Filed 2/11/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S143743
           v.                        )
                                     )
HUBER JOEL MENDOZA,                  )
                                     )                        Stanislaus County
           Defendant and Appellant.  )                      Super. Ct. No. 1034046
____________________________________)


        A jury found defendant Huber Joel Mendoza guilty of the first degree
premeditated murders of Alicia Martinez, Carlos Lopez, and Carmillo (Camarino)
Chavez (Pen. Code, § 187),1 and found multiple-murder special-circumstance
allegations to be true (§ 190.2, subd. (a)(3)), as well as allegations that in each
offense defendant used a firearm, inflicting great bodily injury or death. (Former
§ 12022.53, subd. (d).) The jury also convicted defendant of shooting at an
occupied building. (§ 246.) Finally, the jury convicted defendant of assault with a
firearm on Guadalupe Martinez (§ 245, subd. (a)(2)) and found true firearm use
(former § 12022.5, subd. (d)), and great bodily injury (former 12022.7, subd. (a))
enhancement allegations.




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




                                           1
       Prior to the guilt phase of trial, a separate jury returned a verdict finding
defendant competent to stand trial.
       Subsequent to the guilt phase of trial, a sanity trial was conducted and the
jury returned a verdict finding defendant sane at the time of the offenses.
       At the penalty phase, the jury returned verdicts imposing a penalty of death.
The trial court sentenced defendant to death for the multiple murders and to a
stayed term of 17 years in prison for the noncapital offenses and enhancements.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
                                      I. FACTS

       A. Guilt phase

           1. Prosecution evidence
       Defendant‟s responsibility for the killing of three persons and injury of a
fourth was not disputed. Evidence regarding the crime came principally in the
form of testimony from the surviving victim, Guadalupe Martinez; from
defendant‟s estranged (and later divorced) wife, Cindi Martinez; from ballistics
experts; and from items seized from defendant‟s van and residence.
       The evidence showed that about 3:00 o‟clock in the morning on December
12, 2001, defendant arrived at the home of Cindi‟s family in Modesto. Cindi did
not live there, but her parents Alicia and Jose Luis Martinez, younger sister
Guadalupe Martinez, cousin Carlos Lopez, and Cindi‟s boyfriend Carmillo
(known to the witnesses as Camarino) Chavez, did. Defendant was attired in a
bulletproof vest, helmet, and camouflage pants, and was armed with three
semiautomatic firearms and a large quantity of ammunition. After knocking off
the handle of the front door with a heavy instrument, he broke the front picture
window of the home and entered the living room. He fired multiple shots at




                                           2
Carlos Lopez, who had been sleeping on the sofa and fled as far as the nearby
kitchen before defendant shot him to death.
      Defendant proceeded down the hall to Camarino‟s bedroom, where he shot
through the door and then also shot Camarino at close range, killing him.
Guadalupe testified that before hearing the shots in Camarino‟s bedroom she heard
defendant yelling that “you‟re messing with the wrong guy” and that “you should
not have messed around with a married woman.”
      The flying bullets had penetrated Guadalupe‟s bedroom and she found that
she had been shot in the arm. Guadalupe, then 16 years old, cried out for her
mother. Defendant called her name, asking if she was injured. He spoke in a
normal tone, trying to convince her to open her door. Guadalupe refused, but then
tried to open the door, which was jammed. Defendant directed her to move aside
and he forced the door open. He instructed her to get on her bed and cover herself,
but she refused, thinking he would kill her. He asked where her parents were. She
responded that she did not know, but that her father may have left for work.
      Defendant walked down the hall to the parents‟ bedroom. He tried to
convince Guadalupe‟s mother, Alicia, to come out of the bedroom. When she
refused, defendant directed Guadalupe to ask Alicia to open the door, promising
not to hurt her. Guadalupe complied. The door opened, and Guadalupe saw
defendant push Alicia down the hall to the living room. Alicia was weeping,
asking what he was going to do to them, and asking him not to hurt Guadalupe.
When defendant, Alicia, and Guadalupe arrived in the living room, defendant
asked how Alicia could permit Cindi to see someone else while she was still
married to defendant, especially to meet the man at her home. Alicia responded
that she had told Cindi she did not approve of her relationship with Camarino, and
would never approve of her starting another relationship when she was still



                                         3
married. Alicia told defendant she loved him. Defendant shot her in the head,
killing her.
       Defendant asked Guadalupe where her father was, and Guadalupe again
said she thought he had left for work. Defendant searched the master bedroom,
but did not find Jose Luis, who had fled outside.
       Guadalupe then asked defendant to take her to a hospital for treatment. At
first he tried unsuccessfully to telephone 911 on her behalf, then agreed to drive
her to the hospital. They entered defendant‟s van and drove away, but not in the
direction of the hospital.
       Defendant telephoned Cindi who lived apart from defendant. Guadalupe
heard him tell Cindi he had killed all of her family and that she would be next.
Defendant‟s oldest son called defendant back and asked him not to hurt
Guadalupe. Defendant then drove to his brother‟s house, stopping in front of the
house and telephoning to say that he had committed a terrible crime and that he
was going to leave the brother $11,000 in cash wrapped in a diaper. He threw a
white diaper through the window and drove off, again not in the direction of the
hospital.
       Guadalupe repeatedly asked to be taken to a hospital. A bone in her arm
had emerged through the skin. Defendant ultimately drove to the hospital, parked
the van, and opened the door for her. She walked to the emergency room, where
she was treated for severe gunshot injuries to her arm.
       Guadalupe testified that she had liked defendant, who always had been nice
to her, although he did not spend much time at family gatherings. Defendant spent
most of his time with his sons, whom he referred to as his “angels.” Guadalupe
explained that she had never seen him yelling before the night of the crimes, and
even then, he acted normally when he spoke to her. She acknowledged that at the
preliminary hearing she had testified that at the time of the crimes, defendant did

                                          4
not seem like the person she had known all her life, but that when they were in the
van, defendant seemed to return to his more normal demeanor. She testified at
trial that he started crying after speaking with his son and repeatedly apologized to
her. He told her he wanted her to take care of his angels.
       A uniformed hospital security guard, Eustaquito Ramos, testified that
having been informed that a gunshot victim had been admitted and that the person
who brought her could be in a van in the parking lot, he went outside to the lot.
Defendant approached, asking to speak to him. Defendant stated that he had just
shot his mother-in-law a few minutes earlier and wanted to turn himself in. He
handed Ramos some handcuffs. When Ramos asked why this had happened,
defendant said he did not want to say anything else. Defendant‟s demeanor was
cooperative and calm.
       Ballistics evidence indicated that 73 rounds had been fired at the scene of
the killings. There were fifteen 7.62-caliber rifle rounds outside the house in the
flower bed. There was broken glass in the living room, the kitchen, and down the
hallway. On a coffee table in the living room, officers found a Russian SKS 7.62-
caliber assault rifle. The safety was off and the weapon had been fired until it was
empty. There was an empty 30-round magazine clip inserted in the weapon. On a
chair in the living room was a Ruger P-89 nine-millimeter semiautomatic handgun
with a magazine holding 10 rounds. The slide was in a “clocked back” position
and the weapon had been fired until it was empty. Also in the living room was a
.45-caliber magazine for a Colt .45 handgun. The weapons and magazines all
were empty. There were eleven 7.62-caliber rounds and one expended .45-caliber
shell casing in the living room.
       There were nine-millimeter shell casings in the kitchen and in the hallway,
along with bullet holes in the walls. Seventeen rounds had entered Guadalupe‟s
bedroom. Thirteen bullets had been fired from outside Camarino‟s bedroom into

