Filed 7/8/13




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S034800
           v.                        )
                                     )
RICHARD LUCIO DeHOYOS,               )
                                     )                       Orange County
           Defendant and Appellant.  )                    Super. Ct. No. C-77640
____________________________________)


        A jury found defendant Richard Lucio DeHoyos guilty of the 1989 first
degree murder of nine-year-old Nadia Puente. (Pen. Code, § 187, subd. (a).)1 The
jury determined defendant had kidnapped her in order to commit child molestation
and that he raped, sodomized, and committed a lewd and lascivious act upon her.2
(§§ 207, subd. (b), 261, subd. (a)(2), former 286, subd. (c) as amended by Stats.
1988, ch. 1243, § 6, p. 4133 (now 286, subd. (c)(1)), 288, subd. (a).) The jury
found true the special circumstances that the murder was committed while
engaged in the commission of kidnapping, forcible rape, sodomy and performing a
lewd and lascivious act upon a child under the age of 14. (Former § 190.2, subd. ,
(a)(17)(ii)-(v), added by initiative, Prop. 7, approved by voters Nov. 7, 1978 (see


1      All further statutory references are to the Penal Code unless otherwise
indicated.
2       Defendant was 31 years old at the time of the crimes.




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now § 190.2, subd. (a)(17)(B)-(E).) The jury found defendant was sane when he
committed the crimes and determined the appropriate penalty to be death. Prior to
sentencing, however, the trial court granted defendant‟s motion for a new trial
based on juror misconduct.
       On retrial, the second jury found defendant guilty of the same charges: first
degree murder, kidnapping for child molestation, forcible rape, sodomy, and
committing a lewd and lascivious act upon a child under 14. (§§ 187, subd. (a),
207, subd. (b), 261, subd. (a)(2), former 286, subd. (c), 288, subd. (a).) The jury
found true the same special circumstances. (Former § 190.2, subd. (a)(17)(ii)-(v).)
The jury again found defendant to be sane at the time he committed the crimes and
determined death to be the appropriate penalty. The trial court denied defendant‟s
motion for new trial and for modification of the verdict. The trial court imposed a
sentence of death, with additional determinate terms of imprisonment totaling 19
years for the nonhomicide offenses. This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment.
                                      I. FACTS

       A. Introduction
       As nine-year-old Nadia Puente walked home from her elementary school,
defendant approached her in his car, told her he was a teacher, and asked her for
help moving some books. After using this ruse to get Nadia into his car, defendant
drove to a motel where he had earlier rented a room for two. There defendant
raped, sodomized, and killed Nadia. He put her body in a trash can, which he
stuffed into the trunk of his car. He drove to Griffith Park in Los Angeles, waited
until after dark, and then left the trash can containing Nadia‟s body in the park.
Defendant fled to San Antonio, Texas, where he was apprehended about a week
later. When interviewed by investigating officers, defendant eventually admitted



                                          2
killing Nadia, but claimed it was unintentional, that he did not rape her, and that he
sodomized her only after she was dead.
       At trial, defendant additionally claimed he did not have the required mental
state to commit the crimes due to mental illness. He also claimed he was insane at
the time he committed the crimes. The jury rejected defendant‟s claims and
returned a verdict of death.

       B. Guilt Phase

           1. The prosecution’s evidence
       On March 20, 1989, defendant rented a room at the Ha‟Penny Inn in Santa
Ana, California. The Inn registration card and receipts indicated he registered for
two people to stay in the room.
       Sandra C., a student in the third grade at Diamond Elementary School in
Santa Ana, was walking alone home from school on the afternoon of March 20,
1989, when a gray car pulled up. The driver, a thin Caucasian or Hispanic man,
said “Excuse me” and called her over to the car. The man told Sandra that he was
a teacher and asked her if she would carry some books over to the Carr
Intermediate School. Sandra saw some books in the car, but she did not trust the
man. She told him “no,” that she could not go with him. She said that her mother
was waiting for her and she had to go. The man said okay and drove away.
Sandra later told her mother, the assistant principal of her school, and the police,
about the incident.
       Another student from Diamond Elementary School, Jose O., told police he
saw Nadia get into a gray car on the afternoon of March 20, 1989, after she briefly
talked to the man inside the car.




                                          3
       According to the assistant manager of the Ha‟Penny Inn, defendant checked
out of his room early. Defendant was given the refund of his $10 key deposit
when he returned his key on March 20, 1989.
       The next day, March 21, 1989, Nadia‟s body was found in a plastic trash
can liner in an aluminum trash can located in Griffith Park in Los Angeles. She
was clothed, but missing her panties, and wrapped in a bedspread from the
Ha‟Penny Inn. The trash can and the plastic liner were also from the Ha‟Penny
Inn.
       An autopsy of Nadia‟s body showed that she died from asphyxia due to
chest compression. In addition to bruising on Nadia‟s chest and other parts of her
body, the medical examiner found an area of abrasion, bruising, and a laceration
near the entry of her vagina. There was also bruising of the lining of the vagina.
There was bruising around the anus and a small abrasion. There were also injuries
in the area of the rectum. The injuries to Nadia‟s vagina and in the area of her
anus and rectum were consistent with the forcible insertion of an erect human
penis. The medical examiner determined that the injuries to her vagina and anus
were inflicted before her death, but could not determine whether the injuries to her
rectal area were sustained before death.
       The medical examiner did not find any clear indications of ingestion of
fluid and could not tell if drowning was a factor in Nadia‟s death. But when he
first examined Nadia, her hair and clothing were wet and the tips of her fingers
were wrinkled. Wrinkling is caused only by immersion in water. The medical
examiner testified that Nadia‟s injuries were consistent with her being bent over
the edge of a bathtub during the infliction of the injuries to the vaginal and rectal
areas. The medical examiner could not tell whether Nadia was conscious during
the infliction of the injuries.



                                           4
       One of the fingerprints on the plastic trash can liner that held Nadia‟s body
was identified as belonging to defendant.
       Santa Ana police found defendant‟s silver Nissan Sentra in the long-term
parking lot of the Los Angeles International Airport. They learned that defendant
was in San Antonio, Texas, and that he was trying to find work there at a Taco
Bell restaurant. On April 1, 1989, San Antonio police officers arrested defendant
on a warrant obtained by the Santa Ana police. San Antonio police officers took
defendant to a nearby police office, where he was advised of and waived his
constitutional rights. In a tape-recorded interview, defendant was questioned by
two Santa Ana detectives.
       Defendant initially denied knowing anything about Nadia‟s death and said
he thought he had been arrested because of something to do with a car. He
admitted checking into the Ha‟Penny Inn during the day of March 20, 1989 and
said he checked out in the early morning hours of March 21, 1989. Attempting to
account for his activities on March 20, defendant told the interviewing detectives
that he had quit his job at a Santa Ana Taco Bell restaurant earlier that day after
his manager had called him in and criticized his work. He later returned to the
Taco Bell to apologize to the manager. He subsequently checked into the Inn
because he was relocating after getting into an argument with some of his
roommates. Defendant claimed that after he checked into the Inn, he went to the
area near the Diamond Elementary School because he was hoping to collect a tax
refund check from the post office nearby. He then returned to the Taco Bell to
socialize and sometime later he went out partying at a club with a friend who had
also worked at the Taco Bell. Defendant denied picking up a little girl or anyone
else and taking her to his room. He agreed to give the detective samples of his
hair, blood, and saliva.



                                          5
       Detectives described to defendant the probable kidnapping of Nadia and the
finding of her body wrapped in a “blanket” and in a trash can taken from the
laundry room of the Ha‟Penny Inn. They told defendant his fingerprints had been
found on the trash can liner. Defendant again denied killing anyone, but moments
later, said the killing of Nadia was an accident.
       Assuring the detectives he was telling the “absolute truth,” defendant said
he picked up Nadia around 2:30 p.m. He told her that he was a teacher, that he
was being transferred, and that he needed help with some school books. Nadia
agreed to help him and got into his car. He drove to the Inn where he had already
checked in. Nadia carried a couple of his boxes into the room. Defendant told her
to “sort [his] stuff out” and to put it into the dresser drawers; then he would take
her home. When Nadia asked to use the phone, defendant told her it was not
working. Although defendant did not do anything to her, Nadia started screaming
as if she was afraid. Defendant said he had been getting ready to take a bath and
when Nadia started screaming, he “got carried away when she freaked me out.”
He got her in the bathtub and held her under the water until she was dead.
       Defendant subsequently provided a variation of this story. He again said he
had not intended to harm Nadia, but he was upset and disgusted about the
confrontation he had had with his manager earlier that day and the fact that he had
lost his job. He picked up Nadia, just wanting to talk to somebody. When
defendant had Nadia in the room, he was angry and he wanted “to do something,”
but Nadia was too young for him. He took his clothes off and began taking a bath.
Nadia became scared and asked to go home. Defendant told her to bring him a
towel and that he would take her home. However, when Nadia approached him,
defendant grabbed her hand and pulled her to the bathtub. When she started
screaming, defendant pushed her over the tub and held her facedown in the water.



                                          6
He did not want anyone coming from next door to investigate because it would
“start a big scene” and he would not be able to “explain all this.”
       Defendant initially denied sexually molesting Nadia, but then claimed that
he did so only after she was dead and he had placed her on the bed, removing her
panties. He said he molested her anally and inserted his finger into her vagina.
       After the sex acts, defendant wrapped Nadia in the bedspread, which also
served as the blanket for the motel bed. He was scared and did not want anyone to
see him carry Nadia out of the room, so he brought a motel trash can to his room
and put Nadia‟s body into it. He put the trash can into the trunk of his car and
drove on the freeway while he thought about where to put her body. He proceeded
to Griffith Park Observatory, where he waited until it was dark. He then left the
trash can about a quarter-mile up the road from the Greek Theater and drove back
to Santa Ana. He checked out of the Inn and went back home. He read the
newspapers about Nadia‟s murder and knew his car matched the description of the
car and that he resembled the composite drawing of the man who approached
Sandra C. After he picked up his last paycheck from Taco Bell, defendant flew to
San Antonio because he was worried that he would be apprehended.
       Defendant claimed he had never done anything like this before.

           2. The defense evidence
       Defendant presented testimony from a number of lay witnesses regarding
his behavior prior to committing the crimes against Nadia. Defendant also
presented the testimony of eight expert witnesses who testified about defendant‟s
mental disorders and brain damage.

               a. Family Members
       Defendant‟s parents testified that defendant had been different from their
other children since he was a toddler. Defendant would withdraw from his



                                          7
mother‟s hugs and would throw tantrums, even in his crib. As he grew up, he was
stubborn and would get angry. He would not listen to or obey directions and
refused to do household chores. He got into a lot more trouble than the other
children and his mother disciplined him to “straighten him out.” She hit him with
anything nearby, including a belt, a hanger, and a broomstick. One of defendant‟s
brothers testified defendant had learning problems in school.
       When defendant was about 12 or 13 years old, his parents began taking him
to Mexico to visit a faith healer, a curandero. The curandero acted as a guide or
an advisor to the family. He told defendant to pay attention and behave. On one
of these visits, the other children stepped out of the room, leaving defendant and
his parents with the curandero. About five minutes later, defendant ran outside.
His face was red and his eyes were bulging. He told one of his brothers that they
“made [him] see the good side and the bad side of hell.”
       Defendant‟s behavioral problems continued. Defendant‟s mother recalled
one time when defendant became so enraged with her after she asked him a
question about why he did not wear certain clothes that he pushed her against a
closet and threw books at her. When defendant was 17 years old, he jabbed at his
mother‟s stomach with a broomstick. At the time his mother was several months
pregnant. His eyes were bulging and “lit up,” his face was red, and he was
cursing. As a result of that incident, defendant‟s father told defendant he needed
to leave the house.

               b. Ex-wives
       Defendant lived with at least 10 different women and was married a
number of times. Two of his former wives testified at his trial.
       Gloria Lara met defendant in high school when she was 14 or 15 years old.
Defendant was a few years older than her. They were married in 1975 when she



                                         8
was 16 years old and in 10th grade. Four days after they were married, defendant
heard Lara talking on the phone to a girlfriend. He mistakenly thought Lara was
talking about a former boyfriend of hers. He subsequently initiated sex with Lara.
As Lara was lying on the floor, defendant tried to cover her face with a towel and
stabbed her in the area of her stomach. Defendant seemed scared and surprised by
what he did. Lara required surgery and was in the hospital for about two weeks.
Defendant was arrested, but later released when Lara “dropped charges” against
him. She lived with defendant for two more years. They had a daughter together.
The only other time he was violent was when she left him; he was upset and pulled
her hair.
       On cross-examination, Lara testified defendant called her sometime before
Easter week of 1989. Defendant told her he was in California, but said there was
nothing left for him there and he was coming to live in Texas. Lara picked
defendant up from the San Antonio airport a few days before Easter. During the
time between picking defendant up and defendant‟s arrest about a week later, Lara
had several conversations with defendant. She told a prosecution investigator that
during one of those conversations, defendant said he was enjoying himself at a San
Antonio club, that the clubs in California were terrible and that “[o]ver there
[California], you could kill somebody and get away with it.” After defendant‟s
arrest, Lara received a call from defendant from the jail. He told her he had been
arrested for killing a nine-year-old girl. He said that he did not mean to kill her.
When Lara asked defendant why he killed the girl, defendant said “she was getting
out of hand.”
       After dating a short time, defendant married Maria Esparza in September
1984. Esparza and defendant only lived together for the next five months, during
which time they had problems due to defendant‟s jealousy and anger. Defendant
often threatened to leave Esparza. In January 1985, defendant came home and

                                          9
was picking up some clothes. Esparza asked defendant where he was going.
Defendant responded by cursing at Esparza. He hit and pushed her into the
bathroom and to the edge of the bathtub. As she was hanging over the bathtub,
defendant placed his knee on her chest and his hands around her throat. He
choked her. As she was losing consciousness, she heard him say he was going to
kill her. He said: “Die, die.” She managed to grab a small teaspoon or fork and
jabbed him in the face. Defendant got up, called her a bitch, and ran away.
Although the police were contacted, they could not find defendant and Esparza
never saw him again. She subsequently filed for divorce.
       Esparza recalled that something unusual happened during their wedding
reception. Esparza‟s brother told defendant to try and make Esparza happy.
Defendant did not like the comment and told Esparza‟s brother not to butt in.
Defendant and her brother then got into a fight.
       Esparza testified she never saw defendant use cocaine, but she noticed that
he bled from his nose onto the pillow at night. She saw defendant drink alcohol,
but testified he did not drink excessively and did not arrive home drunk.

                c. Military Friend, Coworkers
       Jerry Taylor testified he met defendant in 1979 when they were assigned to
the same army unit at Fort Colby in Panama. According to Taylor, defendant
responded disrespectfully to criticism by superior officers, had a reputation for not
accepting correction, and went AWOL for at least 30 days during the time he was
posted there.
       Sam Morrison worked with defendant in 1982 for about a year in a
telemarketing firm. Morrison described defendant‟s odd behavior as including
jumping on the top of his desk, running around his desk, and yelling into the
phone. Defendant was the class clown in the office, and bragged that he “had



                                         10
women all over the country, all over the world.” Defendant would visit
Morrison‟s house and drink pitchers of margaritas with Morrison‟s father.
      Paul Shawhan was defendant‟s supervisor in 1989 at USA Aluminum.
According to Shawhan, defendant acted “like a self-appointed police officer,”
continually reporting other people‟s minor infractions. Shawhan said defendant
had a bad temper and when something was not going exactly the way he wanted,
he would get angry quickly. Shawhan eventually terminated defendant‟s
employment because he got into a physical confrontation with another employee.
Asked to describe the incident, Shawhan testified the other employee was simply
paying for his food at a lunch truck when defendant became upset, “jump[ed] up
in his face and start[ed] making all kinds of motions like he [defendant] was going
to do something.” Defendant seemed both angry and anxious. After Shawhan
fired defendant, defendant responded that “it was okay” because the Los Angeles
Police and Sheriff Departments were interested in employing people like him who
possessed an “international passport.”
      Norma Sandoval was an assistant manager at a Taco Bell restaurant where
defendant was also an assistant manager. She worked with him for several months
in early 1989. Sandoval testified defendant got along reasonably well with others.
When he worked, he would joke around and talk about having sex with multiple
girls at the same time. Defendant asked her to go out. Sandoval said he made her
feel nervous.
      Mary Ann Scott was the manager of the Taco Bell restaurant where
defendant worked as assistant manager for two months. Scott testified that
defendant seemed slow to learn the paperwork portion of his job and that he tried
to find an easy way out in other areas of his work. Although Scott spent extra time
working with defendant, he never seemed to get his work completed and she had



                                         11
to finish it for him. She talked to him about the problem many times. She said
defendant got upset more readily than other employees when he was corrected.
       Scott‟s supervisor, Dennis Burkhart, testified that once when he was
visiting the Taco Bell where defendant worked, defendant asked Burkhart to
evaluate defendant‟s performance. When Burkhart relayed to defendant some of
Scott‟s criticisms of him, defendant claimed Scott was picking on him. Defendant
seemed angry, like he was boiling inside, and appeared frustrated. Defendant was
perspiring, his eyes bulged out, his face was red and he glared at Burkhart.
Burkhart was afraid that defendant was going to physically assault him.
       On March 20, 1989, Scott called defendant at home around 6:30 or
7:00 a.m. She was upset and told him to come immediately to the Taco Bell
because he had not cleaned the store properly when he closed the previous night.
Defendant arrived about 10 minutes later and was angry. They got into a heated
argument with raised voices. Defendant said Scott was always complaining and
that if he could not do the job the way Scott wanted, then “I guess I am out of
here.” Scott told him that was stupid, but defendant threw his keys into the office
on the desk and stomped out the door. Scott denied telling defendant that he was
fired. A few days later, defendant came to the Taco Bell for his paycheck and said
he was leaving California. Scott subsequently received a phone call from
someone at a Taco Bell in San Antonio, Texas, asking about defendant because
defendant was there and applying for a job. Scott relayed the information to the
police, who had previously interviewed her.

               d. Expert Witnesses
       Dr. Monte Buchsbaum, a professor of psychiatry and a director and
supervisor of positron emission tomography (PET) at Mt. Sinai School of
Medicine, and Dr. Stephen Lottenberg, a nuclear medicine physician working with



                                         12
Buchsbaum, both testified about a PET scan administered to defendant in June
1991. The scan of defendant‟s brain showed abnormality or damage on the right
side in the areas associated with emotional behavior, planning and organization.
Buchsbaum testified he would expect defendant to have problems controlling
impulsivity and rage. He believed the damage had existed for at least a decade,
and specifically on the date defendant raped and killed Nadia. Lottenberg testified
he could not determine whether the test results would have been the same had the
scan been administered on the day of the crimes.
       Dr. Arthur Kowell, a specialist in clinical neurology, conducted a brain
electrical activity mapping (BEAM) scan on defendant in 1992. A BEAM scan
measures the electrical response of the brain after a visual and auditory stimulus is
given. Out of the four subparts of the scan, defendant tested normal on three parts
and abnormal on one part — the visual test. The areas that showed abnormal
results were from the portions of the brain that involve sensory motor strips, the
integration of sensory processes and spatial relationships, and an area that
concerns language, speech, memory, and emotion. With respect to the portion of
defendant‟s scan that showed abnormality in both temporal lobes, Kowell stated
that individuals with such problems may experience rage attacks. However,
Kowell explained, he could not correlate defendant‟s scan to an inability to control
his temper or a tendency to be violent because the results of a single scan are not
predictive of behavior. Although Dr. Kowell could not say what a BEAM scan of
defendant would have shown on March 20, 1989, his experience with the records
of patients over a period of time indicated there is general consistency regarding
test results, assuming there is no intervening pathologic process.
       Dr. Paul Berg, a licensed psychologist and a marriage, family, and child
counselor, evaluated defendant in November 1990 and in December 1992. He was
asked to conduct a general psychological profile of defendant and to determine

                                         13
whether defendant was a sexual pedophile. Berg interviewed defendant and three
members of defendant‟s family, administered a number of psychological tests to
defendant, and reviewed multiple reports from other doctors and investigators.
       Dr. Berg testified that defendant was “hypersexualized,” but he did not fit
the clinical definition of a pedophile. Although defendant reported he had
sexually molested a younger sister, defendant was too young at the time for his
conduct to support a diagnosis of pedophilia. Berg formed the opinion that
defendant was suffering from a mental illness on March 20, 1989. Berg
determined that the diagnostic possibilities for defendant were, in descending
order: “schizophrenic disorder, major depression, alcohol abuse, and
dependency.” Berg found that defendant also had personality disorders, including
paranoid personality and schizotypal personality. Berg stated that individuals with
such severe disorders cannot handle stress.
       Dr. Berg believed that a number of stressors occurred on March 20, 1989,
which defendant could not handle, including the confrontation with his manager,
his perception that he was fired, his feeling that he had to do something about it,
his resulting rage and desire to kill Scott, his inability to earn money, and his
attempt to obtain drugs to remediate how he was feeling. Berg opined that
defendant sought Nadia‟s company because he was desperate, depressed, and
seeking any source of reassurance. Berg surmised that when Nadia came into the
bathroom and saw defendant naked, it reminded defendant of feeling humiliated
and shamed by his mother. He was unable to control his rage and the killing
resulted. Berg testified he did not think defendant knew he was killing a child
when he pressed Nadia against the bathtub; he thought he was killing Scott. Berg
considered defendant‟s sexual activity with Nadia after her death, which defendant
had told Berg was his method of finding out whether Nadia was alive or feigning
dead, to be extraordinarily bizarre and “the idea only of a mentally ill person.”

