. (People
v. Wheeler, supra, 4 Cal.4th at p. 296.)
     Defendant suggests that the court should have admitted only one, but not
both, of the robbery convictions. But as this court has recognized, a series of
crimes may be more probative of credibility than a single crime. (Hinton, supra,
37 Cal.4th at p. 888; People v. Holt (1984) 37 Cal.3d 436, 452-453; see also
People v. Stewart, supra, 171 Cal.App.3d at p. 66 [probative value of the
defendant‟s four prior robbery convictions was high].) “ „[W]hether or not more
than one prior felony should be admitted is simply one of the factors which must
be weighed against the danger of prejudice. [Citation.]‟ ” (People v. Green,
supra, 34 Cal.App.4th at p. 183.)
     Defendant argues that the admission of the misdemeanor misconduct and his
statements admitting robberies, theft, and untruthfulness was unnecessary, and
thus prejudicial, because adequate impeachment could have been accomplished
using one or both of his prior felony convictions. For the reason defendant
suggests, the admissibility of this evidence presents a somewhat closer question.

                                           88
As noted above, this court has recognized that evidence of misconduct not
amounting to a felony is less probative of immoral character than is a prior felony
conviction. (People v. Wheeler, supra, 4 Cal.4th at pp. 296-297 & fn. 7.) We also
have observed that impeachment evidence other than a felony conviction might
entail problems of proof, require undue time, or create confusion. (Id. at pp. 296-
297.) Indeed, the record here shows there was protracted questioning concerning
several collateral points raised by the nonfelony impeachment evidence. For
example, during both direct and cross-examination, defendant was questioned
extensively about his feigned suicide attempt while in a juvenile detention facility,
and the defense expert, Dr. Berg, testified at length about the incident.
Nonetheless, we cannot say that the court exceeded the bounds of reason in
admitting the evidence of defendant‟s misdemeanors and uncharged misconduct.
First, as previously discussed, evidence that a defendant committed a series of
crimes is more probative of his credibility than a “single lapse.” (Hinton, supra,
37 Cal.4th at p. 888.) Likewise, defendant‟s admissions of uncharged misconduct
showed a history of untruthfulness and manipulation. The court was aware of, and
presumably took into consideration, the potential for undue consumption of time
and problems of proof when making its admissibility determination. Although the
record shows several points at which defendant‟s admissions of wrongdoing were
probed in depth, none of the questioning was excessive. Nor does defendant now
argue that the impeachment evidence was inadmissible for lack of proof.
Defendant fails to show the court abused its discretion in admitting evidence of the
misdemeanor offenses and other misconduct.
     Defendant argues finally that because the jurors were instructed only on the
limited use of the prior felony conviction evidence, they would have viewed the
instances of his misdemeanor convictions and other dishonest conduct as evidence
of his bad character and predisposition to commit the charged crimes. We

                                         89
disagree. The record shows the court instructed with CALJIC No. 2.23, which
informed the jury that it could consider evidence of a felony conviction only for
the purpose of determining believability and not as proof that the defendant is
predisposed to commit crimes. The court also gave CALJIC No. 2.20, which
provided a list of certain factors that the jury could consider in determining the
credibility of witnesses generally. Among the specific factors the court included
in the instruction were “admission by the witness of untruthfulness,” a “witness‟s
prior conviction of a felony,” and “[p]ast conduct of a witness having a logical
bearing upon the witness‟ honesty or veracity.” Reading these instructions in light
of one another as they were instructed to do (CALJIC No. 1.01), the jurors would
have understood the limited purpose of all of the impeachment evidence. We thus
see no basis on which to conclude they would have considered the impeachment
evidence other than the felony convictions in the manner defendant suggests. If
defendant believed the jury needed additional guidance, it was incumbent on him
to request that CALJIC No. 2.23 be modified to include the other categories of
evidence admitted for impeachment purposes. (Hinton, supra, 37 Cal.4th at p. 875
[a trial court has no duty to instruct on its own motion concerning the limited
admissibility of evidence of past criminal conduct].)

           7. Defendant’s infidelity
     Defendant contends the court abused its discretion and violated his right to a
fundamentally fair trial by allowing the prosecutor to cross-examine him on the
subject of sexual infidelity. We disagree because defendant subjected himself to
questioning on this issue.
     The record shows that during direct examination, defense counsel sought to
elicit from defendant his life history prior to the charged crimes. In relevant part,
defendant chronicled his relationship with Donna Kellogg, telling the jury that he



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and Kellogg had a “common law marriage.” Counsel asked defendant, “When
you moved to Fresno with [Kellogg], how did you feel about her? What were
your feelings towards her?” Defendant replied, “I loved her.” He answered,
“Yes” when asked whether he believed they had a good relationship.
     The prosecutor‟s cross-examination of defendant was interrupted by the
testimony of the defense experts. Psychologist Paul Berg, Ph.D., likewise testified
about defendant‟s life history, including his relationship with Kellogg. He
mentioned that defendant and Kellogg raised children together and that defendant
considered himself married.
     When defendant‟s cross-examination resumed, he confirmed that he thought
of himself and Kellogg as husband and wife. Over relevance and Evidence Code
section 352 objections by the defense, the prosecutor was permitted to elicit from
defendant that Kellogg was not the only woman he “went out with” during their
relationship. Defendant explained, however, that he and Kellogg devoted their
lives to one another and that although he “slept around on her before,” they had
“discussed” that issue. After the court called a recess, the defense renewed its
Evidence Code section 352 objection to the prosecutor‟s line of questioning,
arguing that defendant‟s sexual conduct with other women was irrelevant to his
relationship with Kellogg and highly prejudicial. The court found the prosecutor
was entitled to rebut defendant‟s assertions that he was a good father and
“husband.” However, after further argument, the court ruled the prosecutor was
prohibited from further pursuing the subject of defendant‟s infidelity because the
probative value of such evidence at that point had become “de minimis compared
to undue consumption of court time.” Later, on redirect examination, defense
counsel elicited from defendant that he had been unfaithful to Kellogg only once
and that they had resolved the matter. On recross-examination, however, and over
defense objection, defendant admitted sexual relations with two other women.

                                         91
     Defendant contends that evidence of his promiscuity was highly prejudicial
and made it likely the jury reached its verdicts based on his bad character rather
than the admissible evidence. Testimony by defendant and his expert, however,
had placed in issue his feelings about Kellogg, including his belief that they
maintained a good relationship and family life. Evidence that defendant had
sexual contact with women other than Kellogg during their relationship had some
tendency in reason to undermine those assertions and, more generally, to call his
credibility into question. (See People v. Houston (2005) 130 Cal.App.4th 279,
307 [evidence of the defendant‟s extramarital affairs was relevant to rebut his
testimony that his relations with his wife were good in the month before her
murder].) We cannot conclude on the record presented here that the court abused
its discretion in allowing the prosecutor‟s limited cross-examination on the subject
of defendant‟s infidelity.

           8. Defendant’s lack of a work ethic
     Defendant claims the court erred in permitting lay witnesses to testify
regarding his work ethic. We disagree.
     Defendant‟s guilt phase defense was diminished actuality and
unconsciousness. To support those theories, the defense called psychologist Paul
Berg, Ph.D., who diagnosed defendant as suffering from organic personality
syndrome. According to Dr. Berg, defendant likely experienced a brain damage-
induced rage reaction, and possibly seizure-induced unconsciousness, at the time
of the crimes.
     During rebuttal, the prosecutor called several experts who testified that
defendant suffered, not from OPS or epileptic seizures, but from antisocial
personality disorder. In explaining the basis of his diagnostic impression,
psychologist Michael Thackrey, Ph.D., outlined the various diagnostic criteria for



                                         92
APD, which included being unemployed for a significant amount of time when
able to seek work, and failing to provide financial support for one‟s children or
planning ahead for one‟s life. Psychiatrist James Missett, M.D., cited defendant‟s
“failure to adequately support his wife and children” as one of the criteria
supporting his diagnosis.
     The opinions of the prosecution experts were based largely on their review of
defendant‟s medical records and social history, including statements by family
members. Later during rebuttal, over an Evidence Code section 352 objection by
the defense , the prosecutor called several lay witnesses to establish the factual
bases for the experts‟ diagnoses of APD. Donna Kellogg testified in relevant part
that defendant had no income of his own and that he never sought employment or
expressed dissatisfaction with not having a job. Similarly, Kellogg‟s sister, Tina
Edmonds, testified that defendant never expressed a desire to look for work and
that he was out late and usually slept until noon. Their observations were echoed
by defendant‟s friend Michael Hall, who testified that he never saw defendant
work and that defendant rarely awoke before noon.
     Defendant argues the lay testimony about his lack of a work ethic was
improper rebuttal because the APD diagnosis was not disputed by the defense or
defense experts. As defendant points out, Dr. Berg acknowledged during cross-
examination that defendant previously had been diagnosed with APD and agreed
that he met many of the diagnostic criteria. Further, he notes, the prosecution‟s
own expert acknowledged that a diagnosis of APD can coexist with organic
personality syndrome.
     Rebuttal evidence is relevant and thus admissible if it “tend[s] to disprove a
fact of consequence on which the defendant has introduced evidence.” (People v.
Wallace (2008) 44 Cal.4th 1032, 1088.) The trial court is vested with broad



                                          93
discretion in determining the admissibility of evidence in rebuttal. (People v.
Harris, supra, 37 Cal.4th at p. 335.)
     The rebuttal testimony regarding defendant‟s lack of a work ethic was
admissible because it properly refuted Dr. Berg‟s testimony regarding defendant‟s
assertedly dominant psychiatric disorder, OPS. “When, as here, a mental health
expert offers a diagnosis, this opens the door to rebuttal testimony questioning that
diagnosis or suggesting an alternative diagnosis.” (People v. Smith (2005) 35
Cal.4th 334, 359.)
     Defendant asserts that admitting the lay evidence was error because defense
counsel offered to stipulate defendant suffered from APD. However, counsel‟s
offer to stipulate did not change the thrust of Dr. Berg‟s psychological testimony,
which attributed the crimes to rage reaction and seizure. Thus, the offer to
stipulate did not cause the evidence of APD, and its supporting lay testimony, to
be outside the scope of proper rebuttal. (People v. Edelbacher, supra, 47 Cal.3d at
p. 1007 [the prosecution need not accept a stipulation that deprives the state‟s case
of its force].)
     We also reject defendant‟s argument that, even if relevant, the lay testimony
should have been excluded under Evidence Code section 352 as cumulative and
unduly prejudicial. Although defendant testified extensively about his lack of
consistent employment, the lay testimony concerned not simply defendant‟s lack
of employment but his irresponsibility and lack of motivation to seek work.
Because the rebuttal testimony differed from defendant‟s, it was not cumulative.
Nor was it unduly prejudicial. Contrary to defendant‟s contention, nothing in the
record suggests the jury would have drawn from evidence of his lack of a work
ethic the impermissible inference that he was predisposed to commit the charged
crimes. The court did not abuse its discretion in admitting the evidence.



                                         94
       E. Court-ordered Mental Examination by Prosecution Experts
     In supplemental briefing, defendant argues the court violated his statutory
rights by ordering him to submit to mental examination by three prosecution
experts who testified at the guilt phase during the prosecution‟s case in rebuttal.
He also asserts it was improper for the jury to learn that he refused to be
interviewed by one of the experts. As explained below, the court erred when, in
November and December 1993, it ordered defendant to submit to mental
examination by the prosecution‟s experts. The court also erred when it admitted
testimony by two of the experts that was based on their interviews with defendant
and permitted the third expert to comment on defendant‟s refusal to meet with
him. We conclude, however, that these errors were harmless.

           1. Background
     As previously noted, defendant raised guilt phase defenses of
unconsciousness and diminished actuality. The record shows that immediately
after defendant‟s testimony, the prosecutor asked the court to order defendant to
submit to mental evaluation by the prosecution‟s experts. In support, he cited
People v. McPeters (1992) 2 Cal.4th 1148, which held that a defendant who places
his mental conditions in issue has “waived his Fifth and Sixth Amendment rights
to the extent necessary to permit a proper examination of that condition.” (Id. at
p. 1190.) Defense counsel voiced no objection, but reminded the court that the
defense team had a right to be present during the examinations and asked to be
informed of “when, where, and by whom” any examination would take place. The
court granted the prosecutor‟s request and directed him to provide the defense with
the pertinent information as soon as possible. Five days later, Psychologist
Michael Thackrey, Ph.D., interviewed defendant for approximately three hours.
Defendant was questioned by Neuropsychologist Bradley Schuyler, Ph.D., two
days after that. One week after Dr. Schuyler‟s interview, however, counsel


                                         95
informed the court and the prosecutor that defendant refused to be questioned by
Psychiatrist James Missett, M.D., or any other prosecution expert. Defendant had
explained to counsel, “Look, they‟re trying to kill me, and want me to sit there
with them for two or three hours and answer their questions. I just can‟t do it.”
Counsel offered to stipulate at trial that defendant refused to speak with
Dr. Missett.21
     Drs. Thackrey, Schuyler, Missett, and two others testified as experts in the
prosecution‟s case in rebuttal.
     Dr. Thackrey testified that in forming his opinion in the case, he reviewed
numerous documents including defendant‟s medical and psychiatric records, the
testing results and reports of the other experts who had examined him, and
defendant‟s social and criminal history records, including his prior convictions in
California and Texas. He also reviewed transcripts of Angie‟s testimony,
defendant‟s testimony, and the testimony of defense experts Drs. Apte and
McKinsey. As for his evaluation of defendant, Dr. Thackrey told the jury that his
attempt to interview defendant about his family and social history was “largely
nonproductive,” but he did obtain defendant‟s version of the facts of the case and
successfully conducted diagnostic questioning and testing. Relying on all of these
sources, Dr. Thackrey‟s diagnostic impression of defendant was of antisocial
personality disorder (APD), possibly with a mild form of organic personality
syndrome (OPS). Based on his review of the trial testimony by Angie and
defendant describing the night‟s events, he disagreed with the defense experts that
defendant‟s behavior inside the restroom could be explained by an OPS-related

21    Before commencement of the sanity phase, the court granted the
prosecutor‟s renewed request for a court-ordered mental examination by
Dr. Missett, which defendant again refused. (See discussion post, pt. II.J.4.)




                                         96
rage reaction and/or seizure activity. In Dr. Thackrey‟s view, the accounts showed
a sustained, complex, purposeful and goal-directed sequence of behaviors
extending over a period of time, which was inconsistent with either condition.
     Dr. Schuyler testified that during his 90-minute interview with defendant he
took a medical and psychiatric history, observed him for signs of cognitive or
physical impairment, and heard his account of the night in question. Based on the
interview, and his review of Angie‟s and defendant‟s trial testimony and the
professional literature, he likewise concluded that defendant‟s conduct could not
be explained by an OPS-related rage reaction or a seizure, and he echoed
Dr. Thackrey‟s view that defendant‟s complex goal-oriented behaviors were
inconsistent with a rage reaction. Dr. Schuyler also questioned both the utility and
results of the Luria-Nebraska Neuropsychological Battery administered by the
defense experts. In his opinion, the scores could reflect defendant‟s sociological
background, not brain injury.
     At the outset of Dr. Missett‟s testimony, defense counsel stipulated that
although defendant was willing to take any physical or qEEG examinations or
written tests administered by Dr. Missett, he declined to be “interviewed further by
people trying to kill him.” Like the other prosecution experts, Dr. Missett had
reviewed defendant‟s psychiatric and medical records as well as Angie‟s and
defendant‟s trial testimony and concluded that defendant‟s behavior on the night
of the crimes was inconsistent with OPS and seizure activity. Based on the same
sources, and with the proviso that he had not personally interviewed defendant,
Dr. Missett believed APD “would be the best description” of defendant‟s
personality.




                                         97
           2. Discussion
     At the time of defendant‟s trial in 1993, decisional law authorized trial courts
to order a defendant who placed his or her mental state in issue to submit to mental
examination by prosecution experts. (See, e.g., People v. McPeters, supra,
2 Cal.4th at p. 1190.) This court later held that after the 1990 passage of
Proposition 115 (the Crime Victims Justice Reform Act), which resulted in the
enactment of the criminal discovery statutes, the courts “are no longer free to
create such a rule of criminal procedure, untethered to a statutory or constitutional
base.” (Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1116 (Verdin).)22 We
have applied Verdin retroactively. (See People v. Wallace, supra, 44 Cal.4th at
pp. 1087-1088.)23
     Although our decision in Verdin was issued after trial in this case, its holding
is based upon a plain reading of the statutory language that was in effect at the
time of defendant‟s trial. There was a valid argument at that time that the trial
court was not authorized to order defendant to submit to mental examination by
the prosecution‟s experts. Because defendant failed to challenge the court‟s




22      Section 1054, subdivision (e), provides that “no discovery shall occur in
criminal cases except as provided by this chapter, other express statutory
provisions, or as mandated by the Constitution of the United States.” Verdin
concluded that an order to submit to a mental examination is a form of discovery
that is neither authorized in the criminal discovery statutes or any other express
statutory provision nor mandated by the federal Constitution. (Verdin, supra, 43
Cal.4th at pp. 1103-1116.)
23     Although the Legislature‟s recent enactment of section 1054.3, subdivision
(b) now provides the requisite statutory authority for courts to order a defendant to
submit to a mental examination, that statute became effective in January 2010.
(See § 1054.3, subd. (b)(1), added by Stats. 2009, ch. 297, § 1.)




                                         98
examination order below, he has forfeited his claim of Verdin error on appeal.
(People v. Gonzales (June 2, 2011, S072316) 51 Cal.4th 894. )
     But even had defendant‟s claim been preserved for appeal, he is not entitled
to reversal. We agree with defendant that the court was not authorized under
section 1054 to order him to submit to mental examination by the prosecutor‟s
three experts. The court further erred by admitting testimony by the experts based
on their interviews and by permitting comment on defendant‟s refusal to be
questioned by Dr. Missett. (People v. Wallace, supra, 44 Cal.4th at p. 1087.) We
conclude, however, that these errors were harmless.
     Preliminarily, we reject defendant‟s argument that because the errors
assertedly implicated his federal constitutional rights, they must be subjected to
harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24.)
Defendant supports his claim by quoting this court‟s observation in Verdin that
“the use of evidence from an undesired psychiatric examination to convict a
criminal defendant may have constitutional implications.” (Verdin, supra, 43
Cal.4th at p. 1102.) Verdin relied on Estelle v. Smith (1981) 451 U.S. 454, for that
proposition, but the constitutional concern addressed in that case is absent here.
Estelle v. Smith establishes that when the defendant has introduced no psychiatric
evidence, the Fifth Amendment prohibits the prosecution from presenting
information obtained from the defendant‟s own statements in a court-ordered
competency examination as evidence against him at the penalty phase of a capital
trial. (Id. at pp. 465-466, 468.) Defendant cites no decision, and we are aware of
none, holding that the Fifth Amendment or any other federal constitutional
provision prohibits a court from ordering a defendant who has placed his or her
mental state in issue to submit to a mental examination by a prosecution expert.
On the contrary, in People v. McPeters, supra, 2 Cal.4th at page 1190, we
concluded that neither the court-ordered mental examination nor admission of

                                         99
evidence that the defendant refused to participate in the examination infringed
upon the defendant‟s Fifth or Sixth Amendment rights. (See also Buchanan v.
Kentucky (1987) 483 U.S. 402, 421-424.) We thus assess the errors for prejudice
under the standard for state law error, inquiring whether there is a reasonable
probability that the outcome of trial would have been more favorable to defendant
had the court not ordered him to submit to examinations by Drs. Schuyler,
Thackrey, and Missett. (Cal. Const., art. VI, § 13; People v . Watson, supra, 46
Cal.2d at pp. 836-837.)24
     During the mental examinations, Drs. Schuyler and Thackrey each obtained
statements from defendant concerning the charged crimes and they based their
opinions, in part, on his accounts of the night‟s events. Among the materials the
experts reviewed in preparation for their testimony, however, were the transcripts
of defendant‟s guilt phase testimony, in which he likewise described his version of
events. There were no differences between the two accounts. Thus, defendant‟s
statements during the examinations could not have led Drs. Schuyler and Thackrey
to conclusions that differed from those they would have reached had they not been
permitted to interview him.
     As for the evidence that defendant refused to be interviewed by Dr. Missett,
defense counsel‟s stipulation to that effect arguably forfeited his claim of error.
(Evid. Code, § 353, subd. (a).) In any event, the evidence did not harm and may
have benefitted the defense. Dr. Missett tempered his opinion that antisocial
personality disorder was “the best description” of defendant with the proviso that

24 We applied the higher “reasonable possibility” standard in People v. Wallace,
supra, 44 Cal.4th at pages 1087 through 1088 because the error in that case
occurred at the penalty phase of a capital trial when the more exacting standard
applies.




                                         100
he had not personally examined him, and he did not suggest the fact that defendant
refused to be interviewed had any bearing on his diagnosis. Indeed, nothing in the
record shows Dr. Missett found any significance in defendant‟s refusal to submit
to an examination.
     Even without the testimony of the two experts who interviewed defendant
and admission of evidence that he refused to meet with Dr. Missett, the
prosecution presented a strong case in rebuttal that undermined the opinions of the
defense experts. The testimony of Drs. Schuyler and Thackrey was cumulative in
many respects to that of the other prosecution experts. For instance, both
Dr. Schuyler and Neurologist Harvey Edmonds, M.D., disputed the defense claim
that a blow to defendant‟s head with a baseball bat resulted in a serious brain
injury that led to OPS and posttraumatic epilepsy. The prosecution lay witnesses‟
testimony concerning defendant‟s lifestyle and behavior further undercut the
defense experts‟ diagnoses. Donna Kellogg and Tina Edmonds indicated they had
never seen defendant react violently when provoked, nor had they ever witnessed
any seizure activity. Based on our examination of the entire record, we conclude
there is no reasonable probability that the jury would have reached a result more
favorable to defendant had the court not issued an order requiring him to submit to
mental examination by prosecution experts and had not permitted these experts to
testify against defendant.
     In a related claim, defendant asserts the court erred by not instructing the jury
that it could consider his statements to Drs. Schuyler and Thackrey for purposes of
evaluating the experts‟ opinions but not for the statements‟ truth. (CALJIC
No. 2.10; see In re Spencer (1965) 63 Cal.2d 400, 412-413.) Because defendant
failed to request a limiting instruction below, he has forfeited his claim that it was
error for the court not to so instruct. (People v. Ledesma, supra, 39 Cal.4th at
pp. 697-698; People v. Boyer, supra, 38 Cal.4th at p. 465.) His assertion lacks

                                         101
merit in any event. First, it is unclear whether such an instruction is required in
the setting presented here, in which the defendant‟s statements were obtained
during a prosecution expert‟s mental examination that was conducted in the
presence of defense counsel. (Cf. People v. Ledesma, supra, at pp. 698-700
[limiting instruction need not be given when the constitutional right to the
assistance of counsel is not implicated].) Even were such a limiting instruction
ordinarily required in that setting, however, it might have been inappropriate here.
As previously discussed, the experts‟ testimony about defendant‟s statements to
them during the mental examinations was duplicative of defendant‟s testimony in
his own behalf, which was presented for its truth. Instructing with CALJIC
No. 2.10 under these circumstances might have interfered with defense attempts to
show defendant committed the crimes during an OPS-related rage reaction and/or
seizure. A limiting instruction was not required here.

       F. Sufficiency of the Evidence
     Prior to trial, defendant moved to dismiss the attempted murder count, one of
the robbery counts, and the robbery-murder, rape-murder, and witness-murder
special-circumstance allegations for insufficient evidence. (§ 995.) The court
denied the motion.25 At the close of the prosecution‟s case-in-chief, defendant
again challenged the sufficiency of the evidence supporting the special
circumstance allegations, but the court found the evidence sufficient to submit the
allegations to the jury. (§ 1118.1.)
     Here, defendant argues the convictions for robbery and attempted rape must
be reversed and the robbery-murder, rape-murder, and witness-murder special-


25     Defendant was initially charged with the forcible rape of Laurie, but the
court dismissed that count for insufficient evidence.




                                         102
circumstance findings vacated because they are not supported by sufficient
evidence.
     When a defendant challenges the sufficiency of the evidence, “ „[t]he court
must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.‟ [Citation.]” (People v.
Davis (1995) 10 Cal.4th 463, 509, quoting People v. Johnson (1980) 26 Cal.3d
557, 578; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 161, fn. 19
[we apply the same standard of review in assessing the sufficiency of the evidence
supporting special circumstance findings].) “Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that evidence.
[Citation.]” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) We
“ „ “presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ‟ [Citation.]” (People v. Davis, supra, at
p. 509.)
     Applying these principles, we conclude the evidence is sufficient to support
the convictions for the robbery of Angie, the robbery and attempted rape of
Laurie, and the true findings on the robbery-murder, rape-murder, and witness-
murder special-circumstance allegations.26



26      Noting that the jury was instructed pursuant to section 190.3, factor (a) that
it must consider the circumstances of the crime and the existence of special
circumstance findings when making its penalty determination, defendant argues
that if any single conviction or special circumstance finding is reversed or vacated,
the death judgment also must be reversed. Because we uphold all of the
convictions and special circumstance findings, we do not address the point.