                                          5
the room. In addition, seven nine-millimeter shell casings and two .45-caliber
shell casings had been fired from inside Camarino‟s room. Additional expended
shell casings and bullets were found in the master bedroom.
       When police officers searched defendant‟s van after the crimes, they
discovered a military-style helmet and two ballistic vests. A nine-millimeter
magazine was on the floor in the front of the vehicle. Also discovered were a
flashlight, nylon rope, handcuffs, a gas mask, a stack of photographs, an empty
handgun case, and a sledgehammer. In the van, there was also a leather jacket
with a roll of duct tape in the pocket. The Colt .45 handgun used in the crimes
was also discovered in the van.
       According to firearms expert James Hamiel, the three weapons used in the
crimes were semiautomatic and had an average trigger pull.
       After defendant was arrested, he was examined and found not to be under
the influence of drugs or alcohol. When he was approached to undergo testing, he
had his head in his hands, but his demeanor was “conversational,” he responded
“appropriately,” and seemed to understand directions.
       A search of defendant‟s home disclosed boxes of ammunition along with
sales receipts and licenses for the Colt .45 handgun, the Ruger nine-millimeter,
and the assault rifle that were used in the murders. The weapons had been
acquired legally some years prior to the crimes; the Ruger and the assault rifle
were registered to defendant and the Colt .45 handgun was registered to Cindi.
The house was in a state of great disorder.
       Cindi Martinez testified, confirming that she received a phone call from
defendant in the early morning hours of December 12, 2001. He said he had just
killed her whole family. He said he was coming to her apartment, and she
reminded him that the children were with her. She called her mother‟s house and,
receiving no answer, she called 911 and spoke to an operator. A transcript of the

                                         6
911 call was received in evidence and the tape recording was played for the jury.
Defendant also made another call to Cindi‟s apartment and spoke to their oldest
son.
       Cindi was aware that defendant had firearms. He used a refrigerator in his
bedroom to store the weapons and ammunition. She also knew defendant owned a
helmet and ballistic vest resembling the items in evidence. They had been married
about 15 years. Even before her recent departure from the family home, where
defendant still resided, they had had separate bedrooms and had not been intimate
for some time. There was also about $10,000 in cash in the family home. At the
time of the crimes, defendant had not worked for five or six years. She worked
two jobs and paid him to care for their three children.
       On cross-examination, Cindi testified that defendant never threatened her or
hit her, and she said that the tragedy came out of the blue. On redirect, she
acknowledged they had argued and once he pushed her and put his hands on her
throat. She denied telling police that defendant threatened that if she did not leave
their house, he was going to kill her.

           2. Defense evidence
       The defense theory was that defendant had not premeditated the killings. In
support, the defense introduced evidence involving an emotional encounter
defendant had at his son‟s school and an assertedly distressing visit to his home by
school authorities shortly before the crimes.
       On December 10, 2001, two days before the murders, defendant was at his
youngest son‟s elementary school wanting to take the boy home. (The couple‟s
three sons then resided with defendant.) The boy was in first grade and had been
absent frequently. The school principal, Nancy Jones, testified that when she
heard defendant was apparently in a distraught mood, she intervened. She urged



                                          7
defendant to let the boy stay, but he became more upset, saying that when children
grow older they “sometimes became corrupt.” He said he did not want to leave his
son at school, and that when children are young they are like angels but when they
grow up they become corrupt. She recalled that he said the world was evil and he
did not trust the government. He then started crying. She permitted him to take
his son with him but planned to contact him because he seemed depressed and she
was worried about his children. Jones testified that his son cried a great deal in
school and for that reason had been sent home frequently. All of defendant‟s
children were good students and were well dressed and well behaved.
       On the following day, December 11, 2001, Jones went with School
Resource Deputy Sheriff Jaime Jiminez to defendant‟s home for a meeting with
defendant, Cindi, and their three sons, including the oldest, who then attended
middle school. Jones and Jiminez tried to focus on the issue of school attendance,
but defendant kept rambling about other issues, including his wife‟s absence from
the home and his desire that she return there. He was very upset and
acknowledged having felt suicidal. Jones found the discussion strange. At one
point Cindi commented that the couple had not had a real marriage for years and
defendant said even though he did not love her, she should move back home.
Jones thought the situation was serious and she had concerns about the boys‟
safety. Defendant seemed depressed and angry. When he wept, the children were
very loving to him. The oldest son behaved like a caretaker for his father. She
asked defendant to let the children go live with Cindi, and in the end he agreed.
They all departed and he was left alone.
       School Resource Deputy Sheriff Jiminez testified about the December 11
home visit, explaining that he had telephoned defendant concerning his youngest
son‟s absences from school and defendant talked about his problems with his wife
and children. Defendant spoke of mistrusting the government, the police, and the

                                           8
school district, which he considered corrupt. Defendant stated that he had a right
to keep his son at home and disputed Jiminez‟s advice to the contrary. Jiminez
offered to look into counseling for him. When defendant asked that they meet at
his home along with Cindi and the three children, Jiminez agreed. When Jiminez
arrived for the meeting the house was tidy. Defendant talked about his marriage,
his wife‟s absence, and his children‟s awareness of her boyfriend. Defendant was
emotional and wept; it was very difficult to maintain his focus on the subject of his
son‟s school attendance. The children were clinging to him. When Jones asked
defendant if he felt suicidal, defendant responded that he had felt that way from
the age of 24, but had not acted because he had to raise his children. Jiminez
offered to find defendant a divorced fathers‟ support group, and defendant was
receptive. Shortly after the meeting defendant telephoned him asking for
information about the support groups, but Jiminez said he was still working on it.

       B. Sanity phase
       Dr. Pablo Stewart, a psychiatrist retained by the defense, evaluated
defendant in the summer of 2003, meeting with him nine times over a period of
two years. Dr. Stewart concluded that at the time of the crimes defendant was
suffering from a long-standing and untreated major depressive disorder with
psychotic features and that, although defendant was aware of the nature of his acts,
he was not able to distinguish right from wrong during the commission of the
crimes. Dr. Stewart believed that defendant began to be able to appreciate the
difference between right and wrong while he drove his van away from the crime
and spoke to his son on the telephone. The witness also believed defendant had
been operating under a psychotic delusion that it was necessary to commit the
crimes in order to protect his children from harm.




                                         9
       Dr. Robin Schaeffer, a clinical psychologist retained by the defense, met
with defendant on 26 occasions beginning in July 2002 and continuing for more
than three years. He agreed with Dr. Stewart‟s diagnosis and conclusion that
because of defendant‟s mental illness, specifically his delusion regarding the
necessity to act to protect his children from harm, defendant was not able to
distinguish right from wrong when he committed the crimes.
       Dr. Wendy Weiss, a clinical and forensic psychologist appointed by the
court to evaluate defendant‟s sanity, interviewed defendant on one occasion in
July 2005. She diagnosed defendant as suffering from major depressive disorder
with psychotic features but believed he had appreciated the nature of his acts and
understood the wrongfulness of his behavior during the commission of the crimes.
Thus she believed that he had been sane at the time of the crimes.
       Dr. Jonathan French, a psychologist appointed by the court to evaluate
defendant‟s sanity, interviewed defendant in October 2005, diagnosing him with
major depression, but he did not find any psychotic symptoms. Dr. French
thought defendant was sane at the time of the crimes.
       Dr. Philip Trompetter, a psychologist retained by the prosecution, had been
present to observe the jail interview conducted on the morning of defendant‟s
arrest, and concluded that defendant was depressed. Dr. Trompetter did not
observe defendant display psychotic features or evidence of delusions or
hallucinations. He did not see any sign of major mental illness other than
depression. He believed defendant was distraught. The witness would not expect
to see symptoms of mental illness vary from hour to hour unless the person had
been medicated. Dr. Trompetter spoke with defendant in jail the day following the
interview and defendant stated he did not have hallucinations and denied suicidal
thoughts, saying he was “mentally strong.” Defendant terminated the interview.



                                         10
       The jury viewed a videotaped recording of the interview conducted with
defendant by Detectives Craig Grogan and Jon Buehler on the morning of
defendant‟s arrest, as well as recordings of defendant‟s telephone conversations
with relatives while he was in jail. (These, along with jail medical records and
other materials, also were reviewed by the expert witnesses.)
       At the beginning of the interview defendant asked for a hamburger,
explaining that he had not eaten in three days. During the interview defendant
admitted the acts demonstrated by the prosecution evidence, but stated that he
believed his actions were made necessary by threats to his sons‟ well-being posed
by their grandparents and the presence of Camarino Chavez, his wife‟s lover, in
the grandparents‟ home. Defendant said “they were taking my kids away, together
with my wife” and he said that if she had been concerned for their children “how
can you take them to that house, in your own parents‟ house?”
       The interview was marked by rambling statements about the nature of these
threats and the need he felt to protect his children and all children from corruption.
Defendant said he wanted to help the children and “[t]hat‟s why probably [I] did
what I did . . . . I can‟t control what‟s in me.” He said he wasn‟t crazy, but
wanted to be with his sons, having “seen generations going down this little black
hole, because their parents couldn‟t take care of them.” He said he was “mad with
[his] pain as a man” and that his wife‟s affair hurt their children. Their sons saw
her hugging “that man.” He said he had been out of his mind and “it was like
thinking and not thinking” when he went to the scene of the shootings.
       Defendant also made comments indicating that he felt he had been a
coward previously. At intervals he wept and talked to himself. He did not deny
that he had brought the weapons and protective gear to the scene. He added that
he had no record of violence. He thought the men of the house would be armed.
He just wanted to talk to his in-laws. He knocked on the door and got no answer.