                                          14
         Defendant called Dr. Seawright Anderson, a board-certified psychiatrist
who had been appointed by the court to render a professional opinion as to
whether defendant was sane on the date he killed Nadia, to testify on behalf of the
defense. Anderson conducted a mental status examination of defendant in August
1991. He diagnosed defendant with schizoaffective disorder, a history of
polysubstance abuse, and a history of multiple head injuries. Based on subsequent
reports, he also felt defendant had an organic personality disorder. According to
Anderson, defendant‟s schizoaffective disorder made him frustrated, suicidal, and
depressed. It impaired his judgment, insight, and ability to control his inner
impulses and frustrations.
         Dr. Anderson believed that on the day defendant raped and murdered
Nadia, he was under stress related to his contact with Scott and the failure of his
income tax refund check to arrive. He also was under the influence of controlled
substances. Noting defendant‟s inconsistent accounts of the events surrounding
his crimes, Anderson felt defendant was not lying, but was experiencing
misconceptions over which he had no conscious control. Anderson believed
defendant did perceive Nadia as a little girl, but at the time of the crimes he
“actually did not perceive her fully as a little girl.” His visual perception was
distorted by his extreme anger, such that he believed he was killing Scott, not
Nadia.
         Dr. Jose J. LaCalle, a clinical psychologist, was appointed by the court as
an expert for the defense. In order to evaluate defendant‟s mental health, LaCalle
conducted multiple clinical interviews with defendant, reviewed defendant‟s
medical, psychiatric, and criminal histories, interviewed family members, spouses
and others, administered multiple psychological tests, and consulted with other
defense experts. According to LaCalle, defendant‟s psychological testing
produced mainly inconsistent or invalid results, but based on the remaining tests,

                                           15
his interviews with defendant, and defendant‟s medical and social histories,
LaCalle concluded that defendant suffered from the following mental illnesses on
March 20, 1989: organic personality syndrome, explosive type; borderline
personality disorder, severe; and organic impairment, a medical condition.
LaCalle believed that both of defendant‟s psychological disorders were in
operation when defendant killed Nadia because both conditions were chronic and
were developed in defendant‟s early life. According to LaCalle, defendant
experienced uncontrollable rage and his thinking processes were impaired because
of his illness. LaCalle opined that when defendant lost his job at Taco Bell,
something inside him “broke,” provoking an extraordinary reaction and emotional
outburst.
       Dr. Susan Fossum, another licensed clinical psychologist appointed by the
court as an expert for the defense, examined defendant in late 1992. She
diagnosed defendant with organic personality syndrome, explosive type, with
overlapping chronic schizophrenia of the paranoid type, and narcissistic
personality disorder with features of borderline personality disorder and
sociopathic personality disorder. She also concluded that defendant‟s right frontal
lobe, right and left temporal lobes, and right parietal lobe were marked by
extensive dysfunction. She believed defendant had these diagnoses at the time he
raped and murdered Nadia and that as a result of his disorders, defendant was
unable to control his emotions, had poor self-monitoring, poor impulse control,
poor judgment, and poor ability to distinguish or perceive reality. Fossum testified
that defendant‟s difficulty with abstract thinking, his socially inappropriate
behavior, naivety, and lack of self-critical ability were indicators of his brain
damage. She believed that early in the morning of March 20, 1989, defendant‟s
narcissistic personality structure began to undergo a disintegrative process caused
by Scott‟s castigation of him. In a confused, fearful, and raging state, defendant

                                          16
lost control of himself and reached out to Nadia for reassurance and company.
Fossum believed defendant was confused about what he was physically doing
when he raped, sodomized, and killed Nadia.
       Dr. Arnold Purisch, a clinical psychologist specializing in clinical
neuropsychology, performed a comprehensive neuropsychological evaluation of
defendant in 1992 at the request of the defense. Purisch interviewed defendant for
nine hours over two days, administered a battery of 21 neuropsychological tests,
reviewed numerous records and reports detailing defendant‟s family, academic,
military and work histories, and considered the reports prepared by other defense
experts in the case. Purisch testified that he was impressed that, despite
differences, when taken as a whole, there was a marked convergence among the
experts who evaluated defendant concerning the types of mental conditions from
which defendant was suffering at the time of the crimes. Purisch agreed that
defendant‟s PET scan and BEAM study showed abnormalities in defendant‟s
brain, conditions that could be chronic. The battery of neuropsychological tests
administered by Purisch showed that defendant had cognitive and other
neuropsychological problems consistent with his brain impairment. Purisch
concluded defendant suffered from organic personality syndrome of the explosive
type, accounting for the long-term behavioral problems he demonstrated. He
believed defendant had the disorder on the date of the crimes against Nadia, but
because of defendant‟s many different versions of the events of that day, Purisch
could not determine what defendant‟s state of mind was at the time of the crimes.
Purisch did opine that with so many personality disturbances, defendant‟s defenses
and intentions would get overwhelmed when he was under stress and that he
would explosively “act out” in non-deliberated ways that he could not control. He
concluded that defendant was under a great deal of stress, including from his job
termination, on the day of the crimes.

                                         17
       A number of defendant‟s expert witnesses acknowledged on cross-
examination that defendant could be malingering, that is, falsifying or
exaggerating his psychological symptoms. Dr. LaCalle concluded that defendant
was malingering, but testified he still had confidence in his expert opinions of
defendant‟s mental illnesses. Dr. Berg did not diagnose defendant as a malingerer,
but he did not rule it out. He found indications that could be considered
malingering. Berg testified that defendant‟s bizarre actions during his trials —
barking like a dog, turning counsel‟s table over, shaving his head — may have
been calculated conduct by defendant, but that did not contradict the fact that
defendant was also very mentally ill. Dr. Fossum did not diagnose defendant as a
malingerer, although she had information in a report by a nontestifying expert,
Dr. Edwards, that Dr. Edwards diagnosed defendant as a malingerer. Dr. Fossum
noted in her report indications that were consistent with malingering. Dr. Purisch
testified that defendant met the criteria for being a malingerer. He explained that
although there was no evidence defendant malingered in his neurological testing,
there was evidence he malingered on his personality testing and there were also
other indications of malingering.

           3. The prosecution’s rebuttal evidence
       Dalila Flores testified that when she was 15 years old and in high school,
she met defendant at a Taco Bell where he was the manager. Defendant asked her
if she wanted a job. She said she did and gave him her name and phone number.
Approximately a week later, defendant called and said he had a job application for
her. They arranged to meet at another Taco Bell the next day.
       Flores testified that when she met defendant, he told her she needed to
accompany him to his “apartment” to get the application. Defendant took her to a
motel room after stopping to buy some wine coolers. Defendant never gave her a



                                         18
job application or discussed a job application. He told Flores that when he had
previously taken girls to the motel, he had stripped naked and they had
photographed him before going to bed and doing “a blow job.” When defendant
asked Flores if she wanted to do the same, she said no. Defendant asked if she
wanted him to show her a magazine like Playgirl or Playboy and she said no.
Defendant then pushed her on the bed and tried to kiss her. Flores became
frightened. She pushed defendant off, grabbed the wine cooler bottle defendant
had been drinking, and told him: “Hey mother fucker, if you touch me you are
dead.” Flores told defendant she had cousins that were in gangs and they knew
where she was, as did her brother and boyfriend. She told defendant that if he
messed with her, they would mess with him.
         Flores left the room and defendant followed her. She told him she was
going home. Defendant apologized and offered to drive Flores home. Flores
agreed, but asked to get out when they were about halfway to her house because
she did not want defendant to know where she lived. She never saw defendant
again.

         C. Sanity Phase
         Defendant testified on his own behalf in the sanity phase of his trial, as
follows.
         Defendant explained that on March 20, 1989, he had only three hours of
sleep before Scott called him back into work. When he arrived, Scott complained
about defendant‟s work and told him she was going to have to replace him.
Defendant thought he was fired. He left the Taco Bell restaurant and drove away
upset because he thought this job had been his final opportunity. He bought and
drank some beer. He thought about killing himself. He bought some drugs,




                                           19
including cocaine, and checked into a motel around 11:00 a.m. He used the drugs
and drank some more beer.
         Defendant returned to the Taco Bell restaurant about an hour later,
intending to “get back at” Scott, but there was too many people around her. He
decided to go to the post office to see if his income tax refund check had arrived.
It had not. As he walked back to his car, he had a conversation with a girl, who
turned out to be Nadia. Defendant testified that he thought she was 19 or 20 years
old. Nadia got into defendant‟s car. Defendant said he did not know why he took
Nadia to the Inn, but denied it was for the purpose of sexual conduct. When Nadia
was cleaning up his room, defendant took a bath and snorted more cocaine.
         About 20 minutes later, defendant got out of the bathtub. As he reached for
a towel, Nadia came in without knocking and saw him naked. This angered
defendant, who grabbed Nadia. When Nadia kicked him, defendant became even
angrier. They had a scuffle and ended up falling over the edge of the bathtub into
the water. Defendant stayed on top of Nadia. Defendant claimed he did not have
the power to get off of her, that he did not know what he was trying to do to her,
and that he just did it. It was Scott he saw; not Nadia. When defendant rolled
onto the floor, he saw Nadia was not moving and was hanging over the edge of the
bathtub. She slipped into the water facedown. He turned out the lights and sat in
the living room for five or 10 minutes.
         When defendant went back into the bathroom, he knew something was
wrong. He grabbed the mattress off the bed and placed Nadia onto it. Nadia had
defecated and it smelled, so defendant pulled down her underwear and cleaned her
off. Defendant wondered if Nadia was playing dead and to find out, he sodomized
her. He testified he thought it was the right thing to do to see if she was alive.
         Defendant claimed he thought he had killed Scott. He did not want to kill
Nadia.

                                          20
       Defendant testified that the statements he made to the police when
questioned were lies. He told them what they wanted to hear because they said
they were going to shoot him. Defendant denied making up stories when he spoke
to the doctors, but later admitted he was not truthful with Dr. Ronald Siegal
because he wanted Siegal to leave him alone. He probably lied to Dr. LaCalle
because he was angry with him. Defendant claimed Flores lied during her
testimony.
       Dr. LaCalle and Dr. Berg testified again at the sanity phase of defendant‟s
trial. LaCalle concluded defendant‟s personality disorder severely impaired his
ability to make proper decisions. Defendant‟s impairment was so extreme that he
fell within the parameters of legal insanity at the time of Nadia‟s death and when
he sodomized her. Berg also opined that defendant was unable to distinguish right
from wrong and did not recognize the nature and quality of his actions at the time
he committed the crimes against Nadia.
       Defendant called two additional expert witnesses. Dr. Consuelo Edwards, a
physician who specialized in psychiatry, testified defendant had multiple
personality disorders and suffered from frontal and temporal lobe dysfunction for
most of his life. She concluded defendant was legally insane when he committed
the crimes against Nadia in an uncontrollable rage and without consideration of
what he was doing. Dr. John Reid Meloy, a licensed psychologist specializing in
forensic psychology, testified that he believed defendant did not understand the
quality of his act of kidnapping Nadia and that when defendant raped and
murdered Nadia he was incapable of distinguishing right from wrong.
       The sole witness called by the prosecution at the sanity phase was Sergeant
Gary Bruce of the Santa Ana Police Department. Bruce, who participated in the
interrogation of defendant in San Antonio following his arrest there, testified
regarding the circumstances of defendant‟s interrogation to rebut defendant‟s

                                         21
testimony that he was threatened and intimidated during the questioning.
Otherwise, the prosecution took the position that the jurors did not need the
opinion of an expert on the specific issue of insanity and accordingly did not call
its own experts to testify at the sanity phase. The prosecution closely cross-
examined defendant‟s experts and in closing argument highlighted the fact that the
defense experts‟ testimony was not always consistent regarding defendant‟s
insanity. The prosecution also emphasized the testimony that defendant was a
malingerer and an unreliable source of information.
       The jury concluded defendant was sane at the time of the crimes.

       D. Penalty Phase

           1. The prosecution’s evidence
       At the penalty phase of trial, the prosecution called only one witness —
Sara Puente, Nadia‟s mother, who provided victim impact testimony. The
prosecution relied on the circumstances of the crime, including the victim impact
testimony of Mrs. Puente, the incidents of violence against Lara and Esparza, and
defendant‟s courtroom behavior during the sanity phase (defendant got out of his
chair and advanced toward the prosecutor while uttering threats) as aggravating
circumstances warranting the death penalty.

           2. The defense evidence
       Defendant presented the testimony of 10 friends and family members
regarding defendant‟s behavior when he was with them and their belief that his
life should be spared. Defendant also presented the testimony of a sentencing
consultant who testified defendant could adjust to life in prison if he was
sentenced to life without the possibility of parole. Finally, defendant presented the
testimony of a psychiatrist who testified to nine psychiatric factors regarding




                                         22
defendant that he thought the jury should consider in determining defendant‟s
sentence.3

                                  II. DISCUSSION

       A. Asserted Errors Affecting the Guilt Phase of Trial

             1. The prosecutor’s use of peremptory challenges — defendant’s
                 Wheeler/Batson claim
       Defendant contends the trial court erred in denying his motion for mistrial
brought under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v.
Kentucky (1986) 476 U.S. 79 (Batson). In the trial court, defendant asserted the
prosecutor impermissibly used peremptory challenges to remove three Hispanic
prospective jurors, one African-American prospective juror, and one prospective
juror who described himself as “Mex-Blk” (Mexican-Black), based on their race.
On appeal, defendant claims that the prosecutor‟s reasons for exercising his
peremptory challenges against the five prospective jurors are not supported by the
record and that the trial court failed to make a serious attempt to evaluate the
genuineness of the prosecutor‟s explanation. Defendant contends his federal and
state constitutional rights were violated and that reversal of the entire judgment is
required. We reject defendant‟s claims.
       A prosecutor‟s use of peremptory challenges to excuse prospective jurors
on the basis of group bias, including on grounds of race or ethnicity, violates the


3       The nine psychiatric factors were as follows: (1) defendant‟s abusive
childhood experiences; (2) his premature exposure to sexuality; (3) his exposure to
the odd religious beliefs of the curandero; (4) his childhood physical deformity
(his eyes were deviated outward); (5) his history of head injuries; (6) his abuse of
sedatives and stimulants; (7) his paraphilia or abnormal sexual development; (8)
his history of experiencing psychotic phenomena during periods of stress; and (9)
the progressive deterioration of his “life-functioning.”




                                          23
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.
(People v. Clark (2011) 52 Cal.4th 856, 903-904; Wheeler, supra, 22 Cal.3d 258.)
Under Batson, supra, 476 U.S. 79, such practice also violates the defendant‟s right
to equal protection under the Fourteenth Amendment. (People v. Clark, supra, at
p. 904; People v. Davis (2009) 46 Cal.4th 539, 582.)
       “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.” [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).)” (People v. Clark, supra, 52 Cal.4th at
p. 904.)
       “A prosecutor asked to explain his conduct must provide a „ “clear and
reasonably specific” explanation of his “legitimate reasons” for exercising the
challenges.‟ [Citation.] „The justification need not support a challenge for cause,
and even a “trivial” reason, if genuine and neutral, will suffice.‟ [Citation.] A
prospective juror may be excused based upon facial expressions, gestures,
hunches, and even for arbitrary or idiosyncratic reasons.” (People v. Lenix (2008)
44 Cal.4th 602, 613.) “[B]ut race-based decisions are not constitutionally
tolerable.” (Id. at p. 621; accord, Rice v. Collins (2006) 546 U.S. 333, 338.)
       Therefore, “[a]t the third stage of the Wheeler/Batson inquiry, „the issue
comes down to whether the trial court finds the prosecutor‟s race-neutral

                                          24
explanations to be credible. Credibility can be measured by, among other factors,
the prosecutor‟s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in
accepted trial strategy.‟ [Citation.] In assessing credibility, the court draws upon
its contemporaneous observations of the voir dire. It may also rely on the court‟s
own experiences as a lawyer and bench officer in the community, and even the
common practices of the advocate and the office that employs him or her.
[Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613, fn. omitted, quoting
Miller-El v. Cockrell (2003) 537 U.S. 322, 339.)
       “ „Review of a trial court‟s denial of a Wheeler/Batson motion is
deferential, examining only whether substantial evidence supports its conclusions.
[Citation.] “We review a trial court‟s determination regarding the sufficiency of a
prosecutor‟s justifications for exercising peremptory challenges „ “with great
restraint.” ‟ [Citation.] We presume that a prosecutor uses peremptory challenges
in a constitutional manner and give great deference to the trial court‟s ability to
distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial
court makes a sincere and reasoned effort to evaluate the nondiscriminatory
justifications offered, its conclusions are entitled to deference on appeal.
[Citation.]” ‟ [Citation.]” (People v. Vines (2011) 51 Cal.4th 830, 848.)
       “ „ “[T]he trial court is not required to make specific or detailed comments
for the record to justify every instance in which a prosecutor‟s race-neutral reason
for exercising a peremptory challenge is being accepted by the court as
genuine.” ‟ ” (People v. Stanley (2006) 39 Cal.4th 913, 936.) “ „ “All that matters
is that the prosecutor‟s reason for exercising the peremptory challenge is sincere
and legitimate, legitimate in the sense of being nondiscriminatory.” [Citation.] A
reason that makes no sense is nonetheless “sincere and legitimate” as long as it
does not deny equal protection. [Citation.]‟ [Citation.]” (Ibid.)

                                          25
       “ „As part of our analysis, we consider as “bearing on the trial court‟s
factual finding regarding discriminatory intent” [citation] the comparisons of
prospective jurors challenged and unchallenged that defendant expounds in his
briefs, though few if any of these comparisons were made in the trial court. At the
same time, “we are mindful that comparative juror analysis on a cold appellate
record has inherent limitations.” [Citation.] In addition to the difficulty of
assessing tone, expression and gesture from the written transcript of voir dire, we
attempt to keep in mind the fluid character of the jury selection process and the
complexity of the balance involved. “Two panelists might give a similar answer
on a given point. Yet the risk posed by one panelist might be offset by other
answers, behavior, attitudes or experiences that make one juror, on balance, more
or less desirable. These realities, and the complexity of human nature, make a
formulaic comparison of isolated responses an exceptionally poor medium to
overturn a trial court‟s factual finding.” [Citation.]‟ [Citation.]” (People v.
Booker (2011) 51 Cal.4th 141, 165-166.)
       With these principles in mind, we turn to the circumstances in this case.
       Defendant moved for a mistrial pursuant to Wheeler/Batson after the
prosecutor exercised a peremptory challenge to exclude Prospective Juror M.L.,
who described herself as Hispanic. Defendant argued that the prosecutor was
impermissibly excusing prospective jurors who were Hispanic or African-
American. Defendant initially identified four such prospective jurors — M.L. and
E.D., who were Hispanic, L.M., who was African-American, and R.M, who was
both Hispanic and African-American. Defendant later added Prospective Juror
A.M.-F., who identified himself as “Latin-American.”
       The trial court found a prima facie case was stated. It noted that of the 16
peremptory challenges exercised by the prosecution, the prosecutor had used five
of them to exclude people who were either African-American or Hispanic. The

                                          26
trial court stated that it was not obvious why the prosecutor excluded each of the
identified persons. The court later explained that its statement was based on its
lack of recall of the voir dire specific to these jurors at that time. Under the
circumstances, the court concluded it would require the prosecution to justify its
use of its peremptory challenges.
       After a hearing, at which the prosecutor stated his reasons for excusing each
of the five identified prospective jurors, the trial court found that the prosecutor
had not used any of its peremptory challenges in order to excuse prospective jurors
based on their race and denied defendant‟s motion.
       We examine defendant‟s claims of error.

                a. The excusal of Prospective Juror L.M.
       Prospective Juror L.M. identified herself in her jury questionnaire as
“Black.” She stated that she was 42 years old, a high school graduate, married,
with two children in their early 20‟s and was employed as an office associate. The
prosecutor justified his peremptory challenge to her based on her responses to oral
voir dire.
       The prosecutor stated that his first concern was Prospective Juror L.M.‟s
statement that she was looking forward to sitting on a capital case. He stated that
because of the enormity of the decision in a capital case, he was skeptical or
suspicious of anyone who was looking forward to sitting as a juror in such a case.
He questioned whether L.M. might have a specific reason or agenda for wanting to
be seated on the jury. Second, the prosecutor noted L.M.‟s claim that she was not
apprehensive about making a life-and-death decision in a capital case. The
prosecutor said that, considered with the statement that she was looking forward to
the decision, this comment raised the concern that L.M. did not fully understand
the gravity of a juror‟s personal responsibility in a capital case. Third, in response



                                          27
to questioning by defense counsel, L.M. said her daughter was taking psychology
in college, but denied that she ever discussed any of her daughter‟s class work
with her. The prosecutor expressed skepticism that a woman who has a college-
age daughter living with her and who has knowledge of her daughter‟s career
plans would never talk to her about class work. In light of the statements
indicating she wanted to serve on the jury, the prosecutor inferred L.M. might be
trying to avoid a challenge based on her having discussed psychology or
psychiatry with her daughter. Fourth, the prosecutor noted L.M.‟s inconsistent
statements about the death penalty. L.M. indicated, in response to a question
about whether she had ever taken a position with respect to the death penalty, that
she recalled an instance where she had spoken with friends about the death penalty
and she had taken the position that it was “wrong.” When asked whether she had
ever read anything about the death penalty, she said no. She did not recall the
specifics of the situation in which she took the position that the death penalty was
wrong. Asked how she felt about the death penalty, whether it was used too
seldom, too often or just right, she stated that she had no opinion. This comment
concerned the prosecutor because she had just stated that in one instance she had
taken the position that it was wrong.
       The trial court noted preliminarily that it is not improper for a prosecutor to
use a peremptory challenge to excuse prospective jurors who are reluctant to
impose or have reservations about imposing the death penalty even if they are not
excusable for cause under Wainwright v. Witt (1985) 469 U.S. 412. The trial court
also observed that both sides approach prospective jurors from different
perspectives. When there are two possible ways to interpret a juror‟s response to
questioning, it does not mean that the prosecutor‟s interpretation is necessarily
unreasonable. The trial court noted that each side might interpret a response
differently in light of its perspective.

