         IN THE SUPREME COURT OF
                CALIFORNIA

                        THE PEOPLE,
                   Plaintiff and Respondent,
                               v.
                    DORA BUENROSTRO,
                   Defendant and Appellant.

                            S073823

               Riverside County Superior Court
                          CR59617



                       December 3, 2018

Justice Kruger filed the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Mauro* concurred.




*
      Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
                  PEOPLE v. BUENROSTRO
                            S073823




               Opinion of the Court by Kruger, J.


       After a jury found defendant Dora Buenrostro competent
to stand trial, a separate jury convicted her of the first degree
murders of her children, Susana, Vicente, and Deidra. (Pen.
Code, § 187.) The jury found true three multiple-murder
special-circumstance allegations (id., § 190.2, subd. (a)(3)) and
allegations that defendant personally used a knife in the
commission of each murder (id., §§ 1192.7, subd. (c)(23), 12022,
subd. (b)). After a penalty trial, the same jury returned a verdict
of death. The trial court denied defendant’s motion for a new
trial and for modification of the verdict (id., § 190.4, subd. (e))
and sentenced her to death. This appeal is automatic. (Id.,
§ 1239, subd. (b).)
      We affirm the judgment as to guilt, vacate two of the three
multiple-murder special-circumstance findings, reverse the
judgment as to the sentence of death, and remand the matter
for a new penalty determination.

                           I. FACTS

     A. Guilt Phase
     The bodies of the three victims were found on October 27,
1994. Each victim had suffered fatal stab wounds. Beginning
on that date and continuing through her trial testimony,
defendant blamed the murders on her estranged husband,


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Alejandro Buenrostro (who was known as Alex). In closing
argument, however, the defense conceded that Alex, who had an
alibi, could not have killed the children. The guilt phase focused
on whether there was sufficient evidence to establish that
defendant committed the murders and did so willfully and with
premeditation and deliberation.

         1. Prosecution Evidence
      Defendant and Alex were married in 1982. Until their
separation several years later, they lived in Los Angeles with
their three children, Susana, Vicente, and Deidra (ages nine,
eight, and four, respectively, at the time of the murders). Alex
worked as an auto refinisher painter, and defendant worked for
seven years as a file clerk and interpreter for a law firm. In
1990, defendant moved with the children to San Jacinto in
Riverside County. Alex remained at the Los Angeles residence
and saw the children twice a month.

              a. Events of Tuesday, October 25, 1994
      Between 5:00 and 6:30 p.m. on Tuesday, October 25, 1994,
defendant was seen driving in her car with her three children.
Around 6:30 p.m., defendant borrowed $10 from a neighbor,
David Tijerina, for gasoline because she was going to drive to
Los Angeles to see her husband. Tijerina watched defendant
drive out of the apartment complex with Deidra in the car.
      Defendant arrived at Alex’s residence in Los Angeles,
alone and unannounced, about 11:00 p.m. and stayed for two
hours. She asked to see Alex’s gun. He removed the bullets,
showed her the gun, and then put it away. He asked defendant
about the children, and she told him they were fine. At some
point, defendant went to the kitchen and then approached Alex,
who was in the bedroom. She was holding a steak knife and


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wearing a red glove. She made stabbing motions with the knife
and asked Alex why he was afraid of dying. She threatened to
hit him where “it hurts the most” because he had “never given
her our separation.” He called 911. Defendant swung at him
with the knife a couple of times, but he was able to get away and
ran outside.
      Police arrived within 20 minutes, at 1:15 a.m. Defendant
was standing in the doorway of the residence, holding the knife,
but complied when police commanded her to drop it. She told
the police she was there to pick up her child, whom she accused
Alex of taking to buy shoes earlier in the day and not returning.
The police observed no children at the residence or in
defendant’s car, a dark-colored four-door Oldsmobile lacking a
child’s car seat. The police advised her to return to San Jacinto
and file a missing child report, and she left.

             b. Events of Wednesday, October 26, 1994
      On Wednesday, October 26, 1994, about 10:30 a.m.,
defendant went to the San Jacinto Police Department and
reported to Officer Blane Dillon that her estranged husband had
taken her youngest child two days earlier and not brought her
back. The officer informed her law enforcement could not
intervene unless her husband was in violation of a court order
providing he was not permitted to visit with the child.
Defendant left the police department.
     Later that day, about 2:00 p.m., defendant’s sister, Angela
Montenegro, saw her at a gas station in San Jacinto. Defendant
was alone and driving her black Oldsmobile, which had been
washed and had water dripping from the back bumper. Neither
Deidra nor a child’s car seat was in the car. About 3:00 p.m.,
defendant’s next door neighbor, Velia Cabanila, saw Susana and


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Vicente when they stopped briefly to play at her apartment after
school. The children told Cabanila their mother had told them
Deidra was with their father. Deidra had visited Cabanila’s
apartment the day before, by herself. About 7:00 p.m., another
neighbor saw defendant looking over the wall of her apartment.

             c. Events of Thursday, October 27, 1994
      Cabanila’s and defendant’s apartments shared a common
wall. On Thursday, October 27, 1994, about 3:00 a.m., Cabanila
heard a “really loud thump,” but no other noise, coming from
defendant’s living room.
      At 6:40 a.m., defendant entered the San Jacinto Police
Department and reported to the desk clerk her husband was at
her apartment with a knife.          Police were immediately
dispatched. The officers entered the apartment and found two
of defendant’s children, Susana and Vicente, lying on separate
sofas in the living room, each covered as if sleeping. Both were
dead, with stab wounds to their necks. Another sofa was
standing on its end at the entrance to the hallway, blocking the
path to the bedrooms and the bathroom. Defendant admitted
she had moved the sofa.
     Outside, defendant told police Alex had come to the
apartment that morning. She let him in, and he went to the
bathroom. Defendant thought he was acting strange, so she
went to the police station to notify the police of his behavior.
      San Jacinto Police Detective Sergeant Frederick
Rodriguez was assigned as lead investigator. At the police
station, he interviewed defendant, who was not in custody.
Meanwhile, police focused their investigation on Alex. By 9:00
a.m., police located him at the office of his employer in Los
Angeles and took him into police custody for questioning. By


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early the next morning, the police ruled him out as a suspect
and released him from custody.2
      Later, around 6:00 p.m., Deidra’s body was discovered by
children playing in an abandoned post office in Lakeview. A
deputy with the Riverside County Sheriff’s Department
responded to the scene and saw Deidra strapped in a child’s car
seat. There was blood and visible trauma to her mouth and
neck. An object with a handle, possibly a screwdriver or pen
knife, was stuck in her throat.
      Officer Dillon arrived at the scene about 7:30 p.m. to
investigate.     He had received information about the
investigation from other officers during the course of the day.
Based on inconsistencies in defendant’s versions of events,
police focused on her as a suspect.3

            d. Physical evidence
      Defendant’s car was removed from her apartment complex
and processed for evidence. Her purse and camera case and a
red knit glove were discovered in the trunk of the car. DNA
testing established that six blood samples obtained from


2
      Police spoke with Alex’s neighbor, who confirmed (as she
did at trial) she had heard his shower running the morning of
Thursday, October 27, and saw him leave his residence about
7:20 a.m. Given the distance between defendant’s apartment in
San Jacinto and Alex’s workplace in Los Angeles, as well as the
time defendant reported Alex was at her apartment in
possession of a knife (6:40 a.m.), Alex was ruled out as a suspect.
3
      Detective Rodriguez’s interview of defendant began
around 10:30 a.m., shortly after the bodies of Susana and
Vicente were discovered in her apartment. A tape recording of
the entire interview was played for the jurors. A transcript of
the recording was also given to the jurors.


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defendant’s car matched Deidra’s DNA profile. Defendant, Alex,
Susana, and Vicente were eliminated as sources for the blood.
      Hairs found on Deidra’s hand and leg were determined to
be similar to defendant’s. Tire impressions lifted from an area
near the abandoned post office where Deidra’s body was found
matched the tread designs of the three different types of tires on
defendant’s car.

             e. Autopsy results
      All three children bled to death from multiple stab wounds
to the neck. Susana suffered defensive wounds to her right
hand; four stab wounds to the front of her neck, two of which
went into the bone of her spine; superficial cuts to her neck; and
a perforation of her left chest cavity. The stab wounds ranged
in depth from one to three inches. One stab wound severed the
left subclavian artery and another cut halfway through the
external jugular vein. These two injuries caused exceedingly
rapid bleeding and likely rendered Susana unconsciousness in
less than a minute.
      Vicente suffered numerous defensive wounds on his
hands, two stab wounds to the front of his neck, and abrasions
and contusions on his neck and right clavicle. One of the stab
wounds cut almost completely through the right common carotid
artery, which comes from the heart. Vicente died from rapid
bleeding, which likely rendered him unconsciousness in less
than a minute.
      Deidra died from multiple stab wounds to her neck. A
piece of a knife blade three-quarters of an inch wide by two to
three inches in length had broken off and was embedded in the
bone in her neck area. A metallic tip of what appeared to be a
ballpoint pen was found in the soft tissue of her neck. Deidra


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had suffered a perforation of the chest cavity and blunt force
trauma to her skull, which was consistent with her head being
slammed against the car seat while she was being stabbed.
There were no defensive wounds on her body. Deidra’s body
exhibited signs of decomposition. The time of her death could
not be determined.

         2. Defense Evidence
      Defendant testified in her own defense. On direct
examination, she testified that the last time she saw Deidra was
9:00 or 10:00 a.m. on Tuesday, October 25, 1994, when Alex
came to her apartment and took her. Between 11:00 a.m. and
noon, defendant went to the San Jacinto Police Department to
report Deidra missing. At 11:00 p.m. that night, defendant
drove to Alex’s residence in Los Angeles and checked the house
for Deidra. She picked up a knife to defend herself during an
argument with Alex. She threatened him but did not try to stab
him, and she denied that she wore a red glove on her hand. Alex
called the Los Angeles Police, and defendant dropped her knife
when ordered to do so. She complained to police that Alex had
taken Deidra and had not returned her. When the police
advised her to leave, she left and returned to San Jacinto. The
following morning, defendant went to the San Jacinto Police
Department       seeking    assistance      regarding   Deidra’s
disappearance.
      Defendant testified that at 5:00 a.m. on Thursday
morning, October 27, 1994, Alex came to her apartment. When
she let him in, he went straight to the bathroom. Defendant left
the apartment because of the Tuesday evening altercation with
him in Los Angeles. She left Susana and Vicente in the
apartment. She arrived at the police department between 5:30



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and 6:00 a.m., telling police she had had an argument with Alex
on Tuesday and he had taken her daughter. She asked them to
check her apartment and speak with Alex. Defendant said he
did not have a knife or other weapon.
      Defendant returned to her apartment complex with the
police and waited outside. About 7:30 a.m., she was informed
her children were dead.         Defendant went to the police
department, where she remained all day for questioning. She
denied killing the children, claiming someone had planted the
blood evidence in her car. She had no explanation for the tire
impressions that matched the tires on her car and said the red
gloves found in the passenger compartment and trunk of her car
belonged to a Betty Buenrostro. Defendant admitted having a
prior felony conviction for grand theft.

     B. Penalty Phase

         1. Prosecution Evidence
      The prosecution presented evidence of defendant’s prior
conviction for grand theft, her violent conduct while
incarcerated, and the impact of the murders on the victims’
family members and on the community.

            a. Prior felony convictions (Pen. Code, § 190.3,
                factor (c))
      The parties stipulated that defendant pleaded guilty to
felony grand theft (Pen. Code, § 487.1) on September 1, 1988.

           b. Prior unadjudicated criminal activity involving
              the use of or express or implied threat to use
              force or violence (Pen. Code, § 190.3, factor (b))
     In February 1995, while awaiting trial in this case,
defendant had a physical altercation with Deputy Johnnie
Anaya and a nurse who was administering medications to


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inmates housed on the medical floor in the jail. The altercation
occurred when defendant stepped outside her cell, refused an
order to return to her cell, and raised her hand to the deputy
and nurse. Defendant grabbed the nurse’s arm and, when her
hand slipped, held tightly onto her sleeve. Anaya forced
defendant back into her cell. The deputy and defendant
struggled, fell to the floor, and struggled further before other
deputies subdued defendant.4
      Another incident occurred in May 1996.             Deputy
Stephanie Rigby was supervising inmates at the jail and
permitted defendant to leave the day room. Defendant walked
into a sally port area and removed a wringer from a custodial
mop bucket. Observing her from a glass-enclosed control room,
Deputy Rigby commanded her to return to the day room.
Defendant refused to comply and held the mop wringer over her
shoulder like a baseball bat. When she refused to drop the
wringer, back-up deputies were called to assist. A deputy had
to physically remove the wringer from her grip. Defendant did
not attempt to hit any of the deputies with the wringer.5

             c. Victim impact testimony
     The prosecution presented the testimony of the victims’
older half-sister, Alejandra Buenrostro, their father, Alex
Buenrostro, and Deborah De Forge, the principal of the


4
       The trial court ruled evidence of the incident admissible
under Penal Code section 190.3, factor (b), as showing a battery
(id., § 242) involving the express or implied use of force or
violence, or the threat of force or violence.
5
       The trial court ruled the incident admissible under Penal
Code section 190.3, factor (b), as misdemeanor exhibiting a
deadly weapon in a threatening manner (id., § 417).


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elementary school Susana and Vicente attended.               The
prosecution played a videotape of Alex at the police station
showing the moment he learned Susana and Vicente had been
murdered. The prosecution also presented a video montage of
photographs of the victims in life and their shared gravesite.

          2. Defense Evidence
      Defendant testified on her own behalf, claiming she had
been framed by police in general and Officer Blane Dillon in
particular, whom she accused of having lied about the timeline
of events and planting the incriminating evidence in her car. In
her view, the expert had testified the hairs found on Deidra
could have belonged to anyone. She denied being mentally ill.
Defendant maintained her innocence of the charges and wanted
to be sentenced to life without the possibility of parole because
she had been framed.
      The defense also presented testimony from defendant’s
former neighbor David Tijerina, niece Brenda Davalos, and
sisters Martha Gudino and Maria Perez and their mother,
Arcelia Zamudio. The evidence briefly sketched defendant’s
family background, portrayed her as a loving mother, and
related a change in her attitude and behavior in the months
preceding the murders. Defendant’s family members asked for
mercy.

            II. COMPETENCY PROCEEDINGS

     A. Factual and Procedural Background
     Before trial, the trial court declared a doubt as to
defendant’s competence to stand trial and suspended the
criminal proceedings under Penal Code section 1368 for a
competency determination. The question was submitted to a



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jury. At the competency trial, defense experts — psychologists
Michael Perrotti and Michael Kania and psychiatrist Mark
Mills — testified that defendant was not competent to stand
trial. Court-appointed experts — psychiatrist Jose Moral and
psychologist Craig Rath — testified that she was competent.
The jury found defendant competent to stand trial.

         1. Defense Evidence

            a. Psychologist Michael Perrotti
     Psychologist Michael Perrotti, Ph.D., spent 10 hours
administering psychological tests and evaluating defendant in
March and July 1995.
      Defendant related to Dr. Perrotti that she had a ninth
grade education and had been physically abused by her
husband. Regarding her current circumstances, defendant
reported that “everyone was against her,” jail deputies
conspired against her, she was being poisoned by a gas leak in
her jail cell, she was hearing voices and acting aggressively to
the point that she had to be handcuffed, and the medical staff at
the jail was conducting experiments on her for research
purposes. Defendant appeared depressed and confused. Her
thoughts were disorganized and her speech pressured. She
suffered from significant impairment of memory and
concentration caused by a mental disorder, and Dr. Perrotti
believed there was “a possibility of a neuro-psychological
problem.” Dr. Perrotti did not perform neuropsychological
testing because defendant would not cooperate.
      Dr. Perrotti opined defendant did not understand the legal
system and had no insight into her lack of understanding.
Everything with defendant was “clouded with suspicion,
distrust, and [beliefs that] people are acting against her,” all of


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which hindered her ability to work with her attorney or any
attorney. Defendant was aware of the murder charges against
her but denied knowing who the victims were. She wanted to go
to court so she could be released and return home.
      Dr. Perrotti diagnosed defendant as a paranoid
schizophrenic. He did not include this diagnosis in his written
report because he believed a description of defendant’s behavior
and her “problems” was easier to understand than a diagnostic
label, and had not used the label “paranoid schizophrenic” with
regard to defendant except with trial counsel. Over the course
of Dr. Perrotti’s evaluation of defendant, trial counsel would
occasionally ask him, “Do you think [defendant’s]
schizophrenic?” He admitted that his diagnosis of defendant as
a paranoid schizophrenic did not necessarily mean that she was
incompetent. Based on the test results, Dr. Perrotti found no
signs defendant was malingering.

             b. Psychologist Michael Kania
      Psychologist Michael Kania, Ph.D., met with defendant on
six or seven occasions before he evaluated her for competency
during his visits on March 3 and April 17, 1995.                He
administered the Minnesota Multiphasic Personality Inventory
(MMPI) on December 17, 1994. Dr. Kania explained that
although this psychological test is not relevant to the issue of
competency, a determination of malingering can be made based
on a comparison of the test results to the clinician’s impressions.
Dr. Kania found no evidence defendant malingered on the
MMPI. He acknowledged defendant’s scores had been evaluated
by Dr. Alex Caldwell’s testing service, which produced a report
stating her answers suggested “extensive intentional
overstatement” and “some degree of deliberate malingering.”