                                         11
“Then I went back to the van, I got the rifle and I got [the pistols]” and the
hammer. He knocked again, and someone cursed and told him to go away. He
broke the window with his hammer in order to enter the house. He thought
perhaps the man inside was pulling on his rifle. He started shooting as he entered.
He explained that when he was denied entry he “lost [his] mind” and wanted to
force the residents to talk to him. He had been upset and angry, feeling that his in-
laws were against him. He felt psychologically threatened by them. He said he
“never went with the intention of hurting nobody. I just wanted to make it
stop . . . .”
        Defendant made statements indicating he knew that what he had done was
wrong. (E.g., “Oh I know why I did, it was bad choice and its wrong for them [his
children]”; “I love my kids and they deserve better. I mean I probably did the
wrong thing”; “they should have talked to me and I should ah, ah, never used a
firearm, so just go away or, but I just kept doing it. I just kept doing it, because
they were mak[ing] me upset, because they wouldn‟t talk to me”; “I know I did the
wrong thing.”) He said, “I realize what I have done . . . but I just, I felt like that
my kids needed me, sir. That‟s why I haven‟t killed myself because my kids need
me.” He said: “And then [after] the first shot he just run away and I didn‟t know
exactly where, like I said I just lost control of myself and I felt like turning and I
shouldn‟t do that, I shouldn‟t go in there for them with firearms, I understand that,
but I was just, I was desperate and then I wanted to talk to them and . . . I needed
for them to stop what we‟re doing, because I from bottom of my heart I knew that
wouldn‟t stop at all, but I still wanted to talk to them and they wouldn‟t listen, I
will do whatever it took.” When asked about the vest he explained “the vest is ah,
is because I say to myself okay, I love myself. I don‟t wanna kill myself, but if
I‟m gonna die, I‟m gonna take at least so many people with me, that much as I
can, because [interruption].” He further explained: “I just, I talk to myself a lot, I

                                           12
just said if I come to a point that I have to defend, defend, defend myself or, or, or
just do something that probably look not good on me, but do something that is not
go back again, like kill somebody I will just kill as much as I can and then they
can kill me. Because I didn‟t feel like staying this, this world. . . . So when this
guy run I started shooting like how you call it, random way.” He continued: “I
was so blind that I, my head, my head was like this . . . ah I said what‟s the point
and ah I have been pushing myself to get to this point, well let‟s go to the end.”
       In the tape-recorded phone conversations with family members during the
interview, defendant said he did not have bad intentions but that his children were
being hurt and he couldn‟t take the pain and would fight for them. Defendant
spoke with his oldest son during the police interview. The boy asked, “Why did
you do it?” and defendant answered, “I know my son, I‟m not proud of it. I‟m not
proud of it my son, but, it was something that it had to be done. I wanted to
protect you.” He went on: “I don‟t feel . . . proud of what I did. But uh, I just
trying to do the best for you my son. . . . I don‟t want anyone to take your
innocence.”
       In subsequent phone calls to relatives, defendant continued the theme of the
threat to the innocence of his children and his pain at his separation from them.
He was particularly distressed that his children had witnessed their mother and her
lover hug and kiss. He said he had done nothing wrong. His former sister-in-law,
Patricia Gonzalez, accused him of lying and pretending he was crazy. Defendant
said: “I am not crazy!” She suggested his attorneys were saying that he was.
Defendant answered: “Well, that is the attorney‟s and the district attorney‟s and
all of us‟s game . . . because we agreed. We are playing with that.” She said she
knew he was sane, and defendant agreed.
       The jury, after asking on several occasions that testimony be reread,
concluded that defendant had been sane at the time of the crimes.

                                          13
       C. Penalty phase
       Alicia‟s daughters Patricia Gonzalez, Maria Pulido, and Guadalupe
Martinez, and Alicia‟s husband Jose Martinez described the painful impact on
them of her death, and that of Carlos Lopez on them and other members of the
extended family. Patricia Gonzalez and Guadalupe Martinez also described
murder victim Camarino Chavez‟s good qualities. Guadalupe further testified
concerning the trauma she experienced herself as a victim and witness of the
crimes, and the ongoing difficulties she faced as a result.
       Several of defendant‟s siblings and persons who had known him from
childhood in Mexico testified about the circumstances of defendant‟s upbringing
and his good qualities including kindness, especially with children. They
described the changes in his personality from about 1998, when he became
mistrustful and unhappy, and testified that they believed he was mentally ill when
he committed the crimes. Defendant‟s two older sons described the excellent,
loving care their father had given to them, and expressed their love for him and
their desire that his life be spared. Dr. Rodney Erwin, a psychiatrist, found
defendant‟s sons all very attached to him as their primary caregiver. Dr. Erwin
recounted episodes in which defendant exhibited excellent parenting, adding that
in his view, the boys had been able to overcome the trauma of the crimes. Dr.
Pablo Stewart again testified that he believed the crimes were caused by
defendant‟s mental illness. Daniel Vasquez, a correctional consultant and former
warden of San Quentin Prison, described conditions in prison and opined that
defendant was a model inmate and would not present a risk of violence in prison.
       The jury returned a verdict of death.




                                         14
                                     II. ISSUES

       A. Challenge to the competency verdict
       In November 2003, defense counsel Kent Faulkner and Greg Spierling
notified the court that they believed defendant was incompetent to stand trial.
They added that Dr. Pablo Stewart, psychiatrist, and Dr. Robin Schaeffer,
psychologist, had examined defendant at their request and concluded he was not
competent. The court suspended proceedings pursuant to section 1368 and
appointed Dr. Gary Zimmerman, a psychologist employed by the Department of
Corrections who had performed hundreds of competency evaluations, to examine
defendant. After various continuances, a jury was empanelled and a competency
trial commenced in early December 2004. After several days of proceedings, the
jury returned a verdict finding defendant competent to stand trial.
       Defendant contends that there was insufficient evidence to support the jury
verdict finding him competent, and that he therefore was denied rights under the
state and federal Constitutions‟ due process clauses. He also argues that the trial
court employed the wrong standard when it denied his motion for judgment
notwithstanding the jury‟s verdict on competency. We are not persuaded.

           1. Applicable law
       “The United States Supreme Court has „repeatedly and consistently
recognized that “the criminal trial of an incompetent defendant violates due
process.” ‟ [Citation.] A defendant is deemed incompetent to stand trial if he
lacks „ “ „sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding . . . [or] a rational as well as factual
understanding of the proceedings against him.‟ ” ‟ [Citations.]” (People v.
Lightsey (2012) 54 Cal.4th 668, 690 (Lightsey).)




                                           15
       “The applicable state statutes essentially parallel the state and federal
constitutional directives. Section 1367, subdivision (a) provides: „A person
cannot be tried or adjudged to punishment while that person is mentally
incompetent. A defendant is mentally incompetent for purposes of this chapter if,
as a result of mental disorder or developmental disability, the defendant is unable
to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.‟ ” (Lightsey, supra, 54 Cal.4th at
p. 691; accord, People v. Jablonski (2006) 37 Cal.4th 774, 808.)
       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. (§ 1369, subd. (f); People v. Ary (2011) 51 Cal.4th 510,
518; People v. Dunkle (2005) 36 Cal.4th 861, 885, disapproved on other grounds
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see Medina v. California
(1992) 505 U.S. 437, 446 [this burden of proof does not offend federal
constitutional principles].)
       We apply a deferential substantial evidence standard of review on appeal.
“In reviewing a jury‟s determination that a defendant is competent to proceed to
trial, we give due deference to the trier of fact, and therefore view the record in the
light most favorable to the verdict.” (People v. Frye (1998) 18 Cal.4th 894, 1004,
(Frye); accord, People v. Marshall (1997) 15 Cal.4th 1, 31 (Marshall); People v.
Samuel (1981) 29 Cal.3d 489, 505 (Samuel).) When the sufficiency of the
evidence to support the verdict is challenged, our review is limited to the evidence
presented at the competency trial. (People v. Marks (2003) 31 Cal.4th 197, 219,
fn. 3 (Marks).) As we shall explain, we believe that the verdict of competence was
supported by substantial evidence.