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           1. Robbery and robbery-murder special circumstance
     We reject defendant‟s contention that his convictions for the robbery of
Angie and Laurie must be reversed and the robbery-murder special-circumstance
finding stricken because there was insufficient evidence establishing each of the
essential elements of those crimes.
     “Robbery is the taking of „personal property in the possession of another
against the will and from the person or immediate presence of that person
accomplished by means of force or fear and with the specific intent permanently to
deprive such person of such property.‟ [Citation.]” (People v. Lewis, supra, 43
Cal.4th at p. 464; see § 211.) “If the other elements are satisfied, the crime of
robbery is complete without regard to the value of the property taken.” (People v.
Tafoya (2007) 42 Cal.4th 147, 170.)
     Defendant acknowledges Angie‟s testimony that he took money from her
pocket, but argues there was no showing that the taking was accomplished by
force or fear or with the requisite intent to steal, because the evidence established
Angie offered the money to him when they stopped at a pay telephone. We reject
the argument. The record contains substantial evidence from which the jury
reasonably could infer that defendant‟s actions caused Angie to fear him and that
her offer of change and failure to protest when he took her dollar bills were
prompted by that fear. In the restroom at Lost Lake, defendant beat and choked
Angie when she tried to interfere with his assault on Laurie. After binding Angie
to the plumbing, defendant took Laurie to the women‟s restroom next door, from
where Angie heard scuffling, then her friend‟s protests and cries, and finally,
silence. Telling Angie that Laurie had run away, defendant then directed her to
the front passenger seat of his car and drove off. At one point during the drive,
while Angie‟s hands were still bound together behind her back, defendant stopped
at a pay telephone. He said he wanted to call Laurie‟s mother but did not have any


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change. When Angie told defendant that she had change in her pocket, defendant
reached in and took not only the coins, but all of her dollar bills, which he placed
in the coin compartment of the car. Defendant exited the car and dialed a
telephone number but hung up without speaking to anyone and collected the
change. Later, he pulled into a service station, retrieved the dollar bills from the
coin compartment, and left the car. At the time of defendant‟s arrest the following
morning, there was no money in his car or wallet, or on his person. This evidence,
and the reasonable inferences arising from it, suffices to show that Angie did not
protest defendant‟s taking the dollar bills from her pocket because she feared him,
that defendant intended to permanently deprive her of her money, and that he
accomplished his intent by means of fear. (See People v. Holt (1997) 15 Cal.4th
619, 690 [fear may be inferred from the circumstances in which property is taken];
People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.)
     Contrary to defendant‟s argument, evidence that Angie offered him the
change in her pocket to make a telephone call to Laurie‟s mother does not
undermine the jury‟s guilty verdict. Defendant emphasizes the evidence that he
did not take the money from Angie until one hour or more after assaulting her in
the restroom. But the jury reasonably could infer that Angie‟s offer of change was
the product of her continuing fear while she rode with defendant along an isolated
stretch of highway with her hands bound behind her back. And even if it could be
shown that Angie had a reason other than fright to offer defendant her coins,
perhaps because she hoped a telephone call might lead to her rescue, the jury was
not required to find that Angie‟s offer to help pay for a telephone call constituted
willingness to hand over all of her money. The jury properly could infer from all
of the events preceding defendant‟s stop at the pay telephone that Angie
relinquished the dollar bills from her pocket out of fear, not by her own free will.



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     Whether the evidence sufficed to support defendant‟s conviction for the
robbery of Laurie presents a somewhat closer question. Under applicable
principles of appellate review, however, we conclude the record discloses
reasonable, credible evidence of solid value from which a reasonable trier of fact
could find every element of that crime.
     First, substantial evidence supported the inference that a taking occurred.
Angie testified that Laurie put the change from her McDonald‟s purchase into the
front right pocket of her jeans. Further, the evidence showed that at the time
Laurie‟s body was discovered, her right front jeans pocket contained a bus token
but no money. Although this evidence is not conclusive, it sufficed to raise a
strong inference that at some point after defendant‟s initial use of force against
Laurie, he took money from her pocket. (See People v. Hubler (1951) 102
Cal.App.2d 689, 691-692, 695-696 [the jury reasonably could infer that the
defendant took the victim‟s purse based on evidence that the victim was in
possession of a purse and wallet when she was assaulted by defendant and
rendered unconscious and that, when she regained consciousness, her purse was
missing]; People v. Dodson (1946) 77 Cal.App.2d 389, 393-395 [evidence that the
victim had money when he left a café, that he was rendered unconscious by the
defendants‟ assault, and that when he regained consciousness his money was
missing sufficed to permit the inference that the defendants took the victim‟s
money].) Defendant suggests that Laurie‟s money may have been inside her coat
pocket and then fallen out with her other belongings during their struggle. We
note, however, that in closing remarks defense counsel made a similar argument,
which the jury necessarily rejected. That other inferences might be drawn from
the evidence at trial is not to say insufficient evidence supports the verdict. As we
have explained, “ „ “if the circumstances reasonably justify the jury‟s findings, the
judgment may not be reversed simply because the circumstances might also

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reasonably be reconciled with a contrary finding.” [Citation.]‟ ” (People v.
Solomon, supra, 49 Cal.4th at p. 816.)
     Second, substantial evidence supports the inference that defendant formed
the intent to steal from Laurie before, rather than after, he used force against her.
(See People v. Marshall (1997) 15 Cal.4th 1, 34 [requisite intent to steal must
arise before or during the act of force].) There was evidence from which the jury
could infer defendant knew that Laurie had money. Defendant had asked Laurie
to buy him something at McDonald‟s and would have been aware Laurie had
money remaining from her purchase there because he likely would have known
that the milkshake and french fries she brought back to the car cost less than a
movie ticket. The jury reasonably could infer also that defendant needed money
for enough gasoline to drive the girls to a remote location in order to have a sexual
encounter with Laurie, and that little remained of his own money when they
arrived at Lost Lake. According to defendant‟s testimony, he had $5 in his
possession at the beginning of the evening and spent most of that amount playing
an arcade game and putting gasoline in his car. Finally, Angie testified that after
defendant‟s initial assaults on both girls, she noticed Laurie‟s coat lying in the
corner of the restroom and the contents of her coat pockets scattered on the floor
nearby. This evidence supported the reasonable inference that defendant looked
for Laurie‟s money or valuables by forcibly reaching inside her coat pocket and
removing its contents. Angie also testified that before entering the restroom she
heard the sound of a scuffle and Laurie yelling at defendant to leave her alone.
The evidence thus permitted the reasonable inference that defendant‟s intent to
take Laurie‟s money arose before, rather than as an afterthought to, his use of
force. (Cf. People v. Morris (1988) 46 Cal.3d 1, 19 [if the intent to steal arose
after the use of force, the taking amounts to a theft, not a robbery].)



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     The same evidence supporting the jury‟s finding that defendant‟s intent to
steal arose before his application of force also supports the inference that his intent
to steal was concurrent with his use of force against Laurie. (People v. Marshall,
supra, 15 Cal.4th at p. 34 [robbery verdict cannot be sustained in the absence of
evidence showing a concurrence of the wrongful intent and the act of force].)
That is, because the jury reasonably could have inferred from the evidence that
defendant knew Laurie had money, that he had little or no money with which to
buy gasoline, and that he forcibly removed Laurie‟s coat and the contents of its
pockets looking for her money, it could infer further that defendant‟s use of force
was concurrent with his intent to take Laurie‟s money. We explain post, in part
II.F.2., that substantial evidence also supports the jury‟s finding that defendant‟s
use of force against Laurie was motivated by an intent to rape. In this case, the
jury properly could infer that force was used to accomplish both a sexual assault
and a taking. “Where a defendant begins a sexual assault, aware that the victim
has property and takes it, the jury may infer the defendant intended to commit both
rape and robbery. [Citation.] Or it may infer that the force used for the sexual
offense was also force for robbery. [Citations.]” (People v. Shadden (2001)
93 Cal.App.4th 164, 170; accord, People v. Holt, supra, 15 Cal.4th at p. 671 [the
evidence supported the reasonable inference that the defendant‟s assault on the
victim was to facilitate both a taking and rape and/or sodomy].)
     In arguing there was insufficient evidence supporting either of the robbery
convictions, defendant points out that both Angie and Laurie possessed less than
$10 apiece, “hardly enough to furnish a motive for robbery.” As noted above,
however, if the elements of robbery are proved, the value of the taken property is
irrelevant. (People v. Tafoya, supra, 42 Cal.4th at p. 170; People v. Simmons
(1946) 28 Cal.2d 699, 705 [so long as the victim‟s property has some value, the
amount is immaterial].) Furthermore, although the absence of evidence of motive

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may tend to show a defendant is not guilty, motive itself is not a necessary element
of robbery. (People v. Wilson (2008) 43 Cal.4th 1, 21-22.) Defendant also points
out that at the beginning of the evening, he had slightly less money than did the
victims and there was no evidence he possessed more money after the crimes.
Indeed, he observes, the evidence showed he had only 8 cents on his person and
no money in his car or wallet at the time of his arrest. The evidence supports the
inference he spent the girls‟ money on gasoline, however. Thus, evidence that
defendant had little or no money in his possession on the morning after the crimes
does not necessarily negate a conviction for robbery. (See People v. Marks (2003)
31 Cal.4th 197, 206, 231.) Defendant complains finally that the robbery
convictions were inconsistent with the prosecutor‟s theory of the case, which was
that defendant took the girls to a remote area in order to rape Laurie and that when
Angie intervened, he beat and restrained her and then murdered Laurie and
attempted to murder Angie to prevent them from reporting his crimes. His
argument fails because theories suggested by the prosecutor are not the sole
theories the jury may consider in making its determination of guilt. (People v.
Perez (1992) 2 Cal.4th 1117, 1126.)
     We further conclude substantial evidence supports the robbery-murder
special-circumstance finding. To establish the truth of that allegation, the
evidence must show that “[t]he murder was committed while the defendant was
engaged in . . . the commission of, attempted commission of, or the immediate
flight after committing, or attempt to commit . . . : [¶] . . . Robbery in violation of
Section 211.” (§ 190.2, subd. (a)(17)(A).) The robbery must not be “merely
incidental” to the commission of the murder. (People v. Green (1980) 27
Cal.3d 1, 61; People v. Marshall, supra, 15 Cal.4th at p. 41.) Here, the jury
reasonably could have concluded that Laurie was killed while defendant was
engaged in the commission of a robbery. As explained above, the evidence

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supported the inference that, before the fatal assault, defendant forcibly removed
Laurie‟s coat and the contents of its inside pocket for the purpose of taking her
money. The jury thus necessarily would have inferred that defendant‟s intent to
rob preceded the killing. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1263.)
Contrary to defendant‟s assertion, that he may have succeeded in taking Laurie‟s
money only after her death does not undermine the special circumstance finding.
(People v. Frye (1998) 18 Cal.4th 894, 956 [upholding the robbery conviction and
robbery-murder special-circumstance finding where the evidence showed the
defendant intended to steal from the victims before killing them but actually took
their property after the shooting].) Nor does evidence that defendant harbored
concurrent intents to rape and kill render the robbery merely incidental to the
murder. (People v. Davis (2009) 46 Cal.4th 539, 609 [“even if a defendant
harbored the intent to kill at the outset, a concurrent intent to commit an eligible
felony will support the [felony-murder] special-circumstance allegation”]; accord,
People v. Abilez, supra, 41 Cal.4th at p. 511 [evidence of the defendant‟s
concurrent intent to take the victim‟s money and humiliate her established the
requisite independent felonious purpose for the robbery-murder, burglary-murder
and sodomy-murder special-circumstance findings].)

           2. Attempted rape and rape-murder special circumstance
     Defendant claims there was insufficient evidence to support his conviction
for the attempted rape of Laurie and the jury‟s finding that the murder occurred
during the attempted commission of a rape. We conclude the evidence suffices.
     “Forcible rape is an act of sexual intercourse accomplished with a person not
the spouse of the perpetrator against the person‟s will by means of force or
violence.” (People v. Marshall, supra, 15 Cal.4th at p. 36; § 261, subd. (a)(2).)
The crime of attempted rape has two elements: (1) the specific intent to commit



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the crime of rape and (2) a direct, although ineffectual, act toward its commission.
(§ 21a; People v. Rundle (2008) 43 Cal.4th 76, 138; People v. Carpenter (1997) 15
Cal.4th 312, 387.) A defendant‟s specific intent to commit rape may be inferred
from the facts and circumstances shown by the evidence. (People v. Guerra
(2006) 37 Cal.4th 1067.) As for the requisite act, the evidence must establish that
the defendant‟s activities went “beyond mere preparation” and that they show the
defendant was “putting his or her plan into action.” (People v. Superior Court
(Decker) (2007) 41 Cal.4th 1, 8 (Decker).) “When, by reason of the defendant‟s
conduct, the situation is „without any equivocality,‟ and it appears the design will
be carried out if not interrupted, the defendant‟s conduct satisfies the test for an
overt act.” (Id. at p. 13; see also People v. Carpenter, supra, at p. 387 [to establish
the act element of an attempted crime, the evidence must show “a direct
movement after the preparation that would have accomplished the crime if not
frustrated by extraneous circumstances”].)
     We conclude there was ample evidence from which the jury reasonably could
infer that defendant intended to rape Laurie. Prior to the crimes, defendant
exhibited a sexual interest in Laurie. For example, he complimented her on her
tight-fitting clothes, inquired about her virginity, and once recommended she
consider an older, more experienced boyfriend like him. When defendant‟s friend
cautioned him regarding his growing interest in Laurie, defendant rebuffed the
warning, saying, “She wants me.” Defendant‟s conduct on the night in question,
which evidenced his plan to get Laurie alone so that he could have intercourse
with her, supports the inference he intended to commit rape. On learning that
Laurie and Angie had departed for the movies, defendant hurriedly left the
Farkases‟ home and drove to a bowling alley located near the movie theater, where
he stayed only 20 minutes. After returning to his car and driving off, he spotted
the girls walking on the opposite side of the street, made a U-turn, and pulled up

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alongside them, directing them to get inside. Defendant drove to Roeding Park
and then to Lost Lake, which by then was deserted. Saying he needed to use the
restroom, defendant stopped at one that was vacant and dark.
     Evidence of the events inside the restroom further supports the strong
inference that defendant intended to rape Laurie. When Angie responded to
Laurie‟s cries for help and entered the restroom, she saw Laurie prone on the floor
and defendant sitting on the back of his legs with Laurie‟s head between his knees.
After defendant had assaulted Angie and bound her hands behind her back to
prevent her further interference, he pulled Laurie to the side, placed his hand
around her neck, and attempted to kiss her. Laurie twice tried to pull away,
saying, “I can‟t. I‟m on the rag.” Later, when Laurie refused defendant‟s order to
accompany him to find water with which to clean the blood off of Angie,
defendant protested, “You don‟t trust me.” Laurie acquiesced, and defendant led
her next door to the women‟s restroom where he attacked her again. According to
Angie‟s testimony, she heard Laurie pleading, “Roy, don‟t” and calling out for
Angie to help her, then the sound of scuffling.
     The jury also reasonably could infer from the evidence presented at trial that
even before the assault on Angie, defendant had undertaken direct but ineffectual
acts toward committing a rape. First, the jury could infer that after luring Laurie
inside the darkened restroom with repeated requests for toilet paper, defendant
immediately made sexual advances toward her and, when Laurie resisted his
efforts, he applied force to carry out his intention to engage in sexual intercourse.
The evidence suggested application of force because within moments of entering
the restroom, Laurie began yelling, “Stop,” and “Leave me alone,” and then
started calling for Angie. The evidence also disclosed that defendant removed
Laurie‟s coat and rendered her temporarily unconscious. From such evidence the
jury reasonably could infer that defendant‟s forcible efforts to overcome Laurie‟s

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resistance would have resulted in rape had Angie not intervened. (Decker, supra,
41 Cal.4th at p. 13; People v. Carpenter, supra, 15 Cal.4th at p. 387; see People v.
Thomas (1958) 164 Cal.App.2d 571, 573-575 [the jury reasonably could have
inferred that the defendant‟s assault on the victim and struggle to push her down in
the car seat would have resulted in sexual intercourse had it not been for the
victim‟s resistance and his companion‟s insistence that they leave the scene].)
     Evidence of the events occurring after the assault on Angie also supports the
inference that defendant took direct but ineffectual actions to further his intention
to rape Laurie. When Angie responded to Laurie‟s cries for help and entered the
restroom, defendant jumped up, knocked Angie to the ground, and started choking
her. After several trips in and out of the restroom, defendant returned with a small
rope and tied Angie to the plumbing. He then took Laurie next door to the
women‟s restroom. The jury reasonably could have inferred that once in that
location, defendant resumed his efforts to rape Laurie. That defendant again
forcibly removed Laurie‟s coat could be inferred from the evidence that Angie
heard scuffling sounds coming from the women‟s restroom and that defendant
later covered Angie with Laurie‟s coat when he placed her in his car. Further, the
jury reasonably could infer that, while in the women‟s restroom, defendant pushed
his hand underneath Laurie‟s blouse and forced her bra upward over her breasts.
Testimony by the responding officers and forensic experts showed that (1) when
Laurie‟s body was discovered, her blouse was pulled up and her bra was above her
breasts, (2) blood smears originating on the inside of Laurie‟s blouse were
consistent with Angie‟s blood, and Laurie‟s bra was in a folded configuration
when blood was smeared on it, and (3) defendant likely had Angie‟s blood on his
hands following the assault. That defendant abandoned his efforts and strangled
Laurie without having accomplished the rape does not alter the reasonable



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inference that he undertook direct but ineffectual actions furthering his design to
force her to engage in sexual intercourse.
     Similarly, there was substantial evidence supporting the jury‟s true finding on
the rape-murder special-circumstance allegation. To establish the truth of that
allegation, it must be proved that “[t]he murder was committed while the defendant
was engaged in . . . the commission of, attempted commission of, or the immediate
flight after committing, or attempt to commit . . . : [¶] . . . [¶] . . . Rape in
violation of Section 261.” (§ 190.2, subd. (a)(17)(C).) As recounted above, the
evidence provided an ample basis on which the jury could find defendant killed
Laurie while he was engaged in the commission of the attempted rape. (People v.
Marshall, supra, 15 Cal.4th at pp. 37, 41 [inference of an ineffectual attack to
accomplish sexual intercourse combined with evidence of the victim‟s screams and
testimony she was strangled provided an ample basis on which the trier of fact
could conclude the defendant killed the victim while engaged in an attempted
rape].) Furthermore, Angie testified that when Laurie informed defendant about
how they would explain to their parents what had happened to them, defendant
replied, “No, I don‟t trust you. You‟ll tell like you did last time.”27 The jury
reasonably could have inferred from this evidence that defendant strangled Laurie
in order to prevent her from reporting the attempted rape and could reasonably find,
therefore, that the killing occurred while defendant was engaged in attempted rape.
(People v. Letner and Tobin, supra, 50 Cal.4th at p. 163 [the evidence raised the
inference that the murder was committed for purposes of preventing the victim
from reporting the attempted rape to the police and thus had occurred while the
defendants were engaged in the commission of the attempted rape].)

27    According to Angie‟s testimony, defendant was referring to an incident in
which Laurie apparently reported a transgression by her cousin.



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     Defendant points to various asserted ambiguities and inconsistencies in the
evidence to argue that the jury‟s attempted rape verdict and related special
circumstance finding were based not on solid, credible evidence, but on mere
speculation. None of his arguments is persuasive, however. For example,
defendant asserts there was no physical evidence consistent with sexual assault on
Laurie‟s body, including her internal and external genitalia. Indeed, defendant
notes, Laurie‟s sanitary napkin was still in place during the autopsy. But evidence
of seminal traces, or penetration or trauma to the genitals, is not required to
establish an attempted rape. (People v. Letner and Tobin, supra, 50 Cal.4th at
p. 163; People v. Guerra, supra, 37 Cal.4th at p. 1138; People v. Johnson (1993) 6
Cal.4th 1, 39.) For purposes of an attempt, the requisite “ „act need not be the
ultimate step toward the consummation of the design.‟ ” (People v. Memro (1985)
38 Cal.3d 658, 698.)
     Defendant further argues that the evidence adduced at trial did not permit the
inferences necessary to a finding of attempted rape. As demonstrated by our
discussion above, we reject his contention that no reasonable juror could infer
from the evidence that he had pushed Laurie‟s bra over her breasts. Merely
because the serology expert could not conclusively determine how the blood
smears were transferred to the inside of Laurie‟s blouse, and merely because there
was evidence suggesting that Laurie‟s bra may have been displaced while she was
dragged across the gravel, thrown into the trunk, or dumped out of the vehicle onto
the roadway does not mean that the jury could not reasonably infer that defendant
pushed Laurie‟s bra over her breasts in an effort to carry out his intention to rape
her. (People v. Thompson (2010) 49 Cal.4th 79, 114 [“ „[I]f the circumstances
reasonably justify the jury‟s findings, the reviewing court may not reverse the
judgment merely because it believes that the circumstances might also support a
contrary finding‟ ”].) We also reject defendant‟s assertion that the evidence that

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Laurie screamed, “Roy, stop,” and “Roy, leave me alone,” is equally consistent
with the inference that she was resisting a mere physical assault as it is with the
inference that she was repelling a sexual assault. The record shows that at one
point when Laurie was resisting defendant‟s advances, she told him, “I can‟t. I‟m
on the rag.” A reasonable trier of fact could have deduced that, were defendant
committing a physical assault, Laurie would have had no reason to inform him she
was menstruating. In addition, there was overwhelming evidence defendant long
harbored sexual interest in Laurie and had announced his intention to have sexual
intercourse with her.
     We conclude that substantial evidence supports the jury‟s finding beyond a
reasonable doubt that defendant intended to commit rape, that he undertook direct,
albeit ineffectual, acts toward its commission, and that he killed Laurie while
engaged in the attempt to rape her. We therefore reject defendant‟s claim that his
conviction of attempted rape and the jury‟s true finding on the rape-murder
special-circumstance allegation were unsupported by sufficient evidence.

           3. Witness-murder special circumstance
     Defendant argues there was insufficient evidence to support the jury‟s true
finding on the witness-murder special-circumstance allegation that defendant
murdered Laurie to prevent her from testifying regarding his assault on Angie.
We disagree.
     The witness-murder special circumstance applies when “the victim was a
witness to a crime who was intentionally killed for the purpose of preventing his
or her testimony in any criminal . . . proceeding, and the killing was not committed
during the commission, or attempted commission, of the crime to which he or she
was a witness.” (§ 190.2, subd. (a)(10); see People v. Silva (1988) 45 Cal.3d 604,
631.) Thus, the elements of the witness-murder special circumstance are: “ „(1) a



                                         116
victim who has witnessed a crime prior to, and separate from, the killing; (2) the
killing was intentional; and (3) the purpose of the killing was to prevent the victim
from testifying about the crime he or she had witnessed.‟ [Citations.]” (People v.
San Nicolas (2004) 34 Cal.4th 614, 654, quoting People v. Stanley, supra, 10
Cal.4th at p. 801.) The murder victim need not have been an eyewitness to the
crime for the special circumstance to apply, so long as the defendant believed he
was exposed to criminal prosecution and intentionally killed the victim to prevent
him or her from testifying in an anticipated criminal proceeding. (People v. Jones
(1996) 13 Cal.4th 535, 550; People v. Weidert (1985) 39 Cal.3d 836, 853.)
     Here, the record contains ample evidence supporting the witness-murder
special-circumstance finding. As previously discussed, ante, in part II.F.2., the
jury reasonably could infer that defendant drove Laurie and Angie to Lost Lake
intending to get Laurie alone and have sexual intercourse with her. Laurie‟s
resistance thwarted defendant‟s plan for consensual intercourse, and he then used
force against her, rendering her temporarily unconscious. But his plan derailed
again when Angie came to Laurie‟s aid and attempted to pull her friend out of the
restroom by her feet. Defendant immediately lunged at Angie and brutally
assaulted her for interfering. When the attack ended and defendant left the
restroom, Angie crawled over to Laurie and shook her back to consciousness. The
girls were frightened and decided they would tell their parents they had gotten into
a fight at the movie theater. Meanwhile, defendant came and went from the
restroom several times, first surveying the area with a flashlight and then bringing
in a small container that he filled with water to wash off the blood from the floor.
When Laurie informed defendant about how they planned to explain to their
parents what happened, defendant responded, “No, I don‟t trust you. You‟ll tell
like you did last time.” Defendant again exited the restroom, but this time he
returned with a small rope that he used to bind Angie‟s hands and then resumed

                                        117
his sexual advances toward Laurie, which she again resisted. Defendant left the
restroom again. When he returned, he used another rope to tie Angie to the
plumbing and took Laurie next door to the women‟s restroom, where he again
attempted to rape her and then strangled her. From this evidence, the jury
reasonably could find (1) the assault against Angie was separate from, and prior
to, defendant‟s killing of Laurie, (2) defendant intended to kill Laurie and (3) his
purpose in killing Laurie, in part, was to prevent her from reporting the crimes or
subsequently testifying against him.
     Defendant‟s claim of insufficiency focuses on the first element, which
requires a showing that the murder victim has witnessed “a crime prior to, and
separate from, the killing.” As defendant correctly points out, a witnessed crime is
not “prior to, and separate from” the killing if both the crime that was witnessed
and the killing were part of “the same continuous criminal transaction.” (People v.
Silva, supra, 45 Cal.3d at p. 631.) The decision in People v. Benson (1990) 52
Cal.3d 754, illustrates application of the rule. In Benson, the defendant murdered
the victim and her young son, molested the victim‟s two young daughters over the
course of the next two days, and then murdered them as well. (Id. at pp. 767-768.)
This court invalidated the witness-murder special-circumstance findings after
concluding that the facts of the case showed all of the murders were “integral parts
of a single continuous criminal transaction against the entire family.” (Id. at
p. 785; see also People v. Beardslee (1991) 53 Cal.3d 68, 95-96 [murders of two
drug dealers, although occurring in different locations two days apart, were part of
the same continuous criminal transaction against both victims].)
     In arguing that the crimes against Laurie and Angie were part of “the same
continuous criminal transaction,” defendant emphasizes that the entire “crime
spree” lasted only five hours, from sometime after 9:00 p.m. on January 26, 1991,
until just after 2:00 a.m. the following morning. As this court has explained,

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however, the significant inquiry in determining whether there was one continuous
criminal transaction is not the duration between the underlying crime and the
killing of the witness. Rather, it is “whether the defendant shows a common
criminal intent toward all the victims upon the initiation of the first criminal act.”
(People v. San Nicolas, supra, 34 Cal.4th at p. 655.) In Benson, which involved a
single continuous criminal transaction, the defendant admitted that he went to the
victim‟s home “ „with the intention of doing something to the kids.‟ ” (People v.
Benson, supra, 52 Cal.3d at p. 767.) Here, by contrast, there is sufficient evidence
from which to infer that defendant did not initially harbor a common criminal
intent toward both Laurie and Angie. The evidence showed defendant drove the
girls to Lost Lake with the intention of getting Laurie alone and engaging in
sexual intercourse. Nothing in the record suggests he considered any criminal
conduct against Angie until she interfered with his plans for Laurie. After the
assault, defendant returned to the restroom and attempted to wash away the blood
on the floor. He then assessed his situation and the girls‟ proposal to make up a
story to tell their parents, which he rejected, saying, “No. I don‟t trust you.” At
this point defendant left the restroom again and returned with a rope. From this
evidence the jury reasonably could have inferred that with defendant‟s assault on
Angie, he initiated a new criminal transaction in which he decided that the girls
could not be trusted and formed the intent to kill them. (See People v. San
Nicolas, supra, 34 Cal.4th at p. 656 [after the defendant killed his wife, he
initiated a second criminal transaction when he noticed his wife‟s nine-year-old
niece had seen him covered in blood and then decided to kill her].)
     Defendant complains that there is an inherent contradiction in concluding
both that he killed Laurie during the commission of an attempted rape and that
Laurie “witnessed a crime prior to, and separate from, the killing.” We understand
defendant‟s argument as an assertion that if the killing occurred during the

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commission of the attempted rape, which was part of a “continuous transaction”
beginning with defendant‟s preexisting plan to force Laurie to have sex with him,
the killing cannot also have occurred in a criminal transaction separate from the
assault. That assertion lacks merit on the facts presented here. As this court has
recognized, a defendant may be motivated by multiple purposes in killing the
victim. For this reason, the witness-murder special circumstance can apply “even
when only one of those motives was to prevent the witness‟s testimony.” (People
v. San Nicolas, supra, 34 Cal.4th at p. 656; People v. Stanley, supra, 10 Cal.4th at
p. 800; People v. Sanders (1990) 51 Cal.3d 471, 519.) That defendant‟s plan to
engage in sexual intercourse with Laurie preceded his decision to silence her as a
witness to Angie‟s assault by killing her meant only that he had more than one
reason for killing her. There is no inconsistency in the application of both special
circumstances here.