                                           28
       With that in mind, the court observed that Prospective Juror L.M. never
previously had been required to make any decision regarding life or death. She
had no opinion as to whether the death penalty was used too often or too
infrequently. The trial court found it significant that L.M. said she did not
remember the Robert Alton Harris case, even though his execution the previous
year was the first execution in California for 35 years and the case had received
massive amounts of publicity. The trial court found the prosecutor was justified in
having doubts about L.M.‟s ability to deal with the death penalty and to give it
serious consideration in this case. According to the trial court, L.M.‟s answers
regarding this responsibility reflected a lower level of concern compared to the
average juror. In addition, the trial court found the prosecutor‟s reservations
regarding L.M. were justified in light of her seeming lack of involvement and
thought about the issue in the past, which the trial court found hard to believe. It
determined that the prosecutor had stated a nonrace-related reason for excusing
her.
       The record supports the trial court‟s conclusion that the prosecutor‟s
explanation of his excusal of Prospective Juror L.M. was race neutral and not
pretextual. The trial court expressly considered the prosecutor‟s stated concern
that L.M. did not completely understand the gravity of a juror‟s personal
responsibility in a capital case and specifically discussed portions of L.M.‟s voir
dire responses that established a basis for the prosecutor‟s concern. We find no
inconsistencies in the trial court‟s comments, which demonstrate “a sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered,” and
therefore, “are entitled to deference on appeal.” (People v. Burgener (2003) 29
Cal.4th 833, 864.) A failure of a juror to appreciate the gravity of his or her
responsibility in a capital case may be an adequate race-neutral basis for a
peremptory challenge. (See People v. Salcido (2008) 44 Cal.4th 93, 140.) With

                                         29
respect to the prosecutor‟s skepticism regarding L.M.‟s claim to have never read
anything about the death penalty and to have formed no opinion on whether it was
used too often or too infrequently, the prosecutor relied on evidence in the record
that L.M. specifically recalled an occasion on which she had taken the position
that the death penalty had been imposed wrongfully. The prosecutor could
reasonably view L.M.‟s statements as inconsistent and indeed, the trial court itself
doubted her veracity on this point. The trial court‟s comments reflect that it found
the prosecutor‟s concern to be reasonable. The trial court did not separately
address on the record the prosecutor‟s other two stated grounds for his excusal of
L.M., but it did not have to do so. (People v. Stanley, supra, 39 Cal.4th at p. 936.)
       Defendant contends, however, that the prosecutor‟s statement of reasons is
undermined by a comparative analysis of Caucasian jurors who expressed views
similar to L.M.‟s, but who were not excused by the prosecutor. Defendant
contends that Prospective Juror E.C. was at least as willing or eager to serve as a
juror. A number of Caucasian prospective and seated jurors or alternate jurors,
including C.S., R.D., G.J., G.P., A.S., M.H., M.W., and M.B., acknowledged that
they had friends or loved ones with whom they did not discuss their work. Three
Caucasian jurors, including seated Jurors T.B. and J.R., acknowledged they had
never had to make any decisions concerning the welfare, health or life of another.
Nine Caucasian prospective or seated jurors or alternate jurors, G.P., J.R., S.M.,
R.D., M.B., E.C., K.T., T.S., and C.F., were unfamiliar with the execution of
Robert Alton Harris or had not considered the issue of capital punishment in any
depth.4


4      Defendant also argues that we should disregard L.M.‟s lack of experience
in making life and death decisions and her failure to recall the Robert Alton Harris
case because such reasons were offered by the trial court in support of the exercise
                                                         (Footnote continued on next page.)


                                         30
        We consider defendant‟s argument despite his failure to make it in the trial
court, “but „we are mindful that comparative juror analysis on a cold appellate
record has inherent limitations.‟ ” (People v. Elliott (2012) 53 Cal.4th 535, 561,
quoting People v. Lenix, supra, 44 Cal.4th at p. 622.) “One of the problems of
comparative juror analysis not raised at trial is that the prosecutor generally has
not provided, and was not asked to provide, an explanation for nonchallenges.”
(People v. Jones (2011) 51 Cal.4th 346, 365.) Here an explanation is readily
apparent from our review of the proposed comparative jurors: In many instances
the other jurors‟ responses were materially distinguishable from the responses of
L.M.5 Furthermore, the prosecutor expressly stated that his challenge to each of

(Footnote continued from previous page.)

of the peremptory challenge by the prosecutor, but were never adopted by the
prosecutor. (Cf. People v. Booker, supra, 51 Cal.4th at p. 166.) We do not view
the trial court‟s comments as stating separate reasons for L.M.‟s excusal. Rather,
it appears the trial court was considering such points as supporting the
prosecutor‟s statement of reasons.
5       For example, defendant claims that Caucasian Prospective Juror E.C. was
at least as willing, even eager, to serve as a juror, pointing to E.C.‟s statement that
she believed jury service is an experience everyone should have. However, E.C.
explained that she believed this because it was a worthwhile educational
experience to see how justice was actually served compared to television. Thus,
her response did not indicate any eagerness to be on this particular jury. She did
not state anything equivalent to L.M.‟s statement that she was “looking forward”
to serving on this jury. Moreover, E.C. responded to the court‟s question asking
for her feelings about her ability to handle the responsibility of a penalty decision
that she did not “relish the thought,” but she believed she “would be capable to
follow the law and make a decision.” She further stated that “it is [an] awesome
responsibility for anyone to sit through there and come up with a decision that they
really believe it‟s right.” “You have to be willing to listen to all of it.” The
prosecutor could have reasonably viewed her responses to be qualitatively
different from those of L.M.
        As another example, defendant also suggests seven Caucasian prospective
jurors gave comparable answers to L.M.‟s statement that she did not discuss her
                                                          (Footnote continued on next page.)


                                           31
the identified prospective jurors was based on the cumulative or combined effect
of all of his expressed reasons. None of the jurors brought to our attention by
defendant expressed a substantially similar combination of responses to the
responses provided by L.M. (People v. Watson (2008) 43 Cal.4th 652, 675-676
[none of the comparative jurors shared the combined characteristics relied upon by
the prosecutor in excusing the juror].) In order for a comparison to be probative,
jurors need not be identical in all respects (Miller-El v. Dretke (2005) 545 U.S.
231, 247, fn. 6), but they must be materially similar in the respects significant to
the prosecutor‟s stated basis for the challenge. Defendant‟s proposed comparative
juror analysis does not establish that the prosecutor‟s reasons for excusing L.M.
were pretextual.

                  b. The excusal of Prospective Juror E.V.
        In his jury questionnaire, Prospective Juror E.V. identified himself as
“Spinish [sic].” He stated that he was married, 27 years old, a high school
graduate, and had attended one year of community college studying art. He was
employed by a supermarket as a meat cutter. Responding to the question asking
for the ages, level of education, and occupation of any children, E.V. stated that he
had one child who was seven years old and in first grade. He made the mistake of
entering his own occupation — meat cutter, as his child‟s occupation.


(Footnote continued from previous page.)

daughter‟s psychology course work with her daughter. However, all of the
proffered comparison jurors‟ statements were about not discussing the work of
their friends or family members with such friends or family. It is clear from the
prosecutor‟s comments that he was not concerned generally about prospective
jurors discussing other people‟s work with them, but concerned specifically that
L.M. was hiding her discussion of psychology with her daughter to avoid
providing a basis for a challenge.




                                           32
       The prosecutor stated the following reasons why he excused Prospective
Juror E.V. with a peremptory challenge. He noted that E.V. was 27 years old. He
had been working as a meat cutter for six and a half years. He had a son who was
seven years old. Thus, from a relatively young age, E.V. had been absorbed by
work and family. The prosecutor also noted E.V.‟s level of education and that
E.V. listed only “Hot V.W.” when asked about the books he read for pleasure.
The prosecutor explained that this was significant to him because the defense had
14 doctors appointed as experts and he anticipated that some of their testimony
would discuss the most sophisticated brain-scanning techniques that currently
existed. The prosecution did not intend to call any experts of its own in this area,
but would be cross-examining and challenging the defense experts. The
prosecutor felt it was important that jurors have a broader level of life experience
than E.V., in terms of socialization, work history and level of education. The
prosecutor also was concerned about E.V.‟s ability to analyze, evaluate, and make
independent judgments regarding massive amounts of psychological and
psychiatric testimony. E.V. appeared somewhat deferential and the prosecutor
thought that E.V. could very easily be overwhelmed by the kind and amount of
testimony expected in this case. Finally, the prosecutor noted that when E.V. was
asked whether he felt that some people have committed crimes that are so bad, so
aggravated and so serious that the person has given up their right to live in our
society, E.V. said, no, he did not feel that way. This response concerned the
prosecutor.
       The trial court found the prosecutor‟s justification race neutral and
nonpretextual, based in part on E.V.‟s responses regarding his life experience and
ability to grapple properly with the issues. The court stated that it had made its
own note that E.V. was not able to spell even his own ethnic origin correctly, that
he made several other misspellings on the questionnaire, and that he answered the

                                         33
question regarding his child‟s occupation with his own occupation. The court
observed that E.V. appeared particularly susceptible to being led by the form of
voir dire questions. E.V. was initially confused by the court‟s reading of the
penalty phase instructions and it took some time for him to understand what was
being discussed. The trial court wrote that E.V. was “not too bright, but seems
fair.” The trial court found that the prosecutor had a reasonable basis for
concluding E.V. was not a strong person and might be overwhelmed by the
anticipated mental health testimony and that this had nothing to do with E.V.‟s
race.
        Defendant claims the prosecution‟s stated reasons are inherently
implausible in light of the whole record because, he asserts, the record makes clear
that E.V.‟s life experience was broad enough that he would have made a suitable
juror. Defendant contends the prosecutor did not challenge Caucasian Prospective
Jurors and Jurors R.D., T.S., C.B., N.W., C.A., and S.S., who had similar levels of
education, limited activities outside of work and light reading interests.
        The record supports the trial court‟s evident view that the prosecutor had
race-neutral and nonpretextual reasons for challenging E.V., including on the basis
of his limited life experience, which constitutes a race-neutral explanation for a
peremptory challenge. (People v. Sims (1993) 5 Cal.4th 405, 429; People v. Perez
(1994) 29 Cal.App.4th 1313, 1328.) Importantly, as the trial court noted, the
prosecutor combined the reservation about 27-year-old E.V.‟s limited life
experience with a concern about E.V.‟s intellectual capacity. A concern with a
juror‟s ability to understand the proceedings and anticipated testimony is another
proper basis for a challenge. (People v. Turner (1994) 8 Cal.4th 137, 169; People
v. Muhammad (2003) 108 Cal.App.4th 313, 322.) That E.V.‟s responses and
demeanor also suggested he would be unable to independently reach a judgment
on the issues is a further permissible race-neutral ground for a challenge. (See

                                         34
People v. Jones, supra, 51 Cal.4th at pp. 363-364 [a juror‟s demeanor may be a
valid basis for a challenge, provided the demeanor-based reason is not
pretextual].) And, a prosecutor could be properly concerned by a juror‟s statement
that he did not feel there were any crimes so aggravated and serious that a person
had given up their right to live in our society.
       Defendant contends a comparison of Caucasian seated and Prospective
Jurors R.D., T.S., C.B., N.W., C.A., and S.S. with E.V. reveals that the
prosecutor‟s stated reasons for excusing E.V. were nevertheless pretextual.
       The rationale for comparative juror analysis is that a side-by-side
comparison of a prospective juror struck by the prosecutor with a prospective juror
accepted by the prosecutor may provide relevant circumstantial evidence of
purposeful discrimination by the prosecutor. (Miller-El v. Dretke, supra, 545 U.S.
at p. 241; People v. Lenix, supra, 44 Cal.4th at pp. 621-622.) In this case, S.S. was
called into the jury box after the prosecutor and the defense had each exercised
two peremptory challenges. At the next opportunity to exercise peremptory
challenges, the defense excused S.S. immediately after the prosecutor excused
E.V. The prosecution had remaining peremptory challenges at the time S.S. was
excused, but never had an opportunity to excuse or accept S.S. as a juror before he
was struck by the defense. Therefore, a comparison of E.V. to S.S. under these
circumstances lacks any probative value concerning the issue of intentional
discrimination by the prosecutor.
       Turning to the remaining Caucasian seated and prospective jurors identified
by defendant, only Prospective Juror T.S. (29 years old) was of a similar age and
had somewhat similar life experience to E.V.6 But nothing suggested T.S. lacked

6      Seated Juror R.D. was 67 years old; Prospective Juror C.B. was 60 years
old; Prospective Juror N.W. was 37 years old; and Prospective Juror C.A. was 43
                                                         (Footnote continued on next page.)


                                          35
the capacity to understand the anticipated expert testimony in this case or the
ability to make an independent decision on the issues. In addition, T.S. never
expressed a belief similar to E.V. regarding the consequences of serious crimes.
Moreover, as the Attorney General points out, T.S. possessed other qualities that
the prosecutor may have felt offset his youth and any lack of breadth in his life
experience. For example, T.S. had a neighbor and friend who was a police officer.
He had at one time wanted to be a police officer and he had been on two police
ride-alongs.
        A comparative juror review of T.S., R.D., C.B., N.W., and C.A., who were
accepted by the prosecutor as potential jurors, does not establish that the
prosecutor‟s excusal of E.V. was racially motivated.

                  c. The excusal of Prospective Juror A.M.-F.
        Prospective Juror A.M.-F. identified himself in his jury questionnaire as
“Latin-American.” He stated he was a 28-year-old sales associate. He had a
bachelor‟s degree in psychology and had taken postgraduate classes or seminars
on developmental psychology. He listed his three favorite books as I, Claudius
and Claudius the God by Robert Graves and “Legitimacy Crisis for Liberal
Democracy” by Habermas. He identified the most recent book he read for
pleasure as Mein Kampf by Adolf Hitler.
        The prosecutor prefaced his statement of reasons for excusing Prospective
Juror A.M.-F. with the comment that A.M.-F. “did not appear” Hispanic nor did



(Footnote continued from previous page.)

years old. Each had more extensive life experiences, which included either
military experience, jobs entailing analytical skills or supervisorial responsibilities,
or they were pursuing higher education.




                                           36
he have a surname that would indicate such heritage. The only thing indicating he
belonged to such an ethnic group was the fact that he identified himself on his
questionnaire as “Latin-American.” The prosecutor then stated that he excused
A.M.-F. because he had been a psychology major in college; he indicated on voir
dire that he had taken 25 courses in the area of psychology; he had recently taken
some postgraduate classes in psychology; and he was thinking of getting a
master‟s degree in psychology. A.M.-F. had helped administer the Minnesota
Multiphasic Personality Inventory (M.M.P.I.) and had taken classes with respect to
that psychological test. The prosecutor felt A.M.-F. would have a predisposition
toward accepting defense psychological evidence in this case as a valid and
legitimate approach to answering questions that would be presented to the jury.
He was concerned that other jurors might use him as a source of information
during deliberations. The prosecutor stated that he also excused A.M.-F. because
A.M.-F. indicated he had a sister who had been in and out of incarceration.
Further, A.M.-F. had driven on a suspended license in violation of a court order or
directive from the Department of Motor Vehicles. Finally, the prosecutor was
uncomfortable with a person who derived pleasure from reading books by Adolf
Hitler.
          The trial court found that the prosecutor‟s fear that A.M.-F. might have a
predisposition to accept the testimony of psychologists as an explanation for
defendant‟s actions was justified in light of A.M.-F.‟s major, the number of classes
he had taken and the fact that he had administered the M.M.P.I. himself. The
court concluded that A.M.-F.‟s education in psychology, “which was far beyond
the norm,” provided a reasonable basis for the challenge.
          We agree that A.M.-F.‟s educational background, interest, and experience
in the field of psychology was a race-neutral reason justifying his excusal.
(People v. Clark, supra, 52 Cal.4th at p. 907 [prospective juror‟s college courses

                                           37
in psychology and view that someone who commits murder must have
“ „something wrong with them in their mind‟ ” justified 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].) Such
excusal was not inconsistent with the prosecutor‟s expressed desire to seat jurors
with the ability to understand and evaluate the anticipated mental health testimony.
It is reasonable to desire jurors with sufficient education and intellectual capacity
to thoughtfully consider anticipated expert testimony, but to reject jurors who have
so much interest, education, and experience in the same field as the anticipated
testimony that they are likely to have established views and predispositions
regarding the testimony, which they might share with the other jurors.
       Defendant contends the prosecutor‟s failure to excuse Caucasian
Prospective Jurors and Jurors T.B., D.H., G.P., C.S., and D.B., who each had
studied psychology, shows the prosecutor‟s excusal of A.M.-F. was not genuinely
based on this factor. As defendant acknowledges, none of these jurors had studied
psychology as intensively as A.M.-F. Jurors T.B., G.P., C.S., and Prospective
Juror D.B had each taken a single psychology course in college. Juror D.H. listed
psychology as her major when she attended a two-year college. But when
questioned about it, she stated that she took a psychology course for only one year
of her two years. These levels of background and interest do not compare to
A.M.-F.‟s 25 college courses, postgraduate classes and interest in a master‟s
degree in psychology. That other Caucasian prospective jurors, who were not
excused by the prosecutor, may have violated criminal laws or had family
members who had criminal histories similar to A.M.-F. (two of the other reasons
stated by the prosecutor for excusing A.M.-F.) does not make them comparable to



                                          38
A.M.-F. when none of those jurors possessed A.M.-F‟s elevated level of
education, interest, and experience in psychology.
       The record supports the conclusion that the prosecutor excused A.M.-F. on
a race-neutral basis.

                d. The excusal of Prospective Juror R.M.
       Prospective Juror R.M. identified himself in his jury questionnaire as
“Mex-Blk.” He wrote that he was 37 years old, married, and employed as a
manager of a retail store. He stated that he previously taught mentally
handicapped children.
       When asked to explain his reasons for excusing R.M., the prosecutor noted
that R.M. initially stated that he had been a victim of crime and that because of
that and the nature of this case, the prosecutor had a serious doubt whether he
could be fair. The prosecutor pointed out that R.M. himself repeatedly indicated
he might not be able to be fair and that he vacillated in his responses to
questioning about his ability to handle the issues in this case. The prosecutor
discussed R.M.‟s responses to questioning about his prior victimization and
questioned whether R.M. had resolved the issue with sufficient finality that it
would play no part in his decisionmaking. The prosecutor also observed that R.M.
was obviously very anxious, that he had a concerned and pained expression on his
face, that at one point he seemed emotionally upset, and that he described himself
as an emotional person. The prosecutor was concerned that R.M. would not be
able to reach a decision at the penalty phase and that he might not be able to make
a definite decision with respect to the psychological and psychiatric testimony.
The prosecutor stated that he was also concerned with R.M.‟s statements that he
was not a strong advocate of the death penalty and that human life was the most
precious thing, no matter what the person has done. Finally, the prosecutor was



                                         39
surprised by R.M.‟s response that he had never had occasion to contact or call
medical staff for a medical emergency during the six years he taught extremely
handicapped children in a facility in Arizona.
       The trial court agreed with the prosecutor that Prospective Juror R.M.
vacillated considerably. The court noted that R.M. said several times that he had
serious doubts whether he could be a fair juror, but said he would try. Later, R.M.
seemed more inclined to believe he could be fair, but still not without reservation.
The court recalled R.M. saying that human life is most precious “no matter what
this person has done.” According to the trial court, although R.M. was not being
asked about this case, his use of the term “this person” may have indicated he was
improperly considering the question as it applied to defendant. The court felt that
the prosecutor could rightfully be concerned by R.M.‟s comment and that
combined with R.M.‟s vacillation, the prosecutor‟s challenge was justified — that
is, race neutral and not pretextual.
       Defendant argues the prosecutor‟s excusal of R.M. must have been racially
motivated because R.M. consistently affirmed that he could set aside his feelings
and judge the case fairly despite his initial concern about being able to be fair.
Defendant also claims R.M.‟s voir dire responses suggest that the prosecutor
should have wanted him as a juror, but for his race, because R.M. made comments
suggesting he was inclined to place the burden of proof on the defense.7




7       Defendant points to the portion of R.M.‟s voir dire in which R.M. states
that there “would have to be a lot of evidence to prove there is no way that this
person did it because of the charges.” R.M. went on to indicate that based on his
belief that “human life is the most precious thing,” a lot would have to be
presented to him to prove the innocence of a person charged with murder.