                                          16
           2. Facts

                a. Defense evidence at the competency trial
       The defense sought to carry its burden of proof through testimony of mental
health experts who testified regarding defendant‟s mental illness, his religious
preoccupation, and his asserted inability to engage rationally with the experts
regarding the offenses or the trial. The court-appointed expert, Dr. Zimmerman,
testified that as a result of his November 2003 examination of defendant, he
believed defendant was incompetent. Dr. Zimmerman believed defendant was
then suffering from depression that made him “seriously impaired” and in fact so
indifferent to the trial that he could not “rationally work with his attorney” to assist
in the preparation and presentation of his defense. According to Dr. Zimmerman,
defendant refused to discuss the facts of the case and did not appear to be
exaggerating his symptoms.
       On the other hand, Dr. Zimmerman found that defendant was not delusional
and reported that defendant did not break down in tears and was not then taking
medication. Dr. Zimmerman testified that defendant said he was able to talk to his
attorney about the case and he understood that he was charged with murder and
was facing the death penalty.
       Dr. Pablo Stewart, the psychiatrist retained by the defense, had served as a
consultant under appointment in federal courts and was also employed by the
Haight-Ashbury Free Clinic in San Francisco.2 He testified that when, in
November 2003, he interviewed defendant and administered the MacArthur
Competency Test, it was evident to him that defendant was then incompetent. At
that time he displayed “amazing” mood fluctuations and, moreover, when Dr.

2     Dr. Stewart spoke Spanish and offered to perform interviews with
defendant in that language, but defendant preferred English.




                                          17
Stewart tried to direct defendant‟s attention to questions concerning defense
counsel and the function of the court, defendant supplied no focused answers.
Rather, defendant at first appeared to speak to the questions, but quickly rambled
away from the point to discuss generalities and religious concerns. At that time he
scored very poorly in each element of the MacArthur Competency Test. Dr.
Stewart testified that not just in November 2003 but also in subsequent interviews
in February, April, July, and November 2004, defendant started to reply to
questions but quickly moved on to statements expressing delusions focusing on
religion and exhibiting paranoia, including fears directed toward defense counsel.
       Dr. Stewart believed that defendant suffered from a long-standing severe
mood disorder, namely depression, which included psychotic features. In
Dr. Stewart‟s later interviews with defendant, the mood disorder endured and the
psychotic symptoms became, “if anything,” worse. Whereas in November 2003
Dr. Stewart believed defendant was aware of the seriousness of the charges, in
November 2004 this was no longer the case and, in Dr. Stewart‟s view, defendant
did not appear to understand what the charges were. Defendant responded to
questions about the charges by discussing unconnected topics. In the November
2004 interview, Dr. Stewart observed defense counsel Spierling attempt to ask
defendant a few routine questions, but noticed that defendant did not “interact”
with counsel. Dr. Stewart concluded that because of the depression with psychotic
features, defendant was unable to evaluate witness testimony or help select a jury,
that he had no insight regarding what led to the crimes, nor could he help counsel
develop the case in mitigation.
       Dr. Robin Schaeffer, the clinical psychologist retained by the defense,
conducted a taped competency evaluation interview with defendant just a few days
before the competency trial. Dr. Schaeffer concluded defendant was not
competent to stand trial. The witness testified that in his opinion, defendant

                                         18
suffered from a psychotic thought disorder, that when he needed to answer
questions concretely or specifically, he answered them very generally and
rambled, and that his mental illness rendered him unable to think in a logical way.
The witness also concluded that because of the psychosis, defendant had
“delusional grandiosity,” a paranoid level of distrust, and a sense that the trial was
unreal and did not matter.” According to Dr. Schaeffer, defendant‟s preoccupation
with general religious thoughts made him unable to respond to questions with any
specific answers, and caused defendant to believe that the actual trial was not his
true trial. For these reasons, the witness believed, defendant would be unable
rationally to assist counsel in his defense, make decisions about testifying or
waiving jury trial, understand a plea negotiation, or assist in formulating a defense
at the guilt or penalty stages of the trial.
       Dr. Schaeffer acknowledged that sometimes defendant was able to answer
questions, that defendant sometimes “can be of some assistance to counsel,” and
that many of defendant‟s responses were not completely irrational. The witness
testified that, nonetheless, the overall interview demonstrated defendant‟s inability
to stay on track in a manner that would be sufficient even if the charges had been
much less serious, because defendant “can‟t with any consistency be rational,
because his brain repeatedly throws him into the abstract . . . and causes him to
ramble.”
       A recording of Dr. Schaeffer‟s December 2004 interview with defendant
was played for the jury and a transcript was admitted into evidence. The tape
recording exhibited defendant‟s rambling, disconnected answers to questions, as
well as his distrust and his religious preoccupation. His answers evinced some
understanding of the proceedings but an aversion to engaging with them.
       The defense also presented testimony by Robert Wildman, an experienced
criminal defense attorney who was not involved in the case. He described the

                                               19
impediments to a defense counsel‟s performance that would arise when a
defendant‟s mental state prevented him or her from assisting counsel in various
ways.

                b. Prosecution evidence at the competency trial
        The prosecution presented expert testimony and other evidence suggesting
that defendant had the capacity to engage rationally in the defense, but chose not
to do so. Dr. Gary Cavanaugh, a psychiatrist in private practice who also had a
substantial forensic practice and taught at the University of California, Davis, was
retained by the prosecution. He testified that based on his February 2004
interview with defendant, he found defendant competent to stand trial at that time.
Dr. Cavanaugh reviewed the earlier written reports by Drs. Schaeffer, Stewart, and
Zimmerman, along with jail mental health records, police reports, the transcript of
the interrogation of defendant in jail, and recordings of defendant‟s recent phone
conversations. Dr. Cavanaugh believed defendant was capable of understanding
the nature of the proceedings and assist counsel in the defense. In forming his
opinion, the witness relied in part on defendant‟s answers to questions regarding
his orientation to time and place, and on his ability to make abstract
determinations and engage in higher levels of thinking, both inconsistent with
severe mental illness. Dr. Cavanaugh also based his opinion on defendant‟s
statements concerning the function of persons involved in the legal proceedings,
especially defense counsel and the prosecutor.
        Dr. Cavanaugh noted defendant‟s preoccupation with religion but did not
find it delusional in the sense of being a fixed false belief that does not relate to a
person‟s culture and is not modifiable by reason. Rather, Dr. Cavanaugh found
the religious preoccupation authentic. Dr. Cavanaugh believed defendant had
grasped examples he had given of alibi, mistaken identity, or mistake of fact



                                           20
defenses, although defendant quickly moved on to his preoccupation with God in
responses to questions about defenses. Dr. Cavanaugh found that the religious
preoccupation got in the way of defendant‟s responses, but that if questions were
posed repeatedly in different ways, defendant usually responded. Dr. Cavanaugh
acknowledged that there were some things defendant did not want to talk about,
especially past history that involved negative material, but the witness testified
that he believed defendant had the mental capacity, if not subjective willingness,
to discuss the issues and to assist his attorneys in conducting his defense.
       Dr. Cavanaugh believed there was not substantial evidence that defendant
suffered from a current major mental illness or delusion at the time of the
interview, diagnosing instead a mood disorder, most likely major depressive
disorder, possibly with psychotic features, that was currently in substantial or
complete remission. Defendant did not show many, if any signs of depression
although he displayed the personality disorders of paranoid and narcissistic traits.
Defendant was “cognitively intact” and had a good memory.
       On cross-examination, Dr. Cavanaugh testified that he had performed many
competency exams, and in the vast majority he has found the defendant
incompetent to stand trial, mostly because of psychosis.
       Dr. Cavanaugh also acknowledged he had interviewed defendant only once,
in February 2004,3 that his opinion concerned defendant‟s competency at that