       G. Asserted Instructional Error at the Guilt Phase

           1. Asserted failure to adequately admonish jurors to avoid media
               accounts of the trial
     Before the presentation of evidence at the guilt phase, the court gave the
newly sworn jurors a lengthy admonition concerning their duty to “decide all
questions of fact in this case from the evidence received here in the trial and not
from any other source.” The court also directed the jurors never to discuss the
case with anyone. In connection with that point, the court recommended a
strategy for avoiding the subject with friends and family members. The court
suggested jurors tell their loved ones, “ „Well look. I‟m under oath not to say
anything about the case until it‟s over with. I‟ll tell you what, as soon as it‟s over
with I will tell you everything about it. I promise I will. I‟ll tell you what. If you
see anything in the newspaper or anything, can you clip it for me? I can’t read
anything during the case.‟ ” In response to one juror‟s question, the court


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explained to the entire panel that they could divulge the name of the case but
warned them to avoid follow-up questions because “before you know it, you‟re in
the midst of something because they‟ve read this and they‟ve read that.”
     During the guilt phase proceedings, the court gave jurors a short admonition
before excusing them each day. Typically, the court would remind them not to
discuss the matter among themselves or form any opinion in the case. On
occasion, the court directed jurors to immediately report to the bailiff “anything
you hear about the case.”
     Defendant argues that by failing to explicitly direct the jury at each
adjournment not to read, view, or listen to media coverage of the trial, the court
violated section 1122 and his state and federal constitutional rights to due process,
fair trial, an impartial jury, and a reliable death judgment.
     The claim is forfeited because defense counsel did not object to the
advisements that were delivered by the court. (People v. Gray (2005) 37 Cal.4th
168, 230; People v. Weaver, supra, 26 Cal.4th at p. 909.)
     Defendant‟s claim also fails on the merits. In accordance with section 1122
as it existed at the time of trial,28 the court generally advised the jurors “that it is
their duty not to converse among themselves or with anyone else on any subject
connected with the trial, or to form or express any opinion thereon until the case is
finally submitted to them.” (Stats. 1969, ch. 520, § 2, p. 1131.) Although an
admonition to refrain from reading, viewing, or listening to media coverage of the


28     After defendant‟s trial, section 1122 was amended to require additional
admonitions to prevent juror misconduct. The court must now direct jurors to “not
read or listen to any accounts or discussions of the case reported by newspapers or
other news media.” (§ 1122, subd. (a), as amended by Stats. 1994, ch. 869, § 4,
p. 4404; see People v. Engelman (2002) 28 Cal.4th 436, 448.)




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case would have been permissible, the failure to give such a directive did not
violate section 1122. (Cf. People v. Terry (1970) 2 Cal.3d 362, 397 [the court
fully admonished the jury pursuant to § 1122 not to discuss the case, and also
instructed jurors not to read newspaper stories about the case or the trial].)
     Defendant‟s constitutional claims based upon People v. Lambright (1964)
61 Cal.2d 482 also fail. In that case, the court specifically informed the jury that it
had a right to read about the case in the newspaper or to hear about it on a radio or
television broadcast. Because of this instruction, this court concluded it was
reasonably probable that some jurors did consult media reports, affecting the
outcome of the trial. (Id. at pp. 484-487.)
     In the present case, by contrast, there was no instruction or suggestion that it
was proper to consult media reports concerning the case. On the contrary, at the
outset of trial, the court instructed jurors that they must rely solely on the evidence
at trial and “can‟t read anything during the case.” The court‟s closing instructions
likewise reminded the jury of its obligation to consider only the evidence admitted
at trial. Absent a showing that any juror was exposed to media coverage of the
case, we presume the jury followed the court‟s express directives. (People v.
Terry, supra, 2 Cal.3d at p. 397 [presuming that no juror read the inaccurate news
coverage of the defendant‟s trial]; People v. Ladd (1982) 129 Cal.App.3d 257,
263-264.)

            2. Failure to instruct on preoffense statements
     Defendant contends the court erred by not instructing on its own motion with
CALJIC No. 2.71.7, which would have directed the jury to view with caution the
evidence of his preoffense statements of intent, plan, motive, or design.29 He

29    CALJIC No. 2.71.7 states, “Evidence has been received from which you
may find that an oral statement of [intent] [plan] [motive] [design] was made by
                                                            (footnote continued on next page)


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asserts the instruction was warranted by the testimony of numerous witnesses. For
example, Laurie‟s sister testified that defendant asked her and Laurie whether they
were virgins and suggested they consider an older, more experienced boyfriend
like him. Defendant‟s friend testified that six months before the crimes, when he
warned defendant to stay away from Laurie, defendant remarked, “I know she
wants me.”
      Defendant is correct that CALJIC No. 2.71.7 must be given when supported
by the evidence. (People v. Zambrano (2007) 41 Cal.4th 1082, 1157; People v.
Lang (1989) 49 Cal.3d 991, 1021.) Here, the above cited statements appear to be
the type of evidence of intent and motive that, when admitted, triggers a court‟s
duty to instruct. But even if the court erred by not giving CALJIC No. 2.71.7 on
its own motion, any error was harmless. The record reveals that the court did
instruct with CALJIC No. 2.71, which directed the jury to view with caution any
statement by defendant that was offered to establish his guilt.30 We have long
recognized that this cautionary instruction is sufficiently broad to cover all of a

(footnote continued from previous page)

the defendant before the offense with which [he] [she] is charged was committed.
[¶] It is for you to decide whether the statement was made by [a] [the] defendant.
[¶] Evidence of an oral statement ought to be viewed with caution.”
30     The jury was instructed, “An admission is a statement made by the
defendant other than at his trial which does not by itself acknowledge his guilt of
the crimes for which such defendant is on trial, but which statement tends to prove
his guilt when considered with the rest of the evidence. [¶] You are the exclusive
judges as to whether the defendant made an admission, and if so, whether such
statement is true in whole or in part. If you should find that the defendant did not
make the statement, you must reject it. If you find that it is true in whole or in
part, you may consider that part which you find to be true. [¶] Evidence of an oral
admission of the defendant should be viewed with caution.” (See CALJIC
No. 2.71.)




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defendant‟s out-of-court statements. (People v. Zambrano, supra, at p. 1157;
People v. Lang, supra, at p. 1021.) Defendant fails to show prejudice.

           3. Adequacy of definition of “sexual intercourse”
     In connection with the charge of attempted rape and the rape-murder special-
circumstance allegation, the court provided the definition of rape based on
CALJIC No. 10.00, which refers to an act of sexual intercourse with a female who
is not the wife of the defendant. The jury thus was instructed in relevant part that
“[a]ny sexual penetration, however slight, constitutes engaging in an act of sexual
intercourse. Proof of ejaculation is not required.”
     Defendant contends the standard instruction fails to provide an adequate
definition of rape in violation of state law and his due process right to trial on all
elements of the charged crime and allegation. Specifically, he asserts the jury
should have been informed that the term “sexual intercourse” refers only to
vaginal intercourse, that is to “penetration, however slight, of the victim‟s vagina
by the defendant‟s penis.”31
     As defendant acknowledges, we have rejected the identical claim that the
standard instruction is inadequate because it fails to more fully define “sexual
intercourse.” (People v. Holt, supra, 15 Cal.4th at p. 676; see also People v.
Stitely, supra, 35 Cal.4th at pp. 554-555; People v. Geier (2007) 41 Cal.4th 555,

31      The Attorney General argues that defendant has forfeited his claim of error
because he neither objected to, nor sought modification of, CALJIC No. 10.00 in
the trial court. We will address his claim despite the apparent forfeiture. (§ 1259
[an appellate court may review an instruction, even in the absence of an objection
below, if the defendant‟s substantial rights were affected]; People v. Rundle,
supra, 43 Cal.4th at pp. 151-152 [concluding that the defendant‟s failure to request
further definition of the term “sexual intercourse” forfeited his claim on appeal
challenging the adequacy of CALJIC No. 10.00, but reaching the merits of the
claim nonetheless].)




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593.) Defendant argues that Holt was wrongly decided, but presents no new
arguments calling into question our previous holding. We therefore decline to
revisit the issue. Defendant also attempts to distinguish the present matter from
Holt on the ground that his case involved “just attempted rape.” But he fails to
explain why this distinction requires a different conclusion. Although the attempt
charge required proof of intent to rape, whether the charged crime is rape or
attempted rape, the term “sexual intercourse” is commonly understood as vaginal
penetration and needs no elaboration. (People v. Holt, supra, at p. 676.) Nothing
in the record supports defendant‟s further assertion that, without additional
instruction, the jury would have convicted him of attempted rape based on
evidence he intended only to put Laurie‟s breast in his mouth or penetrate any
orifice with his finger. (Cf. People v. Stitely, supra, 35 Cal.4th at pp. 554-555
[rejecting the defendant‟s argument that absent a definition of sexual intercourse
the jury would have used evidence of anal penetration to convict him of rape-
murder].) The court did not err in failing to further define “sexual intercourse.”

       H. Comment on Defendant’s Postarrest Silence
     Defendant asserts the trial court erred in refusing to grant a mistrial after the
prosecutor elicited improper testimony that used defendant‟s invocation of the
right to remain silent against him. We disagree.
     Officer John Souza testified that when he and his partner interviewed
defendant after his arrest, they informed him that they were conducting an
investigation involving Laurie and Angie. Defendant indicated he knew the girls.
He was then advised pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and
invoked his rights. Souza testified further that he then informed defendant he was
under arrest for murder and attempted murder. The prosecutor asked Souza
whether he noticed any change in defendant‟s demeanor after being advised of the



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charges. Souza replied, “There was no reaction and no inquiry who he allegedly
murdered.”
     As respondent concedes and the trial court found when defense counsel
moved for mistrial, the officer‟s testimony that defendant failed to react to
accusations of murder and attempted murder was an improper reference to
defendant‟s invocation of his right to silence. Under Doyle v. Ohio (1976) 426
U.S. 610, a prosecutor is prohibited from using a defendant‟s postarrest silence
following Miranda warnings to impeach his testimony at trial. (Doyle, at pp. 617-
618.) The basis of the rule is that “it is fundamentally unfair, and a deprivation of
due process, to promise an arrested person that his silence will not be used against
him, and then to breach that promise by using silence to impeach his trial
testimony.” (People v. Hughes (2002) 27 Cal.4th 287, 332.) Applying that
rationale, we have concluded that Doyle also prohibits a prosecutor from using a
defendant‟s silence against him during direct examination of an interrogating
officer, before the defendant testifies in his own behalf. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 118; see also United States v. Elkins (1st Cir. 1985)
774 F.2d 530, 538 [officer‟s testimony that the defendants expressed no surprise
when they were placed under arrest and read their Miranda rights was improper
comment on their right to remain silent].)
     Testimony that a defendant has invoked his or her right to silence during an
interrogation typically poses the risk that the jury will infer the defendant‟s guilt
from such evidence. (People v. Lucero (2000) 23 Cal.4th 692, 714.) Here,
however, there was little risk the jurors would draw that impermissible inference
because before Officer Souza resumed his testimony, the court admonished them
as follows: “[Y]ou may recall that Detective Souza had responded that . . . when
[defendant] was advised of the charges involved, not the name of the victims but
the charges involved, there was no verbal . . . response by him, the inference being

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that maybe there should have been had you not already known, right? [¶] And I
want to say to you that that evidence of no verbal response is . . . now stricken by
the Court, and that any such inference such as the one I mentioned is not to be
made. In other words, his silence is appropriate at that point.”
     The United States Supreme Court has explained that a Doyle violation does
not occur unless the prosecutor is permitted to use a defendant‟s postarrest silence
against him at trial, and an objection and appropriate instruction to the jury
ordinarily ensures that the defendant‟s silence will not be used for an
impermissible purpose. (Greer v. Miller (1987) 483 U.S. 756, 764-765.) The trial
court did not abuse its discretion when it determined that any potential prejudice
from Officer Souza‟s testimony would be cured by its prompt admonition to the
jury to disregard the stricken evidence and the inferences adverse to defendant that
could be drawn from it. The court thus did not err in denying defendant‟s motion
for mistrial. (See People v. Lucero, supra, 23 Cal.4th at pp. 713-714 [trial court
did not abuse its discretion by concluding the prejudicial effect arising from the
officer‟s testimony could be cured by directing the jury to disregard it].)

       I. Asserted Prosecutorial Misconduct
     Defendant contends the prosecutor committed reversible misconduct during
closing argument by mounting an improper attack on the integrity of defense
counsel and the defense witnesses.
     As a preliminary matter, we agree with respondent that defendant has
forfeited his claim of prosecutorial misconduct. To preserve such a claim for
appeal, “a criminal defendant must make a timely and specific objection and ask
the trial court to admonish the jury to disregard the impropriety. [Citations.]”
(People v. Cole (2004) 33 Cal.4th 1158, 1201.) The failure to timely object and
request an admonition will be excused if doing either would have been futile, or if



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an admonition would not have cured the harm. (Ibid.; People v. Hill (1998)
17 Cal.4th 800, 820.) Defendant acknowledges that no objection was made but
argues the omission should be excused as futile and because an objection ran the
risk of antagonizing the jury. We are not persuaded. Contrary to defendant‟s
assertion, this is not a case like People v. Hill, supra, at page 821, in which we
excused counsel‟s failure to continually object to the numerous instances of
prosecutorial misconduct. Under the unusual circumstances presented there, we
concluded that were counsel to continue to object, he risked further provoking the
court‟s wrath over “meritless objections,” which would have been
“counterproductive to his client.” In contrast, here, at the time of the complained-
of remark, counsel had not yet interjected a single objection to the prosecutor‟s
closing argument. Although defendant asserts the court intimated during other
portions of the trial that the defense was making frivolous motions, the two
instances cited would not have suggested to the jury that the defense was being
obstructionistic and they do not excuse defendant from the requirement that he
object to the prosecutor‟s asserted misconduct to preserve his claim for appeal.
     Even were we to conclude defendant‟s claim was properly before us,
however, it fails on the merits. “A prosecutor‟s misconduct violates the
Fourteenth Amendment to the United States Constitution when it „infects the trial
with such unfairness as to make the conviction a denial of due process.‟
[Citations.] In other words, the misconduct must be „of sufficient significance to
result in the denial of the defendant‟s right to a fair trial.‟ [Citation.] A
prosecutor‟s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves „the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.‟
[Citations.]” (People v. Cole, supra, 33 Cal.4th at p. 1202; accord, People v.
Redd, supra, 48 Cal.4th at pp. 733-734.)

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     The complained-of remarks occurred during the prosecutor‟s discussion of
the defense evidence of unconsciousness and mental defect. The prosecutor
argued to the jury that the question was not whether defendant suffered from brain
dysfunction or seizures but rather what was in his mind at the time of the crimes.
He then stated, “As you were jurors in this case you saw that the case went on for
some time with two lawyers representing the defendant, and then as the case
progressed there was a third lawyer. And I‟d submit to you that there may be a
dramatic effect from your seeing that there‟s a third lawyer that enters the trial
what might seem to you to be at the last minute and bringing with him three
witnesses who say that they can see the truth about the defendant where no one
else has ever been able to see it before.” Later, in concluding this line of
argument, the prosecutor appealed to the jury, “So please, don‟t get the impression
what they‟ve been urging at you was sort of like a dramatic 11th hour discovery.
Really what it is, I‟d submit to you, [is] an 11th hour packaging of a not
uncommon defense by doctors from out of town which are what the defendant had
been asking for.”
     Contrary to defendant‟s assertion, the quoted language did not amount to a
due process violation. (Cf. People v. Stewart, supra, 33 Cal.4th at p. 503 [that the
prosecutor occasionally disdainfully glared at the defendant did not establish a
pattern of egregious conduct that rendered the defendant‟s trial fundamentally
unfair].)
     Nor are we persuaded that the prosecutor committed misconduct under state
law. A prosecutor is not permitted to make false or unsubstantiated accusations
that counsel is fabricating a defense or deceiving the jury. (People v. Bemore
(2000) 22 Cal.4th 809, 846.) However, an “argumentative reminder” that defense
counsel selected expert witnesses whose opinions were favorable to the
defendant‟s case is not an insinuation of deceit. (People v. Arias (1996)

                                         129
13 Cal.4th 92, 182.) Defendant asserts that the “unmistakable import” of the
challenged remarks was “to imply that the defense had at the last minute procured
a third attorney to manufacture a fraudulent mental health defense using doctors
from out of town because the attorneys from the public defender‟s office had been
unable, or perhaps unwilling, to produce local expert witnesses willing to bend the
truth.” Contrary to defendant‟s interpretation, the prosecutor‟s argument did not
imply counsel had “hoodwinked” the jury by procuring the favorable opinions of
three expert witnesses. (People v. Parson (2008) 44 Cal.4th 332, 363 [the
prosecutor did not impugn defense counsel‟s integrity by commenting on their
hiring of a defense mental health expert who gave “offhanded, glib opinions”
about the defendant‟s mental defects].) The thrust of the prosecutor‟s argument
was to dissuade the jury from being dazzled or impressed by the “dramatic”
midtrial arrival of a third defense attorney and the results of his recently retained
expert witnesses. We conclude the complained-of remarks were little more than a
reminder to the jury to consider the substance of the experts‟ testimony rather than
the spectacle surrounding its presentation, and thus amounted to fair comment on
the defense mental-state evidence. (People v. Stanley (2006) 39 Cal.4th 913, 951-
952 [a prosecutor‟s argument may be vigorous so long as it constitutes “fair
comment on the evidence”].)
     As for defendant‟s assertion that the prosecutor‟s remarks were an improper
personal attack on the integrity of the defense experts, our decisions make clear
that “harsh and colorful attacks on the credibility of opposing witnesses are
permissible. [Citations.]” (People v. Arias, supra, 13 Cal.4th at p. 162
[prosecutor‟s argument that the defense expert “stretched” a principle “for a buck”
was a permissible comment suggesting a paid witness may be biased]; People v.
Cook (2006) 39 Cal.4th 566, 613 [applying similar reasoning to reject the assertion
that the prosecutor‟s comment on fees paid to an expert witness who “ „comes up

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with something that excuses this man‟s responsibility‟ ” improperly implied that
the witness gave false evidence for a fee].) No misconduct appears on this record.

       J. Sanity Phase Claims

            1. Allowing defendant to enter insanity plea against counsel’s advice
     Defendant asserts the court erred in allowing him to plead not guilty by
reason of insanity over defense counsel‟s objection. We disagree and find to the
contrary that the court properly permitted defendant to enter a plea
notwithstanding defense counsel‟s advice not to do so.

                a. Background
     At a pretrial hearing in May 1993, approximately three months before the
guilt phase commenced, defense counsel informed the court that defendant desired
to add a plea of not guilty by reason of insanity (NGI) to his existing plea of not
guilty. Counsel acknowledged that she had advised him against it.
     The following month, in June 1993, the court conducted an in camera hearing
concerning defendant‟s request to plead NGI. Counsel reiterated her view that an
NGI plea was contrary to defendant‟s best interests and reported that the defense
had no evidence to present at a sanity hearing. The court noted counsel‟s
assessment that there was no basis for such a plea, and remarked that defendant
“appears to be pretty normal.” Nonetheless, after advising defendant of the
consequences of an NGI plea and ascertaining his wishes, the court permitted him
to enter such a plea. Defendant clarified, “I‟m not saying I‟m insane now, I‟m
talking about as far as the time of the crime . . . .”

                b. Discussion
     With certain exceptions not relevant here, section 1018 provides that “every
plea shall be entered or withdrawn by the defendant himself or herself in open
court.” The statute codifies the general rule requiring courts and counsel “ „to


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respect the defendant‟s personal choice on the most “fundamental” decisions in a
criminal case.‟ ” (People v. Bloom (1989) 48 Cal.3d 1194, 1221.) This court has
recognized that the decision to enter or withdraw a plea of not guilty by reason of
insanity is one for the defendant, not counsel, to make even if doing so may be
tactically unwise. People v. Gauze (1975) 15 Cal.3d 709, held that neither the
court nor counsel may override a defendant‟s decision to plead not guilty by
reason of insanity when such a decision is made freely and voluntarily and with
knowledge of the consequences. (Id. at pp. 717-1718.) Similarly, People v.
Medina, supra, 51 Cal.3d 870, held that a defendant cannot be compelled by
counsel to forego such a plea because counsel opposes it on tactical grounds.
(Id. at p. 900; see also People v. Henning (2009) 178 Cal.App.4th 388, 396-398
[the court erred in refusing to allow the defendant to plead NGI over defense
counsel‟s objection]; People v. Clemons (2008) 160 Cal.App.4th 1243, 1251-1253
[same].)
     In the present case, defendant was advised repeatedly by counsel and the
court regarding the adverse consequences of pleading NGI but he unequivocally
expressed his desire to pursue such a plea nonetheless. Further, as the court
observed, defendant “appear[ed] to be pretty normal” and he articulated a proper
understanding of the sanity issue when he clarified he was claiming insanity “as
far as the time of the crime,” and not that he was presently insane.32 The record

32     To establish the defense of NGI, a defendant must prove “by a
preponderance of the evidence that he or she was incapable of knowing or
understanding the nature and quality of his or her act and of distinguishing right
from wrong at the time of the commission of the offense.” (§ 25, subd. (b);
People v. Lawley (2002) 27 Cal.4th 102, 170 [“Despite the use of the conjunctive
„and‟ instead of M’Naghten’s disjunctive „or,‟ this court has interpreted the statute
as recognizing two distinct and independent bases on which a verdict of [NGI]
might be returned”].)




                                        132
demonstrates that defendant freely, voluntarily, and with knowledge of its
consequences chose to enter a plea of NGI despite counsel‟s disagreement. The
court did not err in permitting him to do so.
     Defendant acknowledges the decisions in Gauze and Medina. He argues,
however, that his case falls outside the general rule because at the time he was
allowed to plead NGI, there was no evidence supporting such a defense. As
defendant points out, counsel informed the court that none of the defense experts
who had examined him concluded he had a viable insanity defense. Defendant
urges this court to hold that a defendant has no fundamental right to plead NGI
when there is no credible evidence supporting such a plea, relying upon People v.
Frierson (1985) 39 Cal.3d 803, which left open the question “whether a defendant
has a constitutional right to insist on the presentation of a defense which has no
credible evidentiary support . . . .” (Id. at p. 815, fn. 3.)
     We need not decide this issue because we disagree with defendant that such
evidence was lacking in his case. Although counsel represented to the court that
none of the defense experts found defendant had a viable sanity defense, she also
acknowledged that all but one of them evaluated defendant for a purpose other
than his sanity at the time of the crimes. Further, in support of evidence for such a
plea, the reports of the defense experts undoubtedly cataloged defendant‟s history
of numerous admissions to psychiatric facilities as well as his claimed loss of
memory of the events surrounding the crimes. In People v. Clemons, supra, 160
Cal.App.4th 1243, the Court of Appeal articulated similar reasoning in rejecting
respondent‟s argument that counsel need not have acquiesced to the defendant‟s
request to plead NGI because there was assertedly no evidence supporting such a
plea. (Id. at pp. 1252-1253.) On this record, notwithstanding counsel‟s
representation at the time defendant wished to plead NGI, as in Clemons, we are



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“not convinced that the NGI defense was necessarily a „futile line of defense‟ ”
(id. at p. 1253) lacking supportive evidence.