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The report also included a warning to use caution in
interpreting defendant’s test results because she did not answer
all items.
      Based on his interviews with defendant, Dr. Kania
diagnosed her as suffering from delusional disorder with
paranoid delusions. For example, defendant thought her sister
spoke a different language and had been influencing her
children in this language. Defendant also believed gas was
being pumped into her jail cell. He concluded she was
incompetent to stand trial; although she understood the nature
of the charges against her and had a basic understanding of the
legal proceedings, she could not rationally assist counsel.

             c. Psychiatrist Mark Mills
      Psychiatrist Mark Mills, M.D., met with defendant on
November 16, 1994, and April 27, 1995, for a total of two hours.
He questioned whether she had been forthcoming during the
interviews and believed she may have been “paranoid but hiding
symptoms.” Defendant discussed her delusions with family
members and others, but refused to talk with him about them.
He diagnosed her as suffering from “a significant psychotic
disorder, probably a delusional disorder.” Because her diagnosis
rendered her unable to work rationally with any attorney, he
believed her to be incompetent to stand trial.6

          d. Psychiatrist Herminio Academia
     On February 26, 1995, Riverside County Mental Health
Department staff psychiatrist Herminio Academia, M.D.,


6
      Dr. Mills explained that although he did not explicitly
state in his report that defendant was incompetent, he did so
impliedly.


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treated defendant at the jail for about 20 minutes. Defendant
was complaining her cell was too hot, she was being “cooked,”
and “gas was going to her cell.” Dr. Academia diagnosed
defendant with a nonspecific psychotic disorder and prescribed
Haldol to relieve her delusions and paranoia, but she refused the
medication.

             e. Psychiatrist Austin Anthony
      On February 27, 1995, Riverside County Department of
Mental Health staff psychiatrist Austin Anthony, M.D., treated
defendant. She spoke in a rambling manner about the room
being hot and about the smell of gas. She appeared friendly and
cooperative and had good eye contact, but on occasion seemed
confused and bewildered. She refused to take medication
prescribed for her. On February 28, 1995, Dr. Anthony’s last
appointment with defendant, he found her to be friendly and
alert and no longer complaining of the gas smell.

             f. Testimony of defendant’s family members and
                 Regena Acosta
      Defendant’s sisters Angela Montenegro, Martha Gudino,
and Maria Perez described her delusions and bizarre behavior.
For example, Montenegro testified that in July 1994, when she
and her two children were living with defendant and her three
children, defendant came home from church one day and took
the tacos the children were eating, threw them in the garbage,
and told Montenegro to move out. On several occasions during
the next month, defendant accused Montenegro of feeding
defendant’s children poisoned taco meat, being a witch, and
turning into a snake and biting her (defendant’s) leg. On cross-
examination, Montenegro testified she and defendant had
attended the same church, and the church asked her



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(Montenegro) to quit attending services because of a
relationship she had with a man named Roberto. Defendant
accused Montenegro of being a prostitute. Montenegro told the
police that defendant’s anger and name-calling might have had
something to do with Roberto.
      Gudino visited defendant at the jail with their other sister,
Perez, and their mother. Trial counsel was also present during
the visit and asked Gudino to persuade defendant to sign
medical information release authorization forms for any medical
provider who treated defendant during her life. For about an
hour and 45 minutes, Gudino, Perez, and their mother tried to
persuade defendant to sign the forms. She refused and told her
family that they were against her.
      Regena Acosta read about defendant in the newspapers
after the murders. She was motivated to minister to defendant
and visited her in jail four or five times between about
November 1994 and February 1995. Acosta testified defendant
told her she believed the jail guards were putting “stuff” in her
food to make her sick. Defendant also told Acosta she did not
understand what was going on at court.

         2. Prosecution Evidence

             a. Court-Appointed Psychiatrist Jose Moral
       On March 25, 1995, court-appointed psychiatrist Jose
Moral, M.D., examined defendant at the jail. She was alert and
oriented and understood the purpose of his visit. She knew she
had been charged with murdering her three children. She
demonstrated knowledge and understanding of the criminal
legal process, including the various stages from arrest through
trial and sentencing. Before having her children, she had been
employed at a civil law firm as an assistant to the legal


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secretaries and worked with attorneys for about seven years.
Defendant complained the proceedings were progressing too
slowly. She denied having delusions or hallucinations and
exhibited no psychotic symptoms during the interview.
       On July 26, 1995, Dr. Moral interviewed defendant a
second time. Defendant again demonstrated knowledge of the
legal system. Her relationship with counsel had improved by
this time. She explained that her preoccupation with the smell
of gas in her cell stemmed from news reports about deaths in
Riverside caused by exposure to gas fumes. She denied having
the psychotic symptoms reported by other psychologists and
psychiatrists and gave Dr. Moral reasonable explanations for
the reported symptoms. Defendant had no thought disorder.
She was able to carry out her interview with Dr. Moral without
difficulty and was “purposeful in her answers,” “cooperative,”
“reasonable,” and “logical.” Dr. Moral believed defendant was
competent to stand trial. During a break in the proceedings on
the day he testified, Dr. Moral interacted with defendant and
discussed competency issues with her. After this contact,
Dr. Moral continued to believe defendant was competent to
stand trial.

             b. Court-Appointed Psychologist Craig Rath
      Psychologist Craig Rath, Ph.D., was appointed on March
14, 1995, to evaluate defendant’s competence to stand trial.
Previously, on October 28, 1994, at the request of the Riverside
District Attorney’s Office, Dr. Rath had interviewed defendant




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for about an hour after her arrest.7 He taped the interview, and
the audiotape was played for the jury in its entirety.8
Defendant’s demeanor during the interview was appropriate.
She exhibited no signs of mental illness or psychosis putting her
“out of contact with reality.” Defendant’s long-term and short-
term memory were unimpaired. She communicated very well
and protected information she did not want to share.
      Dr. Rath administered the MMPI to defendant. She
completed 400 of 566 questions. Her answers showed a “saw-
tooth profile,” which is a classic sign of malingering.
     After Dr. Rath was appointed by the court to evaluate
defendant’s competency, he unsuccessfully attempted to
evaluate defendant on March 24, 1995, and April 3, 1995.9
Based on his October 28, 1994, interview with her shortly after
the murders, Dr. Rath believed she was competent to stand trial
because she “does not have any major mental illness [that]
would preclude her from understanding what’s going on or
cooperating with her attorney.”
      Although Dr. Rath had first interviewed defendant shortly
after her arrest, at the request of the District Attorney’s office,
he did not declare a conflict when the court appointed him on
March 14, 1995, to render an opinion as to her competence to

7
      Defendant had waived her right against self-incrimination
and agreed to speak to a “doctor.”
8
      The jury was also given a copy of the transcript of the
interview.
9
      On his first attempt, deputies at the jail informed Dr. Rath
defendant had refused to be handcuffed, which was required
when she was transported outside her cell because she “had
been attacking people.”       When he returned to evaluate
defendant in April, she refused to see him.


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stand trial. Dr. Rath denied he had a conflict under the Board
of Medical Quality Assurance Ethics Committee’s standards.
He testified he had contacted the committee and was told he had
not acted unethically.       Regarding his initial visit with
defendant, Dr. Rath pointed out it would have been unethical
for him to refuse to see her, given she was potentially suicidal
after the deaths of her three children.

             c. Jail Psychiatrist Romeo Villar
      Between October 28, 1994, and March 1, 1995, jail
psychiatrist Romeo Villar, M.D., saw defendant several times
while she was in custody. During his last contact with her in
March 1995, defendant denied having hallucinations or suicidal
ideations. Dr. Villar testified defendant had fair insight and
judgment, and her affect was subdued.

         3. Defense Rebuttal Evidence
      Catherine Moreno, a paralegal employed by trial counsel,
had had contact with defendant approximately 10 times by the
time she testified at the competency trial. Moreno testified that
defendant could not structure coherent paragraphs, although
Moreno could not recall ever having read anything written by
defendant. Moreno had never tried to talk with defendant about
the facts of her case. Defendant refused Moreno’s numerous
requests to sign forms to authorize the release of information
and failed to provide any explanation. Moreno acknowledged
she could have obtained the documents with a subpoena.
      Sherry Skidmore, Ph.D., a clinical and forensic
psychologist, had served on local, state, and national
psychological ethics committees. She reviewed the results of the
MMPI test Dr. Rath administered to defendant. Based on those
scores, Dr. Skidmore could not render an opinion as to whether


                                 18
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


or not defendant was malingering.         In her opinion, no
psychologist would determine malingering from MMPI results
alone. A determination of malingering depends on a number of
objective measures, including a follow-up interview to clarify
specific parts of the malingering assessment, such as distortion
and over-reporting of symptoms. For a forensic psychologist to
render an opinion regarding an individual’s competence based
on an interview not conducted for the purpose of determining
competence would fall below the standard of care.

          4. Surrebuttal
       On October 27, 1995, George Groth, a mental health
clinician at the jail, saw defendant at her request. Defendant
was anxious about her upcoming trial. Groth found defendant’s
thinking clear and her speech understandable, and she
exhibited no signs of mental illness. The parties stipulated this
was the only time defendant was seen by the jail’s Forensic
Mental Health unit between September 1, 1995, and the day her
competency trial commenced, October 26, 1995.
     The parties also stipulated that on November 1, 1995, a
search warrant was served in defendant’s jail cell. Two
documents written by defendant in Spanish were confiscated
during the search.10




10
      Additional details concerning the two documents are
provided in part II.B.4., post.


                                 19
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


     B. Discussion

          1. Constitutionality of the Definition of Incompetence
             to Stand Trial Under Penal Code Section 1367,
             Subdivision (a), and CALJIC No. 4.10
      The due process guarantees of both the federal and state
Constitutions forbid the trial of a criminal defendant while he
or she is mentally incompetent. (See People v. Mickel (2016) 2
Cal.5th 181, 194–195.)        In California, the determination
whether a criminal defendant is competent to stand trial is
governed by Penal Code section 1367 (section 1367), which
provides that a defendant is mentally incompetent “if, as a
result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner.” (§ 1367, subd. (a).) Consistent with that
standard, the jury in this case was instructed with CALJIC
No. 4.10 (Doubt of Present Mental Competence), which informed
the jury that its task was to “decide whether the defendant is
mentally competent to be tried for a criminal offense,” and went
on to explain: “Although on some subjects her mind may be
deranged or unsound, a person charged with a criminal offense
is deemed mentally competent to be tried for the crime charged
against her if, one, she is capable of understanding the nature
and purpose of the proceedings against her; two, she
comprehends her own status and condition in reference to such
proceedings; and, three, she is able to assist her attorney in
conducting her defense in a rational manner. [¶] The defendant
is presumed to be mentally competent. The effect of this
presumption is to place upon the defendant the burden of
proving by a preponderance of the evidence that she is mentally
incompetent as a result of a mental disorder.”


                                 20
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


      Defendant contends that the statutory definition of
mental competence in section 1367 is inadequate to safeguard a
defendant’s due process rights because it requires proof that a
mental disorder or developmental disability rendered the
defendant unable to understand the proceedings against him or
her or to assist counsel with his or her defense. She also
contends that both the statutory definition and CALJIC
No. 4.10 are inadequate because they fail to require proof of (a)
both a “rational” and a “factual” understanding of the criminal
proceedings, and (b) a “present” ability to assist counsel in a
rational manner. She contends these infirmities, separately and
together, violated her right to substantive due process under the
Fourteenth Amendment and require reversal of the entire
judgment. Defendant’s contentions lack merit.

              a. Legal background
        As a matter of due process, “[a] defendant may not be put
to trial unless he ‘ “has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding
. . . [and] a rational as well as factual understanding of the
proceedings against him.” ’ ” (Cooper v. Oklahoma (1996)
517 U.S. 348, 354, quoting Dusky v. United States (1960)
362 U.S. 402, 402 (per curiam) (Dusky).) A trial court’s failure
“to employ procedures to protect against trial of an incompetent
defendant deprives him of his due process right to a fair trial
and requires reversal of his conviction.” (People v. Medina
(1990) 51 Cal.3d 870, 881–882, citing Drope v. Missouri (1975)
420 U.S. 162, 171 (Drope).) “ ‘Even when a defendant is
competent at the commencement of his trial, a trial court must
always be alert to circumstances suggesting a change that would
render the accused unable to meet the standards of competence
to stand trial.’ [Citation.] State constitutional authority is to

                                 21
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


the same effect. [Citation.]” (People v. Lightsey (2012) 54
Cal.4th 668, 690–691 (Lightsey).)
       “The applicable state statutes essentially parallel the
state and federal constitutional directives.” (Lightsey, supra,
54 Cal.4th at p. 691.) Section 1367, subdivision (a), provides in
pertinent part: “A person cannot be tried or adjudged to
punishment . . . while that person is mentally incompetent. A
defendant is mentally incompetent for purposes of this chapter
if, as a result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner.”
      Penal Code section 1368 (section 1368) provides in
relevant part: “(a) If, during the pendency of an action and prior
to judgment . . . , a doubt arises in the mind of the judge as to
the mental competence of the defendant, he or she shall state
that doubt in the record and inquire of the attorney for the
defendant whether, in the opinion of the attorney, the defendant
is mentally competent. If the defendant is not represented by
counsel, the court shall appoint counsel. At the request of the
defendant or his or her counsel or upon its own motion, the court
shall recess the proceedings for as long as may be reasonably
necessary to permit counsel to confer with the defendant and to
form an opinion as to the mental competence of the defendant at
that point in time. [¶] (b) If counsel informs the court that he
or she believes the defendant is or may be mentally incompetent,
the court shall order that the question of the defendant’s mental
competence is to be determined in a hearing which is held
pursuant to [Penal Code] Sections 1368.1 and 1369. If counsel
informs the court that he or she believes the defendant is



                                 22
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


mentally competent, the court may nevertheless order a
hearing.”
      “[A] trial court is obligated to conduct a full competency
hearing if substantial evidence raises a reasonable doubt that a
criminal defendant may be incompetent. This is true even if the
evidence creating that doubt is presented by the defense or if the
sum of the evidence is in conflict. The failure to conduct a
hearing despite the presence of such substantial evidence is
reversible error.” (Lightsey, supra, 54 Cal.4th 691, citing People
v. Welch (1999) 20 Cal.4th 701, 737–738.)
      The law presumes a person is competent to stand trial.
(Pen. Code, § 1369, subd. (f).) “When the defendant puts his or
her competence to stand trial in issue, the defendant bears the
burden of proving by a preponderance of the evidence that he or
she lacks competence.”           (People v. Mendoza (2016)
62 Cal.4th 856, 871; see § 1369, subd. (f); Medina v. California
(1992) 505 U.S. 437, 446 (Medina) [allocation of the burden of
proof to a criminal defendant to prove incompetence does not
violate procedural due process].)

             b. Penal Code section 1367’s requirement of proof
                of mental disorder or developmental disability
      Defendant contends that the definition of mental
incompetence under section 1367, subdivision (a), fails to meet
the constitutional standard because it requires proof of a mental
disorder or developmental disability. She contends that United
States Supreme Court decisions, by contrast, have defined
competence to stand trial solely in the functional terms of a
defendant’s ability to understand the nature of the proceedings
against her and to assist her attorney in preparing her defense
in a rational manner. (See Dusky, supra, 362 U.S. at p. 402;


                                 23
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


Drope, supra, 420 U.S. at p. 171.) She contends that section
1367’s requirement of proof of a mental disorder or
developmental disability unconstitutionally narrows the
definition of incompetence, thereby depriving a “subset of
defendants”—those who are unable to understand the
proceedings and assist counsel in a rational manner but do not
“suffer from a recognized mental disorder or developmental
disability”—of the right not to be tried while incompetent.
       In her briefing, defendant did not specify whether her
claim relates to the facial validity of section 1367, subdivision
(a), or the statute’s validity as applied to the particular
circumstances of her case. At oral argument, however, appellate
counsel clarified that defendant’s challenge is a facial attack.
“ ‘ “To support a determination of facial unconstitutionality, . . .
[challengers] cannot prevail by suggesting that in some future
hypothetical situation constitutional problems may possibly
arise as to the particular application of the statute.” ’ ” (Tobe v.
City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) Rather, the
“minimum” our cases have accepted is a showing that the
statute is invalid “in the generality or great majority of cases.”
(San Remo Hotel v. City and County of San Francisco (2002)
27 Cal.4th 643, 673; cf. Washington State Grange v. Washington
State Republican Party (2008) 552 U.S. 442, 449 [noting that
while some justices of the high court have embraced a more
demanding standard, all justices “agree that a facial challenge
must fail where the statute has a ‘ “plainly legitimate
sweep” ’ ”].)
      In this case, defendant has failed to demonstrate that
section 1367, subdivision (a), is facially invalid; indeed, she has
failed to identify any case (including her own) in which section
1367’s mental disorder or developmental disability requirement

                                 24
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


results in the violation of due process.11 Contrary to her
argument, the due process right not to be tried while
incompetent has long been understood in terms of the causal
relationship between the defendant’s mental condition and his
or her trial-related functional abilities. As the high court
explained in Drope, the constitutional right is rooted in the
venerable common law rule “that a person whose mental
condition is such that he lacks the capacity to understand the
nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be
subjected to a trial.” (Drope, supra, 420 U.S. at p. 171.)
      Section 1367, like many other similar statutes in other
jurisdictions, thus articulates a causal relationship between the
existence of a mental disorder and functional impairments.12

11
      When pressed at oral argument, appellate counsel posited
a scenario in which a defendant does not understand the nature
of the proceedings because of cultural differences, as opposed to
a mental disorder or developmental disability. But cultural
differences alone do not give rise to a lack of capacity to
understand the nature of the proceedings or assist counsel in
preparing a defense, as the Dusky standard requires.
12
      When the statute was first enacted in 1872, section 1367
provided: “A person cannot be tried, adjudged to punishment,
or punished for a public offense, while he is insane.” Case law
interpreting the provision established that, though a defendant
may have claimed to be “deranged or unsound,” he was not
“insane” for purposes of section 1367 unless he could not
understand the nature and object of the proceedings against him
and could not aid his counsel to conduct his defense in a rational
manner. (People v. Perry (1939) 14 Cal.2d 387, 397, 399.) In
1974, the Legislature amended the statute to codify this
standard, substituting the term “mentally incompetent” for
“insane.” (Assem. Com. on Criminal Justice, Ex Post Facto



                                 25
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


(See, e.g., 18 U.S.C. § 4241(d) [federal statute forbidding trial of
a defendant found to be “presently suffering from a mental
disease or defect rendering him mentally incompetent to the
extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist
properly in his defense”].) The statutory language reflects a
view that, “[a]s a matter of law and logic,” incompetence to stand
trial “must arise from a mental disorder or developmental
disability that limits his or her ability to understand the nature
of the proceedings and to assist counsel.” (Timothy J. v.
Superior Court (2007) 150 Cal.App.4th 847, 860.) On this view,
“[a] defendant who refuses to work with his lawyer out of spite
alone is not incompetent,” for example, “even if that defendant
has a serious mental disease or defect.” (United States v. Garza
(9th Cir. 2014) 751 F.3d 1130, 1136.)
      The high court’s cases cast no doubt on the
constitutionality of this approach. On the contrary, that court
has characterized a state statute establishing procedures to
determine whether a person “ ‘as a result of mental disease or
defect lacks capacity to understand the proceedings against him
or to assist in his own defense’ ” as facially “adequate to protect
a defendant’s right not to be tried while legally incompetent.”
(Drope, supra, 420 U.S. at p. 173.) And the court has since
consistently referred to the incompetence inquiry under Dusky
as one that focuses on the defendant’s mental condition and
capacity. (See, e.g., Godinez v. Moran (1993) 509 U.S. 389, 401,
fn. 12 (Moran); see also, e.g., Medina, supra, 505 U.S. at p. 450
[at a competency hearing, “psychiatric evidence is brought to


Analysis of Assem. Bill. No. 1529 (1973 Reg. Sess.) June 12,
1973, pp. 3–6; Stats. 1974, ch. 1511, § 2, eff. Sept. 27, 1974.)