3      It was stipulated that only one interview with defendant had been
authorized for Dr. Cavanaugh. The stipulation was entered during the competency
trial when a dispute emerged between the parties concerning whether the defense
could ask Dr. Cavanaugh whether he had asked for any further visits. In
discussing the proposed stipulation, the People argued that only one visit had been
authorized and blamed the defense for requesting continuances that caused the
delay between Dr. Cavanaugh‟s interview and the competency trial, also
suggesting that Dr. Cavanaugh should see defendant that very day or over the
                                                           (footnote continued on next page)


                                         21
time, and that he did “not have a current opinion about [defendant‟s] competence.”
Dr. Cavanaugh also acknowledged that during the interview, when defendant
became less responsive he mostly turned to “high levels of abstraction about God
and religion.”
        On redirect examination, Dr. Cavanaugh explained that in his opinion,
defendant‟s reference to hearing God‟s voice was consistent with religious fervor,
not hallucination. Dr. Cavanaugh considered some of defendant‟s responses
evasive. It seemed to him that it was questions about the crime or other negative
matters that caused defendant to launch into religious speeches.
        A transcript of a recording of Dr. Cavanaugh‟s tape-recorded interview
with defendant was admitted in evidence and the tape was played for the jury. It
plainly demonstrated defendant‟s intact memory as well as his repeated express
refusals to discuss the crime, his personal history, or any other matters he
considered “negative.” It also illustrated his settled view that the temporal trial
was insignificant compared with God‟s judgment.
        The transcript also reflects, however, that defendant understood he had
counsel, and that their job was to help him. When asked how counsel would help
him, he said they were representing him. He said the prosecutor was against him,
and the judge was “monitoring what‟s going on.” When asked what happens to
someone who is found guilty in court, defendant said “I don‟t want to discuss
that.” He entered a not guilty plea because he had been told to, but he repeated
that God was the true judge. Defendant had heard his might be a death penalty

(footnote continued from previous page)

weekend. Defense counsel responded that they would not permit the “disruption”
of an examination in the middle of the competency trial and argued that discovery
had closed.




                                          22
case, but he didn‟t worry about it, trusting instead in God. He also trusted his
attorneys, but said he wanted his attorneys just to leave things in God‟s hands. He
didn‟t want to talk about what had happened, or about feeling suicidal, or about his
work life, or about how people may have done bad things to him. He added, “You
seem to care what happened in all my life . . . I just don‟t want to remember it . . .
. I‟m really want[ing] to forgive . . . .”
       Defendant described a witness as “a person who sees something and says
that this happened or that happened.” He described a jury as “people up there that
is trying to see how you are, the person who‟s being tried, and what happened and
they are who decides if that person [did?] something that is completely
wrong . . . .” When asked what a lawyer should do for a client who said he wasn‟t
at the scene of the crime, he said “I‟d just tell the truth,” and that “obviously he
would tell them he was somewhere else . . . . [t]he lawyer [would] tell the truth
that he wasn‟t there.” When asked how he, if he were the lawyer, would prove the
alibi, he said, “Investigate it . . . get the real facts.” When asked what a lawyer
should do for a client who said he was present at the crime but it was another
person who committed the crime, he said “I guess he has to prove that he was
there but he didn‟t do it.” When asked what the lawyer should do for a client who
said he was at the scene, but that the victim was lying about what he did and a
witness had been present, defendant said “they all have to prove, I guess, what
really happened, and that‟s here and now.” He immediately went on to state his
view that “we‟ve got nothing to prove against God . . . . He can prove a lot of
stuff against us . . . [b]ut I‟m willing to accept . . . whatever it is that He has for
me. It doesn‟t matter what it is, I‟m trusting him and I want to go His way . . . .
That‟s why I‟m chained up.”
       The prosecution also presented evidence that some months subsequent to
the Cavanaugh interview, on May 30 and June 1, 2004, defendant engaged in

                                             23
telephone conversations with his sons, with Cindi (by the time of trial no longer
his wife), and with his former sister-in-law, Patricia. In the taped conversations
with his sons, he opened with practical and entirely rational inquiries, including
questions concerning whether the house had been painted, his sons‟ friends, eating
habits, and daily activities, as well as directives regarding their relationships with
Cindi‟s new boyfriend, Jesus. For example, he said: “Listen son, I just talked
with that . . . that Jesus. He says that he supports you and that the phone is [in] his
name, and that is why I should not be bothering no one, and all of that. I do not
need to be listening to his nonsense. I told him to go and fuck his mother. Soon
things are going to be fucked up for him. He does not have to go around pulling
this kind of shit. Son, I told him to stay away from you guys. If you want to be
with him . . . very well, I have to respect that. I am only telling you to take care,
not to be with those people. I am telling you, the only thing that they are going to
do is harm you. Because the only thing that they are doing . . . is for their
convenience, ok my love.” In conversation with Cindi, he directed her not to
interfere with his relationship with his sons and to keep them away from Jesus,
and he threatened her with violence if she failed to abide by his wishes in this
respect.
       In the phone conversation with Cindi‟s sister, Patricia Gonzalez, defendant
debated some of the circumstances of the charged offenses, suggesting she and the
rest of Cindi‟s family bore some responsibility for the crimes because they had
failed to help him when he was distressed, or to intervene in Cindi‟s relationship
with Camarino Chavez, a relationship defendant insisted had been conducted at his
mother-in-law‟s home under his sons‟ eyes.
       As noted in connection with the sanity phase evidence, when defendant told
Patricia not to lie or engage in hypocrisy, Patricia said he was the only one who
was lying, by saying he was crazy. Defendant said he was not crazy. Patricia said

                                          24
his attorneys were saying that he was, but defendant responded: “That is the
attorneys‟ and the district attorney‟s and of all of us‟s game . . . because we
agreed. We are playing with that.” He concluded with more complaints about not
being in contact with his children, and talked about God and death as offering
peace.
         The prosecution also presented testimony by Dr. Trompetter, the clinical
psychologist retained by the prosecution. He had observed defendant at the police
station on the morning after the murders. Dr. Trompetter witnessed the police
interrogation of defendant and saw no sign of psychosis or delusion. In addition,
Calvin Watson, a custodial deputy for the Stanislaus County Sheriff‟s Department,
testified he had brief conversations with defendant when passing by his cell.
Watson‟s last contact with defendant was seven months to one year prior to the
competency trial. According to Watson, defendant was able to communicate his
needs, for example, asking for a cell change or responding to simple questions.
Defendant had been in the jail approximately three years and had not been a
problem inmate. Watson‟s longest conversation with defendant was about two
minutes. Finally, Debbie Mandujamo, a psychiatric nurse working in the
Stanislaus County Jail, testified that jail records indicated the last time defendant
was seen by mental health workers at the jail was September 26, 2003, more than
one year prior to the competency trial but shortly before Dr. Stewart‟s and
Dr. Zimmerman‟s competency examinations. At that time defendant was not
taking medications, nor had any medication been prescribed subsequently. She
had no recollection of having difficulty communicating with him.