           2. Denial of motions to impanel a new jury and to question jurors
               about exposure to media coverage
     Defendant argues that the sanity and penalty verdicts cannot stand because
the court erroneously denied defense motions to impanel a new jury to decide the
issues of sanity and penalty or, alternately, to question the jurors regarding their
possible exposure to “inflammatory media coverage” during the guilt phase. As
we shall explain, the court‟s rulings were proper.
     The record discloses the following relevant facts. The jury announced its
guilty verdicts on January 4, 1994. After ordering the verdicts entered by the
clerk, the court directed the jurors to return to court the following week for trial on
defendant‟s plea of not guilty by reason of insanity. Before adjourning, the court
admonished the jurors not to discuss the matter among themselves or anyone else
or to form or express any opinion. It then instructed, “There will be probably a
fair amount of publicity concerning your verdicts. I will specifically order you not
to read anything about this case in the newspaper. If you‟re watching your
favorite news program at night and this matter comes on, I just ask you to leave
the room during that particular time. No doubt there will be some commenting
about the case and that‟s really not for your ears at this time, please.”
     Three days later, on January 7, 1994, defense counsel expressed to the court
her grave doubts that defendant could receive a fair trial in the sanity and penalty
phases. According to counsel, it “was the worst time in the world for a case like
this to be tried” because of the near-daily barrage of newspaper articles on the
Polly Klaas and Kimber Reynolds murders and coverage of the statewide and local
efforts to enact the “Three Strikes” sentencing law. Counsel moved the court to
impanel a new jury “that hasn‟t been biased and prejudiced by the unfortunate


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incident to Polly Klaas, for one thing.” In counsel‟s view, if the jurors were
questioned that day “there would be a significant number of them . . . who have
decided what the penalty is without hearing the evidence, because it‟s a sign of the
times and the climate . . . .” In support of the motion for a new jury, counsel
lodged with the court four then-recent newspaper articles from the Fresno Bee. 33
One was a lengthy article published the same day as the verdicts, headlined, “The
Killers,” which reported on Fresno‟s record homicide rate. Another was an article
covering the verdicts in defendant‟s case, which included a photograph of Laurie‟s
mother and aunt celebrating the verdicts by dancing at her gravesite.
     The court denied the motion. It empathized with counsel‟s concern about
some of the publicity generated by defendant‟s case, characterizing as “macabre”
the media coverage of family members dancing at the victim‟s gravesite. But the
court discerned no evidence suggesting the jurors could not be fair and impartial
with regard to the remaining issues in the case or that they were influenced by the
anticrime climate.
     Counsel then requested, in the alternative, that the court “poll” the jurors “to
see if anyone has already decided what the verdict is going to be in the other two



33     One of the articles lodged by the defense reported that the fathers of three
young murder victims had been in Sacramento the previous day to push for a
variety of anticrime measures. The report mentioned that Marc Klaas‟s 12-year-
old daughter Polly was “kidnapped and murdered three months ago by a paroled
felon” and that Kimber Reynolds, the 18-year old daughter of Mike Reynolds,
“was slain by a paroled felon in June 1992 as she was coming out of a Fresno
restaurant.” (Anti-Crime Measures Dominate Capitol, Fresno Bee (Jan. 5, 1994)
p. A1, cols. 2-3.) The three other newspaper articles marked for identification as
defense exhibit No. 1 were The Killers, Fresno Bee (Jan. 4, 1994) pages A1, A6-
A7; Clark guilty of murdering girl, 14, Fresno Bee (Jan. 5, 1994) pages B1, B3;
and 3-strikes a step closer to June vote, Fresno Bee (Jan. 7, 1994) page A1.




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phases.” The court denied that motion as well, finding no reason to question the
jury again on that subject.
     As a preliminary matter, we disagree with respondent that defendant‟s
challenge to the court‟s refusal to question the jurors is not preserved for appeal.
The defense moved for a new jury to decide sanity and penalty on the ground that
defendant could not receive a fair trial given the media-fueled anticrime climate
that pervaded the community during the guilt phase. After the court denied that
motion, counsel immediately asked the court to question the jurors to determine
whether they had predetermined views on sanity and penalty. Counsel described
the requested inquiry as whether “anyone has already decided” the penalty verdict.
But there can be no question that counsel‟s doubts regarding the jury‟s impartiality
arose from the same concerns underlying the motion for a new jury, that is, the
possibility that the jury had been influenced by frequent media accounts of murder
cases that bore similarities to defendant‟s case and coverage of the push for
passage of Three Strikes. On this record, we conclude the court understood that
the defense motion to question the jurors included a request to inquire into their
exposure to such coverage. (People v. Scott (1978) 21 Cal.3d 284, 290 [“In a
criminal case, the objection will be deemed preserved if, despite inadequate
phrasing, the record shows that the court understood the issue presented”].)
     Although defendant‟s claims are properly before us, they fail on the merits.
Section 190.2, subdivision (c), provides that, absent good cause, the same jury
decides guilt and penalty at a capital trial. “ „Good cause to discharge the guilt
phase jury and to impanel a new one must be based on facts that appear “ „ “in the
record as a demonstrable reality,” ‟ ” showing the jury‟s “ „ “inability to
perform” ‟ ” its function.‟ [Citations.]” (People v. Prince (2007) 40 Cal.4th 1179,
1281; accord, People v. Bennett (2009) 45 Cal.4th 577, 599.) The same good
cause showing is required for reopening voir dire of seated jurors. (People v.

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Bradford (1997) 15 Cal.4th 1229, 1354.) “Mere speculation” does not establish
good cause to reopen voir dire or impanel a new jury. (Ibid.; People v. Hart
(1999) 20 Cal.4th 546, 639; People v. Fauber (1992) 2 Cal.4th 792, 846 [“Voir
dire is not to be reopened on speculation that good cause to impanel a new jury
may thereby be discovered; rather, a showing of good cause is a prerequisite to
reopening”].) On appeal, we review for abuse of discretion a trial court‟s decision
not to impanel a second jury or to reopen voir dire of seated jurors. (People v.
Bradford, supra, at p. 1353.)
     This court has considered and rejected similar challenges to a trial judge‟s
refusal to impanel a new jury or question jurors about midtrial exposure to
newspaper articles. Our decision in People v. Gates (1987) 43 Cal.3d 1168
(Gates), is particularly instructive. In Gates, as here, the defense moved for a new
jury after the jury rendered its guilt phase verdicts. When the court denied that
motion, the defense asked that it reopen voir dire. In support of both motions,
counsel argued that during the guilt phase there had been prejudicial publicity
relating to other crimes and criticism of the criminal justice system generally. (Id.
at p. 1198.) We concluded that the court had no duty to question the jurors
because the publicity at issue presented no cause for concern and the defendant‟s
attempt to show otherwise was entirely speculative. (Id. at p. 1199; see also
People v. Marshall (1996) 13 Cal.4th 799, 864 [the court did not err in failing to
question jurors about their possible exposure to an article about the case that
appeared after the guilt phase verdicts when, but for defense counsel‟s
supposition, nothing in the record indicated any juror read the article]; People v.
Lanphear (1980) 26 Cal.3d 814, 835-836 [absent evidence that any juror failed to
heed the court‟s directives not to read newspapers, there was no error in the
court‟s refusal to question jurors about their possible exposure to a midtrial article
on the case].) Likewise here, the defense request to impanel a new jury or

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question the jurors regarding adverse midtrial publicity was based on pure
speculation. There was no showing of good cause.
     Defendant argues that Gates is distinguishable because he asked to “poll” the
jurors, not to “re-voir dire” them. (Gates, supra, 43 Cal.3d at pp. 1198-1199.)
Specifically, counsel requested that the jurors be “polled” for the limited purpose
of determining whether any of them had become prejudiced by the midtrial media
coverage of other murder cases, the push for the Three Strikes sentencing law, and
the postverdict article about defendant‟s case. We see no distinction between the
two requests. Regardless of terminology, counsel‟s purpose in each case was the
same—to show that, due to media exposure, the guilt phase jurors were no longer
impartial and unbiased and thus could not fairly decide penalty. (See also People
v. Hart, supra, 20 Cal.4th at pp. 639-640.) In Gates, as here, counsel‟s showing
was “entirely speculative” and thus failed to establish good cause. (Gates, supra,
at p. 1199.) Contrary to defendant‟s assertion, the present case is indistinguishable
from Gates and warrants a similar outcome.
     Defendant further argues that under the analytical framework used in the
federal appellate courts, the trial court had an affirmative duty to question jurors to
determine whether they had been exposed to adverse midtrial publicity. This court
is not bound by decisions of the lower federal courts. (People v. Gray, supra, 37
Cal.4th at p. 226.) Even were we inclined to adopt their approach, however, we
conclude it does not assist defendant. The decision in United States v. Aragon (5th
Cir. 1992) 962 F.2d 439 is illustrative. Aragon explains that the determination
whether voir dire is required due to midtrial publicity raising “ „serious questions
of possible prejudice‟ ” is a two-part inquiry focusing on (1) the nature of the news
material and (2) the probability that the material has in fact reached the jury. (Id.
at p. 443, see also id. at pp. 443-444.) The court of appeals found the news
material in that case inherently prejudicial because it referred to the defendant‟s

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prior convictions and his connection to a notorious crime family, information that
was not part of the evidence presented at trial. (Id. at pp. 444-445.) In the present
case, by contrast, the news coverage referred to by counsel that prompted the
defense request for jury questioning did not contain anything innately prejudicial
to defendant. Indeed, the only news item that concerned defendant in any respect
was the article reporting that the victim‟s family members danced at her gravesite
after the guilty verdicts. (See United States v. Crowell (4th Cir. 1978) 586 F.2d
1020, 1024 [prejudicial publicity is information about the defendant that would not
be admissible at trial or was not in fact adduced at trial].) Because the
complained-of media coverage disclosed no information concerning defendant that
had not been adduced at trial, none of the federal decisions he cites advances his
argument that the court erred by refusing to inquire into possible prejudice. (See,
e.g., Mares v. United States (10th Cir. 1967) 383 F.2d 805, 807-808 [midtrial
article concerning a confession that had been excluded from trial]; United States v.
Thompson (10th Cir. 1990) 908 F.2d 648, 649 [midtrial news report concerning
the defendant‟s previous agreement to plead guilty]; Silverthorne v. United States
(9th Cir. 1968) 400 F.2d 627, 641-642 [midtrial news article declaring the
defendant‟s defense strategy a failure].)
     Defendant argues that the record establishes as a “demonstrable reality” that
the unrelenting, adverse midtrial publicity so tainted the jury that it no longer
could be fair. The record fails to support that assertion, however. As previously
discussed ante, in part II.G.1., the court‟s admonitions at the outset of the guilt
phase adequately conveyed to the jurors that they were not to read or be influenced
by media coverage. The court was even more explicit in this regard when




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admonishing the jury subsequent to its guilty verdicts.34 There is nothing in the
record to suggest that any juror disregarded the court‟s directive and no facts
establishing good cause to impanel a new jury or question the existing jurors.

           3. Refusal to conduct further inquiry and preserve evidence of possible
               juror misconduct
     Defendant contends the court erred by failing to make an adequate inquiry
into possible juror misconduct at the sanity phase, and by refusing to preserve
evidence of such misconduct, after learning from defense counsel that a juror
might have prejudged the sanity issue.
     The defense made its opening statement at the sanity phase first, followed by
brief opening remarks by the prosecution. A short recess followed. Just before
the jury was called back into the courtroom for the testimony of the first defense
witness, Dr. Berg, defense counsel alerted the court that a juror notebook had been
left open on a chair. When the court remarked that it hoped “no counsel is over
there trying to read it,” counsel assured the court that “no counsel has, but it came
to our attention something that‟s written in there [that] we want to bring up later.”
After the defense expert‟s testimony, and again outside the jury‟s presence,

34     We therefore find no merit to defendant‟s related claim that the sanity
verdict must be reversed because the court failed to comply adequately with the
statutory requirements of section 1122 prior to commencement of the sanity phase.
Defendant‟s claim is largely repetitive of his complaint concerning the adequacy
of the court‟s guilt phase admonitions regarding exposure to media coverage. We
concluded ante, in part II.G.1., that the court‟s admonitions sufficed. Defendant‟s
challenge to the adequacy of the court‟s sanity phase admonishments has even less
force. Given the court‟s explicit postguilt verdict directive to avoid articles and
broadcasts about the case, and in the absence of affirmative evidence to the
contrary, we reject as speculative and unfounded defendant‟s assertion that it was
“more likely than not that jurors understood the prohibition to apply to news
coverage and commentary regarding the verdicts, but not future media coverage of
other aspects of the case.”




                                         140
defense counsel indicated to the court that while walking in the courtroom after
opening remarks he had inadvertently observed a notation on the open page in
Juror S.S.‟s notebook assertedly showing that she had prejudged sanity.
According to counsel, the entry said something to the effect of “Was he aware of
his crimes?” and “Yes.” Pointing out that the notation was made before the
presentation of any sanity phase evidence, counsel requested the court examine the
notebook and, if necessary, question the juror. Counsel argued that the notation
underscored defense concerns that defendant could not receive a fair sanity and/or
penalty trial because of the pervasive anticrime climate that had arisen during the
guilt phase trial. In the court‟s view, deriving meaning from the alleged notation
was pure speculation. But it took the matter under submission so that the parties
could brief the issues.
     When the court revisited the matter the following morning, counsel added a
motion for mistrial to its earlier requests to preserve the notebook page and
question Juror S.S. Although the court found it had no duty of inquiry because the
showing of possible jury misconduct was unduly speculative, it decided to
question Juror S.S. nonetheless. The following exchange then occurred.
     The Court:      “With regard to this insanity phase, do you feel you have a
                     completely open mind on that and you‟ll listen to both sides
                     and decide based on the evidence?
     Juror S.S.:     “Yes.
     The Court:      “Okay. In other words, I just wanted to make sure. Do you
                     feel you would have — that your mind would be closed
                     because of something you‟ve already heard, in other words,
                     or do you feel when it comes to this phase you would have an
                     open mind?



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     Juror S.S.:    “Well, I think in trying not to think about it, like you said, not
                    to when I came back, in not thinking about it at home, which
                    you said not to think about it at home, so I didn‟t think about
                    it at home.
     The Court:     “Good.
     Juror S.S.:    “And when I came back in here and we have to start fresh, I
                    don‟t think it‟s a terribly easy thing to do to make a
                    separation. I think I‟ve had to make a conscious decision to
                    make it separate.
     The Court:     “Good for you. [¶] Right. And if we should get to the third
                    phase — and I‟m not saying we will because maybe this
                    phase will end it all. If we get to the third phase, I think you
                    would make that same conscious effort to have a totally open
                    mind. Is that correct?
     Juror S.S.:    “Uh-huh.
     The Court:     “Good. And so if you were seated, say, in a position of the
                    defendant here and all, you didn‟t want to win necessarily,
                    but you wanted a fair trial, would people of your state of mind
                    give him a fair trial?
     Juror S.S.:    “Yes.”


     After the questioning ended and Juror S.S. left the courtroom, counsel
expressed dissatisfaction with the inquiry and renewed the motion for mistrial.
The court denied the motion, finding “no reason whatsoever” to suspect that
defendant‟s jury was other than fair and impartial. It also denied the renewed
request to copy and preserve the relevant page of the juror‟s notebook. The court
indicated that it had assumed the accuracy of counsel‟s description of what he saw,

                                        142
but found counsel‟s understanding of its meaning “very speculative.” In the
court‟s view, the notation was “most probably” a summation of the prosecutor‟s
opening remarks.
     Defendant asserts he was denied his rights to a fair trial and an impartial jury
by the court‟s failure to more thoroughly question Juror S.S. before it denied the
defense motion for mistrial based on juror misconduct. We disagree, as explained
below. Assuming for argument that the circumstances presented here triggered a
duty of inquiry (People v. Hayes (1999) 21 Cal.4th 1211, 1255), we conclude that
the court‟s questioning was sufficient.
     A juror‟s prejudgment of the case without hearing the evidence constitutes
good cause to doubt his or her ability to perform the juror‟s duty and justifies
discharge from the jury. (§ 1089; People v. Avila (2006) 38 Cal.4th 491, 603;
People v. Nesler (1997) 16 Cal.4th 561, 583.) When a court has been put on
notice that there may be good cause to discharge a juror, it “must conduct a
sufficient inquiry to determine facts alleged as juror misconduct.” (People v.
Davis, supra, 10 Cal.4th at p. 547.) The trial judge is afforded broad discretion in
deciding whether and how to conduct an inquiry to determine whether a juror
should be discharged. (People v. Cleveland (2001) 25 Cal.4th 466, 442; People v.
Beeler (1995) 9 Cal.4th 953, 989.) Our assessment of the adequacy of a court‟s
inquiry into juror misconduct is deferential: We have long recognized that, except
when bias is apparent from the record, the trial judge is in the best position to
assess the juror‟s state of mind during questioning. (People v. McPeters, supra, 2
Cal.4th at p. 1175.) Given the court‟s firsthand observations of the juror‟s
responses to its questions and the highly speculative nature of counsel‟s assertion
that Juror S.S. may have prejudged the sanity issue, we conclude that the scope of
questioning into the possibility of juror misconduct in this case fell well within the
proper exercise of the court‟s discretion. No further inquiry was required.

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     Nor did the court err by refusing defense counsel‟s request to preserve the
page from Juror S.S.‟s notebook. Defendant likens the court‟s refusal to include
this document in the trial record to the improper destruction of material,
exculpatory evidence. (See California v. Trombetta (1984) 467 U.S. 479, 488-
489.) Assuming for argument‟s sake that the due process principles established in
Trombetta and its progeny are applicable here, they do not assist defendant. The
duty imposed on the state to preserve evidence is limited to evidence that is,
among other characteristics, “of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means.” (Id. at
p. 489.) Here, in denying the defense motion for mistrial based on juror
misconduct, the trial court indicated it had assumed the accuracy of what counsel
reported he had seen, that is, notations to the effect of “Was he aware of his
crimes?” and “Yes.” Defendant fails to explain why defense counsel’s report of
his observations, which the court accepted as an accurate reflection of the juror‟s
notation, was not comparable to the evidence of the page itself. The “destruction”
of the latter did not violate due process principles.35

           4. Comment on defendant’s refusal to submit to court-ordered mental
               examination
     Defendant contends the court erred when it granted the prosecution‟s post-
guilt phase request to allow its expert to evaluate him for purposes of sanity and
then permitted the expert to testify that he refused to submit to such an
examination. We concluded ante, in part II.E., that defendant had forfeited his


35      We have never had occasion to consider whether juror notes are
discoverable. This case does not require us to decide that question because the
trial court assumed the accuracy of counsel‟s observation of the notation. We
express no view on when, if ever, a juror‟s personal notes may be discoverable.




                                         144
claim of error by failing to object when the court ordered him to submit to mental
examination by three prosecution experts for purposes of guilt phase rebuttal and
by admitting testimony of defendant‟s refusal to be interviewed by one of the
experts, Dr. Missett. Similarly here, defendant has forfeited his claim by failing to
challenge the court‟s second order to submit to examination by Dr. Missett and the
expert‟s testimony below. But even were we to reach the merits of defendant‟s
claim and assume that error occurred under the reasoning of Verdin, supra, 43
Cal.4th 1096, we would conclude that these errors were harmless.
     In connection with defendant‟s entry of a plea of not guilty by reason of
insanity, the court appointed three mental health experts to examine him and
prepare reports. (§§ 1026, subd. (a), 1027, subd. (a).) Two of the appointed
experts, Mark Brooks, Ph.D., and Richard King, Ph.D., evaluated defendant.
Dr. Brooks testified for the prosecution at the sanity phase of the trial.
     After the guilt phase but prior to the start of the sanity phase of trial, the court
granted the prosecutor‟s request for an order allowing Dr. Missett to examine
defendant, which the prosecutor characterized as being “in the nature of a [section]
1026 examination.” Defense counsel informed the court that defendant did not
wish to be interviewed, which the court duly noted.
     The prosecutor announced during his brief opening statement to the jury in
the sanity phase that the evidence would show “again the defendant has refused to
be examined by Dr. Missett.” Dr. Missett confirmed during his testimony that he
requested an opportunity to personally examine defendant but was informed that
defendant refused to meet with him.
     The issue whether a court properly could order a defendant to submit to a
mental examination by a prosecution expert for use at the sanity phase as opposed
to the guilt phase of trial has not been decided by this court. (Verdin, supra, 43
Cal.4th at p. 1107, fn. 4 [leaving open the question whether a statutory basis for a

                                          145
court‟s mental examination order might exist in cases involving a plea of not
guilty by reason of insanity].)
     We need not address here this issue left open in Verdin, however. Here, the
record strongly suggests the prosecutor‟s motion for a court order requiring
defendant to submit to evaluation by Dr. Missett was not a request for appointment
of a third expert pursuant to section 1027. (See § 1027, subd. (a) [after entry of a
plea of not guilty by reason of insanity, the court must select and appoint two, and
may appoint three, qualified experts to examine the defendant and testify at the
sanity trial, if summoned].) Notably, the record shows that at the time of the
prosecutor‟s request, the court already had appointed three experts to examine
defendant, one of whom ultimately testified for the prosecution at the sanity trial.
Given the prosecutor‟s opening remarks to the jury, in which he emphasized that
“again the defendant has refused to be examined by Dr. Missett,” it can be
inferred that the postguilty verdict, presanity phase request at issue here was
simply a renewal of his earlier, guilt phase motion for a court-ordered mental
examination by prosecution experts. Although the prosecutor framed the request
for Dr. Missett to interview defendant “in the nature of a [section] 1026
examination,” that characterization is not controlling. The question we declined to
address in Verdin is not squarely presented here.
     Even assuming the court was not authorized to order defendant to submit to
mental examination by Dr. Missett and to permit Dr. Missett to testify at the sanity
phase concerning defendant‟s refusal to do so, these errors were harmless. As
with Dr. Missett‟s testimony at the guilt phase, nothing in the record affirmatively
indicates that he found any significance in defendant‟s refusal to submit to an
examination. In addition, Dr. Missett‟s testimony was essentially the same as that
of Dr. Brooks, the court-appointed expert who had examined defendant pursuant
to section 1027, subdivision (a). Both experts found no basis on which to

                                         146
conclude defendant was either unconscious or in a psychotic state at the time of
the crimes, and each expressed the opinion that defendant was aware of the nature
of his acts and appreciated the wrongfulness of his conduct. Indeed, because
Dr. Brooks was appointed by the court and had personally examined defendant,
his testimony arguably was much more damaging than that of Dr. Missett. On this
record, there is no reasonable probability that the outcome of the sanity phase
would have been more favorable to defendant had the court not granted the
prosecution‟s request for an order requiring defendant to submit to a mental
examination by Dr. Missett.

             5. Definition of “mental illness”
     During discussion concerning jury instructions at the sanity phase, defense
counsel requested that the court clarify the standard instruction on insanity by
instructing that “[t]he terms „mental disease‟ and „mental defect‟ include all
mental conditions which produce the requisite effects.” The court denied the
request, finding such clarification unnecessary. The jury was ultimately instructed
in relevant part that it “may consider evidence of [defendant‟s] mental condition
before, during and after the time of the commission of the crime as tending to
show the defendant‟s mental condition at the time the crime was committed. [¶]
Mental illness or mental abnormality, in whatever form either may appear, are not
necessarily the same as legal insanity. A person may be mentally ill or mentally
abnormal and yet not be legally insane. [¶] A person is legally insane when by
reason of mental disease or mental defect he was incapable of knowing or
understanding the nature and quality of . . . his acts, or incapable of distinguishing
right from wrong at the time of the commission of the crime.” (See CALJIC
No. 4.00.)




                                         147
     Defendant asserts that the court erred in refusing the special instruction
because absent such clarification the jury would not have understood that a
constellation of his mental problems, which included momentary rage, seizures,
memory blackouts, and brain dysfunction, could combine to produce temporary
insanity at the time of the killing. The omission was significant, he explains,
because a defendant with an “antisocial personality” is not entitled to an insanity
verdict if the only evidence of his mental illness is a series of criminal acts
comprising such a diagnosis. (People v. Fields (1983) 35 Cal.3d 329, 368-370.)
     Contrary to defendant‟s assertion, the instructions as a whole adequately
conveyed to the jury that a “mental illness” included conditions and acts other than
those establishing antisocial personality disorder. The instructions placed no
limitation on the definition of mental illness. Rather, the jury was told it “may
consider evidence of [defendant‟s] mental condition before, during and after the
time of the commission of the crime as tending to show the defendant‟s mental
condition at the time the crime was committed.” A reasonable juror would have
understood from this instruction that he or she could consider the totality of the
evidence presented by the defense expert, Dr. Berg, who described defendant‟s
head injury and resulting brain dysfunction and his history of rage reactions,
memory lapses, and seizures. We thus agree with the trial court that it was
unnecessary to further explain to the jury that mental illness includes “all mental
conditions” leading to a state of insanity. Although the court in People v. Medina,
supra, 51 Cal.3d 870, would have preferred an instruction that “ „mental illness‟
includes all mental conditions which produce the requisite effects” (id. at p. 901),
it did not require such clarifying language, at least when there has been no
showing of juror confusion. (See People v. Kelly (1992) 1 Cal.4th 495, 535-536
[the trial court had no duty to revise CALJIC No. 4.00 to expressly permit jurors



                                          148
to consider the combined effects of a mental disease and a mental defect in
determining sanity].)
     Relying on this court‟s decision in People v. Gurule (2002) 28 Cal.4th 557,
defendant further argues he was entitled to the requested instruction because it
pinpointed his theory of insanity. “A criminal defendant has the right to
instructions that pinpoint the theory of the defense case.” (Id. at p. 660.) The
court properly may refuse a proposed instruction, however, when the point is
covered in another instruction. (Ibid.) As explained above, the court‟s
instructions adequately informed the jury that it could consider the totality of
defendant‟s mental defects and disorders in deciding whether he was insane when
he committed the crimes. The requested instruction was unnecessary.