                                 26
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


bear on the question of the defendant’s mental condition”].)
Defendant has offered no sound basis to conclude that this focus
is inconsistent with due process.
      To the extent defendant means instead to argue that the
Dusky standard does not require a specific medical diagnosis
drawn from the current version of the Diagnostic and Statistical
Manual of Mental Disorders, we do not disagree. But neither
does section 1367 impose this sort of requirement. Although this
statute requires that the defendant show that, because of a
mental disorder or developmental disability, he or she is unable
to understand the nature of the proceedings or to rationally
assist in his or her own defense, it does not require that the
defendant’s mental disorder fit neatly within the standard
diagnostic taxonomy. We find no inconsistency with Dusky.

              c. Asserted omission of certain elements from
                  Penal Code section 1367’s definition of
                  competence to stand trial and CALJIC No. 4.10
      Defendant next contends that the definition of competence
in section 1367 and in CALJIC No. 4.10 omit necessary elements
from the standard articulated in Dusky, supra, 362 U.S. 402 and
thus fails to satisfy due process requirements. Under Dusky, a
defendant is competent to stand trial if he or she “ ‘has sufficient
present ability to consult with his [or her] lawyer with a
reasonable degree of rational understanding’ ” and “ ‘has a
rational as well as factual understanding of the proceedings
against him [or her].’ ” (Id. at p. 402, italics added.) Defendant
argues that section 1367 and CALJIC No. 4.10 omit the
requirements of “a rational as well as factual” understanding of
the proceedings and a “present” ability to rationally assist
counsel. She contends the jury should be instructed that a
defendant’s understanding of the proceedings “must be based on


                                 27
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


reason, as opposed to delusion, fantasy or some other non-reality
based perception” and encompass the ability to comprehend
facts. She also contends the instructions should require the jury
to determine the defendant has a “present, already-existing
ability,” as opposed to mere “potential capacity,” to rationally
assist an attorney in conducting a defense.
      In response to similar arguments, “[w]e have previously
observed that the language of section 1367, from which CALJIC
No. 4.10 is drawn, ‘does not match, word for word, that of Dusky.
But as the Court of Appeal noted in James H. v. Superior Court
(1978) 77 Cal.App.3d 169, 177, “To anyone but a hairsplitting
semanticist, the two tests are identical.” ’ ” (People v. Jablonski
(2006) 37 Cal.4th 774, 808.) What we have said before applies
equally in this case. The United States Supreme Court has itself
articulated the standard for competency in terms similar to
those in section 1367 and CALJIC No. 4.10. (Moran, supra,
509 U.S. at p. 402 [“Requiring that a criminal defendant be
competent has a modest aim: It seeks to ensure that he has the
capacity to understand the proceedings and to assist counsel.”].)
Neither section 1367 nor the instruction is infirm merely
because it fails to focus specifically on the defendant’s “rational
and factual” understanding of the proceedings, as opposed to
focusing on the defendant’s understanding of the proceedings
more generally; we agree with the Attorney General that “one’s
ability to grasp the nature of the proceedings necessarily
encompasses one’s capacity to have a rational and factual
understanding of the proceedings.”
      Nor is the statute or instruction flawed because it fails to
refer to the defendant’s “present” ability to assist counsel. Both
the statute and instruction are already phrased in the present
tense, and the statutory scheme makes amply clear that the

                                 28
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


mental competence inquiry focuses on the defendant’s present
abilities, as opposed to the possibility that the relevant abilities
may be restored in the future. (See Pen. Code, § 1370, subd.
(a)(1)(B).) To the extent defendant contends that the point
should have been made even clearer to the jury, she made no
such argument in the trial court and therefore has forfeited any
objection she might have had to the omission of the term
“present ability” from CALJIC No. 4.10.            (See People v.
Covarrubias (2016) 1 Cal.5th 838, 876–877 (Covarrubias).)

         2. Exclusion of Psychologist Sherry Skidmore’s
             Rebuttal Testimony
      Defendant contends that the trial court erroneously
excluded rebuttal testimony from defense psychologist
Dr. Sherry Skidmore. The testimony was offered to impeach
Dr. Rath’s testimony concerning his evaluation of defendant’s
competence to stand trial (see Pen. Code, § 1369, subd. (d)).
Specifically, Dr. Skidmore would have testified that:
(1) Dr. Rath’s conclusion that defendant was competent to stand
trial was invalid under professional standards because he did
not conduct an evaluation for the purpose of determining
competence, and (2) Dr. Rath had a conflict of interest because
he was originally referred by the District Attorney to interview
defendant on the day of her arrest and before the court
appointed him to evaluate defendant’s competence. Defendant
asserts that the erroneous exclusion of Dr. Skidmore’s
testimony violated her state and federal constitutional rights to
due process, a fair trial, confrontation, compulsory process, and
to present evidence in support of her case (Cal. Const., art. I,
§§ 15, 16; U.S. Const., 6th & 14th Amends.), and was




                                 29
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


prejudicial, requiring reversal of the entire judgment.13 The
claim lacks merit.

             a. Factual and procedural background
     Clinical psychologist Craig Rath, Ph.D., testified for the
prosecution that he interviewed defendant and administered
the MMPI on October 28, 1994, the day of her arrest for the
murders. Defendant had waived her Miranda14 rights and had
agreed to speak to a doctor. The purpose of the interview was to
evaluate defendant for possible suicide risk and to gather



13
       In this claim and most others on appeal, defendant
contends the asserted error or misconduct she raises infringed
various of her state and federal constitutional rights to a fair
and reliable trial. What we said in People v. Boyer (2006)
38 Cal.4th 412, 441, footnote 17, is equally applicable here: “In
most instances, insofar as defendant raised the issue at all in
the trial court, [s]he failed explicitly to make some or all of the
constitutional arguments [s]he now advances. In each instance,
unless otherwise indicated, it appears that either (1) the
appellate claim is of a kind (e.g., failure to instruct sua sponte;
erroneous instruction affecting defendant’s substantial rights)
that required no trial court action by the defendant to preserve
it, or (2) the new arguments do not invoke facts or legal
standards different from those the trial court itself was asked to
apply, but merely assert that the trial court’s act or omission,
insofar as wrong for the reasons actually presented to that court,
had the additional legal consequence of violating the
Constitution. To that extent, defendant’s new constitutional
arguments are not forfeited on appeal. [Citations.] [¶] In the
latter instance, of course, rejection, on the merits, of a claim that
the trial court erred on the issue actually before that court
necessarily leads to rejection of the newly applied constitutional
‘gloss’ as well. No separate constitutional discussion is required
in such cases, and we therefore provide none.”
14
       Miranda v. Arizona (1966) 384 U.S. 436.


                                  30
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


information “for possible later use in court for one side or the
other.”
      On March 14, 1995, without objection by the defense, the
trial court appointed Dr. Rath to evaluate defendant’s
competence to stand trial. (See Pen. Code, §§ 1368, 1369, subd.
(a).) Defendant refused to meet with Dr. Rath after his
appointment. Based on his October 28, 1994, interview of
defendant and the results of the MMPI, Dr. Rath opined
defendant was competent to stand trial and did not have “any
major mental illness which would preclude her from
understanding what’s going on or cooperating with her
attorney.” Dr. Rath also opined defendant’s MMPI results
showed a classic profile for malingering.
      On cross-examination, defense counsel attempted to
impeach Dr. Rath by establishing that: (1) his evaluation of
defendant on the day of her arrest, October 28, 1994, was not a
competency evaluation under section 1368 because he did not
interview her for that purpose; and (2) his agreement to
interview defendant for the District Attorney shortly after her
arrest created a potential conflict of interest he was required to
disclose when the trial court later appointed him to conduct a
competency evaluation.
       Dr. Rath denied there were any ethical problems with the
services he rendered.       He also testified that defendant
demonstrated no mental illness during the October 28 interview
and that her behavior at that time appeared to be “all
volitional.” He therefore considered her competent to stand trial
and did not ask her specific questions about her knowledge and
understanding of court proceedings. When counsel attempted
to place Dr. Rath’s ethics in issue because he relied on


                                 31
                    PEOPLE v. BUENROSTRO
                 Opinion of the Court by Kruger, J.


information he gathered during the October 28 interview and
testing, neither of which were for the purpose of evaluating
competency, the expert explained he included the circumstances
of his interview in his written report.
      Counsel also asked Dr. Rath whether his inability to
interview defendant in March and April 1995, after his court
appointment, potentially affected the reliability of his opinion
that she was competent to stand trial. Dr. Rath testified he
would have been able to elaborate more but thought his opinion
would remain unchanged. Counsel then asked Dr. Rath about
an ethical standard prohibiting a psychologist from offering
evidence about an individual’s psychological characteristics
when the psychologist has not had “an opportunity to conduct
an examination of the individual adequate to the scope of the
statements, opinions or conclusions to be issued” and requiring
psychologists to make “clear the impact of such limitations on
the reliability and validity” of their testimony.15 Dr. Rath
agreed that no expert should “go beyond the scope of his
database” and claimed he satisfied this ethical requirement by
“outlining exactly what the database is and whatever
limitations there might be.” Dr. Rath explained that in his
report concerning defendant, he “clearly stated how much [he]
had seen her and when [he] had not seen her. . . .”
     Dr. Rath agreed with counsel the American Psychological
Association (APA) Guidelines contained in the APA’s Ethical
Handbook governed his professional conduct. Counsel asked
whether he was obligated to comply with the standard directing
that “[f]orensic psychologists avoid providing professional

15
     Counsel did not provide a citation to the ethical standard
he purportedly was quoting.


                                32
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


services to parties in a legal proceeding with whom they have
personal or professional relationships that are inconsistent with
the anticipated relationship.” Dr. Rath identified the quoted
standard as having been taken from the Division 41 Guidelines
for Forensic Psychologists, which he said had been rejected by
the APA and the California licensing board as unclear and
ambiguous. He denied that his having interviewed defendant
for the District Attorney before his court appointment for the
competency evaluation amounted to a conflict of interest.
Dr. Rath testified that he had contacted the Board of Medical
Quality Assurance Ethics Committee and had been told “there
[was] no conflict.”
      Counsel then asked Dr. Rath whether he had complied
with the APA guidelines requiring disclosure to the parties of
those factors that “might reasonably affect the decision to
contract with the forensic psychologist[],” including “prior and
current personal or professional activities, obligations, and
relationships that might produce a conflict of interest.”
Dr. Rath repeated that there was no conflict of interest. Counsel
asked Dr. Rath whether the APA guidelines required him to
obtain consent from defendant or her counsel before conducting
his October 28 interview, given that the interview was not court
ordered. Dr. Rath explained that because defendant had no
attorney at that time and had waived her Miranda rights, there
was no violation of the APA guidelines.
      On recross-examination, counsel sought to further
question Dr. Rath about his ethical obligations, and the
prosecutor objected on grounds of scope and relevance. The trial
court sustained the objection, stating, “We have covered this
ethics thing completely” and “[w]e are done talking about
ethics.”

                                 33
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


        Outside the presence of the jury and before the
prosecution rested its case, trial counsel sought permission to
present testimony by forensic psychologist Sherry Skidmore,
Ph.D., to rebut Dr. Rath’s testimony concerning a psychologist’s
ethical obligations. Specifically, Dr. Skidmore would have
testified that:      (1) Dr. Rath’s competency evaluation was
governed by ethical principles that he denied were applicable;
(2) “it is unethical and scientifically invalid to reach a conclusion
on the question of competency when [Dr. Rath] never actually
interviewed [defendant] and performed a specific competency
evaluation”; and (3) under professional standards for forensic
psychologists, Dr. Rath had a conflict of interest because he
interviewed defendant on October 28 at the request of the
District Attorney before he was appointed by the court to
evaluate her competency, and was required to “make certain
disclosures.”       Counsel argued Dr. Skidmore’s proffered
testimony was proper rebuttal because the jury had no evidence
other than Dr. Rath’s own testimony on which to base its
determination whether Dr. Rath acted ethically.
      The prosecutor objected on the basis the proffered
testimony was collateral and excludable under Evidence Code
section 352. The court sustained the objection, agreeing the
proffered testimony was collateral and noting, “Dr. Rath is not
on trial[,]” and “I allowed [defense counsel] to inquire into the
ethical situation as Dr. Rath understood it, and [he] did and now
we are done with that.” The court permitted counsel to
introduce Dr. Skidmore’s testimony refuting Dr. Rath’s
interpretation of defendant’s MMPI test results.
     In rebuttal, Dr. Skidmore testified she had specialized
experience in the areas of professional ethics and on scoring and
evaluating MMPI tests. She testified that a psychologist acts

                                  34
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


below the standard of care by rendering an opinion on
competence to stand trial based on an interview conducted for a
purpose other than determining competence. When the defense
inquired whether a forensic psychologist could reach a valid
conclusion if, at the time of the interview, he or she was working
“in a dual role,” the court sustained the prosecution’s objection
before Dr. Skidmore answered.

             b. Discussion
      In competency proceedings, each party may offer evidence
to rebut evidence offered by the other side. (Pen. Code, § 1369,
subd. (d).) Evidence bearing on the credibility of a witness is
generally relevant, and therefore admissible, in such a
proceeding. (Evid. Code, §§ 210, 350.)
      “As with all relevant evidence, however, the trial court
retains discretion to admit or exclude evidence offered for
impeachment.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) The
court “may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” (Evid. Code, § 352.) Such rulings are
reviewed for abuse of discretion. (People v. Minifie (1996)
13 Cal.4th 1055, 1070; see People v. Young (2005)
34 Cal.4th 1149, 1199.)
      Although the trial court characterized Dr. Skidmore’s
proffered testimony as “collateral,” the testimony was
unquestionably relevant: Because professional psychologists
and psychiatrists are permitted to render an opinion on the
ultimate issue of the defendant’s competence, their adherence to
or disregard of professional standards in forming those opinions


                                 35
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


is relevant to their credibility as experts. The question here is
whether the trial court appropriately weighed the probative
value of the testimony against the probability that its admission
would necessitate undue consumption of time, under Evidence
Code section 352. We ultimately need not answer the question,
however, because even if we were to assume for the sake of
argument that the trial court abused its discretion in excluding
the evidence, any such error was clearly harmless.
       Dr. Skidmore would have testified that Dr. Rath violated
professional ethical standards for a forensic psychologist
because his evaluation of defendant’s competence to stand trial
was based on an interview not designed for the purpose of
evaluating competence to stand trial. She also would have
testified that Dr. Rath had a conflict of interest when he was
appointed to evaluate defendant’s competence because before
his appointment it was the prosecution that initially engaged
him to interview her. As defendant emphasizes, the trial court’s
limitation on Dr. Skidmore’s testimony had the effect of
precluding the jury from hearing from any expert, other than
Dr. Rath himself, regarding relevant professional ethical
standards for forensic psychologists.
      Ultimately, however, the circumstances of Dr. Rath’s
prearrest examination and its limits on assessing competency
were fully litigated, despite the limitation on the defense’s
rebuttal evidence. In response to defense questioning, Dr. Rath
himself agreed that no expert should “go beyond the scope of his
data base.” As Dr. Rath also noted, his report had explained
how much he had seen defendant and his failures to meet with
her following his court appointment. Further, the jury heard
testimony from Dr. Skidmore that (1) it is “below the standard
of care” for a forensic psychologist to render an opinion about an

                                 36
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


individual’s competence to stand trial when the individual was
not interviewed for that purpose,16 and (2) it is unethical for a
psychologist to form an opinion about malingering based on the
limited information provided by MMPI results.
      Despite this evidence, as well as the testimony of two
defense experts opining that defendant was incompetent, the
jury was unconvinced. Other evidence, including the writings
taken from her cell, tended to show that defendant could
communicate coherently and that she understood the nature of
the proceedings against her. There is no reasonable probability
that the jury would have reached a different conclusion had the
defense been permitted to offer further rebuttal evidence to
counter Dr. Rath’s claim that he accepted his court appointment
without breaching any ethical rules or creating a conflict of
interest. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

16
      On appeal, defendant for the first time suggests
Dr. Skidmore’s testimony on this topic was incomplete because
she “did not explain why a valid opinion about competence
requires a specific kind of interview, did not describe the
requirements for such a particularized interview, and did not
explain why Dr. Rath’s investigative interview did not meet the
professional standards for a competency interview.” Trial
counsel’s proffer did not include these specifics, and the trial
court was never made aware of the testimony defendant now
asserts was omitted from counsel’s proffer. (See People v. Vines
(2011) 51 Cal.4th 830, 868–869 [a reviewing court “may not
reverse a judgment for the erroneous exclusion of evidence
unless ‘[t]he substance, purpose, and relevance of the excluded
evidence was made known to the court by the questions asked,
an offer of proof, or by any other means.’ (Evid. Code, § 354,
subd. (a).)”].) To the extent defendant claims the trial court
erred by excluding the testimony, the issue is not properly before
us. (People v. Livaditis (1992) 2 Cal.4th 759, 780.)