             3. Discussion
         Defendant argues that he made a “strong evidentiary showing” that he was
incompetent at the time of the competency proceeding, and that his evidence was



                                          25
unrefuted because the prosecution evidence was stale and otherwise unconvincing
or incomplete.
       Defendant presented considerable evidence of incompetency, but we
disagree with his assertion that his evidence was unrefuted. We view the evidence
in the light most favorable to the verdict of competency. That verdict is supported
by substantial evidence that defendant was not suffering from a mental illness that
deprived him of the ability to consult rationally with counsel or to understand the
proceedings. Dr. Cavanaugh, a qualified expert who had performed hundreds of
competency examinations, was of the opinion that defendant was competent prior
to the competency hearing. The witness did not believe that defendant was then
suffering from a major mental illness or personality disorder, and believed he was
capable of logical and rational thought. Dr. Cavanaugh acknowledged defendant‟s
religious preoccupation, but did not believe it proceeded from a mental defect or
delusion but was an example of authentic religious fervor — a phenomenon he
said was not unusual with prisoners facing trial for serious crimes. In addition, the
jury could have credited the statement that defendant made to his former sister-in-
law, Patricia, that the claim of his insanity was just a game he was playing with
defense counsel. The comments provided potentially persuasive evidence for the
jury to conclude defendant was, at least to some degree, feigning mental illness.
       Defendant contends there was absolutely no evidence that he was able to
assist counsel in the defense. We do not agree. Dr. Cavanaugh drew defendant
into a discussion of hypothetical defenses and defendant was able rationally to
respond to questions concerning what defenses should be mounted by defense
counsel under the various hypotheticals presented. In addition to this evidence of
his ability to understand how an accused would work with counsel to develop a
defense, there was supporting opinion evidence from Dr. Cavanaugh that
defendant‟s reluctance to discuss the facts of his own case or even his personal

                                         26
history — a serious impediment to the defense, without doubt — arose from an
unwillingness to engage, rather than an inability to do so based upon mental
disease or defect.
       As Dr. Cavanaugh commented, and our review of the record confirms,
defendant made statements indicating that he did not wish to discuss the painful
facts of the crime or of his own past — but the evidence supports Dr. Cavanaugh‟s
opinion that defendant was unwilling rather than unable to discuss them.
Voluntary barriers to communication with counsel on the part of a defendant who
was able to cooperate do not demonstrate incompetence. (See Marks, supra, 31
Cal.4th at p. 207.)
       Defendant‟s own responses during the interview with Dr. Cavanaugh
further support the conclusion that defendant understood the nature of the
proceedings. They indicated an understanding of the function of the judge, the
jury, the prosecutor, and the defense attorneys, as well as defendant‟s
understanding of what would be involved in developing various defenses along
with his attorneys and that he had been charged with a capital crime. Moreover,
even in the interview with defense expert Dr. Schaeffer shortly before the
competency trial, defendant gave answers that revealed some basic understanding
of the charges, of plea bargaining, and of the function of the trial and its major
participants. He indicated that his counsel were on his side in the courtroom, that
a witness would be there to speak under an obligation to tell the truth, and
expressed the belief that the prosecutor, the judge and the jury were against him.
Defendant stated furthermore that he wanted to convince the jury of his innocence.
       Defendant argues that no weight should be given to Dr. Cavanaugh‟s
opinion that defendant was able to cooperate with counsel in developing and
presenting the defense because the opinion was contradicted by defendant‟s
answers during the interview, answers that emphasized the dominant role of God

                                          27
in determining his guilt or innocence and defendant‟s confusion about the process.
We are not persuaded. Rather, we draw reasonable inferences in favor of the
verdict. The jury reasonably could credit Dr. Cavanaugh‟s explanation that
defendant‟s religious preoccupation was not a product of mental illness but of
sincere religious enthusiasm, and the expert‟s explanation that defendant was not
unable but rather was choosing to avoid discussion of the crimes, his personal
history, and any other negative material.
       Defendant challenges the evidentiary value of Dr. Cavanaugh‟s testimony,
claiming “lack of preparation, inadequate foundation, and consequent lapses in
reasoning.” Defendant‟s complaints that the asserted failure to conduct a “proper”
competency evaluation goes solely to the weight the trier of fact would afford the
witness‟s testimony. Dr. Cavanaugh was qualified and experienced in performing
competency examinations, as the defense did not deny at the trial. He had
reviewed the reports of Drs. Schaeffer, Stuart, and Zimmerman, photographs, jail
mental health records, a videotape of defendant following his arrest, a transcript of
defendant‟s police interrogation, recordings of recent phone conversations, and
copies of crime reports, as well as mental health records provided by the defense.
       Nor does defendant demonstrate that the witness — who had qualified
many times as a competency expert — failed to meet generally accepted minimum
standards for a competency interview. (See People v. Stanley (1995) 10 Cal.4th
764, 811-812.) Dr. Cavanaugh explained his professional opinion that the
standardized competency examination used in 2003 by Dr. Stewart gave many
unreliable results indicating incompetency on the part of persons he believed to be
actually competent. He also pointed to evidence that defendant‟s cognitive
functioning, including memory, ability to make abstract determinations and
engage in higher level thinking, was quite intact. Dr. Cavanaugh believed that



                                            28
defendant‟s ability to discuss his own personal history also indicated his ability to
assist counsel.
       Defendant argues that the evidence provided by Dr. Cavanaugh was stale
and therefore of little or no probative value on the question presented to the jury,
namely, defendant‟s competence as of the time of the competency proceeding. He
points out that Dr. Cavanaugh‟s interview occurred 10 months before the
competency hearing and did not purport to render an opinion concerning his
competency at the time of the hearing.
       The lapse of time between Dr. Cavanaugh‟s interview and the competency
trial does diminish the probative value of the expert‟s opinion and testimony to
some extent, since the issue before the jury was defendant‟s current competency.
Yet the jury reasonably could draw inferences concerning defendant‟s competency
at the time of the competency trial from Dr. Cavanaugh‟s observations and from
the statements defendant made to him, as well as from the defense evidence itself.
       First, the statements defendant made to Dr. Cavanaugh concerning defense
counsel and his own understanding of the proceedings bore marked similarities to
his statements during the interview with the defense expert, Dr. Schaeffer, just
prior to the competency hearing, supporting the inference that his condition was
similar at both times, and that on each occasion he had sufficient ability to
rationally consult with his lawyers and understand the proceedings. In the
Schaeffer interview, defendant said he wanted his lawyers to argue at the trial that
he was innocent, that he “didn‟t want to harm anybody,” and that he “didn‟t
understand that [he] was hurting the people that [he] most loved,” including his
wife‟s family. He knew the names of his lawyers and said, at one point, that they
were on his side in the courtroom. He certainly resisted the idea that a secular trial
had any legitimacy, in contrast to a trial by God — just as he had with
Dr. Cavanaugh — but Dr. Schaeffer was able to focus his attention on the

                                         29
potential that he might testify, and defendant gave somewhat coherent answers
concerning whether he was carrying money on the night of the crimes and whether
he transported an injured girl to the hospital “[t]o help her so she could be okay.”
He exhibited some understanding of the possibility of a plea bargain, and seemed
to understand the difference between a short and long term in prison. He told
Dr. Schaeffer that he “guessed” he knew what he was doing the day of the crimes,
adding that he had gone to his mother-in-law‟s house that day. Defendant
specifically informed Dr. Schaeffer that he believed he could tell his lawyers what
had happened on the day of the crimes.
       Moreover, the features of defendant‟s responses that caused Dr. Stewart to
believe in 2003 and throughout 2004, and Dr. Schaeffer to believe in December
2004, that defendant was incompetent also appeared in Dr. Cavanaugh‟s February
2004 interview. Dr. Cavanaugh simply drew a different conclusion from what
ultimately was relatively consistent evidence. Specifically, the defense experts
interpreted defendant‟s religious preoccupation and his rambling away from any
discussion of the facts of the crime and his own biography as indicators of
defendant‟s disease-based inability to work with counsel in any rational manner.
Dr. Cavanaugh, by contrast, saw similar manifestations of religious preoccupation
but did not believe they were a feature of a mental disease. He viewed defendant‟s
reluctance to answer specific questions and his rambling when pressed on the facts
of the crime or his own mental condition as demonstrating an unwillingness but
not incapacity to answer painful questions. Defendant‟s remarks to the expert
certainly could be interpreted to support such an inference, and the jury reasonably
could have adopted Dr. Cavanaugh‟s view. And as the Attorney General also
points out, the jury was not required to accept the conclusion of the defense
experts. (Marshall, supra, 15 Cal.4th at p. 31.)