           6. “Irresistible impulse”
     Prior to the start of the sanity trial, defense counsel objected to several of the
proposed sanity phase instructions, including CALJIC No. 4.05 on “irresistible
impulse.” As given, CALJIC No. 4.05 explained, “If a person is legally sane, then
it is not a defense that he committed the act of which he is accused because of an
uncontrollable or irresistible impulse.” Counsel renewed the objection after the
presentation of the defense case, arguing that CALJIC No. 4.05 was unwarranted
because the defense expert testified explicitly that, at the time of the crimes,
defendant suffered not an irresistible impulse, but rather an uncontrollable rage
reaction that rendered him unable to know right from wrong. Counsel further
argued that the instruction was prejudicial because it would effectively remove the
defense theory of insanity. The court acknowledged that the instruction was not
favorable to the defense but found it justified by evidence from which it could be
inferred that defendant‟s rage reaction led to an irresistible impulse.




                                         149
     Defendant argues that the court erred in instructing with CALJIC No. 4.05.
Specifically, he asserts that, assuming some jurors would have understood the
defense expert‟s testimony to mean defendant was acting under an irresistible
impulse, the instruction effectively told them that such evidence was irrelevant to
the question of whether he understood the nature and quality of his acts or knew
right from wrong, and thus precluded a defense of insanity.
     We reject defendant‟s claim that the court erred in instructing on “irresistible
impulse.” CALJIC No. 4.05 reflects California‟s long-settled rule that an insanity
defense is unavailable to a defendant who “knows the nature of his act fully but is
unable to prevent it, . . . which is sometimes known as uncontrollable or
irresistible impulse.” (People v. Walter (1936) 7 Cal.2d 438, 440; see 1 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 18, pp. 349-350.) Notably,
the instruction is prefaced with the phrase, “[i]f a person is legally sane,” (CALJIC
No. 4.05, italics added) and it was given in conjunction with CALJIC No. 4.00,
which provided the definition of insanity. Contrary to defendant‟s assertion,
CALJIC No. 4.05 did not suggest to the jury that it should reject his insanity
defense on the ground of irresistible impulse even if it found that his
uncontrollable rage reaction led to unconsciousness and a partial seizure that
rendered him temporarily incapable of appreciating the nature of his acts or
distinguishing between right and wrong. By its terms, the irresistible impulse
instruction did not apply if the jury found defendant met the definition of insanity.
(See also People v. Coddington (2000) 23 Cal.4th 529, 603 [irresistible impulse
instruction would not have precluded jury from considering evidence suggesting
the defendant did not know his acts were wrong].)




                                         150
       K. Claims Arising During the Hiatus Between the Sanity and Penalty
          Phases

            1. Reassignment of lead counsel after resolution of conflict of interest
     Defendant contends the court erred in allowing Deputy Public Defender
O‟Neill to resume representation after having properly discharged the Fresno
County Public Defender for a conflict of interest. Specifically, he argues that the
declaration of a conflict, coupled with evidence in the record and the posture of
trial, were sufficient as a matter of law to establish that representation by the
public defender would compromise defendant‟s right to conflict-free counsel. To
succeed on such a claim, defendant must show the existence of an actual or
potential conflict “that adversely affected counsel‟s performance.” (People v.
Lawley, supra, 27 Cal.4th at p. 146; People v. Roldan, supra, 35 Cal.4th at p. 674.)
Because neither O‟Neill nor any other deputy public defender actively represented
defendant while the conflict was pending, defendant fails to show an actual
conflict of interest.
     The record discloses the following. On January 20, 1994, the jury returned
verdicts finding defendant sane at the time he committed the crimes. Thereafter,
the court conducted a hearing concerning the prosecution‟s notice of factors in
aggravation. (§ 190.3.) The prosecutor indicated he intended to present evidence
at the penalty phase that on October 15, 1992, while awaiting trial in this case,
defendant assaulted another inmate in the Fresno County Jail. O‟Neill
immediately informed the court that her office would declare a conflict of interest
if the victim of the assault, Anthony James Scott, were called to testify because
Martinez, defendant‟s other deputy public defender, had represented Scott in a
criminal matter that resulted in a conviction. The court determined that O‟Neill
and Martinez would have an actual conflict requiring their withdrawal from the
case if the prosecutor presented any evidence relating to the October 15


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altercation. At the court‟s urging, the prosecutor indicated he would not present
such evidence.
     Four days later, on January 24, 1994, the public defender formally declared a
conflict of interest. At a hearing attended by O‟Neill‟s supervising attorney,
Charles Dreiling, the court asked about the nature of the conflict, but Dreiling
declined to disclose any information. At the conclusion of the hearing, the court
held Dreiling in contempt for refusing to divulge the requested information. It
also discharged the deputy public defenders from the case and designated
independent counsel Kinney as lead counsel. Later that same day, the prosecutor
filed a written motion asking the court to reconsider its order discharging O‟Neill
and Martinez. The prosecutor argued that relieving the public defender as counsel
of record effectively mooted the contempt and conflict issues, and urged the court
to order the public defender‟s continued representation of defendant. The court
agreed and, with no objection by Kinney, reinstated the public defender as counsel
of record.
     The conflict of interest remained a live issue for the next two months. At a
court hearing on January 31, 1994, after Dreiling disclosed the reasons for the
declaration of a conflict, the court declined to vacate its order reinstating the
public defender, finding there was no conflict of interest because defendant had no
right to use such confidential information in his own behalf. The court ordered
Dreiling to direct O‟Neill and Martinez to resume active representation of
defendant, but Dreiling refused to do so. The court again held Dreiling in
contempt.
     The Fifth District Court of Appeal subsequently denied Dreiling‟s petitions
for writ of habeas corpus, concluding in relevant part that the court did not abuse
its discretion in finding that no conflict of interest existed on the record then
before it. (In re Dreiling (Mar. 21, 1994, F021011, F021025) [nonpub. opn.].)

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When the parties returned to court on March 25, 1994, the prosecutor confirmed
that he would not present any evidence regarding the October 15 jail incident, and
the court ruled that the defense could argue its penalty phase case as if the incident
had never occurred. A supervising attorney from the public defender‟s office
assured the court that, because a conflict no longer existed, O‟Neill would
“proceed forthwith to represent [defendant] in this matter.”
     Martinez resumed her role as cocounsel on April 15, 1994. At a hearing on
that date to determine a realistic trial date for the penalty phase, O‟Neill explained
that although she had been preparing for trial since resuming her representation of
defendant three weeks earlier, neither she nor Martinez had performed any work
on the case while the conflict of interest issue was pending.
     The record leaves no doubt that although the order relieving the public
defender as counsel of record was vacated on January 27, 1994, no deputy public
defender took any action on defendant‟s behalf until March 25, after the conflict of
interest had been resolved in the Court of Appeal and O‟Neill had resumed active
representation. Contrary to defendant‟s argument, the January 27 order reinstating
the public defender as counsel of record did not deprive him of his right to the
assistance of counsel unaffected by a conflict of interest. “[U]ntil a defendant
shows that his counsel actively represented conflicting interests, he has not
established the constitutional predicate for his claim of ineffective assistance.”
(Cuyler v. Sullivan, supra, 446 U.S. 335, 350, italics added.)

           2. Denial of requests for substitution of counsel and new jury
     During the hearing on March 25, 1994, after O‟Neill had resumed her role as
lead counsel in the case with Kinney as second counsel, defendant asked the court
for new attorneys and a new jury. At the Marsden hearing, defendant explained
that he felt his deputy public defenders had abandoned him. He also complained



                                         153
that Kinney could not provide effective assistance because he had joined the
defense team in the middle of the guilt phase, adding that the now two-month
recess required a new jury.
     After soliciting comment from Kinney, the court denied defendant‟s requests.
The court disagreed with defendant that the deputy public defenders had
abandoned him, explaining that attorneys have an obligation to declare a conflict if
they believe one exists. The court also found no basis for discharging Kinney,
noting that Kinney would be able to review complete transcripts of anything he
missed at the beginning of the guilt phase. As for the request for a new jury, the
court remarked that the conflict of interest issue had been resolved in the appellate
courts more expeditiously than expected and thus it found no prejudicial delay.
     We find no basis on which to conclude that the court abused its discretion in
refusing to replace defendant‟s attorneys. As the court correctly explained to
defendant, there was no abandonment. An attorney who has had an attorney-client
relationship with a witness against his or her present client is under an ethical
obligation to seek permission to withdraw from representation. (People v. Bonin
(1989) 47 Cal.3d 808, 835; Leversen v. Superior Court (1983) 34 Cal.3d 530, 536-
540.) Here, once that conflict was resolved, O‟Neill immediately resumed an
active role as lead counsel. On this record, the court properly found that counsel
had not abandoned defendant.
     The court likewise did not err in rejecting defendant‟s request to replace
Kinney on the ground that he was not present for the initial portion of the guilt
phase. Defendant points out that Kinney was absent during the testimony of the
first 29 prosecution witnesses and that he was merely a communications
facilitator, not cocounsel, during the testimony of 16 more witnesses. The record
shows, however, that during the guilt trial, when Kinney sought appointment as a
member of the defense team, he informed the court he had “read the whole trial

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transcript” and had followed all of Angie‟s testimony “in depth.” On this record,
the court reasonably could find Kinney‟s absence from the beginning of the guilt
phase did not justify his discharge. Defendant observes that when Kinney
objected to being appointed second counsel for the penalty phase, he argued that
his limited participation in the guilt trial rendered him “as useful as a potted
plant.” The remark does not support defendant‟s claim of error, however. The
record shows that Kinney‟s objection was based on concerns that his pending
commitments to other clients would require additional time for him to prepare for
his new role as second counsel. Those concerns were resolved the following
month when Martinez returned to the defense team.
     Defendant insists that the declaration of a conflict and the ensuing “two
months of legal bickering” caused him to lose confidence in his attorneys because,
by opposing the discharge of the public defender, Kinney took positions on issues
that were contrary to those advanced by his deputy public defenders. That
defendant “lost confidence” is not determinative, particularly because his loss of
confidence flowed from ignorance concerning the legal issues. Moreover, as
discussed ante, in part II.K.1., defendant‟s case did not proceed while the conflict
issue was being litigated. Defendant fails to explain how Kinney‟s opposition to
the short-lived absence of O‟Neill and Martinez led to an irreconcilable conflict or
otherwise impaired his right to counsel.
     Nor did the court abuse its discretion when it denied defendant‟s request for a
new jury because of the two-month delay in the proceedings.36 As explained more

36     To the extent defendant asserts the court should have ordered a new trial
based on an impermissible interruption in the continuity of representation that was
caused by his deputy public defender‟s two-month absence from the case, we
agree with respondent that his claim is not properly before us because no such
motion was presented to the trial court. (People v. Masotti (2008) 163
                                                            (footnote continued on next page)


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fully ante, in part II.J.2., the court may impanel a new jury only when there are
facts that appear “ „ “ „ “in the record as a demonstrable reality,” ‟ ” showing the
jury‟s “ „ “inability to perform” ‟ ” its function.‟ [Citations.]” (People v. Prince,
supra, 40 Cal.4th at p. 1281.) Defendant failed to make the requisite showing
below. Mere delay in commencing the penalty phase, without more, is an
insufficient basis for impaneling a new jury. (People v. Taylor (2001) 26 Cal.4th
1155, 1170.)

             3. The prosecutor’s failure to disclose evidence of its witness’s
                 misdemeanor welfare fraud conviction
      Before the penalty phase, Deputy Public Defender Martinez belatedly
discovered that the Fresno County Public Defender had represented one of the

(footnote continued from previous page)

Cal.App.4th 504, 508 [a court has no authority to grant a new trial on its own
motion.) The record shows that at the March 25, 1994, hearing, after O‟Neill had
resumed her role as lead counsel, Kinney advised the court that were he still lead
counsel he would have moved for mistrial and sought extraordinary relief in the
appellate courts based on the long delay in proceeding to the penalty phase and his
late entry into the case. When the court sought to clarify that Kinney was not
actually making such a motion, he acknowledged that as “second counsel,” he had
no right to move for mistrial but simply wanted to “protect” himself.
         We note that the defense did move for mistrial on May 25, 1994, on the
ground that defendant was incurably prejudiced by the long hiatus between the
sanity and penalty phases of trial. As to this motion, defendant argues the court
erred in denying mistrial because the now four-month delay amounted to an
“irreversible disruption in the structure of the trial process” and a “breakdown in a
relationship between the accused and his counsel frustrating the realization of a
fair trial.” (People v. Manson (1976) 61 Cal.App.3d 102, 201, 202.) Defendant
fails to explain why an additional two months of delay had now become
unacceptable. As discussed elsewhere in this opinion, length of the delay, without
more, does not establish incurable prejudice. We also reject as unsupported by the
record defendant‟s further argument that the delay created the risk that jurors
would be exposed to outside influences or suffer fading memories. (See
discussion, post, pt. II.L.4.)




                                          156
prosecution‟s guilt phase witnesses in a criminal matter that resulted in a
misdemeanor welfare fraud conviction. The court rejected Martinez‟s declaration
of a conflict of interest and denied a related motion for mistrial on the ground that
the prosecution had improperly failed to disclose this information before the guilt
trial. On appeal, defendant contends the prosecutor‟s failure to disclose its
witness‟s conviction violated his federal constitutional rights to due process and
confrontation, and that the court erred in finding no actual conflict of interest. We
disagree, as explained below.

               a. Background
     At a hearing on October 19, 1994, approximately one month before
commencement of the penalty trial, Martinez declared a second conflict of
interest, advising the court that she had recently discovered that the Fresno County
Public Defender previously represented Venus Farkas, mother of the murder
victim, in a welfare fraud case and complaining that the prosecutor had failed to
disclose to the defense that Mrs. Farkas had been convicted of misdemeanor
welfare fraud. The defense then filed a motion for mistrial, asserting that the
prosecutor actively concealed impeachment evidence from the defense.
According to the record of the hearing, on June 16, 1991, Mrs. Farkas was
arraigned on charges that she continued to accept welfare benefits for Laurie after
her death in January 1991. On July 17, Mrs. Farkas appeared in court represented
by a deputy public defender, pleaded guilty to a violation of Welfare and
Institutions Code sections 11483 and 10980, and was granted three years‟
probation. Mrs. Farkas testified as a prosecution witness in defendant‟s case on
October 12, 1993.
     The court conducted an evidentiary hearing on the mistrial motion.
Mrs. Farkas testified that she never discussed the welfare fraud conviction with the



                                         157
prosecutor and that, to her knowledge, he knew nothing about it until the present
time. Defense investigator David Schiavon testified, however, that in an interview
after the guilt verdicts, Mrs. Farkas told him and Martinez that when she discussed
her welfare fraud case with the prosecutor before defendant‟s preliminary hearing,
he assured her the matter would not be brought out in the proceedings in
defendant‟s case. Martinez stated that she would have corroborated Schiavon‟s
testimony had she been called to the witness stand. The prosecutor testified finally
that he first heard about the welfare fraud conviction when Mrs. Farkas called him
about her postverdict interview with Schiavon. Previously, he had found no
criminal record for Mrs. Farkas on the computerized system available to the
criminal division of his office, and he denied having access to documents
maintained by the division of the Fresno County District Attorney‟s Office that
handles welfare fraud.
      The court found no duty on the prosecutor‟s part to gather information from a
different division, and no willful suppression of evidence of Mrs. Farkas‟s
misdemeanor welfare fraud conviction either by the prosecutor or the district
attorney‟s office. It thus concluded there was no basis on which to grant a
mistrial. After hearing defense argument concerning the conflict of interest, it
further found that no conflict existed. As the court explained, in the event the
defense wanted to call Mrs. Farkas as a witness in the penalty phase in order to
impeach her with the misdemeanor conviction, Kinney could conduct an adequate
examination without involving Martinez. The defense did not call Mrs. Farkas to
testify.

                b. Discussion
      Defendant first argues that the prosecutor‟s failure to disclose Mrs. Farkas‟s
misdemeanor welfare fraud conviction prior to the guilt phase of trial violated his



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due process rights within the meaning of Brady v. Maryland (1963) 373 U.S. 83
(Brady).
     The due process clause requires a prosecutor to disclose to the defense all
substantial material evidence known to the prosecution team that is favorable to
the defendant, even in the absence of a request. (Kyles v. Whitley (1995) 514 U.S.
419, 432-441; Brady, supra, 373 U.S. at p. 87; In re Steele (2004) 32 Cal.4th 682,
696-697.) Evidence is “material” if there is a reasonable probability that the
outcome of trial would have been different had the evidence been disclosed to the
defense. (People v. Zambrano, supra, 41 Cal.4th at p. 1132.) Evidence is
“favorable” to the defense “if it helps the defense or hurts the prosecution.” (Ibid.)
The prosecution‟s duty to disclose thus extends to impeachment evidence. (Ibid.;
United States v. Bagley (1985) 473 U.S. 667, 682-683.)
     To the extent there is any question whether the welfare fraud unit in the
district attorney‟s office, which possessed the information regarding Mrs. Farkas‟s
conviction, is part of the prosecution team for Brady purposes, we need not decide
that issue. Although information regarding Mrs. Farkas‟s misdemeanor welfare
fraud conviction was favorable to defendant as impeachment evidence, it was not
material. Mrs. Farkas was not a primary prosecution witness. Moreover, her
testimony “was not the only evidence linking [defendant] to the crime[s].”
(People v. Salazar (2005) 35 Cal.4th 1031, 1050; see id. at pp. 1049-1052
[undisclosed impeachment evidence showing that one of the prosecution‟s experts
in the defendant‟s child-murder case had altered his opinion on the timing of the
child victim‟s death in another murder prosecution was not material for Brady
purposes because other expert witnesses supplied testimony equivalent to the
unimpeached testimony].) Mrs. Farkas testified about defendant‟s growing
interest in Laurie and his abrupt departure from the Farkases‟ home on the night of
the crimes after learning that Mr. Farkas had driven the girls to the movie theater.

                                         159
But this was not the only evidence establishing those points. For example, other
family members testified that defendant paid particular attention to Laurie in the
year before the crimes, and the surviving victim, Angie, testified that defendant
pulled up alongside her and Laurie in his car shortly after they had left the movie
theater to wait for the next showing. Given that other witnesses provided
testimony similar to that of Mrs. Farkas, and the strong evidence of defendant‟s
guilt, we conclude there is no reasonable probability that the outcome of trial
would have been different had the defense impeached Mrs. Farkas with her
misdemeanor welfare fraud conviction. The prosecutor‟s failure to disclose this
information to the defense did not violate defendant‟s right to due process.
     Defendant further contends the prosecution‟s nondisclosure of Mrs. Farkas‟s
conviction prior to the guilt phase, followed by the court‟s denial of the mistrial
motion, deprived him of his Sixth Amendment rights to compulsory process and
confrontation. Specifically, he asserts the prosecutor‟s failure to disclose the
evidence deprived the defense of an opportunity to impeach the credibility of a
significant prosecution witness. There is no support for the argument that those
Sixth Amendment rights are implicated here, however. As we have observed,
invocation of the confrontation or compulsory process clauses in a claim involving
pretrial discovery “is on weak footing” because it is unclear whether or to what
extent those constitutional guarantees grant pretrial discovery rights to a
defendant. (People v. Prince, supra, 40 Cal.4th at p. 1234, fn. 10; see generally
People v. Hammon (1997) 15 Cal.4th 1117, 1124-1127 [summarizing the high
court‟s divided views on the issue].) In Pennsylvania v. Ritchie (1987) 480
U.S. 39, the defendant unsuccessfully subpoenaed the confidential files of a child
protective services agency that had investigated reports of abuse by the
defendant‟s 13-year-old daughter, the alleged victim in the case. When the issue
reached the United States Supreme Court, the defendant argued as defendant does

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now that the Sixth Amendment‟s confrontation and compulsory process clauses
guaranteed him the right to pretrial discovery of information necessary for
effective cross-examination at trial. (Richie, supra, at p. 51.) Noting that the
applicability of Sixth Amendment principles to the prosecution‟s production of
exculpatory evidence was an unsettled question, the high court declined to address
that issue and decided the case “under the broader protections” of the due process
clause. (Ritchie, supra, at p. 56.) Likewise here, we have examined defendant‟s
claim of error under the “clear framework for review” provided by Brady and its
progeny (Ritchie, supra, at p. 56), and conclude that no constitutional violation
occurred. Defendant invites this court to recognize a Sixth Amendment violation
when a defendant is denied discovery that results in a significant impairment of his
ability to investigate and cross-examine a witness. “We do not, however, see an
adequate justification for taking such a long step in a direction the United States
Supreme Court has not gone.” (People v. Hammon, supra, 15 Cal.4th at p. 1127.)
     Defendant contends finally that a “prejudicial byproduct” of the prosecutor‟s
failure to disclose evidence of Mrs. Farkas‟s welfare fraud conviction was the
belated discovery of a conflict of interest based on the public defender‟s
representation of Mrs. Farkas in that matter. He contends the prior representation
amounted to an actual conflict that rendered the court‟s denial of his motion for
mistrial a violation of his Sixth Amendment right to conflict-free representation.
Because we conclude that the public defender‟s prior representation of
Mrs. Farkas created no actual or potential conflict that had any adverse effect on
counsel‟s performance, we reject defendant‟s contention.
     To succeed on a claim that the court erred in permitting representation by
counsel operating under a conflict of interest, defendant must show the existence
of an actual or potential conflict “that adversely affected counsel‟s performance.”
(People v. Lawley, supra, 27 Cal.4th at p. 146; People v. Roldan, supra, 35 Cal.4th

                                         161
at p. 674.) A conflict of interest may arise if counsel‟s former client is a
prosecution witness in the case against the defendant. (People v. Bonin, supra, 47
Cal.3d at p. 835; Leversen v. Superior Court, supra, 34 Cal.3d at pp. 536-540.)
This is because counsel‟s duty not to reveal confidential information acquired
during the attorney-client relationship creates conflicting obligations to multiple
clients that “effectively seal[s] his lips on crucial matters.” (Holloway v. Arkansas
(1977) 435 U.S. 475, 490.) As we recognized in People v. Cox (2003) 30 Cal.4th
916 at page 949, however, courts have held that no actual or potential conflict of
interest arises when the attorney does not possess such confidential information.
(See, e.g., People v. Lawley, supra, 27 Cal.4th at pp. 145-146; People v.
Belmontes (1988) 45 Cal.3d 744, 774-776.) Defendant attempts to distinguish
these decisions on the ground that counsel in those cases denied the existence of a
conflict whereas here, Martinez indicated she felt “personally conflicted.” That
Martinez declared a conflict is not dispositive of its existence, however. Although
the high court has endorsed the view that counsel “ „is in the best position
professionally and ethically to determine when a conflict of interest exists,‟ ” it
also has recognized that it is the trial court that determines whether counsel‟s
representations regarding a conflict of interest are adequate. (Holloway v.
Arkansas, supra, 435 U.S. at p. 485.) Here, Martinez affirmatively stated to the
court that she did not personally represent Mrs. Farkas, and nothing in the record
suggests she was in possession of information obtained during that attorney-client
relationship. There is no showing of an actual or potential conflict of interest.
(See Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566, 1581 [courts
should look to the totality of circumstances rather than presume that deputy public
defenders acquired confidential information about a witness collected by others in
their office].)