                                 37
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


Assuming defendant has preserved a claim of federal
constitutional error, and the error implicated federal
constitutional rights, we conclude the error was harmless
beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24.)

          3. Exclusion of Portions of Defense Expert Testimony
      During the defense case, the trial court excluded
Dr. Kania’s testimony about defendant’s delusions regarding
computers and Dr. Mills’s testimony about the Caldwell testing
service report on the results of the MMPI that Dr. Rath
administered to defendant on the day of her arrest. Defendant
offered these portions of the experts’ testimony to support their
opinions defendant was not competent to stand trial. The court
excluded the testimony because the defense did not timely
provide discovery of the evidence to the prosecutor. Defendant
asserts that the court erroneously applied the criminal discovery
statutes (Pen. Code, § 1054 et seq.) in excluding the evidence.
She contends that the provisions of the Civil Discovery Act of
1986 (Civil Discovery Act or Act)17 governed her competency
proceeding, and that there was no violation of those provisions.
Exclusion of the evidence, she asserts, was prejudicial error and
denied her state and federal constitutional rights to due process

17
       Effective July 1, 2005, the Civil Discovery Act of 1986
(Code Civ. Proc., §§ 2016–2036) was repealed and reenacted
without substantive changes by the Civil Discovery Act of 2004
(id., § 2016.010 et seq.). (Stats. 2004, ch. 182, § 61; see also Cal.
Law Revision Com. com. to § 2016; Lee v. Superior Court (2009)
177 Cal.App.4th 1108, 1123, fn. 2.) Defendant refers to the
repealed provisions of the 1986 Act because they were in effect
at the time of her competency trial. For convenience, we, too,
refer to the repealed provisions of the 1986 Act effective at the
time of defendant’s competency trial.


                                  38
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


and a fair competency trial, to present evidence in support of her
case, and to contest the prosecution’s case. The claim lacks
merit.

             a. Factual and procedural background

                 i. Dr. Kania
      During cross-examination, the prosecutor questioned
Dr. Kania extensively regarding defendant’s delusions. On
redirect examination, trial counsel asked Dr. Kania about his
discussions with defendant regarding her delusional belief
concerning computers. Dr. Kania said defendant had stated
that computers were running the world and killing people, and
that she did not know whether the people she saw were alive or
were computers. The prosecutor objected to the line of
questioning on the ground it was beyond the scope of cross-
examination and it was “all new information” that had “never
been [included] anywhere in a report or anything.” The court
permitted trial counsel to reopen his examination on this topic,
and the prosecutor again objected he had not been provided
discovery. The court asked counsel whether discovery of this
particular delusion had been disclosed to the prosecutor. When
counsel responded that it did not appear in Dr. Kania’s report,
the court sustained the prosecution’s objection and struck the
portion of the expert’s testimony relating to defendant’s
computer delusions. The court admonished the jury to disregard
the testimony.

                ii. Dr. Mills
      During direct examination, Dr. Mills opined that
defendant was not malingering and suffered from a psychotic
disorder hindering her ability to work with an attorney. Trial
counsel then asked whether he had reviewed the results of an


                                 39
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


MMPI administered to defendant by the prosecution’s expert,
Dr. Rath. Outside the presence of the jury, the prosecutor
objected to Dr. Mills’s testimony on the ground he was unaware
that Dr. Mills had sent Dr. Rath’s raw data to the Caldwell
testing service for evaluation; Dr. Mills’s report made no
mention of this information or an opinion based on the test data.
The prosecutor stated he had received no discovery on this
particular issue.
      The court allowed trial counsel to question Dr. Mills
outside the jury’s presence. Dr. Mills testified both he and
Dr. Kania sent Dr. Rath’s MMPI results to Caldwell and had
each received a report from Caldwell. Dr. Mills explained that,
while there were slight differences between the reports he and
Dr. Kania received, “for all practical purposes, they say the
same thing.” Counsel explained he sought admission of the
Caldwell report sent to Dr. Mills because Dr. Mills had relied on
the report in reaching his opinion. Counsel also asserted the
report sent to Dr. Mills was not “new material” because the
prosecutor “had the copy of the report from [Dr.] Kania.”
Finding that counsel had failed to provide discovery of
Dr. Mills’s testimony concerning the Caldwell report, the court
excluded the testimony.

              b. Discussion
      Defendant contends that the trial court erred in
sustaining the prosecutor’s objections and in excluding portions
of Dr. Kania’s and Dr. Mills’s testimony as sanctions for
discovery violations. Because a competency proceeding under
section 1368 is a special proceeding and not a criminal action
(People v. Hill (1967) 67 Cal.2d 105, 114, fn. 3), she reasons, civil
discovery rules apply rather than the criminal discovery statute.



                                  40
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


(See Code Civ. Proc., former § 2016, subd. (b)(1).) In support,
she relies on Baqleh v. Superior Court (2002) 100 Cal.App.4th
478, 490–491, decided after her competency trial, which held
that the Civil Discovery Act applies to competency hearings.
Defendant argues that because the prosecutor did not comply
with the civil rules for seeking discovery from her expert
witnesses, in that he did not make a demand for the production
“of all discoverable reports and writings” made by a designated
expert in the course of preparing his or her opinion (Code Civ.
Proc., former § 2034, subds. (a)(3), (g)), there was no basis for an
order excluding the evidence for noncompliance with the Act’s
requirements. Absent a discovery violation under the Act,
defendant contends, the court abused its discretion in excluding
Dr. Kania’s testimony about her computer-related delusions and
Dr. Mills’s testimony about the Caldwell report concerning the
MMPI test results Dr. Rath obtained.
       The Attorney General, citing People v. Anderson (2001)
25 Cal.4th 543, 592, footnote 17, and People v. Williams (1997)
16 Cal.4th 153, 250, argues preliminarily that defendant’s claim
under the Act is forfeited on appeal because she did not rely on
the prosecutor’s alleged noncompliance with the Act in opposing
the objections at trial. Further, the Attorney General contends
the trial court properly relied on the criminal discovery statutes
in ruling on the prosecutor’s objection because no objection was
made concerning their applicability and the state of the law was
unsettled. (Cf. In re Scott (2003) 29 Cal.4th 783, 813–814
[although the criminal discovery statute did not apply in a
habeas corpus proceeding, the superior court judge logically
cited the statute in crafting an order for limited discovery].) The
Attorney General argues the court properly excluded the
evidence under Penal Code section 1054.5, subdivision (c),


                                 41
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


because the defense failed to disclose the “statements of experts
made in connection with the case” and the results of the mental
examination as required by Penal Code section 1054.3,
subdivision (a)(1), of the criminal discovery provisions. Finally,
the Attorney General contends that, even assuming error,
defendant suffered no prejudice because the excluded evidence
was cumulative.
      We need not decide whether the Act or the criminal
discovery statutes applied to defendant’s competency trial.
Even assuming the court’s ruling excluding portions of
Dr. Kania’s and Dr. Mills’s testimony constituted an abuse of
discretion, the error was harmless under the “miscarriage of
justice” standard for state law error under Watson, supra, 46
Cal.2d at page 836.
       The court’s ruling precluded the jury from considering
Dr. Kania’s testimony relating to defendant’s purported
delusional beliefs about computers and Dr. Mills’s explanation
of his reliance on the Caldwell analysis of Dr. Rath’s MMPI test
results. Defendant offered the evidence in support of each
expert’s opinion that defendant was incompetent to stand trial.
The evidence was, however, cumulative of other testimony
concerning defendant’s delusions. Dr. Kania himself testified
the primary symptom of defendant’s psychotic disorder was her
delusions. According to Dr. Kania, during his interviews with
defendant, she expressed delusional beliefs that her sister was
speaking a different language and influencing defendant’s
children in this language, that gas was being pumped into her
cell, and that people were trying to physically harm her and kill
her with the gas.




                                 42
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


       Dr. Perrotti similarly testified defendant had expressed
delusional beliefs that she was being made the subject of a
medical experiment, that people wanted to harm her, and that
there was gas in her cell. In addition, Regena Acosta, who
befriended defendant in jail, testified that defendant believed
staff at the jail cafeteria put “stuff” in her food to make her sick.
Defendant’s family members also testified about her delusions,
including, for example, her belief that her sister Angela
Montenegro fed defendant’s children poisoned meat and that
Montenegro was a witch.
      Defendant argues, however, that Dr. Perrotti’s testimony
concerning defendant’s delusion about gas being pumped into
her cell was not as persuasive as, and “did not compensate” for
the exclusion of, Dr. Kania’s testimony because Dr. Perrotti
observed the delusion only once. She also asserts that the other
evidence concerning her delusions came primarily from family
members “whose impartiality the prosecutor called into
question” and thus would not have been as persuasive as
Dr. Kania’s account of her computer delusion. The jury,
however, heard ample evidence of defendant’s delusional beliefs
from a variety of sources. We see no reasonable probability that
exclusion of Dr. Kania’s testimony about defendant’s particular
delusional beliefs regarding computers affected the outcome of
the proceedings. Defendant also fails to show that exclusion of
the evidence, even if erroneous under state law, rendered her
competency proceeding fundamentally unfair or otherwise
violated her due process rights.
     Regarding the exclusion of Dr. Mills’s testimony, trial
counsel represented that the expert’s testimony would be
essentially the same as Dr. Kania’s on this point because each
expert had submitted the results of Dr. Rath’s MMPI to

                                  43
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


Caldwell for evaluation and each had received similar reports
from the testing service. During the hearing on the prosecutor’s
objection, Dr. Mills testified that the reports he and Dr. Kania
received from Caldwell “for all practical purposes, . . . say the
same thing.” At trial, Dr. Kania compared the Caldwell
interpretations of the results of the MMPI tests he and Dr. Rath
administered separately to defendant.18            Under these
circumstances, testimony by Dr. Mills similar to Dr. Kania’s
testimony on the same subject would have added little, if
anything, to the weight of the evidence of incompetence.
Defendant therefore was not prejudiced by exclusion of
Dr. Mills’s testimony concerning the Caldwell report (Watson,
supra, 46 Cal.2d at p. 836) and she does not otherwise show that
exclusion of the evidence resulted in a fundamentally unfair
competency proceeding or violated her right to due process.

          4. Admission of Defendant’s Jailhouse Writings
      Defendant contends that the trial court abused its
discretion by admitting certain jailhouse writings in the
prosecution’s surrebuttal case. The prosecution introduced the
writings, which had been seized during a search of defendant’s
jail cell the previous week, to refute defense investigator
Catherine Moreno’s rebuttal testimony that defendant could not
communicate coherently. Defendant argues that the writings
were improper surrebuttal because: (1) her inability to converse
coherently was at issue throughout the defense case-in-chief,


18
      Among other things, Dr. Kania testified defendant’s
MMPI results on the test he administered did not indicate
malingering, but he acknowledged that the Caldwell report
indicated that the results obtained by Dr. Rath suggested
otherwise.


                                 44
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


meaning the prosecution should have offered the writings
during its case-in-chief; and (2) the prosecutor had indicated he
would not introduce the writings. Defendant contends that
admission of the writings deprived her of her state and federal
constitutional rights to due process and a fair competency trial.
We reject the argument.

             a. Procedural background
      During defendant’s rebuttal, defense paralegal Catherine
Moreno testified that she had visited with defendant about 10
times during the previous year in an effort to get her to
cooperate with the defense team. Moreno had four or five
conversations with defendant about witnesses in her case and
found her to be unhelpful, incoherent, and unable to stay on
topic.19 On cross-examination, Moreno testified she had never
read any of defendant’s writings.
      Later the same day, and outside the presence of the jury,
the prosecutor informed the court that defendant’s jail cell had
been searched the previous week and writings had been seized,
copies of which had been provided to counsel. The prosecutor
stated: “I have been debating back and forth, and I am still not
convinced this second, but I think I would like to introduce the
writings that we found in her cell to the jury. [¶] The only
hesitancy I have is, the majority of it is in Spanish, and I don’t
know how the Court would feel about them getting a document
that somebody’s going to need to interpret.”



19
      Trial counsel asked Moreno, “Have [your conversations
with defendant] been coherent on the part of [defendant]?” and
“have you observed whether or not [defendant]’s able to
structure coherent paragraphs?”


                                 45
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


       The court responded: “[W]hen . . . there is something
written in a different language, it’s translated, and then the
translated version is what is utilized[.]” The court expressed its
reluctance “to send a document in Spanish into a jury. There
may be some people who are fluent in Spanish, there may be
some partially fluent. You don’t want to do that because you
don’t know what is going to be the result.” The prosecutor
responded, “All right. That’s fine. I will pass.” The court said,
“All right. Let’s bring our jurors in. I propose at this point we
will just end for the day and start the arguments on Monday.”
       Trial was adjourned until Monday, November 13, 1995.
On that date, the last day of the competency trial, the prosecutor
revisited the issue of the writings seized from defendant’s jail
cell. He represented that the writings had been translated over
the weekend by a certified interpreter, and he offered the
translations, copies of which had been provided to counsel, to
demonstrate defendant’s ability to write and form paragraphs
and sentences. The court described one document as “three
pages of translation attached to a number of pages that are in
Spanish. The English portion here . . . [is] labeled, ‘Another 48-
Hour Appointment With Death,’ and, just perusing this in
general, it appears to be a story, and it appears to be a story that
closely parallels [defendant’s].” The court described the second
document as a one-page handwritten document in Spanish, the
English translation of which comprised defendant’s “thoughts
and/or prayers on behalf of the defendant dealing with this
case.”
      Trial counsel objected to admission of the writings on the
grounds the evidence should have been presented in the
prosecution’s case-in-chief and because the prosecutor had
indicated in the prior proceeding he would not offer the evidence.

                                 46
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


      The court ruled: “[W]e did not close [as] to evidence. I did
indicate we were going to leave it open for a ruling on People’s
10 [jail records].     During the trial the seizure of this
documentation was brought up. [The prosecutor] mentioned
last week it was in Spanish. I mentioned to him last week, ‘How
do you intend to introduce it, it is written in some Spanish, we
can’t have the jurors translate it, we will have to have a
translator translate the information.’ He did not indicate,
necessarily, he intended to introduce it, it was considered, it was
considered for purposes of introduction as evidence. [¶] I clearly
remember that because I remember [thinking], ‘Isn’t that
interesting, how are we going to go ahead with documents in
Spanish when, obviously, they haven’t been translated?’ So, you
are not going to be successful with an objection on those bases.”
      When the court asked trial counsel whether he had any
objection to the contents of the writings, counsel repeated that
at the previous proceeding, the prosecutor had indicated he
would not offer the writings. The court stated: “I agree with
you, the last thing we had was [People’s Exhibit] 10; however,
we did not close [as] to evidence. It is not a surprise, we did
discuss the information. I indicated I am not going to keep it
out on that basis.” The court granted trial counsel 15 minutes
to review the pages and object to their content. Trial counsel
stated he wanted to consult with his experts “to see what, if any,
change this would make in their diagnosis [sic].” The following
colloquy then occurred:
      “THE COURT: Wait a minute. [¶] The way the trial
proceeds, you go first, he goes next, you rebut, he rebuts. We
are at his rebuttal. Do you have some authority that says you
get a second rebuttal?