                                         30
       We also observe that the defense itself relied in substantial part upon
evidence from as early as November 2003, several months before the Cavanaugh
interview, including testimony by Dr. Stewart concerning results of a standardized
test the defense faulted Dr. Cavanaugh for failing to administer. As defendant
must acknowledge based on his own reliance on evidence long predating the
competency trial, evidence that predates that hearing may legitimately provide
substantial evidence on the competency issue before the fact finders.
       Finally, the fact finders had additional evidence supporting
Dr. Cavanaugh‟s conclusion in the form of the jailhouse phone calls that occurred
some months after the Cavanaugh interview. From these the jury reasonably
could draw the inference that defendant‟s condition was not growing worse over
the months just preceding the competency trial as the defense argued, but that he
retained the ability, when he wished, to engage in rational discussions regarding
daily life and various personal matters with his sons and with Cindi Martinez, and
concerning the crime and the defense with his former sister-in-law, Patricia
Gonzales. This evidence also tended to support Dr. Cavanaugh‟s view that
defendant‟s reluctance to engage with the trial proceedings or discuss the facts of
the crime were matters of choice, not an incapacity caused by mental illness.
There was also evidence, through defendant‟s statements to Patricia about his
“craziness” being a “game,” that defendant was to some extent feigning mental
illness. The jury had additional evidence from other witnesses that defendant‟s
mental condition did not worsen sufficiently to require administration of
psychotropic medication.
       Defendant also argues that testimony from jail staff and Dr. Trompetter,
was not probative of his competency at the time of the competency proceedings.
We tend to agree that Dr. Trompetter‟s testimony concerning the jailhouse
interview was less probative given its remoteness in time. The jail staff evidence,

                                         31
on the other hand, supplied some corroboration for Dr. Cavanaugh‟s view that at
the time he interviewed defendant, defendant was not suffering from a major
psychiatric problem and that at least during 2003 and the first half of 2004 — at a
time Dr. Stewart and Dr. Schaeffer firmly believed defendant already was
incompetent — defendant was able to function normally in the jail and was not
receiving medication for mental disease.
       Under the circumstances, we cannot accept defendant‟s argument that his
case is comparable to the Samuel case. (Samuel, supra, 29 Cal.3d 489.) In that
matter, the defense evidence of incompetence was overwhelming; moreover, it
was essentially uncontradicted by any prosecution evidence. “Five court-
appointed psychiatrists, three psychologists, a medical doctor, a nurse, and three
psychiatric technicians testified to Samuel‟s incompetency, and four psychiatric
reports were admitted into evidence. [Citation.] Each witness and every report
concluded Samuel was incompetent to stand trial. [Citation.] In response, the
prosecution offered no expert testimony and only two lay witnesses, neither of
whom contradicted any of the defense testimony. . . . Prosecution witnesses
merely testified regarding Samuel‟s escape from Patton State Hospital and his
ability to perform routine manual tasks.” (People v. Stanley, supra, 10 Cal.4th at
pp. 808-809.) On that record, we found that no reasonable trier of fact could reject
the defense evidence of incompetency. (Id. at p. 809; Samuel, supra, at p. 506.)
       In the present case, by contrast, the prosecution did present evidence of
solid value indicating competence. The record therefore is “not comparable to the
virtually one-sided showing of incompetence in Samuel.” (People v. Stanley,
supra, 10 Cal.4th at p. 809; accord, Marks, supra, 31 Cal.4th at pp. 219-220.)
       We must emphasize that it is not our function to substitute our judgment for
that of the jury or to reweigh the evidence. Rather, we are required to “view the
record in the light most favorable to the verdict.” (Marshall, supra, 15 Cal.4th at

                                         32
p. 31; Frye, supra, 18 Cal.4th at p. 1004.) Drawing all reasonable inferences in
favor of the verdict in the present case, we decline to disturb it. This is certainly
not a case like Samuel in which no reasonable trier of fact could reject the defense
evidence. (Samuel, supra, 29 Cal.3d at p. 506; cf. In re R.V. (2015) 61 Cal.4th
181, 201.)
       Next, defendant contends the trial court applied a standard that was
inconsistent with the federal constitutional standard for measuring competency
when it denied defendant‟s motion under Code of Civil Procedure section 629 for
judgment notwithstanding the verdict.
       In denying defendant‟s motion for judgment notwithstanding the verdict,
the trial court commented that it had heard all the evidence and believed “that
there was evidence from Dr. Cavanaugh‟s opinion which was supported by
evidence from the phone calls and other evidence indicating that the defendant had
capacity to carry on rational discussions, did not appear to be so depressed that he
was unable to rationally think or rationally pursue objectives which he believed
were appropriate to himself and to his situation. [¶] So under the circumstances
the Court finds that there was substantial evidence to support the jury‟s verdict.”
       Defendant argues that a verdict of competency requires more than ability to
carry on a rational discussion and pursue objectives rationally. He maintains that
the trial court failed to consider whether “defendant had present ability to make
essential decisions critical to a fair trial, including whether to plead guilty or go to
trial, to take or waive the right to testify and to call or cross-examine witnesses,
and to assist counsel in whether (and how) to put on the defense and whether to
raise one or more affirmative defenses.”
       A trial court may grant a motion for judgment notwithstanding the verdict
only if there is not substantial evidence to support the verdict. (Sweatman v.
Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) A court reviewing an

                                           33
order resolving such a motion applies essentially the same standard (ibid.) and
“must uphold the trial court‟s denial of the motion unless there is no substantial
evidence to support the verdict” (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th
280, 289; see 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Trial, § 832, 1260 [rules applicable to civil proceedings, including judgment
notwithstanding the verdict, apply to competency hearings during a criminal
trial]). Applying the correct standard for competency, we have concluded that
substantial evidence supported the jury‟s competency verdict. Accordingly we
need not closely review the completeness of the trial court‟s comments; the trial
court did not err in denying the motion for judgment notwithstanding the verdict.
       Finally, defendant contends that international jurisprudence “fully
supports” his claim that there was insufficient evidence of his mental competency
to support the verdict. He notes the relative simplicity of the federal constitutional
standard, and urges that foreign jurisdictions have offered more detailed guidance
that could be instructive on this point. He does not challenge the existing federal
constitutional standard as inconsistent with current principles defining due process
of law, however. Indeed he acknowledges that the international jurisprudence he
cites is “broadly consistent” with the Drope standard. (See Drope v. Missouri
(1975) 420 U.S. 162 (Drope).) We are satisfied that under state and federal
standards, the jury‟s verdict finding defendant competent to stand trial was
supported by substantial evidence. To the extent defendant‟s reliance upon
international standards is framed as a challenge to the trial court‟s statement of
reasons for denying the motion for judgment notwithstanding the verdict, we have
already explained that we need not review the trial court‟s statements of reasons
because on review of an order denying a motion for a verdict notwithstanding the
judgment, this court must itself determine whether the verdict is supported by
substantial evidence.

                                         34
       B. Failure to conduct additional competency hearings
       Defendant contends that the trial court‟s failure to conduct additional
competency hearings at various points during the proceedings constituted a
violation of his federal constitutional right to due process of law as well as an
abuse of discretion, requiring reversal of his convictions.
       As defendant acknowledges, “[w]hen a competency hearing has already
been held and the defendant has been found competent to stand trial . . . a trial
court need not suspend proceedings to conduct a second competency hearing
unless it „is presented with a substantial change of circumstances or with new
evidence‟ casting a serious doubt on the validity of that finding.” (People v. Jones
(1991) 53 Cal.3d 1115, 1153 (Jones); accord, People v. Leonard (2007) 40
Cal.4th 1370, 1415 (Leonard); Marshall, supra, 15 Cal.4th at p. 33.)
       “When defense counsel has presented substantial evidence [that is,
evidence from which a reasonable jurist would entertain a bona fide doubt
concerning competency] that a defendant is incompetent to stand trial, the trial
court must declare a doubt as to the defendant‟s competence and suspend
proceedings even if the court‟s own observations lead it to believe the defendant is
competent. [Citation.] But when . . . a competency hearing has already been held,
the trial court may appropriately take its personal observations into account in
determining whether there has been some significant change in the defendant‟s
mental state.” (Jones, supra, 53 Cal.3d at p. 1153; accord, Marshall, supra, 15
Cal.4th at p. 33 [confirming deference generally afforded to trial court‟s view of
the defendant‟s condition].)
       At the same time, of course, “[e]ven when a defendant is competent at the
commencement of his trial, a trial court must always be alert to circumstances
suggesting a change that would render the accused unable to meet the standards of
competence to stand trial.” (Drope, supra, 420 U.S. at p. 181.)