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     Nor does defendant establish that the prior representation of Mrs. Farkas by
the public defender‟s office adversely affected his counsel‟s performance. In
determining the effect of an asserted conflict of interest on counsel‟s performance,
we consider whether “ „the record shows that counsel “pulled [her] punches,” i.e.,
failed to represent defendant as vigorously as [she] might have had there been no
conflict.‟ [Citation.]” (People v. Rundle, supra, 43 Cal.4th at p. 169.) When, as
here, it is asserted that the conflict leads counsel not to act, we inquire whether
there may have been tactical reasons other than the conflict that would explain the
omission and whether the omitted action is one that likely would have been taken
by unconflicted counsel. (Id. at pp. 169-170; People v. Cox, supra, 30 Cal.4th at
p. 949.)
     Defendant argues Martinez “pulled her punches” by not testifying at the
hearing on the mistrial motion. We disagree. The defense investigator Schiavon
testified that Mrs. Farkas admitted to him and Martinez that she discussed the
welfare fraud conviction with the prosecutor before the guilt phase of trial. When
Kinney indicated he next wanted to call Martinez to the witness stand, the court
expressed its reluctance to permit an attorney to testify unless it was “absolutely
essential,” and inquired whether Martinez would offer anything new or different
from Schiavon‟s testimony. Kinney responded that Martinez would simply
corroborate the testimony already given, and he did not object to foregoing her
testimony so long as the record showed what her testimony would have been. The
record thus shows Martinez‟s failure to testify at the hearing was not due to any
perceived conflict of interest on her part but rather because the court was
strongly—and properly—disposed not to allow testimony by counsel. (See
Comden v. Superior Court (1978) 20 Cal.3d 906, 912 [“An attorney who attempts
to be both advocate and witness impairs his credibility as witness and diminishes
his effectiveness as advocate”].) The record also shows that had Martinez been

                                         163
called as a witness, her testimony would have added nothing to the information
already before the court. Defendant‟s assertion that the conflict of interest
interfered with Kinney‟s ability to present credible evidence at the hearing is
untenable.
     We likewise reject defendant‟s argument that the asserted conflict of interest
adversely affected his counsel‟s performance at the penalty phase. In ruling that
the prior representation of Mrs. Farkas would not present a conflict at the penalty
phase in the event the defense wanted to call her as a witness for impeachment
purposes, the court observed that she could be examined by Kinney, who was not
conflicted. (See People v. Clark (1993) 5 Cal.4th 950, 1002.) Defendant argues,
however, that the conflict caused Kinney to decide not to call Mrs. Farkas as a
witness because he would have had to examine her without Martinez‟s assistance.
Martinez‟s lack of involvement was significant, he contends, because she had
observed Mrs. Farkas‟s guilt phase testimony but Kinney had not. Defendant‟s
assertion of an adverse effect notwithstanding, there was a sound tactical reason
for the defense to refrain from calling the murder victim‟s mother as a witness
during the penalty phase: Such testimony presented a substantial risk of
interjecting unwanted victim impact evidence into the defense case when no such
evidence had been admitted in the case in aggravation. We conclude that
counsel‟s failure to call Mrs. Farkas can be explained for reasons other than the
conflict and that the decision to proceed without her testimony was what
reasonable and unconflicted counsel likely would have done. Defendant fails to
show that an actual conflict adversely affected his counsel‟s performance.

             4. Court’s ex parte communication with jurors
     Defendant contends the court‟s denial of his motion for mistrial based on the
court‟s assertedly improper ex parte communications with jurors deprived him of



                                         164
his federal and state constitutional right to be personally present with counsel at all
critical stages of the proceedings. Although we agree with defendant that the court
should not have communicated with one juror outside the presence of defense
counsel, the court did not abuse its discretion when it denied defendant‟s motion
for mistrial.
     On January 20, 1994, the jury returned verdicts finding defendant sane at the
time he committed the crimes. When the jurors returned to the courtroom on
January 27, the court informed them that appellate review of some of the court‟s
rulings meant an unavoidable delay in the penalty phase proceedings. The court
also advised that the delay could last from several weeks to several months, but
that it expected trial to commence no later than May 1. After thanking the jurors
for their sacrifices and assuring them that the court would accommodate their
scheduling problems, the court informed the jurors that its clerk would telephone
them personally in the event trial would not begin in the near future. The court
also explained that it (that is, the trial judge) was prohibited from communicating
with jurors.
     With prior notice to counsel, on March 16, 1994, the court sent the jurors a
letter reminding them that the case was still pending and that their services were
still needed.37 The court sent a second letter to jurors on May 16, 1994, this time
informing them that the penalty phase was scheduled to start on June 27, 1994,



37      The letter stated as follows: “I wanted to let you know that you are very
much needed as a juror in our case—which is still pending. [¶] The matter which
is causing delay is still in the appeal courts, and everyday I am hopeful that we
will have a resolution of the issue quickly. Of course, I will contact you
immediately when a decision is received. Our case is still my number one
priority.”




                                         165
and asking them to contact the court‟s clerk in the event that date was
unsatisfactory.
     On May 24, 1994, lead counsel O‟Neill wrote to the court, expressing her
concern after learning that the court had spoken personally with a juror. The court
responded by letter to the parties the same day, explaining that it conversed with
Juror P.G. because she called during the lunch hour on May 17 when no one else
was available to answer the telephone. P.G. informed the court that the trial date
was satisfactory and that she had two conflicting appointments she would try to
“work around.” The court thanked her for the information and advised her that
she would be contacted again. The court further explained in its letter to the
parties that on May 17, Juror S.S. informed a temporary court clerk that she had a
vacation conflict with the scheduled trial date. Thereafter, the court called S.S.
and asked whether there was any possibility she could rearrange her vacation. She
indicated, however, that it would be inconvenient and costly to change her plans.
As it had done with P.G., the court thanked S.S. for the information and advised
her that she would be contacted further.
     On May 27, 1994, the court sent a second letter to the parties informing them
it had answered a telephone call earlier that day from Juror R.D., who stated he
had a problem he wanted to discuss. The court told R.D. it could not speak with
him but mentioned that the trial date had changed to July 6, 1994, and suggested
he call back later to speak with the court clerk.
     Thereafter, the defense filed a motion for mistrial based on improper
communication between judge and jury. At a hearing on June 17, 1994, the court
explained that its conversations with the three jurors were extremely brief, in the
case of Juror P.G. lasting only 10 to 15 seconds. The court also explained that its
practice was to answer the telephone when the clerk and bailiff were otherwise
occupied, and it characterized the conversation with two of the three jurors as little

                                           166
more than taking a message for administrative purposes. Although the court
agreed that ex parte communication between a judge and the jury should not take
place, it found that if error occurred, defendant‟s right to a fair trial was not
prejudiced and it denied the motion for mistrial.
     “[A] trial court should not entertain, let alone initiate, communications with
individual jurors except in open court, with prior notification to counsel.
[Citation.]” (People v. Wright (1990) 52 Cal.3d 367, 402.) The prohibition
against ex parte communications is designed to ensure that the defendant has “ „an
adequate opportunity to evaluate the propriety of a proposed judicial response in
order to pose an objection . . . .‟ ” (Ibid.) “Although such communications violate
a defendant‟s right to be present, and represented by counsel, at all critical stages
of his trial, and thus constitute federal constitutional error, reversal is not required
where the error can be demonstrated harmless beyond a reasonable doubt.” (Id. at
p. 403.)
     Preliminarily, we note that “[n]ot every communication between the judge
and jury constitutes a critical stage of trial.” (Key v. People (Colo. 1994) 865 P.2d
822, 825.) Specifically, a trial court properly may engage in ex parte
communications for “ „scheduling, administrative purposes, or emergencies that
do not deal with substantive matters . . . .‟ ” (People v. Seaton (2001) 26 Cal.4th
598, 696, quoting Cal. Code Jud. Ethics, canon 3B(7)(d); People v. Beeler, supra,
9 Cal.4th at p. 991.) Such was the case when the court answered telephone calls
from Jurors P.G. and R.D. responding to its letter about the scheduling of the
penalty phase. The court characterized those ex parte communications as brief
and nonsubstantive. As the court explained, “[i]t was just taking a message for
administrative purposes.” Notably, counsel expressed “no doubt that what the
Court is saying occurred.” We conclude on this record that the trial judge did not



                                          167
err when he spoke briefly to these jurors outside the presence of defendant and his
counsel.
     The same cannot be said of the court‟s ex parte communication with Juror
S.S., however. When the court spoke with S.S., it did not simply pick up a ringing
telephone and take a message. Rather, it initiated contact with S.S. after she left
word with a temporary court clerk that she had a scheduling conflict. In the
conversation with S.S. that followed, the court asked whether she could rearrange
her vacation. Under these circumstances, the presence of defendant and counsel
arguably would have provided the opportunity for gauging whether the juror felt
pressured by the court‟s request. We conclude that the conversation with S.S. was
improper.
     Although the court‟s ex parte communication with Juror S.S. violated
defendant‟s rights to personal presence and counsel at a critical stage of the
proceedings, the error was harmless beyond a reasonable doubt. (People v.
Wright, supra, 52 Cal.3d at p. 403.) The court‟s conversation concerned only
scheduling, and nothing of substance bearing on the penalty determination.
(Rushen v. Spain (1983) 464 U.S. 114, 121 [court‟s ex parte communication with a
juror was harmless because they did not discuss any fact or law applicable to the
case].) Further, and as defendant acknowledges, the penalty phase eventually
began in the last week of October and thus did not interfere with the juror‟s
scheduled trip. Finally, we may infer from the court‟s description of the juror‟s
apparent reluctance to change her vacation plans that she did not feel pressured to
make personal and financial sacrifices to accommodate defendant‟s penalty trial.
     Defendant posits that even the slightest pressure by the court could have had
a coercive effect on the deliberative process. Contrary to defendant‟s argument,
however, this is not a case like Key v. People, supra, 865 P.2d 822. In that case,
the court held an ex parte conference with jurors three hours after deliberations

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began on Friday, December 21, 1990, to discuss whether they could continue
deliberating the following Monday, December 24. The conflicting plans of two
jurors meant that the only available day to reconvene for deliberations was
December 31, the day before one juror‟s wedding ceremony. By the end of the
day on Friday, however, the jury returned verdicts of guilt. (Id. at pp. 823-824.)
The Colorado Supreme Court held that the court‟s ex parte communication was
reversible error. Because counsel was absent from the conference, the state
supreme court explained, there was no solid basis on which it could assess whether
the court‟s decision to reconvene deliberations on New Year‟s Eve caused a rush
to judgment. (Id. at p. 827.) In the present case, by contrast, the ex parte
communication occurred long before the jurors heard evidence or engaged in
deliberations in the penalty phase. We need not speculate whether the court‟s
conversation with S.S. interfered with the deliberative process. On this record, we
conclude it did not and the error was harmless beyond a reasonable doubt. The
court‟s improper ex parte communication with Juror S.S. does not require reversal.

       L. Penalty Phase Issues

           1. Asserted ineffective assistance at the penalty phase
     Defendant contends that the court‟s denial of two mid-penalty-phase mistrial
motions claiming that lead counsel Kinney was unable to provide competent
representation deprived him of his Sixth Amendment right to the effective
assistance of counsel. We conclude on the record before us that the court‟s rulings
were proper.38

38     Briefly reprising his earlier claims of breakdowns in the attorney-client
relationship, conflicts of interest, and disruptions in the continuity of counsel,
defendant asserts that the cumulative prejudicial effect of these errors deprived
him of his constitutional rights to a fair trial and a reliable death verdict. Because
we have concluded that there were no errors with respect to counsel‟s
                                                            (footnote continued on next page)


                                         169
                   a. Background
      On May 25, 1994, four months after the conclusion of the sanity phase, the
defense filed two motions for mistrial, arguing that the court should have granted
defendant‟s earlier Marsden motions instead of appointing Kinney as facilitator of
communications and that defendant was prejudiced by the lengthy, ongoing delay
in commencing the penalty phase.
      Before the court could rule on the mistrial motions, it received a series of
letters from defense counsel that further complicated matters. First, in a letter
dated June 6, 1994, lead counsel O‟Neill informed the court she had been
diagnosed with cancer. Then, in a letter dated June 9, Kinney indicated he was
unable to assume the role of lead counsel in O‟Neill‟s place. According to
Kinney, he could not vigorously represent defendant at the penalty phase because
he had been absent from some of the guilt phase. He also informed the court that
he was precluded from carrying out the duties of lead counsel at that time because
he recently had been prescribed new medication for hypertension and his
physician had ordered him to avoid high-stress situations. Finally, in a letter dated
June 14, O‟Neill updated the court on her prognosis and explained that she would
be unable to work for two to three months. O‟Neill indicated she could not
proceed with defendant‟s case “for a significant amount of time, if at all,” and
asked the court to declare a mistrial.
      At a hearing on June 17, 1994, the court denied the May 25 mistrial motions.
It also relieved O‟Neill and, over objections, appointed Kinney lead counsel
conditioned on the status of his health. Kinney and the prosecutor had urged the

(footnote continued from previous page)

representation of defendant, we reject his contention that their cumulative effect
requires reversal.




                                          170
court to appoint Martinez lead counsel and allow Kinney to continue as second
counsel. But although the court did not rule out the possibility that it might have
to switch their roles, it concluded that, at that time, defendant was better served by
having the more experienced of the two attorneys as his lead counsel.
     The prosecution‟s case in aggravation began on October 25, 1994, and
extended for two court days. The defense case in mitigation began on
November 1 with Kinney‟s direct examination of Gretchen White, Ph.D. On
November 3, trial was continued until November 9 after Kinney reported to the
court that his physician was gravely concerned about his blood pressure. On
November 7, Kinney informed the court he could not proceed with trial until
November 16, and the court granted a further continuance. Kinney then moved
for mistrial, arguing defendant was prejudiced by the now 10-month delay
between the sanity and penalty phases of trial and that he could not receive
effective assistance because Kinney had not observed firsthand the demeanor of a
number of guilt phase witnesses. Kinney also complained he was “exhausted and
tired.” The court denied the mistrial motion, finding in relevant part that
defendant was not prejudiced by Kinney‟s representation but rather that he was
benefitted “in every conceivable way” by Kinney‟s exuberance, energy, and
expertise. Kinney renewed his mistrial motion before closing remarks, arguing he
was hindered by not having observed the demeanor of some of the guilt phase
witnesses whose testimony formed the basis of the prosecutor‟s summation of the
circumstances of the crime. The court denied the motion without comment.

               b. Discussion
     Defendant asserts the court‟s refusal to grant a mistrial violated his Sixth
Amendment right to the effective assistance of counsel because it left him with a




                                         171
“depressed and exhausted lead attorney who had not even been present for the
lion‟s share of the guilt phase proceedings.”
     The trial court did not err. “A trial court should grant a mistrial only when a
party‟s chances of receiving a fair trial have been irreparably damaged, and we use
the deferential abuse of discretion standard to review a trial court‟s ruling denying
a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555; accord, People v.
Cowan, supra, 50 Cal.4th at p. 459.)
     In this case, the evidence before the trial court when it ruled on the mistrial
motions provided no basis on which to conclude that defendant‟s chance of
receiving a fair trial had been irreparably damaged by Kinney‟s performance as
lead counsel.39 Although Kinney was absent from a portion of the guilt phase, he
observed most of the prosecution‟s case, including all of Angie‟s testimony.
Further, Martinez was present for all of the guilt phase testimony. Thus, to the
extent the live testimony of the prosecution‟s guilt phase witnesses had any
significance to the defense case at the penalty phase, Martinez could provide to
Kinney what he had not observed firsthand.
     Defendant argues that Martinez‟s presence at the guilt phase could not have
ameliorated Kinney‟s absence because she exercised little or no control over how
the defense should be conducted. He points to nothing in the record, however, that
would have suggested to the court that Martinez had no role to play in the defense
case. Defendant further argues that Martinez‟s ability to elucidate for Kinney the
portions of the guilt phase testimony he had not observed was questionable in light
of the tension between them. Again, however, defendant fails to show anything in

39     We express no opinion as to whether the trial court had the authority to
designate which of defendant‟s two attorneys would serve as lead counsel at the
penalty phase.




                                         172
the record from which the court could have determined that tension between the
two attorneys might have prevented Martinez from conveying information to
Kinney.
     Defendant likens his case to People v. Manson, supra, 61 Cal.App.3d 102, in
which the appellate court held that the trial court should have granted the mistrial
motion of an attorney appointed to represent the codefendant Van Houten when
her former counsel abruptly disappeared during the fifth month of a seven-month
trial, after the parties had rested but before closing arguments. As the Manson
court explained, substitute counsel‟s summation was constitutionally inadequate
because, having had no opportunity to observe the demeanor of the many
witnesses at trial, he could not effectively argue the significant issue of credibility
during closing remarks. (Id. at pp. 198-201.)
     We conclude that the extreme circumstances presented in Manson are easily
distinguishable from this case. In Manson, the timing of counsel‟s substitution
after the presentation of evidence was “truly crucial.” (People v. Manson, supra,
61 Cal.App.3d at p. 203, fn. 102.) By contrast here, Kinney joined the defense
team shortly after commencement of the prosecution‟s case-in-chief and observed
the testimony of most of the prosecution witness, including Angie. Further, he
was assisted by Martinez, who was present for all of the guilt phase testimony.
The trial court did not abuse its discretion in denying the mistrial motions in the
present case.
     Defendant further argues that Kinney‟s questionable examination of several
witnesses demonstrates that he was too exhausted to proceed as lead counsel. To
the extent defendant asks this court to conclude that Kinney actually provided
ineffective assistance at the penalty phase, such an assertion is more appropriately
addressed in a petition for writ of habeas corpus, as defendant acknowledges. (See
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) On this record we are

                                          173
unable to say there was no satisfactory explanation for Kinney‟s line of
questioning short of exhaustion-induced incompetence.
     Defendant asserts in his reply brief that Kinney‟s objections to being
appointed lead counsel also establish an impermissible conflict of interest. He
posits that the stress likely to result from Kinney‟s involvement in the case posed a
danger to his health. According to defendant, an actual conflict of interest existed
when Kinney was forced to assume the role of lead counsel against the advice of
his own physician.
     Defendant‟s claim of an actual conflict of interest is unsupported by the
record. During the hearing on the May 25 mistrial motions, the court sought
further information from Kinney as to the effect that serving as lead counsel would
have on his health. Kinney explained that his blood pressure was abnormally high
and unstable due to an adverse interaction between two of his medications. He
also presented to the court a letter from his physician stating that he should refrain
from trial work until August 1 so that his medication dosage could be fine-tuned.
Citing Kinney‟s years of experience and high level of competence in the matter to
that point, the court designated him lead counsel “if his health permits.” The court
indicated it would determine that question sometime in August. Thereafter, in a
hearing on July 29, Kinney reported that his blood pressure remained high but was
no longer fluctuating and that his physician had advised him that he could resume
trial work. Kinney represented to the court that he would not request a
continuance based on his medical condition. At the outset of the penalty trial, the
court indicated it believed the defense was ready to proceed to trial and observed
that if Kinney felt he was not ready, he would say so. Later during the defense
case, Kinney informed the court on two occasions that his physician was
concerned about new fluctuations in his blood pressure and he asked for a brief
continuance, which the court granted. When trial resumed after the continuances,

                                         174
Kinney made no further mention of any medical concerns. Contrary to
defendant‟s characterization of the record, there is no showing that Kinney was
forced to assume the role of lead counsel against the advice of his physician and
while suffering dangerous fluctuations in his blood pressure and drug interaction
side effects. Although we agree with defendant‟s assertion that death penalty
trials are stressful under the best of circumstances, there is no basis on this record
to conclude that Kinney‟s loyalty to defendant, or his efforts on defendant‟s
behalf, were compromised by his own interest in protecting his health.
     Defendant asserts finally that, at a minimum, the court should have continued
the proceedings to await the outcome of O‟Neill‟s surgery and cancer treatment
instead of designating Kinney lead counsel. The record shows that at the June 17
hearing defendant objected to having either Kinney or Martinez as lead counsel,
preferring to wait for O‟Neill to return to the case in that role.40 There is no
support for a conclusion that the court erred by not acceding to defendant‟s
wishes, however. A court may remove appointed counsel “ „to prevent substantial
impairment of court proceedings,‟ ” and its decision in this regard is reviewed for
abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1119.) We
likewise review for abuse of discretion a court‟s denial of a request for a
continuance. (Id. at p. 1118.) Here, the court did not abuse its discretion by
replacing O‟Neill. Three days before the June 17 hearing, O‟Neill had updated the
court on her prognosis and explained she would be away from work for two to
three months. Specifically, as observed earlier, she indicated she could not
proceed with defendant‟s case “for a significant amount of time, if at all.” Given

40     In an implicit reference to defendant‟s earlier attempts to discharge O‟Neill,
the court curtly observed, “He wants Ms. O‟Neill? That‟s a rather substantial
change of position.”




                                         175
O‟Neill‟s representations, the court reasonably could conclude that her continued
involvement in the case would interfere with the timely commencement of the
penalty phase. It thus did not abuse its discretion in replacing her. (See id. at
pp. 1119-1125 [the court properly removed the deputy public defender who had
been assigned to represent the defendant after his first attorney suffered a heart
attack when it found the amount of time new counsel needed to prepare for trial
was excessive].)
     Nor did the court abuse its discretion by refusing defendant‟s request to
postpone the proceedings pending O‟Neill‟s recovery from surgery and
subsequent treatment. In People v. Mungia, supra, 44 Cal.4th 1101, the court
denied the defendant‟s request for a one-month continuance in order to obtain
from counsel‟s physician a more accurate prognosis of when his counsel, who had
suffered a heart attack, might be able to proceed to trial. The ruling was not an
abuse of discretion, we concluded, because the court had little reason to believe
that the issue of counsel‟s ability to resume representation would be resolved any
time soon. (Id. at pp. 1117-1119.) Likewise in the present case, the court
reasonably could find that postponing the proceedings and its decision whether to
replace O‟Neill until after her surgery and recovery would have served little
purpose. As noted above, O‟Neill suggested she might not be able to proceed with
defendant‟s case “at all.” Thus, the court could find it unlikely that O‟Neill would
ever return to the case, regardless of the outcome of her upcoming surgery. At the
time of its ruling, the court had a sufficient basis on which to determine that
O‟Neill “would not bring defendant‟s case to trial within a reasonable time.” (Id.




                                         176
at p. 1125.) No abuse of discretion occurred in the court‟s refusal to further delay
the proceedings pending the outcome of her surgery.41

           2. Failure to admonish jurors to avoid media exposure
     As noted earlier, the jury returned its sanity verdicts on January 20, 1994.
Before releasing the jurors, the court reminded them not to discuss the case
amongst themselves or anybody else, or to form or express any opinion. The court
then added, “Watch out for news. [T]here will be something in the newspaper
about your verdict and also on TV. Please avoid reading or watching it.” When
the jurors returned to the courtroom one week later, the court informed them that
the penalty trial would be delayed while the appellate courts reviewed some of its
rulings. After giving the jurors the “usual admonishments” not to discuss the
matter or form any opinion on the case, the court excused them until further
notice. Immediately after the jury‟s departure from the courtroom, defense
counsel suggested, “for whatever it‟s worth,” that if the jury was still present in the
courthouse the court might remind them to avoid media coverage. The court
declined the suggestion because it already had “told them so many times about not
watching the TV and the press.”
     Defendant contends his death sentence cannot stand because the court‟s
failure to admonish the jury to avoid all media coverage about the case during the


41      Defendant claims the court‟s refusal to grant a mistrial or further postpone
proceedings violated his substantive due process rights. These circumstances do
not establish a due process violation, however. Defendant‟s complaint in essence
is that the court‟s rulings deprived him of the lead attorney of his choice. But a
defendant has no right to appointed counsel of choice, under the due process
clause, the Sixth Amendment, or any other constitutional guarantee. (People v.
Noriega (2010) 48 Cal.4th 517, 521-522; United States v. Gonzalez-Lopez (2006)
548 U.S. 140, 151.)




                                         177
long recess between the sanity and penalty phases of trial did not comply with
statutory requirements. For the reasons that follow, we find no error.
     As discussed ante, in part II.G.1., the trial court did not violate the
requirements of section 1122 by failing explicitly to admonish the jurors at the
outset of trial not to view, read, or listen to news accounts of the proceedings. The
same conclusion is warranted here. Although the court would have acted well
within its discretion had it called back the jurors to admonish them to avoid media
coverage of the case, its failure to do so did not violate section 1122. The record
reveals that the court fully complied with the dictates of that provision as it read at
the time of defendant‟s trial.
     For a similar reason, we find no merit to defendant‟s contention that the
court‟s admonitions also violated section 1121. Under that statute, if the court in
its discretion allows separation, rather than sequestration, of the jury, it must
“properly admonish them.” (Ibid., see People v. Gallego (1990) 52 Cal.3d 115,
198.) Here, as discussed above, the jury had been properly admonished numerous
times. Defendant thus fails to show a violation of section 1121.

           3. Asserted failure to adequately inquire into jurors’ pre-penalty-phase
               exposure to media coverage
     Defendant contends his death sentence must be reversed because the court
conducted an assertedly inadequate inquiry into jurors‟ exposure to prejudicial
media coverage during the nine-month hiatus between the sanity and penalty
phases of trial. We disagree. The court‟s questioning provided an ample basis on
which to determine that defendant‟s right to a fair and impartial jury remained
intact.
     The record discloses the following: The court first set the already postponed
penalty trial for June 27, 1994. Due to a conflict with one juror‟s vacation plans,
trial was rescheduled for July 6. On June 3, defense counsel filed a written motion


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asking the court to question the jurors individually about whether the passage of
time, and media coverage about the case, the Three Strikes legislation, and other
murder cases involving young female victims, had interfered with their ability to
fairly consider a sentence of life without the possibility of parole. The court
deferred ruling on the motion until such time as the jurors returned to court.
     As explained ante, in part II.L.1., the subsequent replacement of lead counsel
O‟Neill and new lead counsel Kinney‟s scheduling conflicts and medical issues
required postponement of trial for several more months. The jury finally
reconvened on October 4, 1994. The court asked jurors collectively whether there
was “anything that you‟ve seen or read in any media coverage concerning I guess
anything that would make it difficult for you to be a fair and impartial juror in this
upcoming penalty phase?” When there was no audible response, the court stated
for the record that it had made eye contact with all of the jurors and that they
indicated by a shake of their heads the answer was “No.” Before excusing the jury
for the day, the court asked that any jurors with individual concerns “about
anything pertaining to this case” remain in the courtroom so that the court and
counsel could speak with them privately. Two jurors had personal concerns, one
regarding jury service verification for his employer and the other regarding a
vacation conflict.
     On October 25, 1994, immediately after opening statements by both sides,
defense counsel reminded the court that it had not yet heard argument and ruled on
the defense motion to individually question the jurors. Counsel acknowledged the
court‟s group inquiry on October 4, but noted that a newspaper article appearing
the very morning of the penalty trial reported that defendant killed Laurie because
he “wanted to have sex and various other factors.” The court denied the motion,
concluding that the group questioning on October 4 was “adequate and served the
necessary function.”