                                 47
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


       “[TRIAL COUNSEL]: Well, I think in this instance, yes;
not case authority, but this goes well beyond simply being
rebuttal, this is much more in the nature of a case in chief. It
isn’t something that occurred over the weekend.
      “THE COURT: You offered the testimony of Ms. Moreno
from your office, who testified on rebuttal that your client could
not form paragraphs, that she couldn’t put thoughts together
and hold them together. Just perusing this, it clearly seems to
rebut that presentation by you. [¶] Now, if you don’t have any
authority for a second rebuttal, that ends the issue here on that
basis.”
      When trial counsel did not provide additional authorities,
the court indicated that it would recess to give counsel an
opportunity to read the translated writings and make any
further objections. After the recess, the court confirmed counsel
had read the writings and asked if he had anything further.
Counsel responded, “I have nothing additional.” The parties
stipulated that the writings were confiscated during a search of
defendant’s jail cell, and the court admitted the writings and
translations.

              b. Discussion
       Penal Code section 1369 specifies the order of proof in a
competency trial. First, defense counsel offers evidence in
support of the allegation of mental incompetence (id., subd.
(b)(1)); next, the prosecution presents its evidence on the issue
of the defendant’s present mental competence (id., subd. (c));
finally, “[e]ach party may offer rebutting testimony, unless the
court, for good reason in furtherance of justice, also permits
other evidence in support of the original contention” (id., subd.
(d)). Beyond these specifications, the order of proof is generally


                                 48
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


within the court’s discretion. (Evid. Code, § 320.) We review a
trial court’s ruling as to the order of proof for abuse of discretion.
(See People v. Tafoya (2007) 42 Cal.4th 147, 175.)
      Defendant argues that evidence of her writings was not
admissible as surrebuttal evidence because it should have been
introduced during the prosecution’s case-in-chief, given that it
was relevant to the prosecution’s case and already in its
possession.20 We disagree.
      During the defense case-in-chief, several witnesses,
including Dr. Perrotti, jail nurse Terrill, and Dr. Mills testified
that at times defendant did not express herself coherently.
During its case-in-chief, the prosecution had introduced
evidence to the opposite effect, including, for example,
Dr. Moral’s testimony that defendant could effectively
communicate about her family, medical, and mental health
history and “keep in touch with [him] verbally, talking back and
forth, without difficulty.”      In rebuttal, to counter the
prosecution’s evidence that defendant could communicate


20
       Defendant also argues that “the prosecutor did not
establish that the writings seized from [defendant]’s cell
reflected her present ability to communicate coherently” because
“[t]he documents were undated and could have been written at
any time during the year between [her] arrest and their
admission at trial.” At trial, however, defendant did not object
to the admissibility of the evidence on this ground, thereby
forfeiting this objection. In any event, the writings were
relevant to show defendant’s ability to communicate during the
period before trial, as to which defense paralegal Moreno had
also testified. Defendant’s concern that the writings may not
have been made during or immediately before trial goes to the
weight of the evidence, not its admissibility.



                                  49
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


effectively and without difficulty, defense paralegal Moreno
testified that defendant could not converse or structure
paragraphs coherently. The prosecutor offered defendant’s
writings in surrebuttal to refute Moreno’s rebuttal testimony.
This was not improper. (Pen. Code, § 1369, subd. (d).)
      Defendant argues that the prosecution should have
offered the writings in its case-in-chief because this issue was
material to its case and already in its possession. But the same
is true of defense witness Moreno’s rebuttal testimony that
defendant could not communicate coherently; that testimony
was likewise material to defendant’s case-in-chief and already
in her possession, but not offered until after the defense and
prosecution had each presented its case-in-chief. Under the
circumstances, the trial court did not abuse its discretion in
permitting the prosecution to rebut Moreno’s testimony with
defendant’s writings.
      Further, the record does not support defendant’s
contention that admission of the writings at the end of trial
improperly allowed the prosecution to place undue emphasis on
them. The writings were addressed only briefly during the
parties’ closing arguments. The prosecutor asked jurors to
consider all the evidence in deciding whether defendant was
competent, telling them, among other things: “[t]here is some
evidence you have not seen . . . the notes we had translated from
her jail cell, took [sic] about two weeks ago,” which they should
“[r]ead . . . [and] make [your] own decisions as to how well she
can think or not think, the cleverness, the detail, the subtleties.”
The prosecutor also argued that the writings demonstrated
defendant understood the nature of the legal proceedings
against her. Defense counsel countered that jurors should
accord the writings little weight because they were not

                                 50
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


introduced earlier or given to the doctors who interviewed
defendant. Nothing in the record suggests that the prosecution
placed undue emphasis on the late-introduced writings.
      Finally, contrary to defendant’s assertion, the trial court’s
ruling did not allow the prosecutor to “sandbag” the defense.
The prosecution’s argument that the writings showed defendant
was able to communicate coherently in writing did not inject an
entirely new subject into the trial at the last moment. Defense
paralegal Moreno’s rebuttal testimony that defendant could not
communicate coherently related to events in the previous year.
Further, the writings were not available until about a week
before the prosecutor first indicated he might want to introduce
them. The trial court found there was no surprise in the
prosecution’s request to admit the writings because “we did
discuss the information.” The record supports this finding.
Trial counsel was on notice on November 9, 1995, that the
prosecutor might introduce the writings but that nothing
further would occur until they were translated.
      Defendant makes much of the prosecutor’s “I will pass”
comment, arguing it revealed an intention to forgo admission of
the writings.     The trial court evidently understood the
prosecutor’s comment differently. When trial counsel objected
on the same ground to the prosecutor’s efforts to introduce the
writings on Monday, November 13, the court recalled that the
prosecutor had been undecided; the court had mentally noted
the documents had not been translated, as would be necessary
before they could be introduced. Even assuming the court’s
recollection of the November 9 discussion was inaccurate,
counsel did nothing to correct the error. For these reasons, the
court’s finding that the prosecutor’s request to introduce the
exhibits was not a surprise was supported by substantial

                                 51
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


evidence. The court’s granting the prosecutor’s renewed request
to admit the writings on the following court day was not
fundamentally unfair.

         5. Asserted Bias in Evidentiary Rulings at the
             Competency Hearing
      Defendant contends that the trial court’s evidentiary
rulings discussed above (pt. II.B.2.–.4., ante) demonstrated bias
against her and in favor of the prosecution and violated her state
and federal constitutional rights to due process. We reject the
argument.
       Defendant first complains that the court excluded portions
of Dr. Kania’s and Dr. Mills’s testimony as a discovery sanction
(pt. II.B.3., ante), but permitted the prosecution to introduce the
writings seized from defendant’s jail cell over defense objections
the evidence was improper rebuttal evidence and untimely
(pt. II.B.4., ante). Second, defendant asserts that the court
treated the defense and the prosecutor differentially when it
excluded the rebuttal testimony of defense expert Sherry
Skidmore regarding professional standards governing forensic
psychologists in a competency evaluation (pt. II.B.2., ante), but
admitted the prosecution’s surrebuttal evidence of defendant’s
writings, despite the prosecutor’s assertedly misleading
representation he would not use the writings (pt. II.B.4., ante).
      Defendant forfeited the claim of bias by failing to raise it
during the competency trial.       (People v. Pearson (2013)
56 Cal.4th 393, 447; People v. Guerra (2006) 37 Cal.4th 1067,
1112 (Guerra).) The claim lacks merit in any event. “ ‘[A] trial
court’s numerous rulings against a party—even when
erroneous—do not establish a charge of judicial bias, especially
when they are subject to review.’ ” (People v. Fuiava (2012)


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                  Opinion of the Court by Kruger, J.


53 Cal.4th 622, 732, quoting Guerra, at p. 1112; cf. Andrews v.
Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795
[“There is no reason to explore the heart and mind of the
[adjudicator] when effective relief is readily available if the
reviewing court concludes a finding is unsupported by
substantial evidence. To hold otherwise would encourage a
losing party to raise the specter of bias indiscriminately[.]”].)
Defendant fails to demonstrate that the court engaged in any
judicial misconduct or exhibited bias, “let alone misconduct or
bias that was ‘so prejudicial that it deprived defendant of “ ‘a
fair, as opposed to a perfect, trial.’ ” ’ ” (People v. Avila (2009)
46 Cal.4th 680, 696.)

          6. Rejection of Proposed Instruction
      Defendant asked the court to instruct the jury that if she
were found incompetent, she would not be released from
custody. The proposed instruction, which was patterned after
CALJIC No. 4.01, stated in relevant part: “A verdict of
‘incompetent to stand trial’ does not mean the defendant will be
released from custody. Instead, she will remain in confinement
at a state hospital or another public or private institution for
treatment of the mentally disordered until the court determines
that she had [sic] regained her competence. [¶] Moreover, if and
when the defendant is found to be competent, the criminal
proceeding that was pending against her will be reinstituted. A
finding by you, the jury, that the defendant is not competent to
stand trial does not constitute the final disposition of the
criminal case against her. Rather it will have the effect of
postponing that case until she is deemed to be competent to
assist in her own defense.” The trial court refused to give the
instruction.



                                 53
                      PEOPLE v. BUENROSTRO
                   Opinion of the Court by Kruger, J.


      On appeal, defendant contends that the court’s refusal to
instruct the jury on the consequences of a verdict of
incompetence was erroneous because there was a risk that the
jurors in her trial would assume she could be immediately
released from custody were she found incompetent, and
therefore might find her competent to prevent her return to the
community. Defendant relies for her argument on People v.
Moore (1985) 166 Cal.App.3d 540, in which the Court of Appeal
held a defendant in a sanity trial is entitled upon request to an
instruction advising the jury that a verdict of “not guilty by
reason of insanity” does not mean the defendant will be released
from custody. (Id. at p. 556.) The Moore court reasoned that
because some jurors may be unaware of the consequences of an
insanity verdict, the instruction is necessary to guard against
the possibility that the jurors would find the defendant sane
because they feared an insanity verdict would result in his
release from custody. (Ibid.) Defendant argues that this case
involved a similar risk that jurors unfamiliar with competency
proceedings might have found her competent simply to prevent
her release from custody and the indefinite abeyance of her
criminal case. Defendant further contends that she was entitled
to the proposed instruction under the due process clause of the
Fourteenth Amendment. In support of the argument, defendant
cites the high court’s decision in Simmons v. South Carolina
(1994) 512 U.S. 154, 168–169 (plur. opn. of Blackmun, J.) and
its progeny, holding that, where future dangerousness is at
issue, a capital defendant has a due process right to inform the
jury that he or she will be ineligible for parole if sentenced to life
imprisonment.
     We have previously rejected arguments similar to
defendant’s, and do so again here. In People v. Marks (2003)


                                  54
                     PEOPLE v. BUENROSTRO
                  Opinion of the Court by Kruger, J.


31 Cal.4th 197, for example, the defendant sought a similar
instruction stating, in relevant part: “ ‘If the defendant is found
mentally incompetent to stand trial, criminal proceedings shall
remain suspended until such time as he becomes mentally
competent. In the meantime, the court will order the defendant
to be confined at a state hospital for the care and treatment of
the mentally disordered where he will participate in a program
designed to promote the defendant’s speedy restoration to
mental competence.’ ” (Id. at p. 221.) We upheld the trial court’s
refusal to give the instruction, explaining the instruction was
flawed because it “characterized defendant’s return to
competence and the eventual resumption of criminal
proceedings as inevitable,” even though “there [is] no guarantee
of a speedy recovery.” (Id. at p. 222.) We “declined to extend
Moore beyond its original context,” i.e., sanity trials. (Ibid.)
      Similarly, in People v. Dunkle (2005) 36 Cal.4th 861
(Dunkle), the defendant argued the trial court erred in failing to
instruct the jury on its own motion regarding the consequences
of a verdict of incompetence, also analogizing his case to Moore.
We again “declined to apply Moore outside its original context.”
(Id. at p. 897.) We reasoned that “[b]ecause the outcome of any
future efforts at restoring a defendant to competency is
uncertain at the time when the jury must make its decision on
competency, an instruction patterned after Moore and CALJIC
No. 4.01 is necessarily speculative.” (Ibid.)
      Here, defendant’s proposed instruction on the
consequences of an incompetency verdict suffered from the same
basic flaw. It speculates as to defendant’s return to competence
and resumption of criminal proceedings, matters that are
inherently uncertain when the jury is determining competency.
(Cf. Jackson v. Superior Court (2017) 4 Cal.5th 96, 100–102

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                  Opinion of the Court by Kruger, J.


[describing range of possible outcomes following a
determination of incompetence].) The court did not err in
refusing defendant’s proposed instruction.

         7. Cumulative Error at Competency Trial
      Defendant contends her entire death judgment should be
reversed based on the cumulative effect of the prejudice
resulting from all of the asserted errors in her competency trial.
We have found no prejudicial error. Where we have assumed
the existence of error in the exclusion of portions of the
Skidmore, Mills, and Kania testimony, we have concluded any
error was harmless. Considered in combination, these assumed
errors do not establish that defendant was denied a fair
competency proceeding.

          8. Denial of Request for a Second Competency Trial
       Defendant contends that the court erred in denying her
request for a second competency hearing under section 1368
based on her assertion that she was increasingly unable to
understand and respond to the legal proceedings and to
cooperate with trial counsel in preparing her defense. She also
contends that the asserted error violated her state and federal
constitutional rights to due process and a fair trial. We find no
error.

             a. Factual and procedural background
      As discussed above, on November 13, 1995, the jury
returned its verdict finding defendant competent to stand trial
in her criminal proceedings. On January 3, 1996, during a
pretrial in camera hearing held outside the presence of the
prosecutor, the court denied defendant’s motion for substitution
of defense counsel under People v. Marsden (1970) 2 Cal.3d 118.
In the course of the proceeding, trial counsel declared a doubt


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about defendant’s competence and requested a second
competency hearing under section 1368. Although counsel
offered no new information in support of his request, the court
suspended the criminal proceedings and appointed two
psychiatrists to evaluate defendant’s competence.
      On January 5, 1996, during proceedings at which both
parties were present, the court vacated its order appointing
psychiatrists pursuant to section 1368. It explained: “I was
somewhat taken aback by [trial counsel]’s further declaration as
to the defendant’s competency and forgot there was no District
Attorney present, because we had a [Marsden] hearing prior to
that, and I appointed doctors. But on reconsideration I think we
need to have a little further information and showing before that
can be done again.” The court informed counsel it was relying
on our decision in People v. Medina (1995) 11 Cal.4th 694
(Medina II), for its authority to reconsider its prior order
appointing the psychiatrists. The court set the matter for a
hearing to determine under Medina II whether there had been
a “substantial change of circumstances” since the jury returned
its verdict finding defendant was competent to stand trial.
      At a hearing on January 19, 1996, trial counsel renewed
his request for appointment of mental health experts under
section 1368 to evaluate defendant’s competence to stand trial.
Counsel explained that his motion was based solely on new
factual developments and not a new diagnosis. During the two
conferences he had had with defendant since the jury had found
her competent on November 13, 1995, counsel said, she spoke in
a “rambling fashion” about her dissatisfaction with his
representation. Although counsel tried to discuss the nature of
her dissatisfaction and inform her of her options, she appeared
to not understand his explanations. Counsel asserted that

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defendant spoke no more than 10 words during the Marsden
hearing21 and that her conduct demonstrated a “deepened
inability” to understand and respond to the legal proceedings
and cooperate with counsel. In addition, after counsel informed
her the District Attorney had filed a notice of intent to seek the
death penalty, he questioned her to determine whether she
understood the impact of the decision; she responded “with a
blank stare.”
      The prosecutor argued that defendant’s incoherence and
inability to understand the issues had been litigated at the
competency trial, and counsel had presented no grounds for a
new referral under section 1368. Counsel acknowledged that
the issues presented by his renewed motion were not different
from those litigated at defendant’s first competency trial, i.e.,
her confusion and inability to understand the legal proceedings
and to cooperate with counsel, but he maintained defendant had
become “more disorganized, incoherent, and uncooperative.”
The court denied the motion, finding counsel’s showing
insufficient to distinguish defendant’s present condition from
her condition before the competency trial.

              b. Discussion
       “ ‘Once a defendant has been found competent to stand
trial, a second competency hearing is required only if the


21
      Actually, defendant spoke somewhat more than 10 words
at the Marsden hearing. When defendant complained about
counsel’s representation, the court asked her to give examples.
Defendant explained, “Okay. Sometimes I asked him, like, for
small things that he is able to do. And he just cannot do them.
Sometimes I ask him questions, and he never has an answer for
them, you know. And the way he has handled the case since the
beginning, I just don’t like it. I don’t agree with it.”


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evidence discloses a substantial change of circumstances or new
evidence is presented casting serious doubt on the validity of the
prior finding of the defendant’s competence.’ ” (People v.
Leonard (2007) 40 Cal.4th 1370, 1415, quoting Medina II,
supra, 11 Cal.4th at p. 734; see also People v. Jones (1991)
53 Cal.3d 1115, 1153.) “More is required than just bizarre
actions or statements by the defendant to raise a doubt of
competency” (People v. Marshall (1997) 15 Cal.4th 1, 33), or
“counsel’s unparticularized assertion that defendant’s condition
had deteriorated, with no explanation of how it had done so”
(Dunkle, supra, 36 Cal.4th at p. 904).
       We conclude the court did not err in denying defendant’s
motion for a new competency evaluation. Trial counsel offered
only unparticularized assertions and brief descriptions of
isolated incidents that, in his view, reflected a “deepening” of
defendant’s inability to understand the legal proceedings and
cooperate with counsel. Defendant’s behavior may, however,
have simply been a display of her unwillingness to cooperate
with counsel. (See, e.g., Medina II, supra, 11 Cal.4th at p. 735
[defendant’s “cursing and disruptive actions displayed an
unwillingness to assist in his defense, but did not necessarily
bear on his competence to do so, or reflect a substantial change
of circumstances or new evidence casting serious doubt on the
validity of the prior finding of the defendant’s competence”].) In
the absence of a more specific offer of proof, the trial court did
not err in concluding that counsel had not presented evidence of
changed circumstances or new evidence casting a serious doubt
on the prior finding that defendant was competent to stand trial.