                                          40
       Although R.M. ultimately claimed to have resolved his doubts concerning
his ability to be fair, the record supports the prosecutor‟s reservations on this
point. In fact, the statements referenced by defendant support the prosecutor‟s
doubt even if they suggest a possible orientation in favor of the prosecution. The
statements certainly do nothing to call into question the prosecutor‟s stated
concern regarding R.M.‟s statements regarding his ability to be fair.
       Moreover, the prosecutor also justified the challenged excusal on R.M.‟s
emotional state, which, as the prosecutor suggested, might indicate an inability to
cope with the trial and deliberations. Concern that a prospective juror is extremely
emotional and overwhelmed by outside stresses is a proper race-neutral ground for
a peremptory challenge. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1124.)
       Defendant again argues that the credibility of the prosecutor‟s statement of
reasons is undercut by a comparative juror analysis. Defendant complains that the
prosecutor did not challenge several Caucasian prospective jurors who expressed
reservations about the death penalty. Defendant identifies Jurors T.B., J.R., and
W.S., as well as Prospective Juror R.S., as being in this category. None of these
jurors, however, questioned his or her own ability to be fair or appeared
emotionally upset.
       Finally, we note that, as part of his reason for excusing R.M., the prosecutor
stated his surprise regarding R.M.‟s claim to have never called for emergency
medical services during the time he worked with disabled children. The
prosecutor may have been questioning R.M.‟s memory or his forthrightness.
Either way, his concern was not so implausible as to reveal that the other
reasonable grounds stated for his challenge constituted shams.




                                          41
                e. The excusal of Prospective Juror M.L.
       Prospective Juror M.L. identified herself in her jury questionnaire as
“Hispanic.” She stated that she was 22 years old, married, a high school graduate,
and had a two-month-old child. She was employed as an office assistant at a
county health care agency.
       The prosecutor stated that he had a number of reasons for excusing M.L.,
but two were primary. First, M.L. answered “no” to the question on the jury
questionnaire asking whether she or anyone close to her had ever been the victim
of a crime against person or property. However, during individual voir dire, it was
revealed that M.L.‟s cousin in San Diego, with whom she was close, had been
murdered. This caused the prosecutor serious concern because M.L. had answered
the written question under penalty of perjury, and she did not disclose the
information even when the court asked whether the jurors wanted to change
anything in their questionnaires after listening to the questioning in court. The
information came out only as a result of direct questioning. Second, M.L. wrote
“no” to the question asking whether she or any relative or friend had been charged,
arrested, indicted or convicted of any criminal offense. During voir dire, M.L.
stated she understood the question, but she forgot to mention that her older brother
had been arrested a number of times for what she considered to be minor offenses.
This, coupled with M.L.‟s failure to mention the murder of her cousin, caused the
prosecutor to be concerned whether she was paying enough attention to the
process and to her responsibilities. The prosecutor observed that it would be one
thing to forget something that occurred long ago, but M.L. was only 22 years old,
and these events affected immediate members of her family. The prosecutor
wondered whether she had made a decision that she wanted to be seated on this
jury. Finally, the prosecutor was concerned by M.L.‟s statement on voir dire that
she did not think it is right to impose the death penalty.


                                          42
       The trial court found the prosecutor‟s statement of reasons to be reasonable
and credible. The court noted there was a basis for the prosecutor to be skeptical
of M.L.‟s explanation for the omission on her juror questionnaire. The trial court
also confirmed that M.L. at one point stated she did not think it right to impose the
death penalty, even though she later expressed a seemingly different view.
According to the court, M.L. seemed like a person who vacillates and can be lead
by a questioner. The court concluded the prosecutor did not excuse M.L. on the
basis of racial or group bias.
       Defendant contends the record does not support the prosecutor‟s argument
that M.L.‟s responses suggested she was not paying enough attention to the
process or her responsibilities in the case. Defendant argues M.L. satisfactorily
explained her failure to mention her cousin and brother in the jury questionnaire,
and complains that a fair reading of the record shows M.L. supported the death
penalty and could vote for it if she believed it appropriate. Moreover, as defendant
previously argued, a number of Caucasian prospective jurors expressed some
resistance to the death penalty, but were not excused by the prosecutor by way of
peremptory challenges.
       M.L.‟s failure to disclose information in response to the jury questionnaire
and her later claim of forgetfulness in explanation supply a factual basis for the
prosecutor‟s concern that she was not paying enough attention to the process and
to her responsibilities. A genuine concern that a prospective juror is not
forthcoming or is not paying sufficient attention to the proceedings is a race-
neutral basis for a peremptory challenge (People v. Lenix, supra, 44 Cal.4th at
pp. 614, 628), as is a concern that a prospective juror may be substantially
opposed to the death penalty. (People v. Salcido, supra, 44 Cal.4th at pp. 139-
140; People v. Pride (1992) 3 Cal.4th 195, 229-230.) Here both were stated as
grounds for the prosecutor‟s challenge and defendant points to no other Caucasian

                                         43
prospective or seated juror or alternate juror who possessed these combined
characteristics and who was not excused by the prosecutor. (People v. Watson,
supra, 43 Cal.4th at p. 676.)

                f. The trial court’s assessment of the credibility of the prosecutor’s
                  stated reasons.
       We note that the trial court, in reaching its decision on defendant‟s motion,
expressly recognized its duty to carefully evaluate the prosecutor‟s stated reasons
in order to distinguish bona fide reasons from sham excuses belatedly contrived to
conceal discrimination. As we have discussed, the court separately considered the
prosecutor‟s basis for challenging each of the identified prospective jurors and
determined that such reasons were adequately supported by the record.
       In addition, the trial court relied on several case wide factors that it found
relevant to its consideration of the motion. First, it noted that the same prosecutor
had tried this case previously; the court was not aware of the prosecutor ever
deliberately misleading the court about a matter of importance in that trial; the
prosecutor did not use all of his peremptory challenges during that trial, and one
juror who identified herself as Mexican-American actually sat as a juror in that
trial. Second, the trial court noted that the victim, as well as the defendant, in this
case was Hispanic, so it was unlikely the prosecutor would be concerned about
minorities unduly identifying with the defendant. Third, the prosecutor questioned
in depth all five of the prospective jurors at issue. Fourth, during this jury
selection process, the prosecutor had accepted the jury several times when
minorities were in the jury box. Indeed, there was one remaining minority
prospective juror in the jury box at the time of defendant‟s Wheeler/Batson
motion. The prosecutor had “passed” at least two times since this juror had been
seated in the box. Considered in combination, the totality of these circumstances




                                          44
convinced the trial court that the prosecutor had not used any peremptory
challenge to exclude members of a racial group.
       These case wide factors were appropriately considered by the trial court and
further support its denial of defendant‟s motion. (People v. Clark, supra, 52
Cal.4th at p. 906 [circumstance that jury included member of identified racial
minority is an indication of good faith in exercising peremptory challenges and an
appropriate factor to consider]; People v. Lomax (2010) 49 Cal.4th 530, 576
[acceptance of panel containing African-American strongly suggests that race was
not a motive in the challenge]; People v. Lenix, supra, 44 Cal.4th at p. 613 [court
may rely on the common practices of the advocate in considering genuineness of
stated reasons for challenge]; People v. Reynoso (2003) 31 Cal.4th 903, 926
[circumstance that defendant and murder victim are of the same race might be
viewed as neutralizing any prosecutorial belief that jurors of the same race would
be biased in favor of defendant].)
       We reject defendant‟s claim of error in the trial court‟s denial of his
Wheeler/Batson motion.

           2. Dr. Anderson’s testimony that defendant knew the difference
              between right and wrong when he killed Nadia

               a. Background
       Dr. Anderson testified on direct examination that he was requested to
evaluate defendant under section 1026 (relating to pleas of not guilty by reason of
insanity) and that such evaluation included a mental status examination of
defendant. As a result of this examination, Anderson diagnosed defendant with
schizoaffective disorder, a history of polysubstance abuse and a history of multiple
head injuries. He also believed defendant has an organic personality disorder.
       On cross-examination, Dr. Anderson conceded that the validity of his
expert opinion was directly related to the accuracy of the information on which it


                                         45
was based, including the honesty of defendant‟s interview statements. The
prosecution questioned whether defendant may have been lying to Anderson
during the interview. Anderson testified that he did not credit everything
defendant told him during his interview, but he did not believe defendant was
lying. Rather, he concluded defendant was repressing information and had
selective recall. He thought defendant‟s statements regarding the crimes reflected
a misconception of what was happening, over which defendant had no conscious
control. Anderson believed defendant when defendant told him that he saw Scott
in the bathroom, not Nadia, and that was when defendant decided to kill the child.
He also believed defendant when defendant told him that he did not recall the act
of drowning Nadia, but saw “a vision” of drowning her. Part of the symptoms of
schizoaffective disorder is “distortion in reality testing.”
       Dr. Anderson testified defendant‟s schizoaffective disorder influenced
defendant to kidnap Nadia because it made him more frustrated, more suicidal,
and more depressed. According to Anderson, defendant‟s disorder also impaired
his judgment, insight, and ability to control his inner impulses and frustrations. It
also influenced his sexual assault on Nadia because having sex to test whether she
was dead or alive, as defendant claimed he did, constituted disordered thinking.
       Dr. Anderson testified that he formed the impression that defendant had
recognized that Nadia was a little girl when he picked her up and drove her to the
motel room. Anderson also believed that defendant perceived a little girl while he
was with her in the motel room before Nadia was killed, including while he was
sexually assaulting her. But, when defendant killed Nadia, Anderson believed
defendant perceived a little girl, “but not totally.” Defendant “still saw Mary
[Scott], the face of Mary.” Anderson explained that when defendant was actually
killing Nadia, “he knew he was killing a person, but because of this extreme anger
it just distorted his visual perception. . . . Yes, he knew it was a little girl, but he

                                            46
actually did not perceive her at the time of the act fully as a little girl. He knew he
was killing someone.”
       The prosecutor then asked Dr. Anderson if he concluded “that the
defendant knew the difference between right and wrong when he killed [Nadia]?”
Defendant objected that it was irrelevant, immaterial, and beyond the scope of
direct examination. The trial court overruled the objection and Anderson
answered: “Yes, sir, I feel — I feel at the time that — the fact that he did know
the difference between right and wrong.”

                b. Analysis
       Defendant argues the trial court erred by allowing the prosecution to elicit
Dr. Anderson‟s testimony that defendant knew the difference between right and
wrong when he was killing Nadia because the evidence was relevant only to
defendant‟s insanity defense. (§ 25, subd. (b).) According to defendant, the
evidence was irrelevant (§ 1026, subd. (a)) to the only issue raised at the guilt
phase by defendant‟s mental health evidence; that is, whether defendant actually
formed the required specific intent, premeditated, deliberated, or harbored malice
aforethought. (§ 28, subd. (a).) Defendant argues consideration of Anderson‟s
assertedly irrelevant testimony at the guilt phase could only have misled and
confused the jury. He also claims the testimony was impermissible under sections
28 and 29, which exclude expert testimony regarding a defendant‟s capacity to
form a required mental state and expert testimony stating a conclusion that a
defendant did or did not have a required mental state. (People v. Coddington
(2000) 23 Cal.4th 529, 582.) Defendant claims the erroneous admission of the
testimony had the effect of violating his federal constitutional rights under the
Sixth, Eighth, and Fourteenth Amendments.




                                          47
       Section 1026, subdivision (a), provides in relevant part: “When a
defendant pleads not guilty by reason of insanity, and also joins with it another
plea or pleas, the defendant shall first be tried as if only such other plea or pleas
had been entered, and in that trial the defendant shall be conclusively presumed to
have been sane at the time the offense is alleged to have been committed.”
       As we recently explained in People v. Mills (2012) 55 Cal.4th 663, 671-
672: “At a trial on the issue of guilt, „[e]vidence of mental disease, mental defect,
or mental disorder is admissible solely on the issue of whether or not the accused
actually formed a required specific intent, premeditated, deliberated, or harbored
malice aforethought, when a specific intent crime is charged.‟ (§ 28, subd. (a); see
[People v. ]Saille [1991] 54 Cal.3d [1103,] 1115-1117.) Thus, while the evidence
of a defendant‟s mental state at the guilt and sanity phases „may be overlapping‟
(People v. Hernandez (2000) 22 Cal.4th 512, 520), the defendant‟s sanity is
irrelevant at the guilt phase and evidence tending to prove insanity, as opposed to
the absence of a particular mental element of the offense, is inadmissible (§ 28,
subd. (a); People v. Haskett (1990) 52 Cal.3d 210, 232; [People v.] Wells [(1949)]
33 Cal.2d [330,] 351).”
       Dr. Anderson‟s testimony that defendant understood the difference between
right and wrong was evidence going directly to the issue of sanity. (People v.
Mills, supra, 55 Cal.4th at p. 671 [“Under the M’Naghten test, insanity is
established if the defendant was incapable of knowing or understanding the nature
and quality of the criminal act, or of distinguishing right from wrong.”]; see
People v. Jablonski (2006) 37 Cal.4th 774, 830-831.) For such purpose, it was
irrelevant at the guilt phase of trial.
       The Attorney General contends, however, that Anderson‟s testimony also
had relevance to the guilt phase issues of defendant‟s actual mental state and
because the jury was not instructed in the guilt phase as to the definition of sanity,

                                          48
the jury would not have been misled or confused into considering the testimony
for any purpose other than its relevancy to such mental state.
       We need not resolve the question of whether the challenged testimony
might have had some relevance in this particular case to the guilt phase issue of
defendant‟s actual mental state. Any error in admitting Anderson‟s testimony over
defendant‟s relevancy objection was harmless. (People v. Watson (1956) 46
Cal.2d 818, 836; see People v. Fuiava (2012) 53 Cal.4th 622, 671 [applying the
Watson standard to the claim of erroneous admission of evidence].)
       But for the single challenged statement from Dr. Anderson, all the guilt
phase psychological evidence was directed at the appropriate question of whether
defendant acted with the requisite mental state. Under these circumstances, the
jury was unlikely to focus on and give any significance to one question and one
brief answer by one of defendant‟s many expert witnesses regarding a subject that
did not relate to any instruction the jury was provided at the guilt phase and that
was given during the course of over three weeks of defense testimony. The
prosecutor did not argue or rely on the statement during closing argument. To the
contrary, the prosecutor actually questioned whether Anderson was credible at all
and noted that he looked at the ceiling during his testimony instead of looking at
the jurors. Certainly there is nothing in the record suggesting the jury had
questions about or were confused by this fleeting mention of defendant‟s
understanding of the difference between right and wrong.
       Moreover, we note that the prosecution evidence concerning the issue of
intent to kidnap showed planning activity in that defendant rented a motel room
for two people and after unsuccessfully trying to entice Sandra C. into his car with
a ruse about being a teacher, defendant successfully used the same ruse to get
Nadia into his car. He drove Nadia directly to the motel room he had earlier
rented. Evidence that defendant told the police later that he “wanted to do

                                         49
something” with Nadia went to the sexual nature of his intent, and his sexual
motivation also emerged when he said he thought she was “too young.” Of
course, the evidence also established that defendant raped and sodomized Nadia.
In rebuttal, the prosecution introduced additional evidence regarding defendant‟s
conduct with Flores — the use of a ruse to get a minor girl to a motel room for the
purpose of sexual assault. There also was evidence of defendant‟s premeditated
intent to kill. Defendant told the police that, at one point, Nadia started to scream
and that he did not want anyone coming from next door because he would not be
able to “explain all this.” The evidence of the manner of death also demonstrated
an intent to kill. It showed Nadia was asphyxiated as a result of having her chest
compressed while she was bent over the edge of the bathtub, consistent with
someone trying to silence her.
       In order to counter this strong evidence of defendant‟s intent to kidnap
Nadia for purposes of sexual assault, his intent to commit the charged sexual
offenses, and his deliberate and premeditated intent to kill her, defendant
presented the testimony of numerous lay witnesses and eight expert witnesses
regarding his past behavior and mental disorders. The evidence was proffered in
support of the inference that defendant‟s mental problems made it unlikely
defendant formed the requisite mental states. The value of the evidence was
reduced, however, because defendant had not presented a consistent version of the
events on the day of the crimes or explanation of his actions to his mental health
experts. Indeed, Dr. LaCalle acknowledged defendant gave him 14 versions of
what happened when defendant killed Nadia. A number of defendant‟s experts
testified defendant was malingering or that some of his testing, statements, or
actions were consistent with malingering. Defendant‟s ex-wife, Esparza, testified
concerning an incident in which defendant attacked her in the bathroom, bending



                                         50
her over the bathtub with his knee on her chest, choking her, and saying “Die,
die,” — an incident that was eerily similar to the circumstances of Nadia‟s death.
       Our review of the record persuades us that there is no reasonable
probability the jury would have reached a more favorable verdict if the trial court
had not allowed Anderson to answer this question. We reject defendant‟s
constitutional claims because this case falls within the general rule that “violations
of state evidentiary rules do not rise to the level of federal constitutional error.”
(People v. Benavides (2005) 35 Cal.4th 69, 91.)
       Defendant nevertheless contends that admission of the testimony violated
sections 28 and 29,8 and thereby denied him constitutional due process. “Sections
28 and 29 permit introduction of evidence of mental illness when relevant to
whether a defendant actually formed a mental state that is an element of a charged
offense, but do not permit an expert to offer an opinion on whether a defendant
had the mental capacity to form a specific mental state or whether the defendant
actually harbored such a mental state.” (People v. Coddington, supra, 23 Cal.4th
at p. 582, fns. omitted; see People v. San Nicolas (2004) 34 Cal.4th 614, 662-663.)

8       Section 28, subdivision (a), reads: “Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate the capacity to
form any mental state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused
committed the act. Evidence of mental disease, mental defect, or mental disorder
is admissible solely on the issue of whether or not the accused actually formed a
required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.”
        Section 29 provides: “In the guilt phase of a criminal action, any expert
testifying about a defendant‟s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.”



                                           51
       Defendant did not object to the prosecutor‟s question based on sections 28
and 29. Nor did his stated objections (relevancy, materiality, scope of direct
examination) make it obvious or otherwise fairly inform the trial court and the
prosecution that defendant objected to the question because such testimony lay
outside the boundaries set by these statutes. Defendant‟s claims on these specific
grounds are, therefore, forfeited. (People v. Partida (2005) 37 Cal.4th 428, 431,
434-435.)
       They are also meritless. Asking Dr. Anderson whether he believed
defendant understood the difference between right and wrong when he killed
Nadia did not seek evidence of defendant‟s capacity to form any mental state.
(§ 28, subd. (a); see People v. Smithey (1999) 20 Cal.4th 936, 961.) Nor did the
question elicit Anderson‟s opinion on the ultimate issue: whether defendant acted
with, or lacked, a particular mental state. (§ 29; see People v. Samayoa (1997) 15
Cal.4th 795, 837.) Even assuming, without deciding, that section 29 extends to
preclude expert opinion testimony that is tantamount to stating an opinion that
defendant did or did not have the mental state required for the crime charged
(People v. Nunn (1996) 50 Cal.App.4th 1357, 1364; People v. Czahara (1988) 203
Cal.App.3d 1468, 1476-1477; but see People v. Cortes (2011) 192 Cal.App.4th
873, 910-911), Anderson‟s testimony was not such testimony. There was no
violation of the provisions of sections 28 and 29.