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     Defendant contends the court‟s questioning of jurors collectively was too
general to protect his federal constitutional right to an impartial jury. He
emphasizes that there was a nine-month hiatus between the sanity and penalty
phases and, he argues, an absence of “clear admonitions” by the court to avoid
exposure to news coverage of the case. According to defendant, these
circumstances, coupled with the prominent news coverage of defendant‟s case, the
Three Strikes legislation, and the Polly Klaas murder, required the court to
conduct a more thorough, individualized inquiry into whether the jurors were
exposed to, and influenced by, prejudicial midtrial publicity.
     We reject defendant‟s claim that the court conducted an inadequate inquiry
into the jurors‟ continued impartiality. First, for reasons similar to those discussed
ante, in part II.J.2., the court had no duty to question the jurors individually.
Contrary to defendant‟s assertion, and as previously explained, the court
repeatedly and clearly cautioned the jurors to avoid media coverage of the case.
As with defendant‟s unsuccessful request to ask jurors about their exposure to
“unrelenting, adverse midtrial publicity” during the guilt phase, defendant‟s
motion for individualized questioning prior to the penalty trial made no showing
that any juror had read or viewed the assertedly prejudicial news material.
Defendant notes that nearly all of the jurors wrote on their questionnaire that they
regularly read the Fresno Bee. We decline, however, to infer from these
questionnaire responses, or from the fact of the nine-month hiatus between the
sanity and penalty phases, that any juror was exposed to improper influences or
otherwise disregarded the court‟s admonitions to avoid media coverage. (See
People v. Stanley, supra, 10 Cal.4th at pp. 836-837.) In People v. Gray, supra, 37
Cal.4th 168, this court declined to draw an inference similar to the one defendant
urges here. The defendant in Gray argued that in light of the “ „media climate‟ ”
that existed during the 338-day hiatus between his guilt and penalty trials, it was

                                          180
“ „reasonable to infer that the jurors . . . were exposed to tremendous improper
influences.‟ ” (Id. at p. 229.) We concluded, however, that absent any proof that
such exposure occurred and given the court‟s admonitions to avoid media
coverage of the case, it was not reasonable to infer the jury‟s impartiality was
compromised. (Ibid.) The same reasoning applies here.
     Further, we see no abuse of discretion in the inquiry the court did undertake.
There was no evidence that one or more jurors actually read or viewed any of the
complained-of news material. The court thus properly could decide that
questioning the jurors collectively, and in general terms, about their exposure to
media coverage would adequately inform its determination concerning whether
any juror‟s continued impartiality in the case had been compromised. We are
satisfied on this record that there was no deficiency in the court‟s questioning.
Indeed, a more specific inquiry arguably ran the risk of exposing the jurors to the
assertedly prejudicial material. (See, e.g., People v. Sanchez (1995) 12 Cal.4th 1,
61-62.) Notably, although the court refused to conduct individualized questioning
on exposure to media, it invited jurors to speak privately with the court and
counsel about “anything pertaining to the case.” On this record, no more was
required.

            4. Lengthy hiatus between sanity and penalty phases
     Defendant contends his death sentence must be reversed because the nine-
month hiatus between the end of the sanity phase and commencement of the
penalty phase infringed his constitutional rights to an impartial jury and a reliable
death verdict. Specifically, he argues the lengthy delay created an unacceptable
risk that the jurors‟ recall of the guilt phase evidence would be impaired, that their
displeasure with the extended disruption of their lives would lead to a coercive




                                         181
deliberative process, and that they invariably would be exposed to inflammatory
and prejudicial media coverage and pervasive anticrime sentiment.
     This court‟s decision in People v. Gray, supra, 37 Cal.4th 168, is dispositive
of defendant‟s arguments. In Gray, the defendant‟s pursuit of writ relief in the
Court of Appeal ultimately led to a 338-day hiatus between the guilt and penalty
phases of trial. (Id. at pp. 196, 225-226.) We acknowledged the possibility that
the long delay may have caused jurors to forget guilt phase evidence. (Id. at
p. 227.) We explained that such concerns were ameliorated, however, first, by the
fact that the jury had returned a verdict of guilt and thus necessarily had reviewed
the evidence in full at that time and second, by the court‟s offer to read back
testimony on request. (Ibid.) Here, the court likewise reminded the jury of its
right to ask questions and request a readback of testimony, and it confirmed with
the jurors that the bailiff had returned their notebooks to them.
     In Gray, as in the present case, the defendant asserted that the extended
period of jury service resulting from the delay caused jurors to be “ „unfavorably
disposed‟ ” toward him. Rejecting that contention, we noted the jurors were
admonished not to speculate on the reason for the delay and we presumed they
followed the court‟s directive. (People v. Gray, supra, 37 Cal.4th at p. 231.)
Similarly here, the court emphasized to the jury that the delay was “not something
the attorneys are creating” but rather that it involved appellate court review of the
trial judge‟s rulings and, later, the unforeseen illness of lead counsel O‟Neill. On
the record before us, nothing suggests that jurors resented defendant for the
ongoing delays or that the court‟s insistence on continued service despite financial
and familial hardships created a risk their deliberative process was being coerced.
(See ante, pt. II.K.4.)
     Finally, in Gray we rejected the defendant‟s contention, which is nearly
identical to defendant‟s here, that in light of the “ „media climate‟ that existed at

                                          182
the time,” the long delay presented a risk that the jury would be exposed to
“ „tremendous improper influences.‟ ” (People v. Gray, supra, 37 Cal.4th at
p. 229.) We concluded it was unreasonable to infer the jurors‟ impartiality was
compromised by the lengthy delay because the court had admonished them to
avoid improper influences and there was no showing exposure actually occurred.
(Ibid.; see ante, pt. II.L.3.) The same conclusion is warranted here.
     In a related claim, defendant asserts the court deprived him of his rights to a
fair and reliable penalty trial and an impartial jury by refusing a mid-penalty-trial
defense request to question jurors individually regarding whether they felt they
had sufficient recall of the guilt and sanity phase evidence. The court doubted the
value of soliciting the jurors‟ opinions concerning that issue and suggested that the
jury could rely on the attorneys to summarize the guilt phase evidence during
closing remarks, but took the matter under submission. It later denied the request.
     Defendant argues that inquiring into the possibility of the jurors‟ fading
memories would have required little additional court time. He may be correct.
That is not the focus of our review of the court‟s ruling, however. We examine
instead whether there was a showing of good cause to question the jurors in the
manner requested. (People v. Bradford, supra, 15 Cal.4th at p. 1354.) We
conclude no such showing was made here. As the court observed, asking jurors to
assess their own memory recall was problematic. Defendant points to no case, and
we have found none, in which a court called on seated jurors to gauge the extent of
their recollection of guilt phase evidence. Nor was there any need to conduct such
an inquiry. As explained above, even if the lengthy delay caused jurors to forget
evidence presented at the guilt or sanity phase, their memories could be restored
by referring to their notes, requesting readbacks of testimony, and relying on




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counsel‟s review of the guilt and sanity phase evidence during closing
arguments.42 (See People v. Santamaria (1991) 229 Cal.App.3d 269, 282
[observing that counsel‟s summation of the evidence during closing remarks could
minimize the effect on the jurors‟ recall resulting from a delay in the
proceedings].)

           5. Testimony regarding the 1980 Texas robbery
     Defendant contends the court erred in allowing the prosecutor to present
cumulative hearsay testimony to establish defendant‟s prior use of force or
violence and prior felony conviction. (See § 190.3, subds. (b), (c).) We conclude
to the contrary that the evidence was properly admitted.
     Just before the start of the prosecution‟s case in aggravation, defense counsel
moved to exclude as unnecessary and prejudicial the anticipated evidence
regarding defendant‟s 1980 Texas robbery. Alternatively, counsel offered to
stipulate that the crime involved violence and that defendant had pleaded guilty to
aggravated robbery. The court denied the motion, finding the evidence highly
probative of violence and of little or no prejudicial effect.
     Thereafter, retired train conductor Earl Bradley testified that while en route to
San Antonio, Texas, in 1980, he discovered an elderly passenger slumped over in


42      We likewise reject defendant‟s assertion that the entire judgment must be
reversed because of the cumulative prejudicial effect of the court‟s individual
errors in failing to adequately admonish the jury to avoid media coverage, refusing
counsel‟s request to question the jurors about their exposure to prejudicial news
material and inability to recall the guilt phase evidence, and denying the motions
for mistrial based on the long delay before commencement of the penalty phase.
Because we have concluded ante, in parts II.J.2. through II.J.3. and II.L.2. though
II.L.4., that the court did not err in these respects, we also conclude that the
asserted errors had no cumulative prejudicial effect on the fairness of trial or the
reliability of the death verdict.




                                          184
his seat with his throat slit. As the witness started to relate what the victim said to
him, the defense interjected a hearsay objection, which the court initially
sustained. The court later reversed its ruling, however, agreeing with the
prosecutor that the victim‟s statement was admissible as a spontaneous utterance
under Evidence Code section 1240.43 When Bradley‟s testimony resumed, he
informed the jury that the victim stated, “A [B]lack man cut my throat and took
my wallet.” Bradley further testified that he then unlocked a nearby restroom and
a young Black man, later identified as defendant, stepped out. The prosecutor‟s
next witness was former Texas Ranger Robert Steele, who testified that when he
arrested defendant for the aggravated robbery, he noticed drops of blood on
defendant‟s shoes.
     Defendant first argues the admission of the victim‟s out-of-court statement
infringed his confrontation clause rights under the state and federal Constitutions.
He concedes the statement was not “testimonial” and thus falls outside the rule in
Crawford supra, 541 U.S. 36, which holds that the admission of a testimonial, out-
of-court statement violates the confrontation clause unless the declarant is
unavailable and the defendant has had a prior opportunity for cross-examination.
(Id. at p. 59.) Defendant argues, however, that the question remains whether the
robbery victim‟s statement contains “sufficient indicia of reliability” to pass
muster under the constitutional framework provided in Ohio v. Roberts (1980) 448
U.S. 56, which predated the decision in Crawford.


43     Evidence Code section 1240 provides: “Evidence of a statement is not
made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate,
describe, or explain an act, condition, or event perceived by the declarant; and
[¶] (b) Was made spontaneously while the declarant was under the stress of
excitement caused by such perception.”




                                          185
     We rejected an identical claim in People v. Cage (2005) 40 Cal.4th 965,
noting that the United States Supreme Court has made clear that Roberts and its
progeny “retain no relevance to a determination whether a particular hearsay
statement is admissible under the confrontation clause. . . . Thus, there is no basis
for an inference that, even if a hearsay statement is nontestimonial, it must
nonetheless undergo a Roberts analysis before it may be admitted under the
Constitution.” (People v. Cage, supra, at p. 981, fn. 10; see also id. at p. 984
[observing that the high court has confirmed “the confrontation clause is
concerned solely with hearsay statements that are testimonial” (italics added)].)
Because the victim‟s out-of-court statement was not testimonial, its admission did
not violate defendant‟s confrontation clause rights.
     Nor does defendant persuade us that the court erred when it denied the
defense motion to exclude testimony regarding the Texas robbery pursuant to
Evidence Code section 352. Defendant asserts the evidence was cumulative
because defense counsel offered to stipulate that the crime involved the use of
violence and the section 969b prison packet for the robbery conviction, which was
admitted into evidence, showed he pleaded guilty to “aggravated robbery.” As
this court has observed, however, a defendant is not entitled to prevent admission
of the “ „sordid details‟ ” of criminal conduct under section 190.3, factor (b) “ „by
stipulating to any resulting conviction or to a sanitized version of the facts
surrounding the offense.‟ ” (People v. Cunningham (2001) 25 Cal.4th 926, 1017;
see also People v. Jackson (1996) 13 Cal.4th 1164, 1229-1230.)
     Defendant contends that Bradley‟s and Steele‟s testimony was too unreliable
to be probative due to the risk of faulty recollection and the fact that, because he
pleaded guilty, the circumstances of the crime were never adjudicated. Those
arguments go the weight of the evidence, however, not its admissibility. (People
v. Stitely, supra, 35 Cal.4th at p. 564 [the trustworthiness of the witness‟s

                                         186
testimony was a question for the jury to decide].) We conclude that the court did
not abuse its discretion in permitting the witnesses to testify about the facts
underlying defendant‟s prior robbery conviction.

           6. Denial of motions for new trial and modification of verdict
     After the jury returned its death verdict, the defense filed motions for new
trial and to modify the penalty to life without the possibility of parole. Defendant
contends the court erred in denying those motions. We disagree, in large part, for
reasons discussed previously.
     The defense asserted a new trial or modification of the verdict was required
pursuant to section 1181, subdivisions 6 and 7, because the evidence was
insufficient to support the robbery-murder, rape-murder, and witness-murder
special-circumstance findings and the premeditation and deliberation theory of
first degree murder.44 Alternately, the defense argued that a new penalty trial was
warranted because defendant was denied a fair trial by the lengthy, assertedly
prejudicial delay between the guilt and sanity trials and the penalty phase. By
separate motion, the defense asserted the court should grant the automatic motion
for modification of the death verdict pursuant to section 190.4, subdivision (e),
because the mitigating evidence presented at the penalty trial far outweighed the
aggravating circumstances.45 The motion recounted the defense evidence,

44     Section 1181, subdivisions 6 and 7, authorize a court to grant a new trial, or
reduce a verdict or impose a lesser punishment without granting a new trial, on a
finding that the jury‟s “verdict or finding is contrary to law or evidence.”
45     Section 190.4, subdivision (e), provides that when a jury returns a death
verdict, the defendant “is deemed to have made an application for modification of
such verdict” and requires the court ruling on the application to determine, after a
review of the evidence, whether the jury‟s death verdict is “contrary to law or the
evidence presented.”




                                         187
including testimony that defendant eschewed drugs and gangs notwithstanding a
disabling childhood in an environment that was rife with violence. It also
emphasized defendant‟s expression of remorse for the killing, his history of
extreme mental disturbance, and the probability that he committed the crimes
while under the influence of a rage reaction.
     The court conducted a hearing and denied the new trial motion in a lengthy
ruling. The court indicated that after independently reviewing and reweighing the
evidence it found all of the verdicts and sentencing findings supported by
sufficient, credible evidence. It also found that defendant was not prejudiced by
the court‟s refusal of a defense request at the outset of the penalty trial to
individually voir dire the jurors regarding the possibility of faded memories or
exposure to extraneous influences.
     The court then conducted the sentencing hearing, at which it considered both
the motion for modification of sentence and statements by the victims‟ family
members, defendant‟s mother, and defendant himself. The court denied the
modification motion and imposed the death penalty. The court indicated it had
independently reviewed the aggravating and mitigating evidence and found both
that it supported the jury‟s death verdict and that the death penalty was warranted.
In its summary of the evidence pertaining to each of the statutory factors, the court
noted that it found “substantial significance” in the circumstances of the crime and
the escalation of violence and cruelty that characterized defendant‟s prior violent
offenses. The court also recited the mitigating evidence, including defendant‟s
“miserable childhood with a mother who could not protect him,” a father who “all
but disowned him,” and the tragic deaths of his brothers. The court noted,
however, that defendant‟s half siblings were never in trouble with the law and
found unconvincing defendant‟s expression of remorse for the killing.



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     In ruling on a motion pursuant to section 1181, subdivisions 6 and 7, the
court “independently examines all the evidence to determine whether it is
sufficient to prove each required element beyond a reasonable doubt.” (Porter v.
Superior Court (2009) 47 Cal.4th 125, 133.) A court deciding a modification
motion under section 190.4 independently reweighs the aggravating and mitigating
evidence to determine whether the jury‟s death verdict is supported by the weight
of the evidence. (People v. Guerra, supra, 37 Cal.4th at p. 1161.) In the present
case, the record demonstrates that the court applied the proper standards and
thoughtfully considered defendant‟s motions for new trial and modification of
sentence. Furthermore, we discern no abuse of discretion in the court‟s denial of
either motion. With the exception of a single contention, defendant‟s arguments to
the contrary simply repeat his other claims on appeal. (See ante, pts. II.F.1.-
II.F.3.; II.G.1.; II.J.2.-II.J.3. & II.L.1.-II.L.4.) Because we conclude that
substantial evidence supported the three special-circumstance findings and that
defendant was not prejudiced by the lengthy delay between the guilt and sanity
trials and the penalty phase, we likewise conclude that the court properly rejected
defendant‟s motions for new trial and modification of sentence on those grounds.
(People v. Adcox (1988) 47 Cal.3d 207, 273.)
     Defendant also asserts the court erred in determining that sufficient evidence
supported the jury‟s finding of first degree premeditated and deliberated murder.
Defendant contends a “significant quantum” of evidence supporting that theory
derived from the testimony of Laurie‟s mother, Mrs. Farkas, whose testimony
could have been impeached with evidence of her misdemeanor welfare fraud
conviction had the prosecution properly disclosed such information to the defense
during the guilt trial. (See ante, pt. II.K.3.) We need not determine whether in the
absence of Mrs. Farkas‟s testimony substantial evidence supported a premeditation
theory of first degree murder, however, because we “ „can determine from the

                                          189
record that the verdict rested on a theory which is supported by sufficient
evidence. [Citation.]‟ ” (People v. Rundle, supra, 43 Cal.4th at p. 141.) The jury
was instructed both on premeditation and deliberation and on first degree felony
murder based on robbery and attempted rape. (CALJIC No. 8.21.) For the
reasons discussed ante, in parts II.F.1. and II.F.2., substantial evidence supported
the jury‟s unanimous findings that defendant robbed and attempted to rape Laurie
and that he killed her during the commission of those crimes. Because we can
ascertain from the record that the first degree murder verdict rested on a theory
supported by substantial evidence, we need not reach the issue whether there was
sufficient evidence supporting the alternate theory of premeditation and
deliberation. (People v. Letner and Tobin, supra, 50 Cal.4th at pp. 168-169.)

       M. Defendant’s Absence from Unreported Proceedings
     Citing his absence from more than 180 unreported side bench conferences,
defendant contends the entire judgment must be reversed because the court
violated his statutory and constitutional rights to personal presence at all critical
stages of the proceedings, and deprived him of an adequate record on appeal. As
explained below, defendant had no right, constitutional or otherwise, to be present
at the discussions between the court and counsel that are at issue here. Although
we agree with defendant that the court‟s practice of conferring with counsel in the
absence of a court reporter does not comport with the requirements of section
190.9, he fails to demonstrate prejudice and thus is not entitled to reversal.
     The record shows that before jury selection in the case, the court explained to
the parties its general policy of permitting counsel to make two- or three-word
objections, but not “speaking objections,” in front of the jury. The court further
explained that counsel should ask the court to hold a “side bench” conference
outside in the hallway in the event it disagreed with any of the court‟s rulings.



                                          190
Observing that it was difficult to “drag a court reporter in and out” of the
courtroom, the court indicated that “if we don‟t reach agreement, then we‟ll put
the matter on the record.” The record also reflects that during preparation of the
record on appeal, the court conducted a two-day hearing to settle the record.
According to the engrossed settled statement, there were more than 180 unreported
conferences between court and counsel that defendant did not attend, all of which
were held outside the jury‟s presence. The parties agreed that most of these
discussions involved administrative or scheduling matters and that some
concerned jury selection issues, exhibits and instructions, and substantive legal
matters such as objections to the admission of evidence and examination of
witnesses. Neither the parties nor the court could reconstruct what occurred
during 10 of the unreported conferences.
     “[A] criminal defendant has a right to be personally present at certain pretrial
proceedings and at trial under various provisions of law, including the
confrontation clause of the Sixth Amendment to the United States Constitution,
the due process clause of the Fourteenth Amendment to the United States
Constitution, section 15 of article I of the California Constitution, and sections 977
and 1043. [Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1230.) The right is
not absolute, however. Under federal constitutional principles, a defendant is
entitled to be present at a certain proceeding only if his or her appearance “is
necessary to prevent „interference with [his] opportunity for effective cross-
examination‟ ” or if the proceeding represents a “ „stage . . . that is critical to [the]
outcome‟ and „his presence would contribute to the fairness of the procedure.‟
[Citation.]” (People v. Waidla, supra, 22 Cal.4th at pp. 741-742.) Our state
Constitution‟s right to personal presence is circumscribed in a similar manner, as




                                           191
are sections 977 and 1043, which codify that right.46 (People v. Cole, supra, at
p. 1231; People v. Waidla, supra, at p. 742) Specifically, a defendant has no
constitutional or statutory right to attend discussions held outside the jury‟s
presence that involve questions of law unless the matter is reasonably and
substantially related to the “ „ “ „fullness of his opportunity to defend against the
charge.‟ ” ‟ ” (People v. Bradford, supra, 15 Cal.4th at p. 1357; accord, People v.
Jennings (2010) 50 Cal.4th 616, 682.)
     Based on our review of the record and the settled statement, we conclude that
defendant had no statutory or constitutional right to attend any of the conferences
between court and counsel at which he was not present. All of the proceedings in
question were held outside the jury‟s presence. The record also demonstrates that
each of the numerous proceedings that were capable of settlement involved
discussion of either administrative matters or questions of law. Defendant‟s
absence from those proceedings implicated neither his ability to defend against the
charges nor the fairness of his trial. As for the 10 unreported conferences
incapable of settlement, we conclude there is no reasonable basis on which to
presume that their substance differed in any respects from the 170 unreported
proceedings for which a settled statement was obtained. (See People v. Holt,
supra, 15 Cal.4th at p. 708 [refusing to presume that the substance of nine
unreported proceedings differed in nature from the 19 unreported proceedings for
which a settled statement existed].)

46     Section 977 provides in relevant part that a felony defendant must be
personally present at certain specified portions of trial such as arraignment and
imposition of sentence, and “at all other proceedings unless he or she shall, with
leave of court, execute in open court, a written waiver of his or her right to be
personally present . . . . ” (§ 977, subd. (b)(1).) Section 1043 requires that a
felony defendant “be personally present at the trial.” (§ 1043, subd. (a).)




                                         192
     Defendant insists that his absence from the off-the-record conferences that
proved incapable of settlement impaired his ability to defend against the charges
because of the significant breakdown of his relationship with his deputy public
defenders and Kinney‟s late entry into the case as a third member of the defense
team. We disagree with the premise of defendant‟s argument. As explained ante,
in parts II.C.1. through II.C.2. and II.K.2., defendant fails to establish either an
irreconcilable conflict with his deputy public defenders or that Kinney‟s
representation was hindered by his absence from a portion of the guilt phase.
Furthermore, defendant‟s assertion that the 10 unreported conferences for which
there is no settled statement may have involved matters of “important legal
significance” is unduly speculative. (People v. Holt, supra, 15 Cal.4th at p. 708.)
     Defendant asserts that the “unprecedented” number of proceedings from
which he was absent casts doubt on the fundamental fairness of the trial. The
sheer number of such proceedings, without more, provides no basis on which to
question the fairness of defendant‟s trial, however. As we explained above, there
is no basis upon which to conclude that any of the proceedings in question were of
such a nature that defendant‟s presence would have “ „contribute[d] to the fairness
of the procedure.‟ ” (People v. Waidla, supra, 22 Cal.4th at p. 742.) We reach the
same conclusion viewing the proceedings collectively. (Cf. People v. Arias,
supra, 13 Cal.4th at p. 159 [rejecting the defendant‟s argument that the existence
of numerous unreported matters gave rise to “cumulative harm”].)
     Defendant argues in a related claim that the entire judgment must be reversed
because the off-the-record proceedings amounted to a violation of section 190.9.
We agree that the court failed to comply with the statutory requirement that all
proceedings in a capital case “be conducted on the record with a court reporter
present.” (§ 190.9.) He is not entitled to reversal, however.