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                  Opinion of the Court by Kruger, J.



              III. CRIMINAL PROCEEDINGS

      A. Jury Selection Issues
      Defendant contends that the trial court committed
reversible error when it excused for cause two prospective
jurors, B.R. and F.P., based solely on their written questionnaire
answers concerning their personal views on the death penalty,
in violation of her rights under the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
(See Wainwright v. Witt (1985) 469 U.S. 412; People v. Stewart
(2004) 33 Cal.4th 425, 440–455 (Stewart).)            In addition,
defendant contends that the court erroneously excused for cause
Prospective Juror R.J. after voir dire based on his death penalty
views. We conclude that the court erred in excusing Prospective
Juror B.R. for cause based solely on her questionnaire
responses.     Reversal of defendant’s penalty judgment is
mandated under United States Supreme Court precedent.
(Gray v. Mississippi (1987) 481 U.S. 648, 659–667 (Gray).) In
light of this conclusion, we need not decide whether the trial
court erred in dismissing any of the remaining prospective
jurors based on their death penalty views.
         1. The Jury Selection Procedure and Written
            Questionnaire
      Four panels of prospective jurors were called for selection
of the jury in this case. After each panel was sworn, the court
made its prefatory remarks and then screened prospective
jurors for hardship excusals, almost all of which were resolved
by stipulations of the parties. The remaining prospective jurors
were instructed to complete the jury questionnaire in the jury
assembly room and to return the following Monday.




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      The 32-page questionnaire contained 81 questions and
included a section concerning the respondents’ “Opinions about
the Death Penalty.” The introduction to this section explained
that if the jury found defendant to be guilty and a special
circumstance true, a penalty trial would be held; the jury would
choose a penalty of life without the possibility of parole or death;
and in making the penalty choice, the jury would consider
factors in aggravation and mitigation.
      On July 6, 1998, outside the presence of the prospective
jurors, the court informed counsel that 122 prospective jurors
with completed questionnaires were expected to arrive that
morning for jury selection.         The court had “identified
approximately 29 potential jurors from the reading of the
questionnaires, which in my mind, if their answers were
consistent in open court with their answers in the questionnaire,
I would in all probability excuse them for cause.” The court
asked the parties to consider excusing the 29 prospective jurors
by stipulation because the courtroom could seat a maximum of
only 92 individuals. In the alternative, the court proposed
excusing the last 30 individuals from the random list of
prospective jurors. The court expressed hope that “[we] can
work through the obvious individuals to stipulate for cause.”
      The court and counsel thereafter discussed the
qualifications of the 29 prospective jurors based solely on their
written questionnaire responses, beginning with Prospective
Juror B.R. When the court asked the parties for a response, trial
counsel stated, “[W]e’ll submit it. We can’t stipulate to them
obviously, Your Honor, but we know what the Court’s concerns
are.” The prosecutor noted that B.R. was on his list of challenges
for cause. Without further discussion, the court ruled, “Based
on the answers that the potential juror would not vote for death,

                                 61
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and at this time [B.R.] would be excused for cause.” No other
cause for her excusal was identified.
      Prospective Juror F.P. was another of the 29 prospective
jurors the court identified as probably disqualified based on her
written questionnaire responses alone. After the court and
counsel discussed her responses, the prosecutor challenged F.P.
for cause under Witt. The court granted the challenge.
     The court subsequently conducted voir dire of the
remaining prospective jurors in groups of 18. Each party was
permitted 30 minutes to ask follow-up questions.
      During the voir dire process, the court excused Prospective
Juror R.J. for cause under Witt. The court did not permit
counsel to attempt to rehabilitate any of the prospective jurors
the court had determined to be disqualified as “substantially
impaired.” The parties exercised their for-cause and peremptory
challenges, and the jury was sworn.
         2. Discussion
      “Under decisions of the United States Supreme Court,
prospective jurors who express personal opposition to the death
penalty are not automatically subject to excusal for cause as
long as ‘they state clearly that they are willing to temporarily
set aside their own beliefs in deference to the rule of law.’
(Lockhart v. McCree (1986) 476 U.S. 162, 176; see Witherspoon
v. Illinois (1968) 391 U.S. 510, 522.)      To determine if a
prospective juror is excusable for cause without compromising a
defendant’s constitutional rights, we inquire whether the
prospective juror’s views on the death penalty ‘would “prevent
or substantially impair the performance” ’ of the juror’s duties
in accordance with the court’s instructions and his or her oath.”
(People v. Riccardi (2012) 54 Cal.4th 758, 778 (Riccardi); see


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                  Opinion of the Court by Kruger, J.


People v. Avila (2006) 38 Cal.4th 491, 529 (Avila); Stewart,
supra, 33 Cal.4th at pp. 446–447.)
      “Before granting a challenge for cause, the ‘court must
have sufficient information regarding the prospective juror’s
state of mind to permit a reliable determination as to whether
the juror’s views would “ ‘prevent or substantially impair’ ” ’
performance as a capital juror. [Citation.] Trial courts must
therefore make ‘a conscientious attempt to determine a
prospective juror’s views regarding capital punishment to
ensure that any juror excused from jury service meets the
constitutional standard.’ ”        (People v. Leon (2015)
61 Cal.4th 569, 592; accord, Covarrubias, supra, 1 Cal.5th at
p. 863.)
      On appeal, we independently review a trial court’s
dismissal of a prospective juror under Witt based solely on his or
her written questionnaire responses. (People v. Zaragoza (2016)
1 Cal.5th 21, 37, citing Riccardi, supra, 54 Cal.4th at p. 779.)
“[A] prospective juror may be discharged for cause solely on the
basis of written questionnaire responses only if it is ‘clear’ from
those responses that the juror is unable or unwilling to
temporarily set aside the juror’s beliefs and follow the law.
([Riccardi], supra, 54 Cal.4th at p. 781, fn. 11; [Avila], supra,
38 Cal.4th at p. 531; see also People v. McKinnon (2011)
52 Cal.4th 610, 647–648.) Where a prospective juror’s written
responses are ambiguous with respect to the individual’s
willingness or ability to follow the court’s instructions in a
potential penalty phase, the record does not support a challenge
for cause. (Stewart, at pp. 448–449.)” (Zaragoza, supra, at
pp. 38–39; see Covarrubias, supra, 1 Cal.5th at p. 863.)




                                 63
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                  Opinion of the Court by Kruger, J.


       Preliminarily, the Attorney General argues defendant
forfeited her claim by failing to object to the dismissal of
Prospective Juror B.R. or request voir dire. At the time of
defendant’s trial, however, there was no requirement of a
contemporaneous objection or statement of grounds to preserve
a claim of Witherspoon/Witt error in the excusal of a prospective
juror.22 (McKinnon, supra, 52 Cal.4th at p. 637.) Nor did
counsel forfeit the issue by submitting the question to the trial
court. (Ibid.; People v. Lynch (2010) 50 Cal.4th 693, 733.) We
therefore proceed to the merits of defendant’s claim.
      In her questionnaire, Prospective Juror B.R. stated that
she was a widowed 70-year-old retired payroll clerk and had
been a resident of the city of Riverside for 42 years. B.R.
estimated that she had worked on the questionnaire for an hour.
Of the 81 questions contained in the questionnaire, B.R. left 36
questions unanswered.
       In response to Question 15, Prospective Juror B.R.
identified herself as a religious person and indicated that her
religious beliefs would not prohibit or make it difficult for her to
sit as a juror. The section entitled “The Charges Here” informed
prospective jurors that defendant was charged with the murders
of her three minor children by stabbing and with the special


22
      In People v. McKinnon, supra, 52 Cal.4th at page 643
(McKinnon), we overruled People v. Velasquez (1980)
26 Cal.3d 425, “to the extent it articulates a no-forfeiture rule
with respect to Witherspoon/Witt excusal error” and
prospectively held that in order to preserve a claim of such error
for appeal, counsel—or defendant if proceeding pro se—“must
make either a timely objection, or the functional equivalent of
an objection, such as a statement of opposition or disagreement,
to the excusal stating specific grounds under Witherspoon/Witt.”


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                  Opinion of the Court by Kruger, J.


circumstance of multiple murder. In response to Question 37 in
that section, B.R. indicated by circling “yes” that she had a
“religious or moral feeling that would make it difficult for her to
sit in judgment of another person.” B.R. did not have any
feelings, positive or negative, about the criminal justice system.
      The questions Prospective Juror B.R. left unanswered
included the following: “Would you automatically reject the
testimony of a witness who admitted that he/she had used drugs
or alcohol?”; “What is your opinion, if any, of psychologists or
psychiatrists who testify in criminal cases?”; “Do you have the
opinion that any mother who kills her children must be ‘crazy’?”;
“Do you have any feeling about the nature of the charges in this
case that would make it difficult or impossible for you to be fair
or impartial?”; “Would you be reluctant to serve on a jury on a
crime involving acts of violence and where graphic photographs
of the victim will be in evidence?”; “Do you believe the criminal
justice system makes it too hard for the police and prosecutors
to convict people accused of crimes?”; and “If the judge gives you
an instruction on the law that differs from your beliefs or
opinions, will you follow the law at [sic] the judge instructs you?”
She did not answer questions about her ability to follow
instructions concerning the prosecution’s burden of proof. She
also failed to answer the following questions: “Would you
believe or disbelieve the testimony of a law enforcement officer
simply because he/she is a law enforcement officer?”; “Would you
automatically believe everything an expert said merely because
the person is called an expert?”; and “What is it about yourself
that makes you feel you can be a fair and impartial juror?”
     In the “Trial Issues” section of the questionnaire,
Prospective Juror B.R. answered the following questions
“unsure” instead of “yes” or “no”: “Do you feel you can give the

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                  Opinion of the Court by Kruger, J.


defendant and the People a fair trial?”; “Can you objectively view
and consider graphic photos of dead children?”; “[C]ould you
listen to your fellow jurors and receive from them the benefit of
their thinking concerning the evidence in this case?”; “If during
jury deliberations . . . you become convinced that you are wrong,
could you reconsider your position?”; and “Would you change
your position merely because the other jurors disagree with
you?”
      Questions 68 through 73 and 76 through 78 of the
questionnaire concerned a prospective juror’s death penalty
views and duties as a capital juror. In response to Question 68,
which asked respondents to describe their “general feelings
about the death penalty,” B.R. wrote: “I wouldn’t want to make
that decision.” In part “a” of Question 68, which asked
prospective jurors to rank their feelings about the death penalty
on a scale of 1 to 10, with 1 indicating “strongly against the death
penalty” and 10 being “strongly in favor of the death penalty,”
B.R. ranked herself a “1.”
      In part “c” of Question 68, Prospective Juror B.R. circled
“Yes” in response to the question, “If you are against the death
penalty, would your opinion make it difficult for you to vote for
the death penalty in this case, regardless of what the evidence
was?” In Part “e” of the same question, B.R. indicated that she
had never held a different opinion about the death penalty. In
response to Question 73, “Do you have an opinion as to whether
you think death or life in prison is the more severe
punishment?,” B.R. answered, “No.” B.R. left unanswered the
remaining death penalty questions. Among them was Question
70, which asked, in essence, whether, no matter what the
evidence was, the prospective juror would “ALWAYS” vote for
the death penalty (pt. (a)) or would “ALWAYS” vote for life

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without possibility of parole (pt. (b)), or would consider all of the
evidence and decide the appropriate penalty according to the
law (pt. (c)).
      Based on our independent review of the record,
Prospective Juror B.R.’s written questionnaire responses, taken
together, did not clearly demonstrate that her death penalty
views would prevent or substantially impair her ability to serve
as a capital juror in accordance with the trial court’s instructions
and her juror’s oath. (McKinnon, supra, 52 Cal.4th at p. 647;
Avila, supra, 38 Cal.4th at p. 533.) Crucially, B.R. indicated she
“wouldn’t want” to make a decision involving the death penalty,
not that she could not or would not make such a decision if
instructed to do so. B.R. also stated that her strongly held views
against the death penalty would make it difficult to vote for the
death penalty, but again, not that she could not or would not do
so. Our cases make clear that “mere difficulty in imposing the
death penalty does not, per se, prevent or substantially impair
the performance of a juror’s duties.” (Avila, supra, at p. 530.)
“A juror might find it very difficult to vote to impose the death
penalty, and yet such a juror’s performance still would not be
substantially impaired under Witt, unless he or she were
unwilling or unable to follow the trial court’s instructions by
weighing the aggravating and mitigating circumstances of the
case and determining whether death is the appropriate penalty
under the law.” (Stewart, supra, 33 Cal.4th at p. 447.)
      It is possible that Prospective Juror B.R.’s views might
have been clearly revealed by her response to Question 70,
which sought to determine whether prospective jurors would
“always” vote for life imprisonment versus the death penalty.
We have previously upheld the dismissal of jurors based on their
written responses to questions that clearly ask whether the

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“juror would automatically vote one way or the other
irrespective of the evidence.”            (People v. Wilson (2008)
44 Cal.4th 758, 787 (Wilson) [questionnaire asking jurors
whether, “ ‘[n]o matter what the evidence was,’ would they
‘ALWAYS vote for the death penalty’ or ‘for life without
possibility of parole.’ ”]; see id. at pp. 788–789.) But B.R. did not
respond to Question 70, and the remainder of her responses
provided no sufficient basis to conclude that B.R. was “not
willing or able to set aside . . . her personal views and follow the
law.” (Id. at p. 787.)
       The Attorney General argues that even if counsel’s failure
to object to B.R.’s excusal did not result in forfeiture of the claim,
counsel’s decision to submit the matter provided support for the
trial court’s assessment that B.R. was excusable for cause under
Witt. The Attorney General relies on People v. Schmeck (2005)
37 Cal.4th 240, 262 (Schmeck), in which we said trial counsel’s
submission of the question of a prospective juror’s qualification
to serve in a capital trial, like a failure to object, “ ‘does suggest
counsel concurred in the assessment that the juror was
excusable.’ ”     (Ibid., quoting People v. Cleveland (2004)
32 Cal.4th 704, 734–735.)
      This case is distinguishable from Schmeck. In Schmeck,
substantial evidence supported the trial court’s finding, based
on their voir dire responses and demeanor, that the prospective
jurors in question were disqualified under Witt. “All four
prospective jurors indicated at various points during their voir
dire that, in light of their views concerning the death penalty . . .
they were unable to state that they could consider imposing the
death penalty in this case as a reasonable possibility.”
(Schmeck, supra, 37 Cal.4th at p. 262.) Here, by contrast, the
court excused Prospective Juror B.R. based solely on her

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questionnaire responses, finding she “would not vote for death.”
As explained above, however, the evidence before the court was
insufficient to establish that B.R.’s death penalty views would
prevent or substantially impair her performance as a capital
juror. (McKinnon, supra, 52 Cal.4th at p. 643; Avila, supra,
38 Cal.4th at p. 531.) Moreover, during this portion of the jury
selection process, the court did not permit the parties to attempt
to rehabilitate any of the prospective jurors whom it had
identified as excusable for cause. Under the circumstances, trial
counsel’s decision to submit B.R.’s excusal does not alter our
conclusion that the excusal was improper.
       This case is likewise distinguishable from McKinnon, in
which trial counsel not only submitted the matter of prospective
jurors’ excusal for cause under Witherspoon/Witt based solely
on their written questionnaire responses, but also declined the
court’s offer to conduct voir dire. (McKinnon, supra, 52 Cal.4th
at p. 650.) In McKinnon, as in Schmeck, we reasoned that
counsel’s conduct “signaled concurrence” in the trial court’s
ruling; this concurrence, we said, “weigh[ed] heavily, along with
the substance of [the] questionnaire responses, in favor of a
determination on the merits that the excusal was proper.”
(McKinnon, at p. 650; see id. at p. 651.) In this case, as noted,
trial counsel was not given the option of conducting voir dire.
And more importantly, the substance of B.R.’s questionnaire
responses—or nonresponses, as the case may be—did not clearly
signal that B.R. held views about the death penalty that
rendered her “unable to deliberate fairly on the issue of penalty.”
(Id. at p. 649.) Under the circumstances, even if we were to
assume that counsel’s submission of B.R.’s excusal indicated
acquiescence in the court’s ruling, it would not “weigh heavily”
in favor of a finding that the ruling was proper. The trial court


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erred in concluding B.R. was disqualified based solely on her
written questionnaire responses; further inquiry was necessary
to determine whether her death penalty views actually
warranted excusal under Witherspoon/Witt.
       The Attorney General raises an alternative ground for
affirming the excusal: that B.R. failed to obey her juror oath and
respond to all the questions in the questionnaire. But even
assuming that we may affirm B.R.’s dismissal on a ground
entirely different from the ground the trial court cited, we reject
the Attorney General’s argument. The clerk administered the
following oath to each panel of prospective jurors: “You and each
of you do understand and agree that you will accurately and
truthfully answer under penalty of perjury all questions
propounded to you concerning your qualifications and
competency to serve as a trial juror in the matter now pending
before this Court.” In addition, after each panel was sworn, the
trial court made its prefatory remarks and advised the
prospective jurors of the importance of the juror questionnaire.
It stated first the use of the questionnaire would “cut down the
jury selection in this case by a number of days.” It then informed
the prospective jurors that “the attorneys will be reading the
questionnaires in great depth because they will be utilizing that
information to help them select the jury in this case.” The
“Instructions for Juror Questionnaire,” appearing on the second
page of the questionnaire, largely repeated the trial court’s
advisement of the questionnaire’s dual purpose and specifically
encouraged prospective jurors to provide complete answers.
Critically, however, the written questionnaire instructions
included the following additional advisement, which was not
provided orally by the trial court: “If you cannot answer a
question, please leave the response area blank. During the