            3. Cross-examination of Dr. Fossum regarding her handling of
               interview tapes of a defendant in a previous case

               a. Background
       During cross-examination of Dr. Fossum, the prosecutor inquired about the
subpoena duces tecum he sent for the records of her file in this case. Fossum
testified that she responded to the subpoena by sending copies of all requested
records to the court. She explained that she sent the records with a declaration


                                         52
stating, “the attached records are a complete and true copy of all records pursuant
to the subpoena,” but she also sent a separate declaration notifying the prosecution
that she had not sent certain equipment that she needed on a daily basis. Under
further questioning, Fossum admitted that it was not only physical equipment that
she failed to produce. She also did not send copies of the instructional booklet that
accompanied the Rorschach test; the administration and scoring manuals for other
tests; the directions for administering the psychological tests; seven “case books”
of materials sent to her by the defense investigation firm, including defendant‟s
diary and his autobiography; and copies of all items shown to defendant, including
pictures. Fossum claimed she did not understand that the prosecutor wanted all of
these materials, but admitted she did not call the prosecutor to discuss the
necessity for her production of these voluminous records and materials. Instead,
she contacted the defense investigator regarding the subpoena.
       In a similar line of enquiry, the prosecutor asked Dr. Fossum if she took
written notes when she interviewed defendant. Fossum testified that she made
some handwritten notes, but she also entered notes directly into a laptop computer
that she had with her. Later she transferred the information from the laptop onto a
computer disk, which she loaded into her computer. She then copied the portions
of her notes that she felt were relevant and psychologically significant into her
report. She did not produce the full notes or print a hard copy of the material on
the computer disks in response to the subpoena. Fossum did not know if she
reused these particular computer disks, but stated she usually placed disks in a
drawer where they would be available for later reuse. When asked why she did
not send copies of the notes she took and put into her computer, she said, “I
actually didn‟t think about it. I didn‟t think there was anything that wasn‟t in my
report that was relevant to the case.” She did not consider sending the disks.



                                         53
       The prosecutor then asked whether in a previous criminal case in which
Dr. Fossum had been appointed to work as a defense expert, she had interviewed
the defendant, tape-recorded the interviews, and then destroyed the tapes.
Defendant objected that the prosecutor was seeking irrelevant and immaterial
information. The prosecutor responded that the evidence went to bias. The court
asked the parties to approach the bench and, after discussion outside the hearing of
the jury, the court ruled that the questions would be allowed because they went to
Fossum‟s credibility and tended to show her bias.
       Dr. Fossum answered the prosecutor‟s renewed question by denying that
she destroyed her interview tapes in the previous case. She explained that in
response to a request for the tapes in that case, she sent copies of all the tapes still
in her possession to the public defender, who then sent them to the district
attorney‟s office. Fossum admitted that she did not know whether the tapes that
she gave to the public defender constituted all of the tape-recorded interviews and
testified that when she was asked about the tapes during the trial of the previous
case, she admitted that it was possible that some of the tapes had been reused and
no longer existed. She testified she did not know in fact whether that had
happened.
       On redirect examination, Dr. Fossum explained that she had responded to a
subpoena duces tecum from the prosecutor‟s office in a prior case, and used the
same procedure as she did here. That is, she offered to arrange for identical
equipment to be viewed by the prosecution or to bring the equipment to court on
the day she was going to testify. She did not receive any instructions from the
prosecutor in response.




                                           54
                 b. Analysis
       Defendant contends the trial court prejudicially erred in permitting
Dr. Fossum to be questioned regarding her handling of the interview tapes in the
prior case. We find no abuse of discretion by the trial court in allowing the
prosecutor to cross-examine Fossum on the matter.
       The principles are well settled. “[T]he scope of cross-examination of an
expert witness is especially broad[.]” (People v. Lancaster (2007) 41 Cal.4th 50,
105; Evid. Code, § 721, subd. (a).) “A party „may cross-examine an expert
witness more extensively and searchingly than a lay witness, and the prosecution
[is] entitled to attempt to discredit the expert‟s opinion. [Citation.] In cross-
examining a psychiatric expert witness, the prosecutor‟s good faith questions are
proper even when they are, of necessity, based on facts not in evidence.
[Citation.]‟ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 358.) The
prosecutor may properly cross-examine a witness to show bias, prejudice, interest,
hostility or friendship toward a party that would bear on the question of the
credibility of the witness. (People v. Williams (2008) 43 Cal.4th 584, 634; see
Evid. Code, § 780 [in determining credibility of a witness, the trier of fact may
consider any matter that has any tendency in reason to prove or disprove the
truthfulness of witness‟s testimony].) An expert‟s testimony in prior cases
involving similar issues is a legitimate subject of cross-examination when it is
relevant to the bias of the witness. (People v. Zambrano (2007) 41 Cal.4th 1082,
1165.) On appeal, we review the trial court‟s ruling on the scope of cross-
examination for an abuse of discretion. (See People v Farnam (2002) 28 Cal.4th
107, 187-188.)
       Here, the prosecutor‟s questioning went to evidence from which the jury
could draw an inference that Dr. Fossum was biased. As noted, she had responded
to his subpoena with less than all of the materials he requested. The prosecutor


                                          55
also elicited testimony that she did not produce all of her notes, but only
selectively included some of the notes in her report. The prosecutor‟s proposed
questions concerning Fossum‟s handling of the interview tapes in the prior case
were relevant to establish a basis upon which the jury could find that Fossum‟s
failure to fully comply with the subpoena in this case was not the result of an
innocuous misunderstanding or forgetfulness, but rather an expression of antipathy
toward the prosecution.
       We are persuaded by our reading of the record of the bench conference on
defendant‟s objection that the prosecutor made a sufficient showing, based on a
good faith belief that his inquiry would reveal bias, for the trial court to allow the
proposed questioning of Dr. Fossum. The prosecutor stated that the basis for his
question to Fossum about the prior case was a conversation he had with the
prosecutor in the prior case who told him Fossum had testified to destroying
interview tapes. Contemporaneous notes of an interview of a defendant can
obviously be very significant and important, and the prosecutor reasonably
believed it is relevant if such notes were not preserved and fully disclosed. Here
there was evidence that Fossum had taken notes, but only selectively printed them.
The prosecutor asserted it was relevant that she did the same thing on a previous
occasion. When asked by the trial court if the prosecution had “ma[d]e an issue
out of that” in the prior case, the prosecutor stated it was his understanding that
“that‟s what she admitted during her testimony.” Taken together, these comments
represented to the court that the prosecutor had information from another
prosecutor that Fossum was a defense expert in a prior trial during which she was
asked about and admitted tape-recording her interviews of the defendant,
selectively preserving and disclosing only portions of those interviews, and
destroying the original tapes. The prosecutor later conceded that Fossum might
have destroyed the tapes in the prior case inadvertently, but he argued the matter

                                          56
was still relevant in cross-examination to assist the jury in evaluating the
credibility or reliability of her testimony in light of evidence of asserted bias. As
he explained, “[n]ow, we have got another case within 18 months where the raw
data — okay — was not sent to the court pursuant to subpoena, was not printed
out — okay — at all. . . . She may or may not have the disk. I will ask her, but I
don‟t think it is a coincidence that the raw data is missing in two capital cases.
And not just any raw data, but the interview of the defendant.”
       Contrary to defendant‟s argument, the prosecutor did not need to establish
more in order to demonstrate that cross-examination of Dr. Fossum about her
handling of the tapes in the prior case would be relevant to show her possible bias
in this case. It was enough to show a good faith belief that Fossum had failed to
preserve her original interview tapes of the defendant in the prior case, and that the
prosecution had questioned her at trial about that failure. A rational inference that
a jury could draw from such evidence would be that when Fossum handled the
disks and notes in the present case, she knew that, as the prosecutor put it, her
“raw data” of a defendant‟s interview was significant to the prosecution and
should be preserved. A further possible rational inference would be that her
failure in this case to copy or otherwise ensure the preservation of her full notes
and to produce those materials in response to the subpoena reflected a desire to
resist disclosure and potentially conceal source materials from the prosecution.
The trial court did not abuse its discretion in ruling that the prosecutor was entitled
to explore such potential bias as part of the cross-examination.

           4. The trial court’s ruling restricting Dr. Fossum’s testimony
              correlating job loss to the commission of homicide

                a. Background
       Near the beginning of her testimony, Dr. Fossum testified that she was
asked to analyze the extent to which events in defendant‟s workplace might have


                                          57
triggered or led to the crimes against Nadia. The prosecutor objected to further
questions based on a lack of foundation, adding that the question called for
speculation regarding to Fossum‟s qualifications to make such an assessment. The
trial court allowed the prosecutor to voir dire Fossum regarding her qualifications.
       During the voir dire examination, Dr. Fossum admitted she had not
published any paper with respect to the effect of workplace environment on
homicides, and that she had not conducted any research with respect to the causal
relationship between being fired and subsequently committing homicide. Fossum
claimed, however, that her graduate school doctorial level exams in psychological
assessment and broad use of psychological assessment instruments tested her
ability to validly and accurately assess the effect of a firing on subsequent conduct,
including homicide. The prosecutor renewed the objection to Fossum‟s
qualifications and, continuing outside the presence of the jury, added that it was
for the jury to decide the question of whether there was any link between
defendant‟s job loss and the killing of Nadia.
       Still outside the presence of the jury, Dr. Fossum described, in further
support of her qualifications, her educational background, her training and clinical
experience with respect to identifying and assessing various stressors that affected
the behavior of her patients, her psychological and clinical evaluation of
defendant, her previous qualification as an expert in approximately 50 to 75 cases
and her testimony in the penalty phase of one other capital trial in which she
considered the defendant‟s job loss in connection with his psychosocial history.
She testified that because there had been a limited number of workplace homicides
since 1989, very few psychologists had come into contact with a patient who was
fired and then killed somebody on the same day. Nevertheless, she explained, a
psychologist is capable of assessing the subject‟s psychological history and



                                         58
commenting on his state of mind at the time he engages in a range of behaviors.
She agreed she was a clinician, not a researcher.
       The trial court indicated that although it was reluctant to exclude any expert
testimony offered by the defense, it questioned whether the defense was asking
Dr. Fossum about a subject that was sufficiently beyond common experience so
that the trier of fact needed expert assistance. (Evid. Code, § 801.) The trial court
believed that the jurors would already understand the importance of a job in a
person‟s life and that job loss would be a significant factor in a person‟s mind.
Jurors would already know that if a person felt he or she had been treated unfairly
it could trigger a rage, such as prior testimony indicated defendant likely
experienced at the time of the homicide. The trial court also questioned whether
there was a sufficient showing of Fossum‟s special expertise to testify regarding
job loss triggering a homicidal act. Based on these concerns, the trial court ruled
Fossum would not be permitted to express an opinion linking defendant‟s firing
from Taco Bell to the killing of Nadia.
       After conferring with Dr. Fossum during an ensuing break in the
proceedings, the defense informed the trial court that it had learned that Fossum,
after being retained, had sought to gather all printed data and research material on
the issue of a person being fired and then committing a homicide. The defense
contended Fossum‟s research and investigation into this area would be helpful to
the jury because it is very rare for anyone to become so enraged by being fired that
he or she kills. The defense claimed Fossum could assist the jury by explaining
that a person with defendant‟s brain or mental dysfunction would be affected by a
firing more than the average person and could potentially react in the way
defendant had. The trial court granted the defense request to make a further
showing regarding Fossum‟s qualifications.



                                          59
       Once again testifying outside the presence of the jury, Dr. Fossum stated
that she had extensive experience working in the clinical setting with people who
had suffered job loss and that she had additionally sought to gather the available
research material regarding the connection between being fired and committing an
immediate homicide from the National Institute of Occupational Safety and
Health. Fossum testified that in response to her search request, she was provided
five news articles, but she felt that none was sufficiently pertinent to this case.
She described one of the articles as a 1992 Wall Street Journal article regarding
workplace homicide as the fastest growing form of murder in America. The other
four articles referred almost exclusively to homicides committed by people such as
customers or individuals robbing a store. None of the five articles concerned a
person being fired and then committing violent crimes against strangers at another
location.
       The defense maintained that Fossum‟s research was relevant because it
concerned the anger of workers expressed toward coworkers or supervisors, and
there was evidence here that defendant‟s anger toward his coworker Scott could be
“extrapolate[d]” to Nadia.
       The trial court noted that the defense had already presented evidence that
defendant‟s anger toward Scott led to the crimes against Nadia. The question,
according to the court, was whether there was sufficient psychological evidence of
a connection between a person being fired and that person‟s resulting anger being
directed against a stranger, at a remote location at a later time, such that an
expert‟s opinion would assist the jury in deciding whether defendant‟s anger at
Scott or some other psychological problem caused him to kill Nadia. The court
concluded that absent studies showing a relationship between a person‟s
workplace problems and violent acts against people at remote locations and at
another time, Dr. Fossum would not be telling the jurors anything that they could

                                          60
not figure out for themselves. The court ruled that Fossum could express an
opinion about defendant‟s state of mind at the time she interviewed him and
whether that state of mind was likely to have been the same at the time of the
crimes, but she could not state an opinion concerning whether his firing
precipitated his rage at a different location several hours later sufficient to cause a
violent criminal act against a stranger.
       During Dr. Fossum‟s subsequent trial testimony, she testified that Scott‟s
castigation of defendant on the day of the crimes triggered a decompensation of
defendant‟s narcissistic personality, which distinguished that day from the earlier
incident in which defendant took Flores to a motel room. The prosecutor objected
and asked the jury to be admonished to disregard the testimony in light of the trial
court‟s earlier ruling. At a sidebar, the court clarified its earlier ruling. The court
explained that it never intended to say Fossum could not mention that defendant‟s
job loss was a factor that contributed to his mental state or affected his personality
disintegration “or something like that.” Rather, what had been litigated and
decided was that she could not draw on studies to testify in general about the
effect of job loss on homicides in the workplace. The court clarified that its ruling
would allow Fossum to testify that defendant‟s job loss contributed to his mental
state, caused confusion, or caused decompensation, but she could not state that
defendant‟s job loss caused the homicide.
       With this understanding of the ruling, Dr. Fossum was asked without
objection to describe some of the factors that distinguished defendant‟s frame of
mind on the date of these crimes from the day he took Flores to a motel. Fossum
responded that defendant did not appear to have “intrusive, massive rage” when he
was interacting with Flores. On the day of the crimes, however, his intrusive
affect or emotions, particularly the emotion of rage, led him to be unable to
exercise control over his behavior. According to Fossum, defendant‟s being

                                           61
severely castigated by a female authority figure, Scott, was exactly the opposite of
what his “fragile narcissistic personality structure” required to remain intact, and
the experience contributed to this emotional intrusion. The fact that defendant
thought he was fired was “very definitely” a factor that contributed to such
intrusion.

                b. Analysis
       Focusing on the trial court‟s earlier statements of its ruling, rather than its
final clarification of the scope of its restriction on Dr. Fossum‟s testimony,
defendant contends the trial court prejudicially erred in excluding Fossum‟s
testimony regarding the extent to which events in his workplace might have
triggered or led to the charged offenses. In his reply brief, he acknowledges the
trial court did not bar all evidence relating to whether events in his workplace
contributed to the offense, but contends the trial court prejudicially erred in
excluding Fossum‟s proposed testimony concerning how some people may be so
affected by being fired that they commit homicide.
       “Expert opinion testimony is admissible only if it is „[r]elated to a subject
that is sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.‟ (Evid. Code, § 801, subd. (a).) „A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his
testimony relates. Against the objection of a party, such special knowledge, skill,
experience, training, or education must be shown before the witness may testify as
an expert.‟ (Evid. Code, § 720, subd. (a).) „ “The competency of an expert is
relative to the topic and fields of knowledge about which the person is asked to
make a statement.” ‟ [Citation.] We review the trial court‟s ruling on the




                                          62
admissibility of expert testimony for abuse of discretion. [Citation.]” (People v.
Watson, supra, 43 Cal.4th at p. 692.)
       The scope of the trial court‟s ruling was defined by its last clarification,
which precluded Dr. Fossum from drawing on studies to testify in general about
the effect of job loss on homicides and from stating directly that defendant‟s being
fired “caused” him to commit the homicide. That clarification did not preclude
defendant from asking Fossum her opinion concerning how events in defendant‟s
workplace might have factored into his mental state on the day of the crimes, and
indeed defense counsel proceeded to elicit such testimony from her. Fossum was
allowed to testify without objection to factors that distinguished defendant‟s state
of mind on the day of the crimes from the day he took Flores to a motel. Fossum
opined that on the day defendant took Flores to a motel he did not have the
intrusive amount of rage that he had on the day of the crimes. Fossum explained
that defendant‟s rage on the day of the crimes led to the “decompensation of his
narcissistic personality” and inability to control his behavior. She specifically
testified that events from his workplace, that is, being castigated by Scott and
“fired,” were factors that contributed to this intrusive rage.
       We find no abuse of discretion in the trial court‟s ruling. The court
appropriately allowed Dr. Fossum to testify to matters within the scope of her
qualifications as a clinical psychologist who had performed a psychological
evaluation of defendant. It properly required Fossum to explain her views of the
connecting links between defendant‟s workplace problems and his subsequent
killing of Nadia. The trial court properly precluded Fossum from generalizing
about how job loss may cause someone to commit a homicide because there was
no basis shown for her to testify as an expert on such topic. Fossum conceded she
was not a researcher. She acknowledged she had not published any paper
regarding the effect of workplace environment on homicides and that she had

                                          63
conducted no research concerning the effect of being fired from a job on a
subsequent homicide. She admitted that the general articles she reviewed on the
topic of workplace environment and homicide were not sufficiently pertinent to
this case. That clinical experience with persons suffering a job loss and
subsequently committing a homicide may be rare and that there was an absence of
research studies in this area did not, as defendant proposes, serve to establish
Fossum‟s qualifications to express an opinion concerning the general relationship
between them. It suggests instead that expert opinion concerning this topic may
not have been possible under the then current state of research.

           5. The trial court’s restriction on the opinion testimony of lay
              witnesses
       Paul Shawhan, defendant‟s supervisor at USA Aluminum in 1988, was
asked whether he observed anything about defendant or had conversations with
defendant that he considered to be “abnormal.” The trial court sustained the
prosecutor‟s objection that the question was vague and ambiguous. The court
ruled that a lay witness could not testify that something was “abnormal,” but could
testify that something was unusual. The defense subsequently asked Shawhan
whether he ever observed defendant say or do anything unusual. Shawhan
responded, as noted earlier, that defendant acted “like a self-appointed police
officer,” continually “reporting other people‟s little infractions.” Shawhan
testified that he eventually terminated defendant‟s employment because defendant
got into a physical confrontation with another employee. According to Shawhan,
the other employee was simply paying for his food at a lunch truck when
defendant became upset, “jump[ed] up in his face and start[ed] making all kinds of
motions like he [defendant] was going to do something.” Shawhan stated that
defendant seemed both angry and anxious. Shawhan also testified that defendant
responded to being fired with a statement that “it was okay” because the Los


                                         64
Angeles Police and Sheriff‟s Departments wanted him to go to work for them.
Defendant claimed law enforcement departments were interested in people like
him who possessed an “international passport.”
       Sam Morrison worked with defendant in 1982 at a telemarketing firm. He
testified concerning behavior and statements of defendant that he characterized as
“unusual” or “weird.” For example, as we recounted earlier, Morrison explained
that when business was slow, defendant would jump up on a desk, scream in the
telephone, and then get down and run around the desk. Morrison described
defendant as the “class clown” in the office. Morrison also thought it was unusual
that defendant claimed to “ha[ve] women all over the country, all over the world.”
However, when Morrison was asked whether he ever observed defendant behave
“impulsively,” the trial court sustained the objection that the question called for
speculation and lacked foundation.
       The defense asked defendant‟s ex-wife, Esparza, whether defendant was
wild, “savage-acting,” or “out of control” when he and her brother fought at the
couple‟s wedding reception. The trial court sustained objections that the questions
lacked foundation and called for speculation. The court sustained objections on
the same grounds when the defense asked Esparza for her opinion concerning the
reason for defendant‟s attack on her. She was later allowed to testify without
objection, however, that defendant said he had attacked her because of his
jealousy. The prosecutor again raised the same objections when Esparza was
asked if defendant had ever attempted to commit suicide during their marriage.
The trial court sustained the objection at that time, but advised the defense to ask
first about defendant‟s acts and then it might permit Esparza to express an opinion
“depending on what combination appears.” The defense asked Esparza if
defendant ever threatened to commit suicide during their marriage. The trial court
sustained an objection that the question was irrelevant.