                                          193
     Reversal for a violation of section 190.9 requires a showing of prejudice, that
is, a showing that the missing portions of the record render the record on appeal
inadequate “ „to permit meaningful appellate review.‟ ” (People v. Freeman
(1994) 8 Cal.4th 450, 509.) Defendant fails to establish prejudice. He again
emphasizes that a number of unreported proceedings were incapable of settlement.
We observe, however, that there is no indication the 10 off-the-record conferences
involved anything other than minor matters that would not affect this court‟s
review. (People v. Harris (2008) 43 Cal.4th 1269, 1281.) Concerning those
unreported proceedings that were made part of the record as settled statements,
defendant complains that a settled statement cannot compare to a reporter‟s
transcript, especially given Kinney‟s late entry into the case. He fails to explain
how the lack of a verbatim recitation of the sidebar conferences described in the
settled statement interferes with meaningful review by this court. Notably, the
trial court‟s practice was to recite on the record the party‟s continuing objection in
the event either side disagreed with the outcome of an unreported side bench
conference. Thus, for example, when the court and counsel returned to open court
following one unreported discussion, the court confirmed on the record that the
defense had objected to the admission of certain physical evidence on chain of
custody grounds. Defendant does not suggest that the court‟s on-the-
record summaries of such matters were inaccurate. (See People v. Taylor, supra,
48 Cal.4th at p. 660.) We further note that when an issue could not be resolved
during an unreported side bench conference, the trial judge continued the
discussion of the matter in open court after excusing the jury. We conclude




                                         194
defendant has failed to demonstrate that he was prejudiced by the failure to record
all of the discussions between court and counsel.47
     For similar reasons, we reject defendant‟s argument that the absence of a
verbatim transcript of all proceedings violated his federal constitutional rights to
due process and reliable verdicts in a capital case. (People v. Rogers (2006)
39 Cal.4th 826, 857-858 [to prevail on such constitutional claims, the defendant
must establish the record is inadequate to allow for meaningful appellate review].)
Defendant‟s failure to show prejudice likewise defeats his claim that the
unrecorded bench conferences between the court and counsel infringed his Sixth
Amendment right to the effective assistance of trial and appellate counsel.
(Mickens v. Taylor (2002) 535 U.S. 162, 174-176; Strickland v. Washington
(1984) 466 U.S. 668, 691-697; see People v. Pinholster (1992) 1 Cal.4th 865, 919-
923 [court and counsel‟s 133 unreported sidebar conferences did not violate the
defendant‟s state or federal rights to due process, effective assistance, or reliable
review of capital verdicts].) Finally, we have repeatedly rejected the argument
that section 190.9 creates the type of state-created liberty interest protected by the
due process clause, and do so again here. (People v. Letner and Tobin, supra, 50
Cal.4th at p. 195; People v. Taylor, supra, 48 Cal.4th at pp. 660-661.)48


47      The court‟s policy of conducting side bench conferences in the hallway
resulted in nearly 180 unreported proceedings. Although section 1044 allows the
trial judge broad discretion in the manner in which he or she conducts a criminal
trial, we emphasize again the importance of complying with the requirements of
section 190.9. (People v. Harris, supra, 43 Cal.4th at p. 1283; People v. Freeman,
supra, 8 Cal.4th at p. 511.)
48     We have concluded that defendant‟s absence from the unreported
conferences between the court and counsel did not deprive him of any state or
federal constitutional rights. Further, although the court‟s failure to have a court
reporter present during these sidebar conferences violated section 190.9, we have
                                                            (footnote continued on next page)


                                         195
        N. Challenges to California’s Death Penalty Scheme
      Defendant presents “routine instructional and constitutional challenges” to
California‟s death penalty law that this court has previously considered and
rejected. We decline his invitation to reconsider our prior conclusions. (People v.
Schmeck (2005) 37 Cal.4th 240, 303.)
      Section 190.3, factor (a), does not violate the federal Constitution‟s Fifth,
Sixth, Eighth, and Fourteenth Amendments by its asserted application in a
“ „wanton and freakishmanner‟ ” that allows almost all features of every murder,
even features squarely “ „at odds,‟ ” to be characterized as aggravating. (People v.
Williams (2010) 49 Cal.4th 405, 470.)
      The jury‟s reliance on unadjudicated criminal activity as a factor in
aggravation under section 190.3, factor (b), without unanimously agreeing on its
existence beyond a reasonable doubt, does not deprive a defendant of any rights
guaranteed by the federal Constitution, including the Sixth Amendment right to
jury trial. (People v. Lomax (2010) 49 Cal.4th 530, 593; People v. Taylor, supra,
48 Cal.4th at pp. 651-652.)
      Use of the adjectives “extreme” and “substantial” in section 190.3, factors (d)
and (g), does not impose a barrier to the consideration of mitigating evidence in
violation of the Fifth, Eighth, and Fourteenth Amendments. (People v. Williams,
supra, 49 Cal.4th at p. 470.)
      There is no constitutional requirement that the jury be instructed concerning
which of the sentencing factors are aggravating, which are mitigating, and which



(footnote continued from previous page)

concluded the errors did not prejudice defendant. We reach the same conclusion
viewing the errors collectively.




                                          196
could be either aggravating or mitigating. (People v. Jennings, supra, 50 Cal.4th
at p. 690.)
     The jury need not make written findings unanimously agreeing on the
existence of aggravating factors and concluding beyond a reasonable doubt that
the aggravating factors exist, that they outweigh the factors in mitigation, and that
death is the appropriate penalty. (People v. Davis (2005) 36 Cal.4th 510, 571.)
The high court‟s decisions interpreting the Sixth Amendment right to jury trial
(Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S.
466) do not require otherwise. (People v. Davis, supra, at p. 572; People v. Prieto
(2003) 30 Cal.4th 226, 262-265.)
     “Neither the federal Constitution nor section 520 of the Evidence Code
requires that the jury be instructed that the prosecution has the burden of proof
with regard to the truth of aggravating circumstances or the appropriateness of the
death penalty, and the trial court is not required to explicitly tell the jury that
neither party bears the burden of proof.” (People v. Leonard (2007) 40 Cal.4th
1370, 1429.)
     Denying capital defendants many of the same procedural safeguards that
apply to sentencing determinations in noncapital trials does not violate equal
protection principles. (People v. Solomon, supra, 49 Cal.4th at p. 844.)
     This court‟s failure to conduct comparative proportionality review does not
violate the equal protection clause or any other constitutional guarantees under the
Fifth, Sixth, Eighth or the Fourteenth Amendments to the federal Constitution.
(People v. Jennings, supra, 50 Cal.4th at p. 691; People v. Verdugo (2010) 50
Cal.4th 263, 305.)
     California does not employ the death penalty as a “ „regular punishment for
substantial numbers of crimes‟ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 43,
italics omitted), and its imposition does not violate international norms of decency

                                           197
or the Eighth Amendment‟s prohibition against cruel and unusual punishment.
(People v. Carrington (2009) 47 Cal.4th 145, 199.)

       O. Cumulative Effect of the Errors
     Defendant asserts finally that even if none of the individual errors at the guilt,
sanity, and penalty phases requires reversal, the cumulative prejudicial effect of
the errors undermined the fairness and reliability of all phases of trial and requires
reversal of the entire judgment. We have concluded, or assumed for argument,
that six instances of nonprejudicial error occurred during the course of defendant‟s
trial. (See ante, pts. II.D.2.; II.D.4.; II.D.5.; II.G.2.; II.K.4. & II.M.) Given the
strong evidence of defendant‟s guilt of first degree murder and the aggravating
circumstances attending that crime, we further conclude that none of the trial
court‟s missteps amounted to substantial error and there was no prejudicial
cumulative effect warranting reversal. Contrary to defendant‟s assertion, he
received a fair trial and reliable verdicts.


                                   III. CONCLUSION
     The judgment is affirmed.
                                                    CANTIL-SAKAUYE, C. J.
WE CONCUR:

BAXTER, J.
CHIN, J.
CORRIGAN, J.
KRIEGLER, J.*


_________________
*      Associate Justice, Court of Appeal, Second Appellate District, Division
Five, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                                           198
     CONCURRING AND DISSENTING OPINION BY KENNARD, J.



       Although I join the majority in affirming the judgment of death, I disagree
with the majority‟s analysis of two of defendant‟s claims.
       Defendant contends that the prosecutor improperly exercised peremptory
challenges against certain prospective jurors on the basis of their race. (See
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler).) The majority rejects that contention. So do I, but for
reasons different from the majority‟s, as explained later.
       Defendant also challenges the sufficiency of the evidence supporting the
jury‟s special circumstance finding that he killed a witness to prevent her from
testifying against him. Unlike the majority, I agree with defendant that the
evidence was insufficient, and I would therefore vacate this particular special
circumstance finding. This conclusion does not, however, compel reversal of the
judgment of death: Two other special circumstances are valid, so that defendant
was eligible for the death penalty. Furthermore, the invalid special circumstance
did not prejudice defendant at the penalty phase, because the jury could properly
consider, as circumstances of the crime (Pen. Code, § 190.3, factor (a)), all of the
evidence pertaining to the invalid witness-killing special circumstance.




                                          1
                                           I
       Defendant was charged with murdering his girlfriend‟s cousin, 14-year-old
Laurie Farkas and with kidnapping, robbing, and attempting to murder Farkas‟s
best friend, 15-year-old Angie Higgins. Farkas was White, as is Higgins.
Defendant is Black.
       The jury venire had a total of seven Black prospective jurors. After two of
those jurors were excused for cause, the prosecutor used peremptory challenges to
excuse four of the remaining five prospective Black jurors.1
       After the prosecutor challenged the third Black prospective juror, defendant
made a motion for a mistrial, arguing that the challenges were racially based.
Defendant renewed the motion after the prosecutor challenged the fourth Black
prospective juror. In each instance, the trial court found the motion meritless
because the defense had not made a prima facie showing that the prospective
jurors were excused because of their race. In each instance, the trial court asked
the prosecutor to explain the reasons for the challenges. After hearing the
prosecutor‟s reasons (see pp. 5-7, post), the court reiterated its denial of
defendant‟s motion for a mistrial.
       The federal and state Constitutions both prohibit a party from exercising
peremptory challenges against prospective jurors on the basis of race. To
determine the merits of a defendant‟s claim that the prosecutor‟s peremptory
challenges were impermissibly based on race, the United States Supreme Court
has set forth a three-step process: “First, the defendant must make out a prima

1       The prosecutor did not challenge the fifth and last of those jurors, and she
served as a juror for the guilt phase of trial; during the sanity phase, she asked the
trial court to excuse her, citing stress at home and the need to find employment.
The court granted her request, and she thus did not participate in the jury‟s
deliberations at the sanity and penalty phases of trial.



                                           2
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.]” (Johnson v. California (2005) 545
U.S. 162, 168, fn. omitted (Johnson).)
       Applying that test, the majority here states that defendant failed to satisfy
the first requirement of making a prima facie showing that the prosecutor‟s
challenges were impermissibly based on race. I disagree, for two reasons.
       First, as discussed in my dissenting opinion in People v. Boyette (2002) 29
Cal.4th 381, and thereafter in my concurring and dissenting opinion in People
v. Howard (2008) 42 Cal.4th 1000, when, as here, the prosecutor has given
reasons for the peremptory challenges, and the trial court has implicitly ruled on
the ultimate question of whether the prosecutor acted with discriminatory intent,
the preliminary inquiry as to whether the defendant made a prima facie case that
the challenges were impermissibly based on group bias “ „becomes moot.‟ ”
(Boyette, supra, 29 Cal.4th at p. 469 (dis. opn. of Kennard, J.), quoting Hernandez
v. New York (1991) 500 U.S. 352, 359 (plur. opn. of Kennedy, J.); see also People
v. Thomas (2011) 51 Cal.4th 449, 474; People v. Mills (2010) 48 Cal.4th 158, 174;
People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8; but see People v. Taylor (2010)
48 Cal.4th 574, 612-613.) What remains to be decided is only whether the
prosecutor has offered “permissible race-neutral justifications for the strikes.”
(Johnson, supra, 545 U.S. at p. 168.) That is what the majority here should have
done, instead of focusing on whether the defense made a prima facie showing that



                                           3
the prosecutor‟s challenges were based on purposeful racial discrimination; that
question, as I just explained, had in this case become moot.
       Second, even if the prima facie showing of group bias, which needs to be
made under Wheeler, supra, 22 Cal.3d at page 280, and Batson, supra, 476 U.S. at
pages 93-94, were not moot here, the record contains “evidence sufficient to
permit the trial judge to draw an inference” (Johnson, supra, 545 U.S. at p. 170)
that the prosecutor‟s peremptory challenges were on their face impermissibly
based on group bias.
       In Wheeler, this court described how the prima facie showing can be made:
“We shall not attempt a compendium of all the ways in which a party may seek to
make such a showing. For illustration, however, we mention certain types of
evidence that will be relevant for this purpose. Thus the party may show that his
opponent has struck most or all of the members of the identified group from the
venire . . . . He may also demonstrate that the jurors in question share only this
one characteristic — their membership in the group — and that in all other
respects they are as heterogeneous as the community as a whole. . . . Lastly, . . .
the defendant need not be a member of the excluded group in order to complain of
a violation of the representative cross-section rule; yet if he is, and especially if in
addition his alleged victim is a member of the group to which the majority of the
remaining jurors belong, these facts may also be called to the court‟s attention.”
(Wheeler, supra, 22 Cal.3d at pp. 280-281, fn. omitted.)
       Each of those three types of evidence mentioned in Wheeler is present here.
First, the prosecutor struck “most or all of the members of the identified group
from the venire” (Wheeler, supra, 22 Cal.3d at p. 280) when he challenged four of
the five prospective Black jurors who remained after two had been excused for
cause. Second, the four challenged jurors shared only one characteristic, that of
their race, and otherwise were “as heterogeneous as the community as a whole”

                                            4
(ibid.): One was an administrative law judge; another was a glass packager; a
third was a office assistant for an insurance company; and the fourth worked as a
truck driver, a sales representative, and a pastoral counselor. Third, defendant was
“a member of the excluded group” (id. at p. 281) and the victims appear to have
been members of “the group to which the majority of the remaining jurors belong”
(ibid.).2
        Of those three types of evidence, none might by itself have been prima
facie evidence of racial group bias in the prosecutor‟s peremptory challenges. But
the presence of all three, as occurred here, in my view “ „gives rise to an inference
of discriminatory purpose.‟ ” (Johnson, supra, 545 U.S. at p. 168.) Thus, unlike
the majority, I conclude that defendant did make a prima facie showing, the first
requirement of the three-step inquiry set forth by the high court in Johnson (see
p. 2, ante). But the prosecutor satisfied Johnson‟s second step when he gave
“permissible race-neutral justifications for the strikes.” (Johnson, at p. 168.)
Remaining is Johnson‟s step three, examining the prosecutor‟s reasons for
peremptorily challenging the four Black prospective jurors to determine whether
the trial court properly found that the defense had not “ „proved purposeful racial
discrimination.‟ ” (Ibid.) As explained below, substantial evidence supports that
finding by the trial court.
        The prosecutor gave two reasons for peremptorily challenging Prospective
Juror J.J.: (1) At an earlier stage in her life, J.J. was against the death penalty (at
the time of trial, however, J.J. said she no longer opposed the death penalty);

2       Although the record does not state the race and ethnicity of the other
prospective jurors, it is reasonable to infer that, at the time of the prosecutor‟s
peremptory challenges, a majority of the prospective jurors were White. Only two
of the jurors who served on the guilt phase jury had Hispanic surnames; none had
Asian surnames.



                                            5
(2) because J.J. was an administrative law judge, the prosecutor feared that she
would “control the deliberative process.” These reasons are plausible and I see no
reason to second-guess them. Although defendant points out that the prosecutor
did not peremptorily challenge Juror C.S., a law school graduate, C.S., unlike J.J.,
did not serve in a judicial capacity and had not opposed the death penalty at an
earlier stage in life.
       With respect to Prospective Juror S.B., the prosecutor peremptorily
challenged her because she wrote in the jury questionnaire that a killer had to have
“something wrong . . . in their mind because you don‟t just go out and kill
someone.” The prosecutor explained his concern that S.B. would give undue
weight to psychiatric testimony for the defense. Defendant acknowledges that this
explanation was race neutral on its face, but he asserts that the explanation was
pretextual, noting the prosecutor‟s failure to peremptorily challenge Prospective
Juror J.P., who commented in the jury questionnaire that some criminals were
mentally ill. Unlike S.B., however, J.P. did not express a belief that a killer must
have psychological problems. Because this was a murder trial, it was reasonable
for the prosecutor to regard Prospective Juror S.B. as being potentially more
sympathetic to the defense than J.P.
       As to Prospective Juror A.M., the prosecutor‟s peremptory challenge was
based on his unfavorable impression of A.M.‟s demeanor and on A.M.‟s view that,
as the prosecutor characterized it, “jurors could be hoodwinked by the advocates
in the case.” The prosecutor‟s first reason, although vague, is a permissible race-
neutral ground for challenging a prospective juror (see People v. Fuentes (1991)
54 Cal.3d 707, 715 [prospective juror‟s “body language” is a permissible basis for
a challenge]), particularly when, as here, defense counsel did not dispute the
prosecutor‟s description of A.M.‟s demeanor. Also race neutral is the prosecutor‟s
second reason for challenging A.M. (see generally People v. Cornwell (2005) 37

                                          6
Cal.4th 50, 70 [prospective juror‟s “distrust of the criminal justice system” is a
permissible basis for a challenge]). The record supports this explanation: A.M.
said in his questionnaire that he had no objection to the death penalty so long as
there was no “corruption,” and when asked by the prosecutor to elaborate on this,
he expressed concern that jurors could be “manipulated . . . into giving the desired
decision . . . for the death penalty or for life in prison.” Although several other
prospective jurors who were not challenged by the prosecutor also expressed a
distrust of lawyers, they did not link that distrust to their views on capital
punishment; moreover, unlike those jurors, the prosecutor‟s unfavorable
impression of A.M.‟s demeanor apparently increased his concern that A.M. might
view the prosecution as “hoodwinking” the jury at trial.
       With regard to Prospective Juror T.C., the prosecutor challenged him
because he had “specific training and experience in issues that bear on this case,”
because he had “minister[ed] to . . . people in the jail” and was “involved in . . .
social programs,” and because the trial might interfere with T.C.‟s “opportunity
for promotional advancement.” In his jury questionnaire, T.C. mentioned that he
was a licensed pastoral counselor; on voir dire he testified that he had a master‟s
degree in “Christian psychology,” and that he counseled drug addicts and child
abusers. He also said that at work he had been chosen for promotion to a
“management position,” but that he was required to take 15 weeks of out-of-town
training, which was scheduled to begin shortly. Defendant acknowledges that the
prosecutor‟s explanation for challenging T.C. “appears on its face to be race-
neutral.” But defendant points out that the prosecutor did not excuse other
prospective jurors who had taken psychology courses or had conflicts with
employment, and therefore, defendant argues, the prosecutor‟s reasons were
pretextual. I disagree: None of the unchallenged prospective jurors defendant



                                           7
mentions presented the combination of concerns that the prosecutor expressed
about T.C.
       When, as here, the trial court has ruled that the prosecutor‟s race-neutral
reasons for challenging a prospective juror are genuine and not pretextual, that
finding will be upheld on appeal if supported by substantial evidence. (People
v. Lenix, supra, 44 Cal.4th at p. 627.) Here, as I have explained, substantial
evidence supports the trial court‟s acceptance of the prosecutor‟s race-neutral
reasons for his peremptory challenges of Prospective Jurors J.J., A.M., S.B., and
T.C.
       I now turn to the second and final issue (the witness-killing special
circumstance) in this separate opinion.
                                                II
       The jury found true three special circumstance allegations — murder during
a robbery (Pen. Code, § 190.2, subd. (a)(17)(A)),3 murder in the commission of
attempted rape (id., subd. (a)(17)(C)), and murder to prevent the victim from
testifying in a criminal proceeding (id., subd. (a)(10)). On appeal, this court‟s
majority rejects defendant‟s challenges to the sufficiency of the evidence on each
of those three findings. (Maj. opn., ante, at pp. 102-120.) I agree with that
conclusion with respect to the special circumstance findings of murder during a
robbery and murder in the commission of attempted rape, but not with respect to
the witness-killing special circumstance.




3      All further statutory citations are to the Penal Code.



                                            8
                                        A.
       The pertinent facts are these:
       Although murder victim Laurie Farkas was only 14 years old, defendant
had expressed a sexual interest in her, saying on one occasion, “I know she wants
me.”
       On the evening of the murder, after learning that Farkas and 15-year-old
Angie Higgins had gone to a movie theater in Fresno, defendant met the two
young girls there and offered them a ride in his car. They went to a deserted park
outside Fresno. Defendant went into the men‟s restroom, then yelled for toilet
paper. After Farkas brought him some paper towels, Higgins heard Farkas
screaming at defendant to “stop.” Higgins went into the restroom and saw Farkas
lying motionless and apparently unconscious on the concrete floor, her head
between defendant‟s knees. The floor was strewn with personal items belonging
to Farkas. When Higgins grabbed Farkas‟s legs and tried to pull her away from
defendant, defendant knocked Higgins down and began choking her. He then left
the restroom. On his return defendant hugged Farkas (who had regained
consciousness) and said he was sorry. He again left the restroom and returned
with a rope, which he then used to tie Higgins‟s hands behind her back. He left to
get more rope, with which he tied Higgins to a toilet. He then told Farkas to come
with him. Higgins heard screams, the sound of scuffling, then silence.
       Defendant came back into the restroom, saying Farkas had run away. He
then put Higgins in the car and drove around for hours, eventually stopping in a
rural part of southwest Fresno at 3:00 a.m. He told Higgins to walk to the trunk of
the car, after which he approached her from behind and strangled her into
unconsciousness. When another car approached, he fled.
       Farkas‟s body was found early the next morning. A rope was around her
neck; her blouse was pulled up, her bra was above her breasts, and her pockets

                                         9
were empty. She had been strangled. She also had four broken ribs and she had
head injuries that could have been caused by being struck with a blunt object or
being slammed against a concrete floor.
                                           B.
       A defendant convicted of first degree murder can be sentenced either to
death or to life imprisonment without the possibility of parole if the jury finds true
a special circumstance allegation that “[t]he victim was a witness to a crime who
was intentionally killed for the purpose of preventing his or her testimony in any
criminal . . . proceeding, and the killing was not committed during the commission
. . . of the crime to which he or she was a witness . . . .” (§ 190.2, subd. (a)(10).)
This special circumstance has three elements: “(1) a victim who has witnessed a
crime prior to, and separate from, the killing; (2) the killing was intentional; and
(3) the purpose of the killing was to prevent the victim from testifying about the
crime he or she had witnessed.” (People v. Garrison (1989) 47 Cal.3d 746, 792.)
       In this case, I question the adequacy of the prosecution‟s evidence on the
last of the three elements just described — that defendant killed Farkas to prevent
her from testifying about seeing defendant tie Higgins to a toilet. As discussed in
part A., ante, Higgins interrupted defendant‟s brutal assault on Farkas in an
attempt to rescue Farkas. After defendant subdued Higgins and tied her up,
defendant resumed the assault on Farkas, culminating in her death. Under those
circumstances, it is unlikely that defendant murdered Farkas because she
witnessed his attack on Higgins. But I need not determine whether the prosecution
presented sufficient evidence that defendant committed the murder for that
purpose, because the evidence fails to satisfy the first element of the witness-
killing special circumstance: that the victim must have “witnessed a crime prior
to, and separate from, the killing.” (People v. Garrison, supra, 47 Cal.3d at
p. 792, italics added.)

                                           10
       Here, defendant‟s attack on murder victim Farkas‟s friend Higgins began
well after his brutal attack on Farkas, when Higgins, in response to Farkas‟s
screams, entered the restroom and tried to pull Farkas away from defendant. At
that point, defendant knocked Higgins down to the floor and began choking her.
After tying Higgins to a toilet, defendant took Farkas outside the restroom and
resumed his attack on her, strangling her.
       Although defendant briefly left Higgins and Farkas alone in the restroom
three or four times after he began his assaults against them and before he killed
Farkas, he did so only to obtain items that he used to facilitate the commission of,
and to destroy the evidence of, his ongoing criminal activity: a flashlight that he
used to check for evidence that could be used against him, a basin of water that he
used to wash blood off of the restroom floor, and two ropes that he used to bind
Higgins‟s hands and to tie her to a toilet. No interruption occurred in defendant‟s
“common criminal intent” (People v. San Nicolas (2004) 34 Cal.4th 634, 655)
towards Farkas and Higgins.
       Higgins was still tied to the toilet when defendant took Farkas, who by then
had regained consciousness, outside the restroom and strangled her. Defendant‟s
tying up of Higgins was the only crime that Farkas witnessed. (Farkas was
unconscious when defendant, before tying Higgins to the toilet, knocked her to the
floor.) Hence, the crimes against Higgins were not “prior to, and separate from”
(People v. Garrison, supra, 47 Cal.3d at p. 792) the assault that ended in Farkas‟s
death. Rather, the crimes defendant committed against Higgins and Farkas were a
“continuous transaction.” (People v. Silva (1988) 45 Cal.3d 604, 631.)
       Because the prosecution here presented no substantial evidence that the
crime witnessed by Farkas was prior to and separate from the murder itself, I
would reverse the witness-killing special circumstance. That conclusion, however,
would not require reversing the judgment of death, as explained below.

                                         11
                                         C.
        When, on appeal, the evidence is determined to be insufficient to support a
special circumstance finding, the judgment of death need not be reversed if the
defendant suffered no prejudice. Prejudice results if the special circumstance was
necessary to make the defendant eligible for the death penalty. But even if another
special circumstance made the defendant eligible for the death penalty, the
defendant may still have suffered prejudice if the jury‟s penalty verdict was
influenced by evidence pertaining to the invalid special circumstance that was not
otherwise admissible. (See Brown v. Sanders (2006) 546 U.S. 212, 220; People
v. Castaneda (2011) 51 Cal.4th 1292, 1354.) Neither form of prejudice exists
here.
        Although, in my view, the evidence does not support the witness-killing
special circumstance, two valid special circumstances remain: murder during a
robbery and murder in the commission of a sexual assault. Thus, the invalid
special circumstance was not essential to make defendant eligible for the death
penalty. Nor did the existence of the invalid special circumstance affect the
balance of aggravating and mitigating circumstances that the jury considered at the
penalty phase. The evidence pertaining to the invalid witness-killing special
circumstance — that is, the evidence that defendant killed Farkas after she saw
defendant tie up Higgins — was properly considered by the jury as “circumstances
of the crime.” (See § 190.3, factor (a).) Because the invalid witness-killing
special circumstance did not prejudice defendant, I join the majority in affirming
the judgment of death.


                                                 KENNARD, J.




                                         12
    CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.



       I concur in part II of Justice Kennard‟s concurring and dissenting opinion,
and for the reasons she states would reverse the witness-killing special
circumstance. In all other regards, I concur in the majority opinion.

                                                 WERDEGAR, J.




                                         1
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Clark
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S045078
Date Filed: August 29, 2011
__________________________________________________________________________________

Court: Superior
County: Fresno
Judge: John Fitch

__________________________________________________________________________________

Counsel:

Melissa Hill, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson, Mary
Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney
General, Eric Christoffersen, Kathleen A. McKenna, Ward A. Campbell, Louis M. Vasquez, Lloyd G.
Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Melissa Hill
P.O. Box 2758
Corrales, NM 87048
(505) 898-2977

William K. Kim
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1675