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questioning, you will be given an opportunity to explain or
expand any answers if necessary.”
      The record does not reveal why Prospective Juror B.R. did
not answer a substantial number of the questions on her
questionnaire. She may have had difficulty answering the
questions and reasonably relied on the above advisement on the
questionnaire, with the expectation that when she and the other
prospective jurors returned to court, the judge and attorneys
would question her and give her an opportunity to explain her
blank responses. Absent an explanation from B.R. as to why she
failed to complete all of the questions, we cannot conclude she
failed to obey her oath. The unanswered questions provided a
reason for the trial court to voir dire B.R., but not justification
to excuse her for cause. (See, e.g., Wilson, supra, 44 Cal.4th at
p. 789 [a trial court should personally examine a prospective
juror when it has “reason to suspect a prospective juror is a poor
reader or may simply have misunderstood the questionnaire”].)
      Having found error, we turn to the question of remedy.
“The general rule is that, absent a showing of prejudice, an
erroneous excusal of a prospective juror for cause does not
mandate the reversal of judgment. This rule is based on the
principle that a ‘[d]efendant has a right to jurors who are
qualified and competent, not to any particular juror.’ [Citation.]
But . . . under existing United States Supreme Court precedent,
the erroneous excusal of a prospective juror for cause based on
that person’s views concerning the death penalty automatically
compels the reversal of the penalty phase without any inquiry
as to whether the error actually prejudiced defendant’s penalty
determination. (Gray, supra, 481 U.S. at pp. 659–667 (opn. of
the court); id., at pp. 667–668 (plur. opn. of Blackmun, J.); id.,
at p. 672 (conc. opn. of Powell, J.).)”         (Riccardi, supra,

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54 Cal.4th at p. 783; see People v. Woodruff (2018) 5 Cal.5th 697,
745.) In accordance with this precedent, we must reverse the
penalty judgment.23

      B. Guilt Phase Issues

         1. Defendant’s Motion for Self-Representation
      Defendant argues that the trial court committed
reversible error in denying her request for self-representation
under Faretta v. California (1975) 422 U.S. 806. The claim is
without merit.

             a. Factual and procedural background
      On Monday, July 20, 1998, during the morning session on
the second day of the prosecution’s case-in-chief, the prosecutor
played for the jury a portion of the audiotape of defendant’s
interview with San Jacinto Police Detective Frederick
Rodriguez conducted on the day of the homicides. Sometime
after the morning recess, at lead defense counsel Jay
Grossman’s request, the trial court conducted an in camera
hearing with only Grossman and cocounsel David Macher
present. Grossman informed the court that defendant was
dissatisfied with counsel’s representation and that he had


23
      Defendant also contends that the court failed to make a
case-specific determination concerning whether group voir dire
was practicable, in violation of Code of Civil Procedure section
223, and failed to conduct a voir dire adequate to identify
prospective jurors who could not be impartial. As a result,
defendant contends, she was denied a fair and impartial jury at
the penalty phase in violation of article I, section 16 of the state
Constitution and the Sixth and Fourteenth Amendments to the
federal Constitution.     Because we conclude the penalty
judgment must be reversed due to Witherspoon/Witt error, we
need not address this contention.


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explained her options, one of which was to request self-
representation under Faretta v. California, supra, 422 U.S. 806
(Faretta).   Grossman had mentioned the option of self-
representation because “the things that she’s asking us to do,
while not unethical, are simply not in her best interest.”
Defendant told counsel that she “wanted to represent herself
and wanted to talk with the Court.” Grossman added, “this is a
continuing problem [that is] exacerbated every day when there’s
more testimony.” Cocounsel Macher stated he would object to a
Faretta motion as untimely and not in defendant’s best interest.
The court indicated it would allow defendant to be heard on her
request later that day. After the hearing concluded, the
remainder of the audiotape of defendant’s police interview was
played to the jury.
      During the lunch recess, the court held a hearing under
Marsden and Faretta. Lead counsel Grossman informed the
court that, while the audiotape was being played before the jury
that morning, defendant mentioned for the first time that she
believed the voice on the audiotape of her police interview was
not hers. Grossman and cocounsel Macher later met with
defendant in a holding cell. According to Grossman, defendant
told them that the audiotape was a fraud, that the prosecution
was trying to frame her for the murders, and that she expected
her attorneys to call witnesses to prove the audiotape was a
fraud.
      Grossman informed the court: “I have no such witnesses
and there’s never been a suggestion that that is not her voice on
the tape. And we tried to explain that to [defendant]. She then
said that if we wouldn’t do it, basically it was her intention to do
it by way of either testifying or managing the case on her own.”
Grossman continued: “[W]e have no witnesses who can contest

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the validity of that tape. I don’t know who to call, no provisions
have been made to do that because, frankly, there was never any
expectation that this wasn’t her voice on the tape. [¶] And I
tried to talk to [defendant] about . . . recognizing her voice. I
know I’m not a witness, but the information that was . . . being
conveyed in that tape is of the nature that I told her I would find
hard to believe a jury would believe the San Jacinto Police were
getting somebody to invent the names of the children, the ages,
the history with her husband, things like that. [¶] [Defendant]’s
very adamant that it’s a fraud and insists that we go forward in
some way to prove that it’s a fraud, and . . . this is another
instance, in her own mind, that indicates to her that counsel is
not making an effort to try to protect her legal rights and
advance her interests in this case.”
      Grossman explained to the court it would be “the worst
possible thing” for the defense to present evidence that the
prosecution framed defendant for the murders and to also argue
“the DNA and other things have all been fabricated.” According
to counsel, as of that morning, defendant was “adamant” that
“she wanted to at least explore this issue with the Court, and
again indicate her dissatisfaction to the Court.”
      Defendant told the court that she had never heard the
audiotape of her interview with Detective Rodriguez before it
was played for the jury. Lead counsel Grossman informed the
court: “We have dealt with the tape issue, at least the statement
issues, before, although I don’t recall ever playing portions of the
tape to her in . . . jail. We did have the transcript, but it never
was brought to my attention that this was a fabrication.”
     The court asked defendant whether she was requesting to
represent herself, and she answered, “Yes.” The court noted


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that lead counsel Grossman had been assigned to defendant’s
case for two years, and the prosecution was “halfway” through
the presentation of evidence in its case-in-chief. The court also
stated that earlier that morning, it had overheard defendant
yelling at both her attorneys in a “very raised, angry voice” in a
holding cell directly adjacent to the courtroom, and asked
Grossman, “Is that a very fair characterization?” Grossman
answered, “Generally, yes.”
      The court asked Grossman what his “take on this” was,
and counsel said he believed defendant’s concern “is not one of
delay[;] her concern in her own mind is presenting what she
considers the true facts to be to this jury.” Grossman stated that
defendant had expressed no desire for a continuance, but
essentially insisted that he call witnesses he did not have in
order to dispute the accuracy of the audiotape of defendant’s
police interview. Grossman expressed frustration “that we are
almost at total loggerheads, ‘we’ meaning [defense counsel],
with [defendant] . . . . And there’s a widening gulf between what
she wants and what we can ethically do and what we think is in
her best interests in terms of possible penalty in this case.”
      Cocounsel Macher added that after working on
defendant’s case for two years, he considered her defense
theories “implausible,” “fantasy,” and “just not based in reality.”
Macher stated he could not present defendant’s theories in good
faith because her defense “would be a disaster for both guilt and
penalty, and we can’t do it.” The following colloquy then
occurred:
     “THE COURT: So we have a clear record, in your opinion
the defense that she wants presented, which she would like to
present on her own behalf, is one, in part, based upon fantasy?


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      “MR. MACHER: Your honor, from what we’ve been able
to see in two years of working on the case, I would agree that it’s
just not based in reality.
     “THE COURT: All right. [Defendant], are you telling me
you want to represent yourself today; is that what you’re saying?
      “[DEFENDANT]: Yes, Your Honor.
      “THE COURT: And how do you plan on doing that?
      “[DEFENDANT]: As I have already seen how Mr. Macher
conducted the cross-examination of Officer Blane Dillon, and
there’s questions that could have been asked direct to him in
regards to the timing, that he made like from San Jacinto Police
Station to the apartments. [¶] And there’s a couple questions
that we already have reports on that we could compare his
answers with, because those reports are dated October 27th,
1994. They’re very accurate.
      “THE COURT: All right. And you’re telling me that you
are—you feel that you are competent to proceed today, without
any further delay, in representing yourself?
     “[DEFENDANT]: From what I see in the way they have
conducted the case, yes, I think so. I think I would be.
       “THE COURT: All right. The Court is well aware of the
admonition pursuant to Faretta and the right to self-
representation. [¶] And Mr. Grossman, I don’t think I am even
going to go into it that far and advise her of the consequences of
self-representation and the detriments thereto. Obviously this
is a death penalty case, [defendant] knows that, and she would
not be given any special consideration. [¶] I’m not going to voir
dire her on that because . . . in my view of the situation, her
conduct today at this late stage is either an obstructionist tactic


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or one of delay. It’s tardy. [¶] [Defense counsel] have been on
this case for many, many, many months, and we’re halfway
through the prosecution’s case. And based upon the Marsden
request that got this far, and based upon her attitude that she
displayed to you in the holding cell today, that I overheard, as
far as the raised voices—and again, I didn’t hear what she said,
I just heard her yelling at you—and her demeanor and manner
during the Marsden hearing, it’s clear to me that that request
for self-representation is not in good faith, and I feel that it is
one to obstruct these proceedings and it is untimely. And that
request is . . . denied.”24

             b. Prior Marsden hearings
      On May 20, 1996, defense conflict panel attorneys Jay
Grossman and Frank Peasley were appointed to represent
defendant; thereafter, conflict attorney David Macher
substituted for Frank Peasley.          Defendant made four
unsuccessful attempts under Marsden to substitute appointed
counsel Grossman and Macher at the in camera hearings held
on April 2, May 4, July 14, and July 16, 1998.25

              i. April 2 hearing
     At the April 2, 1998, Marsden hearing, the trial court
addressed defendant’s letter to the court expressing her


24
      We presume the trial court was referring to defendant’s
Marsden motion that it heard and denied on July 16, 1998, the court
day immediately preceding the current Faretta hearing. We discuss
this hearing below.
25
      These hearings were held before two different judges: The
Honorable Vilia G. Sherman conducted the trial proceedings
until she recused herself on June 16, 1998. Thereafter, the
Honorable Patrick F. Magers conducted defendant’s trial.


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concerns about the defense DNA testing and the possibility that
samples were lost when the DNA facility that conducted the
analyses relocated its laboratory. Based on counsel Macher’s
representation that no DNA samples were lost during the move,
the trial court found that defendant had a misunderstanding
about the samples and “no grounds here for a Marsden motion.”
       When the trial court asked defendant if she had anything
else to call to the court’s attention, defendant answered that she
believed the contents of police reports she possessed contained
errors. The trial court explained to defendant that she should
discuss her concerns with her attorneys.            Lead counsel
Grossman informed the trial court that defendant and counsel
had differences with respect to defense strategy and trial tactics,
including whom to subpoena as witnesses. Counsel said that he
suspected that prior counsel had similar problems with
defendant and that prior to trial the issue of “who is in charge of
the trial, the attorneys or [defendant]” will have to be resolved.
      The trial court informed defendant that “[t]he law is that
the attorneys have the last word on everything to do with tactics
and strategy.” Defendant told the court, “I’m not dissatisfied
with [her attorneys], and I do not have a conflict with them.”
She added, “All I really want is on the record two or three of the
[police] reports. That’s about it. That is what I’m asking for.”
Because defendant did not have the reports with her at the
hearing, the trial court agreed to talk with her about them at
the next proceeding.

                ii. May 4 hearing
      At counsel Macher’s request, the trial court held a
Marsden hearing to address counsel’s concern that after he and
lead counsel Grossman met for hours with defendant, she voiced


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“substantial dissatisfaction” with counsel, which “carried over”
to that morning’s proceedings. Macher explained that although
he and Grossman reviewed the evidence with defendant more
than once and explained their defense theory, defendant told
them that she would prepare her own defense. Neither
Grossman nor Macher believed the theory defendant wanted to
present was “based upon any factual matters whatsoever.”
Macher further informed the trial court that defendant said she
would be ready to proceed “this morning.” Both Grossman and
Macher believed that any Faretta request was untimely and
believed defendant’s dissatisfaction related to how counsel
planned to conduct the defense rather than a breakdown in the
attorney-client relationship.
       Defendant said that she was “somewhat dissatisfied” with
defense counsel because apparently none of the defense
witnesses included those whom she suggested. When the court
asked defendant whether she wanted new attorneys or to
represent herself, defendant answered, “No. Well, I’m just
explaining the reason as to why I am somewhat dissatisfied.”
Defendant also stated that she planned to meet with current
counsel in the upcoming week to discuss her concerns and asked,
“[C]an I ask the Court if I can hold my decision to see if I want
a new counsel or not until Thursday after I speak to them?”
When the court asked for her to clarify what she was asking,
defendant stated, “Just for four days to find out if I will remain
with them, stay with them until the proceedings start, until the
trial, whatever.” The court explained that it was presently
conducting pretrial motions and that “[t]oday’s the date set for
trial.” Macher expressed concern that defendant might not have
understood that if she waited to bring a Faretta motion until
after she met with counsel during the week, which would occur


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after trial commenced, that the motion would be untimely. The
following colloquy ensued:
      “THE COURT: Well, I was about to take that up with her,
but I’m not clear on exactly what it is she’s asking for, to keep
you until she hires somebody else or to represent herself in trial.
      So, [defendant], do you want to act as your own attorney
and cross-examine witnesses and conduct the trial and call
experts and be responsible for getting witnesses here and, in
other words, do everything that Mr. Macher and Mr. Grossman
are doing for you now? Is that what you’re asking?
      “[DEFENDANT]: Well, from the place that I am at it’s
pretty hard for me to bring witnesses in.
      “THE COURT: Exactly. [¶] So are you asking me to
replace Mr. Grossman and Mr. Macher with other attorneys? Is
that what you’re asking?
       “[DEFENDANT]: No. I was just asking for a little time,
but if you say we already start trial today—
      “THE COURT: All right. A little time for what?
     “[DEFENDANT]: To speak to them and show them a
couple of defense points that they could use.
      “THE COURT: Well, I think that you will be speaking to
them a great deal during this trial, and I’m sure they’ll be
listening to you and the things you want them to do. They may
not necessarily agree with you, and as your expert lawyers, it’s
up to them to decide how to conduct the case. You need to
understand that.
      “[DEFENDANT]: Oh, okay. Okay.”
     Before the trial court made its findings, Macher added
that he and lead counsel Grossman reviewed a list of eight

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potential witnesses whom defendant identified as “very
important” to her defense but found none relevant to any
potential guilty phase issues. Macher also informed the court
that defendant’s theory “makes no legal sense and we cannot
pursue it” and that the views he expressed would not change
before he and Grossman next met with her. Defendant told the
trial court that she understood all that Macher had said.
      The trial court ruled, “To the extent that this was a
Marsden motion, which I don’t believe it was in the true essence
of the word, the motion is denied.” The court found no
breakdown in the attorney-client relationship, because it found
defendant would have the same complaints with “any other
attorneys.” Next, the trial court ruled that it “[didn’t] truly
believe” defendant was making a Faretta motion; in the
alternative, any Faretta motion was untimely.

                 iii. July 14 hearing
      At defendant’s request, the trial court conducted a
Marsden hearing. Defendant repeated her concerns about lost
DNA samples, specific DNA tests, and the list of individuals she
wanted counsel to call to testify on her behalf. Cocounsel
Macher reported that defendant “has been consistently confused
despite our repeated explanations regarding the purported lost
DNA.” He explained that “DNA evidence has never been lost in
this case either by the government or by the defense team” and
that the defense previously litigated all DNA issues, which were
preserved for appeal. In addition, Macher, Grossman, and the
defense investigator met “face-to-face” with defendant for two
hours at the beginning of May to review her list of potential
witnesses and unanimously agreed that none of the witnesses
would be relevant to the guilt phase defense. Having found no



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grounds for substitution of counsel, the trial court denied the
Marsden motion.

                 iv. July 16 hearing
      On the first day of the prosecution’s case-in-chief, after the
prosecution’s second witness was excused, and out of the
presence of the jury, lead counsel Grossman informed the trial
court that he wanted to address a “Marsden issue.” When
Grossman asked the prosecutor to leave (so the trial court could
conduct a confidential Marsden hearing), defendant said she
wanted him to stay. The trial court cleared the courtroom of
everyone except defendant and her counsel. Grossman informed
the trial court that during trial, defendant expressed
dissatisfaction “with the defense efforts in this case.” Grossman
then stated, “Apparently, part of her complaint is that she wants
to tell [the prosecutor] that he knows she’s innocent and is
prosecuting her improperly. I said, I didn’t think that was a
wise thing for her to tell him because, in my opinion, I don’t
think he believes that.”
       Defendant repeated her concerns about the DNA testing
and specifically that her attorneys did not dispute the DNA
testing results with their own defense expert. Macher informed
the trial court that the DNA admissibility issues had been
litigated before and decided by Judge Sherman and were
preserved for appeal. Defendant then complained, “It appears
pretty unfair that the DA has so much proof. It’s like me being
denied the access to an expert.” Grossman then explained that
“[defendant]’s problem is that she feels that we should have the
laboratory that did the analysis for us come to court. [¶] The
problem is that their analysis in many ways is the same, as
harmful as, or more harmful as the state laboratory. And I tried