                                          65
       In each of these instances, defendant contends the trial court prejudicially
erred in disallowing the lay opinion testimony.
       “A lay witness may express an opinion based on his or her perception, but
only where helpful to a clear understanding of the witness‟s testimony (Evid.
Code, § 800, subd. (b)), „i.e., where the concrete observations on which the
opinion is based cannot otherwise be conveyed.‟ [Citation.]” (People v. Hinton
(2006) 37 Cal.4th 839, 889.) Such a situation may arise when a witness‟s
impression of what he or she observes regarding the appearance and demeanor of
another rests on “subtle or complex interactions” between them (ibid.) or when it
is impossible to otherwise adequately convey to the jury the witness‟s concrete
observations. (People v. Melton (1988) 44 Cal.3d 713, 744; People v. Manoogian
(1904) 141 Cal. 592, 595-597.) A lay witness generally may not give an opinion
about another person‟s state of mind, but may testify about objective behavior and
describe behavior as being consistent with a state of mind. (People v. Chatman
(2006) 38 Cal.4th 344, 397.) Matters that go beyond common experience and
require particular scientific knowledge may not properly be the subject of lay
opinion testimony. (People v. Williams (1988) 44 Cal.3d 883, 915; People v.
Williams (1992) 3 Cal.App.4th 1326, 1333.) A trial court‟s ruling on the
admission or exclusion of evidence is reviewed for abuse of discretion. (People v.
Thompson (2010) 49 Cal.4th 79, 128.)
       It is unnecessary for us to consider whether the trial court abused its
discretion in any of the rulings defendant challenges because even assuming error,
we conclude any error was harmless. Shawhan and Morrison were both allowed
to testify to defendant‟s unusual behavior and statements. Esparza was allowed to
testify that defendant said he attacked her because of his jealousy. Defendant was
otherwise allowed to present the testimony of numerous witnesses regarding his
life-long behavioral and mental problems and Dr. Anderson specifically testified

                                         66
that defendant told him he spoke to Nadia about being suicidal. In addition,
Anderson expressed his professional opinion that on the day of the crimes
defendant was deeply depressed and suicidal. Indeed, the substance of all of the
excluded testimony was before the jury either in slightly different forms from
these witnesses or from other witnesses. Viewing the record as a whole, there is
no reasonable probability the jury would have reached a more favorable verdict if
the trial court had allowed Shawhan, Morrison, and Esparza to answer these
defense questions. (People v. Watson, supra, 46 Cal.2d at p. 836; see People v.
McNeal (2009) 46 Cal.4th 1183, 1202-1203 [applying the Watson standard to the
claim of erroneous exclusion of evidence]; People v. Benavides, supra, 35 Cal.4th
at p. 91 [“violations of state evidentiary rules do not rise to the level of federal
constitutional error”].)

             6. The trial court’s admission of the hearsay evidence that defendant
                registered for two guests at the Ha’Penny Inn
         Thomas Nixon, the assistant manager of the Ha‟Penny Inn, was permitted
to testify over defendant‟s hearsay objection that defendant registered for two
guests when he rented a room at the motel on March 20, 1989. Nixon had no
independent knowledge of events when defendant registered, but based his
testimony on a receipt bearing his own initials that he prepared when defendant
checked out. Nixon testified that the occupancy information appearing on the
receipt would have been copied from a registration card bearing that information
that had been prepared by a motel desk clerk at the time defendant checked in.
That clerk did not testify.9 Copies of defendant‟s motel registration card, room


9        The clerk, Parley Kennelly, was on active duty in the Navy at the time of
trial.




                                           67
payment receipt, and key deposit return receipt were admitted into evidence. We
treat defendant‟s trial objection to Nixon‟s testimony as also including an
objection to the documentary evidence upon which his testimony was based. The
number of guests in defendant‟s room was listed as “2” on each of these motel
records. Each of the documents bore defendant‟s signature and he stipulated that
he signed each of these documents on March 20, 1989.
       Defendant contends the trial court prejudicially erred in admitting Nixon‟s
testimony because the underlying motel records did not fall within any exception
to the hearsay rule. We understand defendant also to argue that the trial court
erred in admitting the three documents that were the basis for Nixon‟s testimony.
We conclude the records and testimony were properly admitted.
       The Evidence Code defines hearsay as “evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered to
prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay is
inadmissible unless it qualifies under some exception to the hearsay rule. (Id.,
subd. (b).)
       The trial court allowed Nixon to testify to the number of guests listed on the
motel records because it determined that the number came within the exception for
adoptive admissions.10 We note that a trial court has broad discretion to determine
whether a party has established the foundational requirements for a hearsay
exception (People v. Martinez (2000) 22 Cal.4th 106, 120) and “[a] ruling on the


10     The adoptive admission exception to the hearsay rule is stated in Evidence
Code section 1221, which provides that “[e]vidence of a statement offered against
a party is not made inadmissible by the hearsay rule if the statement is one of
which the party, with knowledge of the content thereof, has by words or other
conduct manifested his adoption or his belief in its truth.”




                                         68
admissibility of evidence implies whatever finding of fact is prerequisite
thereto[.]” (Evid. Code § 402, subd. (c).) We review the trial court‟s conclusions
regarding foundational facts for substantial evidence. (People v. Phillips (2000)
22 Cal.4th 226, 236.) We review the trial court‟s ultimate ruling for an abuse of
discretion (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008; People v.
Martinez, supra, at p. 120), reversing only if “ „the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.‟ ” (People v. Brown (2003) 31 Cal.4th 518, 534.)
       In People v. Maki (1985) 39 Cal.3d 707 (Maki), we considered the adoptive
admission hearsay exception as it applied to a receipt and an invoice to which
objections had been made that called into question whether the documents were
what they purported to be. We concluded the trial court erred in admitting a
signed car rental invoice and an unsigned hotel receipt as adoptive admissions of
defendant Maki where there was no testimony regarding how the documents were
prepared or their purpose. (Id. at pp. 709-711.) We explained that “to prove
„adoption‟ of a hearsay statement sufficient to make it admissible under section
1221, . . . it must be shown „that the party to an action against whom a declarant‟s
hearsay statement is offered as an adoptive admission, (1) had knowledge of the
contents of declarant’s statement, and (2) having such knowledge, has, by words
or other conduct, manifested his adoption or his belief in its truth.‟ [Citation.]”
(Id. at p. 712.) We concluded that Maki‟s signature would have constituted an
adoptive admission “if it were shown that he had read over the document and
signed it after doing so.” (Ibid.) “This prerequisite for introduction of such
evidence may be provided by testimony of a person describing the circumstances
surrounding the signing of the document.” (Ibid.)
       Defendant claims Maki establishes the trial court‟s ruling in this case was
error. We disagree. As we shall explain, there was substantial evidence from

                                          69
which the trial court reasonably could infer that defendant knew he was being
registered at the motel for two guests and that he adopted the registration card and
receipts‟ representation to that effect by his signature on the documents.
       Both Nixon and the office manager, Mrs. Kennelly, testified regarding the
standard practice the desk clerks used when they prepared the registration cards
and receipts as they checked guests in and out of the Ha‟Penny Inn.
Mrs. Kennelly testified she supervised the desk clerks and the front office
procedures for the motel. She described the standard procedure for checking
guests into the motel as follows: the desk clerk would hand the guest a
registration card to fill out; when the registration card was returned, the clerk
would ask the guest for photo identification; the clerk would compare and verify
the guest‟s identity and written information with the signature, photo and
information on the identification card; the clerk would request payment and fill out
a receipt for the payment received. She explained that the motel wanted to know
how many guests would be in the room because there was a different price for the
room depending on how many people were staying in it. As defendant himself
summarized her testimony on this point, “according to Kennelly, at the time of
registration the motel employee generally requested that the guest state how many
people were going to be in the room.” Kennelly added that the staff accepted the
registrant‟s response unless they saw that there were other people with the
registering guest.
       Nixon also testified about the standard procedure for checking guests in and
out. According to Nixon, there were several documents that had to be completed
whenever a guest checked in. Nixon stated that the motel staff would fill out the
registration card, on which would be the rate for the room, plus the tax and the $10




                                          70
key deposit.11 Then the staff would fill out a receipt for the room rental payment
and the guest would sign the receipt. Nixon testified that when a guest returned
the room key, the motel staff would fill out another receipt, have the guest sign the
receipt, and then return the key deposit.
       Mrs. Kennelly and Nixon recognized some of the handwriting on
defendant‟s registration card, specifically including the numeral “2” entered in the
space provided for the number of persons staying in the room, and the handwriting
on defendant‟s room payment receipt as belonging to Mrs. Kennelly‟s son, Parley,
who was working as a part-time front desk clerk at the time of Nadia‟s death.
Mrs. Kennelly testified that there was formal training for front desk clerks,
including Parley, adding that she had never found that Parley made mistakes when
he registered guests at the motel.
       Nixon was asked about the receipt for defendant‟s return of his key at check
out and the return of defendant‟s $10 deposit. Nixon identified the handwriting on
that receipt as being his. Nixon testified that when defendant returned his key at
checkout, Nixon took the number “2” for the number of guests registered for the


11      Contrary to defendant‟s claim, the testimony of Nixon and Mrs. Kennelly
concerning who would usually fill out the registration card is consistent when
considered in connection with a review of the registration card admitted into
evidence. The registration card contains areas for the guest‟s name, address,
vehicle details, employer and signature. It is logical that such information was
filled out by the registering guest, as Mrs. Kennelly described. The registration
card has another area labeled as for “management use only,” which contains
spaces for entry of the room number, rental rate, and payment information.
Another section of the card contains an area for accounting entries reflecting the
applicable room charges, taxes, and deposits. Space for the occupancy
information is at the bottom of the registration card immediately below the section
for the accounting entries. It is logical these sections were filled out by the front
desk clerk, as described generally by Nixon.




                                            71
room from defendant‟s registration card and entered it on the key deposit return
receipt, along with some other information, before defendant signed the receipt.
       From the evidence of the motel‟s price structure and its standard
registration practice, the trial court could reasonably infer that Parley, who had
received formal training regarding his duties as a front desk clerk, obtained the
information that two people would be staying in defendant‟s room from defendant
when defendant checked into the motel, that Parley marked that information on
defendant‟s registration card and room payment receipt, and that defendant signed
the room payment receipt after it was completed by Parley. Because a motel guest
would have a distinct financial reason to check that the motel did not register and
charge him or her for more than the actual number of persons who would be
occupying the room, a further reasonable inference could be drawn that defendant
reviewed the documents to confirm the number of guests noted by the motel
before paying for the room and signing the room payment receipt. In further
support, Nixon copied the occupancy information from these records onto the key
deposit return receipt and defendant signed this receipt as well when he checked
out of the motel. By this signature, defendant also acknowledged the truth of the
documents‟ statement and Nixon‟s testimony that at the outset he had registered
for a room with double occupancy. Thus, reasonable inferences could be drawn
from the evidence that defendant had knowledge that he was registered for two
guests and that he adopted the truth of the occupancy information by signing the
receipts after they were filled out by the clerks and reviewed by him. (Maki,




                                         72
supra, 39 Cal.3d at p. 712.)12 The trial court did not abuse its discretion in
admitting the occupancy number under the adoptive admissions hearsay exception.
       Moreover, the motel records were also admissible under the hearsay
exception for business records. (Evid. Code, § 1271.) Mrs. Kennelly testified the
documents were made in the regular course of the motel‟s business at or about the
time the transactions occurred. (Id., subds. (a) & (b).) Both she and Nixon
testified to the identity of the documents and their mode of preparation. (Id., subd.
(c).) Contrary to defendant‟s claims, their testimony is not conflicting and
considered as a whole, the testimony regarding the motel‟s standard practice is
sufficient to show “[t]he sources of information and method and time of
preparation were such as to indicate its trustworthiness.” (Id., subd. (d).)
       We find no abuse of discretion by the trial court in allowing Nixon to
testify that defendant registered for two guests at the Ha‟Penny Inn based on the
motel records.

           7. The special jury instruction regarding the trial court’s role in the
              appointment and payment of defense investigators and experts
       A number of defendant‟s expert witnesses testified that they were appointed
by the court at the request of the defense or to assist the defense. The prosecution
questioned them regarding the cost and payment for their services and several of
them testified that the court “allowed” their payment or that the court paid them.13

12     Nixon‟s testimony that the motel did not have a procedure for
“documenting” how many people were in a room does not establish that there was
not substantial evidence to support these inferences.
13      For example, Dr. Kowell testified he made arrangements to be paid by the
court; Dr. Berg was questioned at some length about the money he was receiving
for his services; Dr. LaCalle testified he was appointed by the court to evaluate
defendant, he later clarified he was appointed as an expert for the defense, he was
questioned at length about his charges; Dr. Fossum testified she was appointed by
                                                          (Footnote continued on next page.)


                                          73
        Defendant requested the court to provide the jury with the same special
instruction that the court had used in defendant‟s first trial, regarding the court‟s
role in the appointment and payment of defense investigators and experts. The
instruction stated that under the law an indigent defendant is entitled to apply to
the court for public funds to employ investigators, experts and others who are
reasonably necessary for the preparation or presentation of the defense. The
instruction explained that the purpose for such a law is to ensure that an indigent
defendant is not deprived of an effective defense because of his financial
condition, in view of the circumstance that the investigation and presentation of
the prosecution is paid for with public funds. The instruction also explained that
the court “is involved in reviewing and processing the application, and in
appointing the investigators, experts, and others who will assist the defense, only
for the purpose of ensuring that the persons appointed are reasonably necessary for
the preparation or presentation of the defense, and to monitor the fees to be paid to
such investigators and experts to ensure that such fees are within the guidelines
established by the Court for that purpose.” Finally, the instruction directed the
jury not to view either the court‟s approval of a request for or appointment of a
defense investigator or expert as an indication that the court was taking any
position with respect to the credibility of such person when he or she later testified
and made it clear that it was up to the jury to determine the credibility of any such
witness and the weight to be given their testimony.



(Footnote continued from previous page.)

the court to assist the defense and that a court order “allowed” payment of her
fees; and Dr. Purisch testified he was appointed by the court at the request of the
defense and was paid by the court.




                                           74
       The prosecution did not object to defendant‟s request for the special
instruction, but asked the court for a modification. The prosecutor argued that to
the extent the defense had emphasized the court‟s appointment of its experts and
to the extent jurors might question whether the court was validating the credentials
of those experts and examining and approving their fees, the instruction should
make it clear that the court‟s approval was based on information submitted by the
defense and not on its own independent review.14
       Defendant contended the original instruction was superior and objected to
the prosecution‟s proposed modification. Defendant argued the court did
scrutinize his applications and that the court‟s approval was not simply based upon
his request. Defendant pointed out that one expert, Dr. Anderson, was appointed
by the court without being requested by him. Defendant also argued that the
prosecution‟s proposed changes would suggest the defense “brought in all these
doctors and [paid] them all of this money . . . without any approval of the court.”
Defendant claimed the prosecution was trying to cause the jury to infer that the
defense “either gave false declarations or nobody checked the declarations and we



14      The modification proposed by the prosecution retained all of the previous
language of the prior instruction except for the paragraph regarding the court‟s
role in reviewing applications. The prosecution proposed that language be
amended to state: “In these circumstances, the Court is involved in reviewing and
processing the application submitted by the defense attorneys, and in appointing
the investigators, experts, and others who have been asked by the defense attorneys
to assist with the defense, only for the purposes of ensuring that, based upon the
declarations submitted by the defense attorneys, the persons appointed are
reasonably necessary for the preparation or presentation of the defense. The Court
is also involved to monitor the fees to be paid to such investigators and experts to
ensure that such fees are within the guidelines established by the Court for that
purpose.” (Changes proposed by the prosecution are in italics.)




                                         75
have run up thousands and thousands and thousands of dollars to defend this
person.”
       The trial court agreed that “it [the appointment procedure] is not just an
open checkbook.” Nevertheless, the court felt that the prosecution‟s request was
fair because the defense had, by making a point of the court‟s appointment of its
experts, attempted to enhance the witnesses‟ credibility. The court prepared a
slightly different version of the instruction, which it viewed as a compromise. The
court‟s instruction provided, in relevant part: “The Court is involved in . . .
reviewing and processing the application submitted by the defense attorneys, and
in appointing the investigators, experts, and others requested in the application,
only for the purpose of ensuring that the persons appointed are reasonably
necessary for the preparation or presentation of the defense, and to monitor the
fees to be paid to such investigators and experts to ensure that such fees are within
the guidelines established by the Court for that purpose.” (Changes made by the
trial court are in italics.)15 The court gave the instruction over defendant‟s
objection to the modification.


15      The full instruction given by the court stated: “Under the law an indigent
defendant (or his attorney) may apply to the Court for public funds to employ
investigators, experts and others reasonably necessary for the preparation or
presentation of the defense. For this purpose a defendant is „indigent‟ if he does
not have the financial means to secure those services himself. The application is
confidential until disclosed by the defense before or during the trial. The purpose
of this law is to ensure that an indigent defendant is not deprived of an effective
defense because of his financial condition, since the investigation and presentation
of the prosecution is paid for with public funds.
        “The Court is involved in the reviewing and processing [of] the application
submitted by the defense attorneys, and in appointing the investigators, experts,
and others requested in the application, only for the purpose of ensuring that the
persons appointed are reasonably necessary for the preparation or presentation of
the defense, and to monitor the fees to be paid to such investigators and experts to
                                                          (Footnote continued on next page.)


                                          76
        Defendant now claims the trial court erred in giving the instruction at all.
Defendant contends it was reasonably likely the instruction unfairly highlighted
the cost to the public of both prosecuting and defending him, thereby injecting an
irrelevant and impermissible consideration into the jury‟s deliberations. The
result, according to defendant, was that the jury was pressured or coerced into
reaching a verdict of guilty to avoid the cost of another retrial. He relies on cases
considering the giving of an Allen charge to a deadlocked jury. (Allen v. United
States (1893) 150 U.S. 551; People v. Barraza (1979) 23 Cal.3d 675, 684-685;
People v. Gainer (1977) 19 Cal.3d 835, 843-845, 852, fn. 16.) He also claims the
instruction was misleading because the jury would have understood it to mean that
the court must determine whether ancillary personnel were reasonably necessary,
but not that the court was also required to determine whether their requested fees
were reasonably necessary. Finally, defendant contends the trial court‟s
modification was not supported by the evidence, but was based on the prosecutor‟s
mistaken assertion that the defense had repeatedly elicited testimony that the
expert witnesses had been appointed by the court, which insinuated that the court
had validated their testimony, when in almost every instance the defense had made
clear “the nature of the expert‟s appointment.”



(Footnote continued from previous page.)

ensure that such fees are within the guidelines established by the Court for that
purpose.
       “Neither the approval of such a request, nor the appointment of such an
investigator, expert, or other person by the Court to assist with the defense, should
be taken by the jury as an indication that the Court has taken any position with
respect to the credibility of such person when that person later testifies as a
witness. It is for you, the jury, to determine the credibility [of] any such witness
and the weight to be given to the testimony of such a witness.”




                                           77
       The doctrine of invited error bars a defendant from challenging a jury
instruction given by the trial court when the defendant has requested the
instruction based on a “ „ “ „conscious and deliberate tactical choice.‟ ” ‟ ”
(People v. Harris (2008) 43 Cal.4th 1269, 1293.) The doctrine applies here to bar
defendant‟s challenge to the giving of the instruction because, despite his claims to
the contrary, the record reflects defendant had and expressed a tactical reason for
requesting the instruction. That is, anticipating and responding to the
prosecution‟s attempts to show bias by the defense experts due to their receipt of
substantial fees for their services, defendant elicited testimony that the court
appointed his experts and paid their fees. Even though defendant clarified that,
with the exception of Dr. Anderson, the experts were appointed to assist the
defense at the request of defendant, it was clear that defendant elicited the
testimony of their court appointment and payment in order to counter the inference
that there was no objective oversight of their retention or payment. During the
instruction conference regarding the prosecutor‟s proposed modification to the
special instruction, defense counsel stated: “We felt that with the appearance being
presented by the prosecution, it was necessary to show more accurately that the
court was involved and we could not just arbitrarily pick any doctor and pay any
excessive or exorbitant amount of money.” The instruction addressed these
concerns by informing the jury that the law provides for court appointment of
defense experts for an indigent defendant to ensure he is not deprived of an
effective defense because of his financial condition, that the court reviews defense
applications for appointment of experts and appoints experts when they are
reasonably necessary for the preparation or presentation of the defense, and that
the court monitors the fees paid to the appointed experts to make sure the fees fall
within court guidelines. Defendant may not now complain that the trial court
erroneously gave the instruction he requested.

                                          78
       The only claim properly preserved by defendant is his claim regarding the
trial court‟s modification of the instruction in response to the prosecution‟s
proposed changes. However, the instruction as a whole generally, and the
language inserted by the court specifically, constituted an accurate statement of the
law justified by the parties‟ presentation of the evidence. The trial court‟s
modification tempered the language proposed by the prosecution to address
defendant‟s expressed concerns. It is not reasonably likely that any juror would
have understood or been influenced by the instruction in the manner suggested by
defendant.

             8. The denial of defendant’s request for a jury instruction limiting the
                jury’s consideration of evidence of his prior wrongful acts
       During the guilt phase of trial, evidence was admitted of defendant‟s prior
criminal acts. The prosecution introduced the testimony of third-grader Sandra C.
regarding defendant‟s attempt to lure her into his car and the rebuttal testimony of
Flores regarding defendant‟s actions in enticing her when she was 15 years old to
accompany him to a motel where defendant proposed they engage in sexual
conduct. Defendant introduced the testimony of his ex-wives, Lara and Esparza,
regarding his sudden violent assaults on them. Lara testified that after defendant
accused her of discussing her ex-boyfriend with a girlfriend, he initiated sexual
activity, during which he stabbed her. Esparza testified that defendant attacked
her, pushed her against the bathtub and then choked her while pushing her over its
edge, and told her he was going to kill her.
       Initially, both defendant and the prosecution requested that the trial court
give CALJIC Nos. 2.50, 2.50.1, and 2.50.2, which instruct the jury that it may not
consider such evidence as evidence of propensity or bad character, that it may
properly consider the evidence for specified limited purposes, and that the
prosecution has the burden to prove by a preponderance of the evidence any such


                                          79
prior criminal misconduct. Defendant, however, later withdrew his request. The
prosecution continued to argue the instructions were necessary to ensure the jury
did not use the evidence as propensity or character evidence in violation of
Evidence Code section 1101, subdivision (b). The trial court indicated it would
give the instructions over defendant‟s objection, but would consider any
modification he proposed.
       Defendant argued it would be inappropriate for the court to instruct the jury
with the pattern language of CALJIC No. 2.50 because the instruction would
describe his prior acts as “crimes” when he had not been convicted of them. After
discussion of the matter, the court modified the instruction to include language
referencing prior “acts” as well as crimes.
       Defendant raised another “troubling point” with the instruction. He noted
that the defense had presented the testimony of Lara and Esparza regarding
defendant‟s attacks on them for the purpose of showing defendant‟s mental defect,
and that evidence of such attacks, along with the Flores incident, had been part of
the records considered by the defense experts. As the proponent of the evidence,
defendant claimed he was entitled to an instruction restricting consideration of that
evidence to those stated purposes — consideration of defendant‟s asserted mental
defects and for evaluating the expert testimony.
       The court observed that the prosecution wanted to use the evidence to show
defendant‟s criminal intent and that the defense was using the evidence to try to
show he did not act with that intent because of his mental defects. The court
stated that it did not matter who called the witnesses and that under these
circumstances it was appropriate to give a modified version of CALJIC No. 2.50.
Defendant agreed, but argued that the instruction should be further modified to
state the additional purpose for which defendant introduced the evidence, i.e., to
support the doctors‟ testimony regarding his mental defects. To address

                                         80
defendant‟s concern, the trial court suggested removing the language that stated
the evidence was introduced “for the purpose of” and substituting “which may
show.” Defendant agreed to the modification, but still objected to the instruction
in its entirety. The court gave the instruction, as modified.16
       Defendant claims on appeal that the trial court erred in failing to give the
limiting instruction the defense requested, but it is difficult to understand the
precise nature of the error he asserts. Defendant begins by stating that the trial
court erred in failing to instruct the jury that it could consider Lara‟s and Esparza‟s
testimony “only to the extent it was relied upon by the expert witnesses as
evidence of [defendant‟s] mental defect.” This argument — that Lara‟s and
Esparza‟s testimony was relevant solely as a basis for the defense experts‟

16      CALJIC No. 2.50, as given in this case, read: “Evidence has been
introduced which may show that the defendant committed crimes or acts other
than that for which he is on trial. [¶] Such evidence, if believed, was not received
and may not be considered by you to prove defendant is a person of bad character
or that he has a disposition to commit crimes. [¶] Such evidence was received
and may be considered by you only for the limited purpose of determining if it
tends to show: [¶] The existence of the intent which is a necessary element of the
crime charged; [¶] The identity of the person who committed the crime, if any, of
which the defendant is accused; [¶] The defendant had knowledge or the means
that might have been useful or necessary for the commission of the crime charged.
[¶] For the limited purpose for which you may consider such evidence, you must
weigh it in the same manner as you do all other evidence in the case. [¶] You are
not permitted to consider such evidence for any other purpose.”
        CALJIC No. 2.50.1, as given in this case, read: “Within the meaning of the
preceding instruction, such other crime or act purportedly committed by a
defendant must be proved by a preponderance of the evidence. You must not
consider such evidence for any purpose unless you are satisfied that the defendant
committed such other crime or act. [¶] The prosecution has the burden of proving
these facts by a preponderance of the evidence.”
        CALJIC No. 2.50.2 defines the term “preponderance of the evidence.” It
concludes with the admonition that the jury “should consider all of the evidence
bearing upon every issue regardless of who produced it.”




                                          81
opinions — appears to assert that the trial court erred in instructing the jury
pursuant to CALJIC No. 2.50 that the jury could consider the testimony for the
purpose of determining the existence of the requisite criminal intent. But in a
footnote, defendant contends his claim is not that the trial court erred in giving
CALJIC Nos. 2.50, 2.50.1 and 2.50.2, as modified. He agrees that the instructions
were necessary and properly given. Rather, he contends that the instructions were
incomplete. Defendant further argues, however, that without a limiting instruction
restricting the jury‟s consideration of the testimony of Lara and Esparza solely to
its function as the basis for the defense experts‟ opinions regarding defendant‟s
mental illness, the jury was improperly allowed to consider the evidence as
substantive evidence of his prior acts of misconduct. Thereafter, arguing that the
jury was reasonably likely to believe CALJIC No. 2.50 applied to only the
prosecution‟s evidence, defendant contends the jury was likely to use defendant‟s
evidence “as propensity evidence or for some other improper purpose.” Without a
limiting instruction, defendant continues, it is reasonably likely the jury did not
understand that the testimony of Lara and Esparza constituted evidence of mental
illness within the meaning of CALJIC No. 3.32. Defendant argues the trial court‟s
error was not cured by any of the other instructions, but that prejudice was actually
exacerbated by CALJIC No. 2.50.1, which told the jury that “[t]he prosecution has
the burden of proving these facts [referred to in CALJIC No. 2.50] by a
preponderance of the evidence.” (Italics added.) In defendant‟s view, this
language made it even more likely that the jury would believe CALJIC No. 2.50
applied only to the testimony of Flores, who was called by the prosecution.
       Noting that on appeal defendant does not challenge the giving of CALJIC
Nos. 2.50, 2.50.1, and 2.50.2, the Attorney General contends defendant failed to
preserve his claim that the trial court should have further modified CALJIC No.
2.50 or given an additional clarifying instruction. (People v. Hillhouse (2002) 27

                                          82
Cal.4th 469, 503 [“A party may not argue on appeal that an instruction correct in
law was too general or incomplete, and thus needed clarification, without first
requesting such clarification at trial.”].) Defendant replies that his arguments to
the trial court and objection to CALJIC No. 2.50 were sufficient to preserve his
claim. We are not convinced that the specific claims defendant now makes were
adequately articulated to the trial court at the guilt phase of trial to be preserved
for appeal, but assuming that we may reach them (§ 1259), we conclude they are
meritless.
       To the extent defendant argues that a jury‟s consideration of evidence is
limited to the purpose intended by the party who introduced it, we reject the
contention. The rules of evidence govern the purpose for which evidence may be
considered, and defendant cites no rule that suggests the testimony of Lara and
Esparza could be considered solely for its impact on or support for the defense
experts‟ opinions. Regardless of which party presents the evidence, and in the
absence of some other applicable legal restriction, the jury is free to consider
evidence for any relevant purpose. Here, as the jury was instructed, the evidence
of defendant‟s prior assaults on Lara and Esparza was subject to the legal
restriction that it could not properly be considered by the jury as propensity or
character evidence, but the evidence was relevant to and could be considered by
the jury as substantive evidence of defendant‟s intent when he committed the
charged crimes. The trial court did not err by failing to restrict the jury‟s
consideration of the evidence solely to its function as the basis for defendant‟s
experts‟ opinions.
       We further reject defendant‟s claim that the jury was likely to understand
the modified CALJIC No. 2.50 given here as applying only to prosecution
evidence and as a result, that it was reasonably likely the jury would consider
Lara‟s and Esparza‟s testimony for the purpose of establishing defendant‟s

                                           83
criminal propensity, notwithstanding the modified CALJIC No. 2.50 instruction.
(See People v. Whisenhunt (2008) 44 Cal.4th 174, 214 [“When reviewing
[assertedly] ambiguous instructions, we inquire whether the jury was „reasonably
likely‟ to have construed them in a manner that violated the defendant‟s rights.”].)
CALJIC No. 2.50 properly informed the jury that it could not use evidence of
defendant‟s prior crimes or acts as reflecting defendant‟s bad character or
disposition to commit crimes and identified the limited purposes for which the
evidence could be considered. The instruction did not distinguish between
evidence of bad acts introduced by the prosecution and evidence of bad acts
introduced by the defense. In fact, the trial court deleted language that defendant
argued could suggest the instruction was limited to evidence introduced by the
prosecution and defendant agreed with the court‟s modification. Even read in
conjunction with CALJIC No. 2.50.1, it is not reasonably likely that the jury
would have understood the restrictions of CALJIC No. 2.50 to be limited to the
prosecution‟s evidence. CALJIC No. 2.50.1 addresses the entirely separate matter
of the prosecution‟s burden of proof regarding a defendant‟s prior criminal
misconduct. It does not address the proper use of the evidence if the jury finds it
to have been proved. No jury would have understood it to alter or limit the rule
expressed in CALJIC No. 2.50.
       Finally, we reject defendant‟s claim that without an additional limiting or
clarifying instruction, it is reasonably likely the jury did not understand that the
testimony of Lara and Esparza constituted evidence of mental illness within the
meaning of CALJIC No. 3.32 (evidence of mental disease is received for limited
purpose of determining whether the defendant actually formed a required specific
intent). The defense experts testified regarding defendant‟s mental illness as
reflecting on defendant‟s intent at the time he committed the crimes. Drs. Berg,
LaCalle, and Purisch specifically considered reports of defendant‟s attacks on Lara

                                          84
and Esparza as supporting their diagnoses of defendant‟s mental illness. The jury
was properly instructed that it could consider evidence of defendant‟s prior
criminal misconduct for the issue of intent. And defense counsel drew the
connection for the jury in closing argument, arguing that defendant has a
legitimate mental illness that has existed throughout his life, that all the experts
agreed he had such mental illness on the day of the charged crimes, and that as a
result of his mental illness he was not thinking when he was with Nadia. Instead,
counsel argued, defendant was in a trance-like state, just like he was when he
stabbed Lara, and that he panicked afterward, just like he did in the incidents with
Lara, with Esparza, and on other occasions. The jury would have understood from
such arguments how defendant believed his prior assaults on Lara and Esparza
supported his claim of mental illness and lack of criminal intent.
       The trial court did not err in giving CALJIC No. 2.50 as modified or in
failing to give a further limiting instruction regarding Lara and Esparza‟s
testimony describing defendant‟s prior assaults on them.

           9. The trial court’s instruction of the jury on first degree murder
       Defendant contends the trial court erred in instructing the jury on first
degree murder because the information charged him only with one count of
murder in violation of section 187, subdivision (a). He characterizes that
provision as a statute defining second degree murder. Because, according to
defendant, the information charged only second degree murder, the trial court
lacked jurisdiction to try him for first degree murder. Defendant‟s argument is
premised on his reading of People v. Dillon (1983) 34 Cal.3d 441. The argument
is a familiar one that we have rejected many times. We do so again for the reasons
previously expressed. (People v. Howard (2010) 51 Cal.4th 15, 35; People v.




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Bramit (2009) 46 Cal.4th 1221, 1237-1238; People v. Harris, supra, 43 Cal.4th at
pp. 1294-1295; People v. Morgan (2007) 42 Cal.4th 593, 616.)
       Defendant also contends the information failed to allege all the facts
necessary to subject him to punishment for first degree murder, including the
death penalty, rendering his conviction defective under Apprendi v. New Jersey
(2000) 530 U.S. 466, 476 (Apprendi). As we stated in People v. Harris, supra, 43
Cal.4th at page 1295: “The Apprendi claim is illusory; the information included
special circumstance allegations that fully supported the penalty verdict.”
       B. Asserted Error Affecting the Sanity Phase of Trial

           The trial court’s failure to modify CALJIC No. 4.01 as requested by
           defendant
       CALJIC No. 4.01 informs the jury that “[a] verdict of „not guilty by reason
of insanity‟ does not mean the defendant will be released from custody.” The
instruction briefly explains the procedures that would be followed in the event of
such a verdict; admonishes the jury determining the defendant‟s sanity at the time
of the crimes not to consider what might happen to the defendant under such
procedures; directs the jury to assume (if it determines the defendant was insane at
the time of his or her crimes) that the “officials charged with operation of [the]
mental health system will perform their duty in a correct and responsible manner,
and that they will not release . . . defendant unless [he] can be safely returned into
society”; and informs the jury that it would be a violation of its duty to find the
defendant sane at the time he committed his offenses “because of a doubt that the
Department of Mental Health or the courts will properly carry out their
responsibilities.” (Ibid.; see also CALCRIM No. 3450.)
       CALJIC No. 4.01 was drafted in response to two appellate court cases
(People v. Moore (1985) 166 Cal.App.3d 540; People v. Dennis (1985) 169
Cal.App.3d 1135), which found that on request of the defendant or jury, the trial


                                          86
court must instruct regarding the consequences of a not guilty by reason of
insanity verdict.17 (People v. Kelly (1992) 1 Cal.4th 495, 538.) The purpose of
the instruction is “to aid the defense by telling the jury not to find the defendant
sane out of a concern that otherwise he would be improperly released from
custody.” (Ibid.; accord, People v. Moore, supra, at p. 554.)
       Defendant requested the trial court give CALJIC No. 4.01 in this case, but
objected to the inclusion of the standard language informing the jury that a
defendant who has been found not guilty by reason of insanity and who is
determined by the courts not to have fully recovered his sanity could be placed “in
outpatient treatment.”18 Defendant contended the language was not appropriate in
light of statutorily mandated inpatient treatment for a minimum of 180 days in
specified cases, including murder, kidnapping, rape, and a lewd and lascivious act


17     There is no trial court duty to give such an instruction on its own motion
when the defendant indicates he or she does not want the instruction. (People v.
Jones (1997) 15 Cal.4th 119, 179, overruled on other grounds in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.) A defendant reasonably can choose not to
request the instruction “for fear it might focus the attention of the jury upon the
possibility of the defendant‟s release if he is restored to sanity.” (People v. Jones,
supra, at p. 179.)
18      The standard language of CALJIC No. 4.01 provides, in pertinent part: “A
verdict of „not guilty by reason of insanity‟ does not mean the defendant will be
released from custody. Instead, [he] [she] will remain in confinement while the
courts determine whether [he] [she] has fully recovered [his] [her] sanity. If [he]
[she] has not, [he] [she] will be placed in a hospital for the mentally disordered or
other facility, or in outpatient treatment, depending upon the seriousness of [his]
[her] present mental illness. [¶] Moreover, [he] [she] cannot be removed from
that placement unless and until the court determines and finds the defendant‟s
sanity has been fully restored, in accordance with the law of California, or until the
defendant has been confined for a period equal to the maximum period of
imprisonment which could have been imposed had [he] [she] been found guilty.”
(Italics added.)




                                          87
upon a child. (See § 1601, subd. (a).) The prosecutor requested the standard
language be retained, arguing that the instruction would otherwise not correctly
reflect the law.
       The trial court concluded that removing the language regarding outpatient
treatment placement would be misleading because the next paragraph of CALJIC
No. 4.01 would then inaccurately indicate that defendant could never be removed
from mental hospital placement until he had either recovered his sanity or served
the maximum period of confinement that could have been imposed had he been
found sane. (See fn. 18, ante, at p. 87.) To address defendant‟s concern, the court
decided to modify the standard language of the instruction to indicate that a
defendant‟s placement in outpatient treatment would depend “upon the seriousness
of his present mental illness and the seriousness of the crimes for which he has
been convicted in the guilt phase of the trial.” (Italics indicate language added by
the trial court.) Defendant complained that the modified language was misleading
because it continued to imply that outpatient treatment would be available to him
if he was determined to be insane. Defendant objected that the instruction failed
to explain, given the crimes for which he was convicted, that there would be a
mandatory period of inpatient treatment. Defendant repeated his request for the
instruction, but continued to object to the language regarding outpatient treatment.
The trial court overruled the objection.
       Defendant contends the trial court‟s ruling was error. We disagree.
       When a defendant is determined to have been insane at the time of an
offense, section 1026, subdivision (a) provides that “the court, unless it shall
appear to the court that the sanity of the defendant has been recovered fully, shall
direct that the defendant be confined in a state hospital for the care and treatment
of the mentally disordered or any other appropriate public or private treatment
facility approved by the community program director, or the court may order the

                                           88
defendant placed on outpatient status pursuant to Title 15 (commencing with
Section 1600) of Part 2.” (Italics added.) A defendant committed by a court to a
state hospital or other treatment facility under section 1026 may later be placed on
outpatient treatment status in accordance with the provisions of section 1600 et
seq. (§ 1026.1, subd. (c); see People v. Sword (1994) 29 Cal.App.4th 614, 619-
620.) To delete the reference in CALJIC No. 4.01 to possible outpatient treatment
placement would be inaccurate in light of these statutes, which were applicable to
defendant if the jury found him not guilty by reason of insanity. And, as the trial
court noted, deletion of any reference to outpatient treatment placement in the first
paragraph of CALJIC No. 4.01 would make the second paragraph misleading.
The trial court did not err in rejecting defendant‟s request to remove the reference
to outpatient treatment from the instruction.
       Nor did the trial court err in refusing defendant‟s request to include
language specifically advising the jury that the law (§ 1601, subd. (a)) mandated
inpatient treatment for a minimum of 180 days for defendants found not guilty by
reason of insanity of certain offenses, including most of the crimes of which
defendant had been found guilty in the guilt phase of trial. The purpose of
CALJIC No. 4.01 is to ensure the jury does not improperly find a defendant sane
based on a fear that the defendant will otherwise “walk free.” (People v. Moore,
supra, 166 Cal.App.3d at p. 554.) The purpose is not to give the jury a detailed
summary of the outpatient placement procedures and requirements, which are not
relevant to the jury‟s task of considering the defendant‟s sanity at the time of the
offense. (See People v. Beames (2007) 40 Cal.4th 907, 932-933 [in response to
jury‟s question, trial court need not instruct on law of commutation exhaustively;
details of commutation process are not relevant to jury‟s task].) CALJIC No. 4.01
adequately accomplishes its purpose by telling the jury a verdict of not guilty by
reason of insanity “does not mean the defendant will be released from custody,”

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informing the jury of the general scheme of the applicable mental health laws,
specifically instructing the jurors not to consider “what happens to the defendant
under these laws” in deciding the defendant‟s sanity at the time of his crimes, and
assuring the jury that defendant will not be released unless the appropriate officials
determine “he can be safely returned into society.” The trial court‟s modification
here provided additional assurance to the jury that the seriousness of defendant‟s
crimes would impact any consideration of outpatient treatment placement. To
have added further specific information regarding the mandated inpatient
treatment for a minimum of 180 days under section 1601, subdivision (a), would
have invited just the kind of jury speculation about the defendant‟s possible early
release from confinement that the instruction was designed to forestall. (See
People v. Dennis, supra, 169 Cal.App.3d at p. 1141, fn. 14 [“jury can no more be
concerned with the possible length of a defendant‟s commitment than with the
possible length of a prison term”].)
       Because there was no error in the trial court‟s instruction, defendant‟s
constitutional rights of due process and jury trial were not violated.