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to explain to her this morning, there’s no sense calling somebody
that hurts us.” Grossman and Macher made a tactical decision
to not present the defense DNA test results.
      The trial court asked defendant if she had anything
further, and she stated, “I just don’t agree with the way they are
conducting the whole entire case. The way they are handling
my case.” The trial court ruled, “The Marsden request, if that’s
a Marsden request, it will be denied.”

            c. Discussion
     Defendant contends the court erred in denying her
midtrial request for self-representation under Faretta, supra,
422 U.S. 806. We find no error.
      In Faretta, supra, 422 U.S. 806, the United States
Supreme Court held that the Sixth Amendment to the United
States Constitution gives criminal defendants the right to
represent themselves. Following Faretta, in People v. Windham
(1977) 19 Cal.3d 121 (Windham), this court considered
questions concerning the timing of a defendant’s self-
representation request. We held that “in order to invoke the
constitutionally mandated unconditional right of self-
representation a defendant in a criminal trial should make an
unequivocal assertion of that right within a reasonable time
prior to the commencement of trial.” (Id. at pp. 127–128.)
Otherwise, “once a defendant has chosen to proceed to trial
represented by counsel, demands by such defendant that he be
permitted to discharge his attorney and assume the defense
himself shall be addressed to the sound discretion of the court.”
(Id. at p. 128; accord, e.g., People v. Bradford (1997)
15 Cal.4th 1229, 1365 [“[A]lthough in a criminal trial a
defendant has a federal constitutional, unconditional right of


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self-representation, in order to invoke that right, he or she must
make an unequivocal assertion of that right within a reasonable
time prior to the commencement of trial.”].)26
      We have held that “timeliness for purposes of Faretta is
based not on a fixed and arbitrary point in time, but upon
consideration of the totality of the circumstances that exist in
the case at the time the self-representation motion is made. An
analysis based on these considerations is in accord with the
purpose of the timeliness requirement, which is ‘to prevent the
defendant from misusing the motion to unjustifiably delay trial
or obstruct the orderly administration of justice.’ ” (People v.
Lynch, supra, 50 Cal.4th at p. 724.) In exercising its discretion
to grant or deny an untimely self-representation request, we
have held the trial court should consider, among other factors,
“the quality of counsel’s representation of the defendant, the
defendant’s prior proclivity to substitute counsel, the reasons for
the request, the length and stage of the proceedings, and the
disruption or delay which might reasonably be expected to
follow the granting of such a motion.” (Windham, supra,
19 Cal.3d at p. 128.) When a court denies an untimely request,



26
      After defendant’s trial, the United States Supreme Court
held in Indiana v. Edwards (2008) 554 U.S. 164, 174–178, that
a defendant may be denied the right to self-representation if he
or she, although competent to stand trial, suffers from a severe
mental illness and is unable to conduct trial proceedings without
assistance of counsel. In People v. Johnson (2012) 53 Cal.4th
519, 527–530, we adopted the Edwards standard for competence
to represent oneself at trial. This case, however, presents no
issue under Edwards or Johnson; neither the court nor the
parties addressed the question of defendant’s mental condition
in connection with her Faretta motion.


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its ruling is reviewed for abuse of discretion. (See People v.
Valdez (2004) 32 Cal.4th 73, 103 (Valdez).)
       Defendant does not dispute that whether to grant an
untimely Faretta motion is addressed to the trial court’s
discretion. But she argues that the only factor the trial court
may properly consider is the potential for delay or other
disruption resulting from the granting of the motion. She
argues Windham was wrong to permit courts to consider other
factors—an error, she contends, that is traceable to a mistaken
assumption that the self-representation right evaporates once
trial has begun. We agree with defendant that the potential for
delay and disruption is an important factor in the analysis, but
we disagree that it is the only factor the court may consider. We
see no reason why a court may not also consider, for example,
whether the potential disruption is likely to be aggravated,
mitigated, or justified by the surrounding circumstances,
including the quality of counsel’s representation to that point,
the reasons the defendant gives for the request, and the
defendant’s proclivity for substituting counsel. (See Windham,
supra, 19 Cal.3d at p. 128.) Defendant cites no authority, and
we are aware of none, to suggest that these considerations are
impermissible under Faretta.
      Here, defendant made her request on the second day of the
prosecution’s case-in-chief and approximately two years after
lead counsel Grossman and cocounsel Macher were appointed to
represent her. The request was untimely under Windham. (See
Valdez, supra, 32 Cal.4th at p. 102 [Faretta motion made
“moments before jury selection was set to begin” was untimely];
People v. Horton (1995) 11 Cal.4th 1068, 1110–1111 (Horton)
[defendant’s motion for self-representation was untimely when
made on the date scheduled for trial after numerous

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                  Opinion of the Court by Kruger, J.


continuances]; People v. Frierson (1991) 53 Cal.3d 730, 742
[defendant’s request for self-representation was untimely when
made on the eve of trial, over 10 months after appointment of
trial counsel]; People v. Burton (1989) 48 Cal.3d 843, 853
[defendant’s Faretta request was untimely when made “after the
case had been called for trial, both counsel had answered ready,
and the case had been transferred to a trial department for
pretrial motions and jury trial” and jury selection was to
commence the next day]; cf. Avila v. Roe (9th Cir. 2002) 298 F.3d
750, 753 [a Faretta request is timely if made before jury is
empaneled, unless it is shown to be for the purpose of delay].)
      Defendant argues that her delay in requesting self-
representation was justified because she had not heard the
audiotape of her interview with Detective Rodriguez until the
prosecutor played it for the jury. She asserts that she had no
prior opportunity to discuss its authenticity with counsel. Lead
counsel Grossman, however, informed the trial court that he
previously reviewed the transcript of the statements on the
audiotape with defendant in her jail cell and that she had never
previously complained that the audiotape was a fabrication. If
defendant believed that any statements were falsely attributed
to her, she had prior opportunity to inform counsel of her
concern that the police and prosecution fabricated the
audiotape. Defendant’s delay was not justified on this ground.
      Because defendant’s Faretta request was untimely, we
must consider whether the court abused its discretion in
denying the request. No abuse of discretion has been shown.
The source of defendant’s dissatisfaction with her attorneys was
their unwillingness to make unsupported attacks on the
prosecution case that in their professional judgment would have
been contrary to their client’s interests. Defendant had

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previously expressed similarly unfounded complaints about
counsel and sought their replacement. Although defendant did
not explicitly request a continuance if she took on her own
defense, and asserted she “th[ought]” she was “competent” to
take over her defense immediately, the defense she apparently
intended to take on—attempting to show that the tape of her
police interview had been fabricated—would by its nature
involve delay to investigate and secure witnesses. The trial
court reasonably concluded that defendant’s midtrial Faretta
request was made for purposes of disruption or delay and that
it would indeed have that effect.            Considering these
circumstances, the court did not abuse its discretion. (See
Valdez, supra, 32 Cal.4th at p. 103; Horton, supra, 11 Cal.4th at
pp. 1110–1111; People v. Burton, supra, 48 Cal.3d at pp. 853–
854; Windham, supra, 19 Cal.3d at pp. 129–130.)

          2. Jury Instructions on the Degree of Murder and on
             Motive
      Defendant contends that the trial court’s instructions to
the jury on doubt as to the degree of murder (CALJIC No. 8.71),
unanimity as to first or second degree murder (CALJIC
No. 8.74), and motive (CALJIC No. 2.51) were flawed and
diluted the prosecution’s burden of proof. CALJIC Nos. 8.71 and
8.74, she contends, were confusing and ambiguous regarding the
degree of murder, and CALJIC No. 2.51 permitted the jury to
find guilt based on motive alone and also placed a burden of
proving innocence on the defense. Defendant argues that these
instructional errors require reversal of her death judgment.
      As an initial matter, the Attorney General contends
defendant has forfeited these issues by failing to object to the
challenged instructions at trial. We agree in part. In general, a
defendant may raise for the first time on appeal instructional

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error affecting his or her substantial rights. (Pen. Code, § 1259;
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34.)
But “[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.”
(People v. Hillhouse (2002) 27 Cal.4th 469, 503.)              Here,
defendant’s claim that CALJIC No. 2.51 improperly permitted
the jury to find her guilty based on evidence of motive alone is
forfeited because, at bottom, it is an argument that the
instruction was incomplete. Defendant was obligated to request
a clarifying instruction and failed to do so, thereby forfeiting her
appellate challenge. (Guerra, supra, 37 Cal.4th at p. 1134.) Her
other claims, asserting the instructions were incorrect, are
reviewable despite the lack of an objection below. (People v.
Gamache (2010) 48 Cal.4th 347, 375, fn. 13.) In any event, all
of the claims fail on the merits.

             a. CALJIC Nos. 8.71 and 8.74
      Since defendant’s trial, we have twice addressed
troublesome language in the 1996 revised version of CALJIC
No. 8.71 given in this case.        (People v. Salazar (2016)
63 Cal.4th 214, 246–248 (Salazar); People v. Moore (2011)
51 Cal.4th 386, 410–411 (Moore).) As given here, the instruction
told the jury, “If you are convinced beyond a reasonable doubt
and unanimously agree that the crime of murder has been
committed by a defendant, but you unanimously agree that you
have a reasonable doubt whether the murder was of the first or
of the second degree, you must give the defendant the benefit of
that doubt and return a verdict fixing the murder as of the




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                  Opinion of the Court by Kruger, J.


second degree.”27 As we have acknowledged, the references to
unanimity in this instruction are potentially confusing in light
of their apparent contradiction of other instructions that
correctly inform the jury that it must unanimously acquit the
defendant of the greater offense before it may render a verdict
on a lesser included offense. We have concluded, however, that
in light of the totality of the instructions there is no reasonable
likelihood any confusion created by CALJIC No. 8.71 could be
detrimental to the defendant. “If anything, [this instruction]
skewed the deliberations in [defendant’s] favor. [It] could
reasonably be understood to tell the jurors that if they all agreed
there was reasonable doubt as to the degree of the crime,
because some jurors were not convinced, then defendant was
entitled to the benefit of the doubt and a verdict of the lesser
offense.” (Salazar, supra, 63 Cal.4th at p. 247.) We reach the
same conclusion in this case.
      Like the defendants in Moore and Salazar, defendant also
argues that CALJIC No. 8.71 could have misled some jurors into
believing they were foreclosed from giving her the “benefit of the
doubt” if other jurors were convinced beyond a reasonable doubt
that she was guilty of first degree murder. The unconvinced
jurors, defendant argues, would conclude from the unanimity
language in the instruction that they could not give her the
benefit of the doubt because not all jurors were unsure of the
degree of the murder, and therefore the jurors with a doubt
would be required to vote for first degree murder. This
argument also fails. As we explained in Salazar, “No logical


27
      The trial court did not give the jury the concluding
bracketed portion of the pattern instruction, which read “as well
as a verdict of not guilty of murder in the first degree.”


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reading of the instructions leads to a compelled verdict of first
degree murder.” (Salazar, supra, 63 Cal.4th at p. 247.)
      Viewing the jury instructions as a whole, as we must
(People v. Huggins (2006) 38 Cal.4th 175, 192), we conclude the
jurors would have understood that they must be individually
convinced of defendant’s guilt beyond a reasonable doubt before
convicting her of first degree murder. (See CALJIC Nos. 8.74
[requiring a jury to unanimously agree on the degree of murder
before returning a murder verdict]; 17.40 [requiring a juror to
make an individual decision and not decide a question by merely
following the majority vote]; 17.43 [directing the jury to address
any question during deliberation to the trial court]; and 8.30
[instructing the jury that unpremeditated second degree murder
was an intentional unlawful killing with malice aforethought
“but the evidence is insufficient to prove deliberation and
premeditation”].) Any jurors who might personally have been
persuaded to give defendant the benefit of the doubt regarding
the degree of murder when other jurors had concluded she was
guilty of first degree murder would have understood that they
could not properly vote to convict her of first degree murder
because, in their view, the prosecution had not proven her guilt
of that offense beyond a reasonable doubt. (See also People v.
Musselwhite (1998) 17 Cal.4th 1216, 1262–1263 [instruction
nearly identical to CALJIC No. 2.02, which was given in this
case, provided adequate benefit-of-the-doubt instruction under
People v. Dewberry (1959) 51 Cal.2d 548, 555–557]; People v.
Friend (2009) 47 Cal.4th 1, 55 [despite the trial court’s failure to
give CALJIC No. 8.71, in light of the giving of CALJIC Nos. 8.79
and 17.10, among others, the jury was adequately instructed on
the Dewberry benefit-of-the-doubt principle].) In the scenario
defendant envisions, a jury’s reasonable understanding of the


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instructions as a whole would result in a hung jury, not a
directed verdict for first degree murder, as she appears to argue.
      Defendant lastly contends that CALJIC No. 8.74, which
told the jury it “must agree unanimously as to whether she is
guilty of murder of the first degree or murder of the second
degree” before returning a verdict, was flawed because it did not
clarify the confusion caused by giving CALJIC No. 8.71, nor did
it mention the requirement to find the degree of murder beyond
a reasonable doubt.28 As a result, she argues, CALJIC No. 8.74
diluted the prosecution’s burden of proof. We disagree. As we
have explained, CALJIC No. 8.71 is a benefit-of-the-doubt
instruction concerning the role of the juror’s individual
judgment in deciding between first and second degree murder.
(Moore, supra, 51 Cal.4th at p. 411.) CALJIC No. 8.74 properly
instructed the jurors on returning a verdict. Specifically, the
instruction correctly informed the jurors that if they
unanimously found defendant guilty of murder, they had to
unanimously agree on the degree of the murder before returning
a verdict.
       Nothing in CALJIC No. 8.74 contradicted other
instructions clarifying the requirement that the jurors
determine whether the prosecution proved defendant’s guilt of
first degree or second degree murder beyond a reasonable doubt.
Jurors were instructed that the presumption of innocence places
on the prosecutor “the burden of proving [defendant] guilty

28
      CALJIC No. 8.74, as given in its entirety, provided:
“Before you may return a verdict in this case, you must agree
unanimously not only as to whether the defendant is guilty or
not guilty, but also, if you should find her guilty of an unlawful
killing, you must agree unanimously as to whether she is guilty
of murder of the first degree or murder of the second degree.”


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beyond a reasonable doubt” (CALJIC No. 2.90) of “the crime of
murder” (CALJIC No. 8.10). CALJIC No. 8.70 instructed the
jury that if it found defendant guilty of murder, it had to decide
whether the murder was “of the first or second degree.” The
jurors were instructed on the elements of first degree murder
(CALJIC Nos. 8.11, 8.20) and second degree murder (CALJIC
Nos. 8.30, 8.31). Finally, the jurors were instructed under
CALJIC No. 2.01 (sufficiency of circumstantial evidence) that
each fact on which an inference of guilt rests must be proved
beyond a reasonable doubt. We presume jurors understand and
follow the instructions they are given, including the written
instructions. (Wilson, supra, 44 Cal.4th at p. 803.) There is no
likelihood the jurors misinterpreted the instructions concerning
the prosecutor’s burden of proving first degree or second degree
murder in a manner that violated defendant’s constitutional
rights.

             b. CALJIC No. 2.51
       Defendant contends that the trial court’s instruction on
motive under CALJIC No. 2.5129 improperly allowed the jury to
find her guilty based on motive alone and shifted to her the
burden of proving an absence of motive in order to establish her
innocence, thereby undermining the prosecution’s burden of
proof. We have previously rejected these claims (People v. Letner
and Tobin (2010) 50 Cal.4th 99, 191), and defendant provides no
persuasive reason to revisit that conclusion.


29
      CALJIC No. 2.51 states: “Motive is not an element of the
crime charged and need not be shown. However, you may
consider motive or lack of motive as a circumstance in this case.
Presence of motive may tend to establish the defendant is guilty.
Absence of motive may tend to show the defendant is not guilty.”


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          3. Superfluous Multiple-Murder Special-
             Circumstance Findings
      Citing People v. Halvorsen (2007) 42 Cal.4th 379, 422,
defendant correctly notes that two of the three multiple-murder
special-circumstance allegations were erroneously charged and
found true in this case. “In numerous cases involving the same
kind of error, we have stricken the superfluous finding[s] and
concluded the defendant suffered no prejudice. [Citations.]”
(Ibid.) We do so again in this case.

      C. Penalty Phase Issues
      Defendant raises several claims of error at the penalty
trial. Because we conclude the penalty judgment must be
reversed for Witherspoon/Witt error, we do not address these
claims. (See Riccardi, supra, 54 Cal.4th at p. 839.)

                      IV. DISPOSITION
      We affirm the judgment as to guilt, vacate two of the three
multiple-murder special-circumstance findings, reverse the
judgment as to the sentence of death, and remand the matter
for a new penalty determination.
                                      KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
MAURO, J.*


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


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

Name of Opinion People v. Buenrostro
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S073823
Date Filed: December 3, 2018
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Patrick F. Magers

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Nina Rivkind, Nina
Wilder and Arcelia Hurtado, Deputy State Public Defenders, for Defendant and Appellant.

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

Nina Wilder
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9211