       C. Asserted Error Affecting the Penalty Phase of Trial

           Alleged Caldwell error in prosecutor’s argument
       During the second part of his penalty phase closing argument, the
prosecutor told the jury that he would like to spend a few minutes on some
sociological and philosophical considerations. He referred to John Locke‟s theory
of the social contract, in which Locke tried to explain the purpose of the rule of
law. The prosecutor said that “[i]n the old days it used to be if someone stole my
horse, I would go steal his horse. Or if someone assaulted my son, I would go
assault his son.” But, said the prosecutor, “a long time ago, individuals basically
handed over their rights, certain rights to the government. And among those rights



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were the rights to seek redress for wrongs. And they said, „We as individuals are
going to let, in effect, society speak through our laws. We are going to have a set
of laws.‟ ” The prosecutor went on to explain that now when a person is a victim
of crime, giving as an example a car theft, the person expects there to be a law to
correct that wrong and for the perpetrator, if caught, to be punished in a manner
commensurate with the type of wrong committed. The prosecutor told the jury,
“[y]ou have that expectation because you are part of that compact or that
agreement. We all are. That‟s what it is, and we have the expectation that the law
in California will be carried out.” However, the prosecutor continued, “the
government has decided in this one case — in this one case in the State of
California, we are going to take that right back and we are going to give it back to
the people. And that‟s what you have, the right of punishment and sentencing in a
capital-type case. [¶] And it is because of that that your decision, whether it is life
without the possibility of parole or the death penalty, is an expression — is an
expression of society‟s attitudes towards crimes. Because, if you think about it for
a minute, the only way society can say anything about a crime, how they feel
about it — good, bad, or otherwise — is how? By punishment.”
       Defendant now contends the prosecutor‟s argument lessened the jurors‟
sense of responsibility regarding their role in imposing a death sentence in
violation of his rights under the Eighth and Fourteenth Amendments to the federal
constitution. (Caldwell v. Mississippi (1985) 472 U.S. 320 (Caldwell).) The
contention is cognizable despite defendant‟s failure to object to the comments at
the time because his trial predated the finality of our decision in People v.
Cleveland (2004) 32 Cal.4th 704, 762. (See People v. Moon (2005) 37 Cal.4th 1,
17-18; accord, People v. Loy (2011) 52 Cal.4th 46, 59.) The contention is,
however, meritless.



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       In Caldwell, a capital case, the prosecutor responded to a defense argument
emphasizing the gravity of the jury‟s role in deciding the penalty by telling the
jurors that the jury‟s “ „decision is not the final decision,‟ ” (Caldwell, supra, 472
U.S. at p. 325) and that “ „the decision you render is automatically reviewable by
the Supreme Court.‟ ” (Id. at pp. 325-326.) In reversing, a plurality of the
Supreme Court held “it is constitutionally impermissible to rest a death sentence
on a determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant‟s death rests
elsewhere.” (Id. at pp. 328-329.)
       “In deciding whether Caldwell error occurred, we do not consider the
challenged statements in isolation but in the context in which they occurred.”
(People v. Loy, supra, 52 Cal.4th at p. 59; accord, People v. Hinton, supra, 37
Cal.4th at p. 905.) Moreover, “[t]he high court has since clarified that Caldwell
error occurs only when the remarks to the jury concerning its role in the
sentencing process are inaccurate or misleading in a way that allows the jury to
feel less responsible than it should for the sentencing decision.” (People v. Elliott,
supra, 53 Cal.4th at pp. 556-557, citing cases.)
       The prosecutor‟s argument regarding Locke‟s theory of the social contract,
and his assertion that capital sentencing is exceptional in that the jury — not a set
sentencing law — decides on the punishment, did not mislead the jury or diminish
its sense of responsibility. On the contrary, read as a whole, the prosecutor‟s
argument emphasized the heavy and exceptional responsibility that society places
on a capital jury to determine the appropriate penalty. The prosecutor‟s argument
did not suggest, as defendant argues, that in determining a capital penalty the
ancient expectation that a criminal must be punished in kind — eye for eye, death
for death — survives. The prosecutor only argued that under the social contract
theory, there is still an expectation that punishment should be commensurate with

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the crime. The prosecutor further explained that because society and the
California Legislature consider first degree murder with special circumstances to
be the most serious crime, the potential punishment includes the possibility of the
death penalty. The prosecutor argued death was the appropriate penalty for
defendant, but acknowledged it was not the only possible punishment. It was not
improper for the prosecutor to argue that the jury would be acting as the
representative of the community or for society as a whole. (Caldwell, supra, 472
U.S. at p. 333 [capital jury may be asked to decide penalty “on behalf of the
community”]; People v. Ledesma (2006) 39 Cal.4th 641, 741; see People v.
Zambrano, supra, 41 Cal.4th at pp. 1177-1178; People v. Clark (1992) 3 Cal.4th
41, 167.)

       D. Challenges to California’s Death Penalty Statute
       Defendant contends many features of California‟s death penalty scheme
and related jury instructions violate the United States Constitution.
Acknowledging that we have previously rejected these claims, defendant presents
them for purposes of urging our reconsideration and preserving them for federal
review. We are not persuaded to reconsider the conclusions we have previously
reached and reject them again as follows:
       Section 190.2 is not impermissibly overbroad in violation of the United
States Constitution. “Specifically, the various special circumstances are not so
numerous as to fail to perform the constitutionally required narrowing function,
and the special circumstances are not unduly expansive, either on their face or as
interpreted by this court.” (People v. Jennings (2010) 50 Cal.4th 616, 688; accord,
People v. Streeter (2012) 54 Cal.4th 205, 267-268.)
       Allowing the jury to consider the circumstances of the crime (§ 190.3,
factor (a)) does not permit arbitrary and capricious imposition of a sentence of



                                         93
death in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution. (People v. Jennings, supra, 50 Cal.4th at pp. 688-689;
People v. Jenkins (2000) 22 Cal.4th 900, 1050-1051.)
       Section 190.3 and the pattern jury instructions based thereon are not
constitutionally defective for failing to require the state to bear the burden of proof
beyond a reasonable doubt or even the burden of persuasion that an aggravating
factor exists, that the aggravating factors outweigh the mitigating factors, and that
death is the appropriate penalty. (People v. Bramit, supra, 46 Cal.4th 1221, 1249-
1250; People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) The death penalty
law is not unconstitutional for “failing to inform the jury that no party bore the
burden of proof.” (People v. Mills (2010) 48 Cal.4th 158, 213.) “Defendant was
not entitled to an instruction regarding a presumption of life.” (People v. Streeter,
supra, 54 Cal.4th at p. 268.) The federal Constitution is not violated by the failure
to require a penalty phase jury to reach unanimity on the presence of aggravating
factors (People v. Martinez (2009) 47 Cal.4th 399, 455), or on whether prior
violent criminal activity has been proved. (People v. Clark, supra, 52 Cal.4th at
p. 1007.) We continue to reject the contention that these conclusions are called
into question by the high court‟s decisions regarding the Sixth Amendment‟s jury
trial guarantee in Apprendi, supra, 530 U.S. 466, Ring v. Arizona (2002) 536 U.S.
584, Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v.
California (2007) 549 U.S. 270 (Cunningham). (People v. Fuiava, supra, 53
Cal.4th at p. 732; People v. Lomax, supra, 49 Cal.4th at p. 593; People v.
Whisenhunt, supra, 44 Cal.4th at p. 227.)
       There is no need to instruct the jury that mitigating factors can be
considered only in mitigation or that if the mitigating evidence outweighs the
aggravating evidence, the jury must impose a sentence of life without the
possibility of parole. (People v. Fuiava, supra, 53 Cal.4th at pp. 732-733.) The

                                          94
trial court is not required to omit from the jury instructions those sentencing
factors that appear not to apply to defendant‟s case. (Id. at p. 733.) And, use of
the adjectives “extreme” and “substantial” in section 190.3, factors (d) and (g),
does not unconstitutionally impose a barrier to the consideration of mitigating
evidence. (People v. Clark, supra, 52 Cal.4th at p. 1007.)
       The absence of written or other specific findings by the jury regarding
aggravating factors did not deprive defendant of his federal due process and
Eighth Amendment rights to meaningful appellate review, violate equal protection
of the laws or violate defendant‟s Sixth Amendment right to trial by jury. (People
v. Parson (2008) 44 Cal.4th 332, 370; People v. Romero (2008) 44 Cal.4th 386,
428-429.)
       “The instruction that jurors may impose a death sentence only if the
aggravating factors are „ “so substantial” ‟ in comparison to the mitigating
circumstances that death is warranted does not create an unconstitutionally vague
standard.” (People v. Carrington (2009) 47 Cal.4th 145, 199.) CALJIC No. 8.88
does not violate the Eighth and Fourteenth Amendments by asking the jury to
consider whether the circumstances “warrant[]” death, rather than if death is the
“appropriate” penalty. (People v. Duenas (2012) 55 Cal.4th 1, 27.)
       “Review for intercase proportionality” is not required by the federal
Constitution. (People v. Harris, supra, 43 Cal.4th at pp. 1322-1323; accord,
People v. Romero, supra, 44 Cal.4th at p. 429.)
       “California‟s capital sentencing procedures do not violate principles of
equal protection of the law on the ground they provide safeguards different from
those found in noncapital cases.” (People v. Williams, supra, 43 Cal.4th at
p. 650.)
       Finally, “California does not employ the death penalty as a „ “regular
punishment for substantial numbers of crimes” ‟ [citation], and its imposition does

                                         95
not violate international norms of decency or the Eighth Amendment‟s prohibition
against cruel and unusual punishment. [Citation.]” (People v. Clark, supra, 52
Cal.4th at p. 1008, italics omitted.)

       E. Asserted Determinate Sentencing Errors
       Defendant was sentenced to death for his conviction of first degree murder
with special circumstances. With respect to his convictions of the four
nonhomicide offenses, the trial court imposed, but stayed, a determinate sentence
totaling 19 years, calculated as follows: the upper term of 11 years for the
conviction of kidnapping for purposes of child molestation; a consecutive upper
term of eight years for the conviction of rape; a concurrent upper term of eight
years for the conviction of sodomy; and a concurrent upper term of eight years for
the conviction of a lewd and lascivious act with a child.
       The trial court stated it imposed the upper term of 11 years for defendant‟s
kidnapping conviction because it found that the aggravating circumstances
outweighed the mitigating circumstances. (Cal. Rules of Court, former rule 420(a)
& (b).)19 Specifically, although defendant had no prior criminal record, had
mental problems “to a certain extent,” and had made an early acknowledgement of
guilt (former rule 423(b)(1), (2), (3); see now rule 4.423(b)(1), (2), (3)), the court
found such mitigating factors were outweighed by the aggravating circumstances
of the vulnerability of the victim, the fact defendant planned and premeditated the
crime, and the circumstance that defendant took advantage of a position of trust in
order to perpetrate the crime. (Former rule 421(a)(3), (8), (12); see now rule
4.421(a)(3), (8), (11).) With respect to defendant‟s conviction of rape, the trial
court stated it was imposing an additional separate and consecutive term of eight

19     All further rule references are to the California Rules of Court.




                                          96
years under the provisions of section 667.6, subdivision (c), which permitted such
a sentence when the circumstances justify it. The trial court found the consecutive
sentence justified because the rape and the kidnapping occurred at different times
and places, and defendant had numerous opportunities to think about what he was
doing after he picked up Nadia. The trial court did not provide a separate
explanation for why it chose the upper term of eight years for defendant‟s rape
conviction. The trial court did not state reasons for its imposition of concurrent
upper eight-year terms for defendant‟s sodomy and lewd act convictions.
       Defendant argues that under the statutes and rules in existence at the time of
his sentencing hearing in 1993, he is entitled to a remand for resentencing because
the trial court (1) improperly used two aggravating factors that constituted
elements of kidnapping in violation of section 207, subdivision (b), as reasons for
its imposition of the 11-year upper term for that crime, (2) failed to state the
reason for its imposition of the upper terms on his rape, sodomy, and lewd act
convictions, and (3) made findings of aggravating facts for the purpose of
imposing the upper terms or consecutive sentences in violation of defendant‟s
federal constitutional rights under Apprendi, supra, 530 U.S. 466, Blakely, supra,
542 U.S. 296, and Cunningham, supra, 549 U.S. 270.20



20     In his reply brief, defendant concedes that subsequent to the filing of his
opening brief the high court held that the Apprendi line of cases does not apply to
a sentencing judge‟s decision to impose consecutive sentences. (Oregon v. Ice
(2009) 555 U.S. 160, 164, 168.) Defendant‟s remaining claims are cognizable
despite his failure to object at the time of sentencing because they involve a
sentencing hearing predating our holding in People v. Scott (1994) 9 Cal.4th 331,
357-358, and the high court‟s decision in Blakely, supra, 542 U.S. 296. (People v.
Black (2007) 41 Cal.4th 799, 810-812; People v. Stitely (2005) 35 Cal.4th 514,
575.)




                                          97
       The Attorney General does not address defendant‟s first two claims because
she concedes the third error as to the trial court‟s imposition of upper terms. She
argues it was harmless beyond a reasonable doubt.
       As we have recently summarized: “Apprendi[, supra,] 530 U.S. 466 holds
that, under the Sixth Amendment, „any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.‟ (Apprendi, supra, at p. 490.) In Blakely[, supra,] 542
U.S. 296, the high court extended the scope of Apprendi by defining „statutory
maximum‟ as the „maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.‟ [Citations.]
Applying Blakely, the court later held in Cunningham[, supra,] 549 U.S. 270, that
California‟s determinate sentencing law did not comport with a defendant‟s Sixth
Amendment jury trial right. As Cunningham explained, „If the jury‟s verdict alone
does not authorize the sentence, if, instead, the judge must find an additional fact
to impose the longer term, the Sixth Amendment requirement is not satisfied.‟
[Citation.] Because the aggravating circumstances necessary for imposition of an
upper term „depend on facts found discretely and solely by the judge [citation], the
„statutory maximum‟ prescribed in California‟s sentencing scheme is not the upper
term but rather the middle term [citation.].” (People v. Myles (2012) 53 Cal.4th
1181, 1220.) In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), we
concluded that the erroneous imposition of an upper term under this line of cases
is subject to federal harmless error analysis under Chapman v. California (1967)
386 U.S. 18. (Sandoval, supra, at p. 838.)
       We agree with the parties that the trial court violated defendant‟s Sixth
Amendment rights when it selected the upper term for defendant‟s conviction of
kidnapping for purposes of child molestation, relying on Nadia‟s vulnerability, the
fact defendant planned and premeditated the crime, and the circumstance that

                                          98
defendant took advantage of a position of trust in order to perpetrate the crime —
facts that were not established by the jury‟s verdict or admitted by defendant.
(Cunningham, supra, 549 U.S. at p. 293; People v. Black, supra, 41 Cal.4th at
p. 816; Sandoval, supra, 41 Cal.4th at pp. 837-838, 839.)
       In considering prejudice, “the pertinent inquiry is „whether, if the question
of the existence of an aggravating circumstance or circumstances had been
submitted to the jury, the jury‟s verdict would have authorized the upper term
sentence.‟ (Sandoval, supra, 41 Cal.4th at p. 838.) „[I]f a reviewing court
concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-
reasonable-doubt standard, unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury, the Sixth Amendment
error properly may be found harmless.‟ (Id. at p. 839.)” (People v. Myles, supra,
53 Cal.4th at p. 1221.)
       We agree with the Attorney General that the error in this case was
harmless. We are persuaded beyond a reasonable doubt that the jury would have
found true at least one of the aggravating circumstances stated by the court had
they been charged and submitted to the jury for its consideration.
       The evidence presented to the jury reflected that defendant rented a motel
room for two persons. He then drove to the area near Diamond Elementary
School where he contacted third-grader Sandra C. He unsuccessfully tried to get
Sandra into his car by telling her he was a teacher and needed help with some
books. In his recorded interview with investigating officers, defendant later said
that he used the same ruse to successfully lure nine-year-old Nadia into his car.21


21     In his testimony at the sanity phase, defendant claimed he made up this
story when he was talking to the police because they were scaring him and he
thought that was what the police wanted to hear. Given this later denial, we do not
                                                         (Footnote continued on next page.)


                                         99
He returned with her to the motel room he had previously rented. Because these
circumstances clearly were relevant to defendant‟s intent in committing the crimes
against Nadia, defendant had both reason and opportunity to challenge them at
trial. (Cf. People v. Sandoval, supra, 41 Cal.4th at p. 839.) The jury‟s verdicts of
guilt reflect its rejection of defendant‟s weak attempts to do so. These facts
showed the kidnapping and sexual crimes were not a spontaneous decision based
on a coincidental encounter between defendant and Nadia. Rather, defendant
deliberately acquired a private room, drove to an area where young children could
be found, at a time when they likely would be walking home, and separately
contacted two young girls walking alone with a story about being a teacher
needing help with some books, which defendant had in his car. Further, defendant
persisted in contacting Nadia and repeating his ruse after his first attempt to lure
Sandra C. failed. Unquestionably, under these circumstances, a jury would find
planning and sophistication by defendant in committing the crimes. (Former rule
421(a)(8).) We conclude the violation of defendant‟s Sixth Amendment rights
under Apprendi was harmless.
        We reject defendant‟s additional claim that because of the age range and
ruse elements of the crime of kidnapping for purposes of child molestation as
defined by section 207, subdivision (b), the trial court erred in using Nadia‟s
particular vulnerability and defendant‟s abuse of a position of trust (former rule
421(a)(3), (12)) as reasons for imposing the upper term sentence for defendant‟s
kidnapping conviction. Case law has explained that for purposes of finding the


(Footnote continued from previous page.)

consider defendant to have admitted this fact for purposes of permitting the trial
court to find related sentencing factors. (Blakely, supra, 542 U.S. at p. 303.)




                                           100
aggravating factor of particular vulnerability, “ „[p]articularly . . . means in a
special or unusual degree, to an extent greater than in other cases. Vulnerability
means defenseless, unguarded, unprotected, accessible, assailable, one who is
susceptible to the defendant‟s criminal act.‟ [Citation.]” (People v. Loudermilk
(1987) 195 Cal.App.3d 996, 1007.) Thus, a crime victim can be deemed
particularly vulnerable as an aggravating factor “for reasons not based solely on
age, including the victim‟s relationship with the defendant and his abuse of a
position of trust.” (People v. Stitely, supra, 35 Cal.4th at p. 575; accord, People v.
Dancer (1996) 45 Cal.App.4th 1677, 1694-1695, disapproved on another ground
in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
       Here defendant approached Nadia while she was walking alone from school
to her home, represented himself to be a teacher, and asked for Nadia‟s help.
Defendant thereby took advantage of Nadia‟s location and isolation. His story
told so near the school and after the school day made it all the more believable.
He preyed on her naiveté and natural deference to a teacher‟s position of authority.
There was also evidence that Nadia was especially likely to respond to defendant‟s
request for help. The assistant principal at Nadia‟s school testified to Nadia‟s
helpful personality. Given these facts, the trial court‟s finding that Nadia was
“particularly vulnerable” does not solely rest on Nadia‟s age. (People v. Dancer,
supra, 45 Cal.App.4th at pp. 1693-1694.)
       Although it is true, as defendant points out, that section 207, subdivision
(b), proscribes kidnapping of a child for purposes of child molestation by means of
“false promises, misrepresentations, or the like,” the specific nature of the ruse
used by defendant also went beyond the elements of the offense. Defendant
claimed to be a person with very “special status” to children of Nadia‟s age — a
teacher, making it more likely she would accede to his request for help. (See, e.g.,



                                          101
People v. King (2010) 183 Cal.App.4th 1281, 1322-1323 [defendant exploited
position of trust by acting as police officer].)
       Finally, under the circumstances of this case, we do not find it necessary to
remand for resentencing on defendant‟s rape, sodomy, and lewd act convictions
because of the trial court‟s failure to state reasons for its imposition of the upper
term as to those convictions. Such error is harmless because it is not reasonably
probable that resentencing would result in a sentence more favorable to defendant.
(People v. Davis (1995) 10 Cal.4th 463, 552; People v. Zamarron (1994) 30
Cal.App.4th 865, 870.)

       F. Cumulative Error
       Defendant contends that the cumulative effect of the errors he has raised
undermined the fundamental fairness of the trial and reliability of the death
judgment. He contends reversal is required. “ „Defendant has demonstrated few
errors, and we have found each error or possible error to be harmless when
considered separately. Considering them together, we likewise conclude that their
cumulative effect does not warrant reversal of the judgment.‟ [Citation].” (People
v. Panah (2005) 35 Cal.4th 395, 479-480.)




                                          102
                            III. CONCLUSION
    The judgment is affirmed.
                                              CANTIL-SAKAUYE, C. J.
WE CONCUR:


KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




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

Name of Opinion People v. DeHoyos
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S034800
Date Filed: July 8, 2013
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Everett W. Dickey

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gary D. Garcia,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Annie Featherman
Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gary D. Garcia
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
(415) 904-5600

Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2427