                                          35
       Defendant rests his claim principally upon his emotional response to Cindi
Martinez‟s testimony during the guilt phase of trial; a report from Dr. Wendy
Weiss prepared just prior to and proffered during the sanity phase of the trial;
defense counsel‟s expressed doubts regarding his competency on various
occasions; and defendant‟s own statements and outbursts.
       It is not entirely clear at what point or points defendant believes that he
presented a substantial change of condition or new evidence casting doubt on the
competency determination such that the trial court was obliged to suspend the
proceedings and conduct another competency trial. We infer that defendant
believes that threshold was crossed for the first time on October 14, 2005, near the
commencement of the guilt trial; was crossed again no later than when he
responded emotionally to his by then former wife‟s testimony during the guilt
phase; and that it was crossed repeatedly again as evidence of his assertedly
increasing incompetence accumulated during the sanity phase, the penalty phase,
and at sentencing.
       We begin with events of October 14, 2005, approximately 10 months after
the competency trial. The court asked whether defendant would waive his
presence during discussion of the juror questionnaires, but both defense counsel
responded that defendant was not competent to waive his rights or for that matter,
to stand trial. Counsel asserted that defendant had a major mental illness that was
in an active stage, commenting that whereas the focus at the competency trial had
been whether defendant would be able to assist counsel, now the question was
whether he could “get through” the trial. Counsel asserted that defendant was
unable to understand his rights including the right to testify, and that he was
unable to testify competently. Counsel remarked that defendant had shown
symptoms of major mental illness since 2002, but that in the months since the
competency verdict in December 2004, defendant had further deteriorated.

                                          36
Counsel explained that defendant concentrated on his children, his family, the
guilt of others and the hypocrisy of the “system,” making it difficult to work with
him and impossible for him to testify. In addition, counsel complained that
defendant did not follow directions from his attorneys, and that, as also emerged
during the competency trial, defendant‟s conversations with family members were
— because of mental illness — almost always inappropriate and now were causing
family members not to testify on his behalf. Counsel also noted that when several
months before trial he brought a priest to visit defendant, defendant insisted that
the priest confess to him. In the week preceding counsel‟s remarks, counsel
added, defendant expressed a desire to remain shackled and not dressed in street
clothes for trial, and that he expressed a preference for the death penalty. In sum,
he said: “It‟s not like this guy is suddenly schizophrenic or suddenly has a
different mental illness, but it‟s worse.”
       The trial court responded that the matters mentioned by counsel, including
the defendant‟s behavior, were not substantially different from concerns counsel
had expressed earlier and that no change of circumstances had been shown.
       On November 1, 2005, during jury selection, one of defendant‟s two
attorneys again stated the belief that defendant was not competent. Counsel
asserted that during jury selection defendant had been “completely uninvolved” in
the case and would not respond when counsel solicited his feedback regarding
each of the panels of prospective jurors. Counsel stated: “I believe, based upon
consultation with experts and my long history with [defendant] that this is because
of mental disease, defect, or disorder, and he remains incompetent to stand trial in
this matter.” The court again found no change in status.
       On November 3, 2005, the prosecution was examining Cindi Martinez and
proffered a tape recording of her 911 call to the police shortly after the murders.
Defense counsel asked that the tape be played at a later date and in Ms. Martinez‟s

                                             37
absence. He said: “Foundationally, I just am quite concerned about the disability
of my client at this time as we‟ve put on the record time and again.” The court
stated its concern that the tape would be upsetting for the witness, but she
indicated her desire to remain in the courtroom while the tape was played.
Defense counsel then asked, “May my client be excused for this? He‟s heard it
once.” The trial court responded, “Mr. Mendoza, do you waive your presence for
the playing of this tape?” Defendant responded: “Yeah.” The court informed the
jury: “For the record, ladies and gentlemen, Mr. Mendoza has indicated that he
wishes to be excused from the courtroom during the playing of this tape.
       After the tape was played, the court asked whether defendant would return
to the courtroom. In response, defense counsel asked for an in camera hearing
because of “something that‟s gone on back there.” Counsel explained that “there‟s
been some communication between our client and [defense counsel] that I think
needs to be addressed in camera about his presence in the courtroom and other
things that happened in the back here that I don‟t feel comfortable putting on in a
public forum and/or with the prosecution present.” Counsel stated “we‟ll waive
Mr. Mendoza‟s presence during that [in camera hearing].” At the hearing, one of
the defense attorneys stated that he had spent five or 10 minutes with defendant
outside the courtroom while the tape was being played, and “he‟s probably right
on the edge of just complete melt-down mentally. He expressed a strong desire to
not be in the courtroom anymore. I‟m not sure what would happen if he is,
obviously. But he‟s certainly decompensated to a point that I haven‟t seen him
before. He‟s certainly not going to help himself in any way.”
       The court responded that it had observed defendant when he returned to
court and “he looked alert and okay.” The court added that “it may be his wife
that is triggering all of this and . . . if he‟s absent from her testimony . . . then



                                            38
maybe he can return to the courtroom thereafter and . . . be able to handle the
relatively dry . . . kinds of things that are coming after that.”
       Defense counsel responded that forthcoming testimony would include that
of Dr. Rulon, the forensic pathologist who performed the autopsies, and suggested
that the autopsy pictures would be very upsetting for defendant. The court agreed,
but said: “I guess we‟ll have to cross that bridge when we come to it. That would
be my suggestion. Otherwise, we can just try to have him come back in and just
hear it. But apparently, that‟s not his desire. So maybe that, as a compromise
solution, for the time being might work.”
       Counsel responded: “Then we can reassess it.” Counsel asked the court to
recall that it had been difficult for defendant when his former wife testified at the
preliminary hearing two and a half years before. He added that defendant had
been sobbing “very heavily” during the testimony of the doctor just prior to her
testimony. “He sobbed quite a bit during the trial, but this was much heavier than
he has in the past. And he doesn‟t look like he‟s been sleeping. He looks
terrible.” The court responded that they would try proceeding in defendant‟s
absence and “see where we go from there.”
       At this point Deputy District Attorney Annette Rees appeared in chambers
(though defendant remained absent), and the court explained that counsel had said
that defendant “is not doing very well. And in order to stave off more — other
consequences, I suggested that perhaps he could remain out of the courtroom
while Cindi finishes testifying. And they seemed to think that then we can
reassess where he is after that.” Rees responded that she had no objection if
defendant waived his right to be present, but asked what “not doing well”
signified, and whether defendant was physically ill. The court responded: “Well,
emotionally.” The jury returned to the court room and the court stated that
defendant “has elected to continue his absence from the courtroom for the duration

                                           39
of the testimony of at least this next witness. You‟re not to consider that for any
purpose or hold it against him.”
       Defendant was absent during the remaining testimony by Cindi Martinez
and during the testimony of James Hamiel, the criminalist. The following day, a
Friday, defense counsel Spierling put on the record that on Tuesday and
Wednesday mornings of the same week, defendant “cried almost the entire time,
had his hand over his face a good part of the time. [¶] And Thursday it was pretty
well recorded . . . his attitude and demeanor sitting there quietly crying. That
continued this morning. [¶] I think that was a result of his mental disease or
defect and it affects our ability to adequately represent him and for his adequate
participation in the trial.”
       Such statements by counsel and conduct by defendant are, of course,
relevant to the issue of defendant‟s competency. (Medina v. California, supra,
505 U.S. at p. 450 [“defense counsel will often have the best-informed view of the
defendant‟s ability to participate in his defense”]; Drope, supra, 420 U.S. at pp.
176-177 [“judges must depend to some extent on counsel to bring issues into
focus”]; Pate v. Robinson (1966) 383 U.S. 375, 385 [relevance of the defendant‟s
irrational behavior]; People v. Lewis (2008) 43 Cal.4th 415, 525 [counsel‟s
declarations entitled to some weight, though not determinative], disapproved on
another point in People v. Black (2014) 58 Cal.4th 912, 919-920.) Although at
one point defense counsel referred to “consultation with experts,” however, he
offered no new expert reports. Instead, counsel asserted that to his own
knowledge defendant‟s mental condition had deteriorated in the approximately 10
to 11 months since the competency hearing, and he provided some examples. The
examples, however — the focus on his children and the guilt of others, the
inappropriate contact with family members, the bizarre interactions with the priest
— sounded very much like the evidence the defense proffered during the

                                         40
competency trial. We recall, for example, that when Dr. Stewart first interviewed
defendant in 2003, defendant asked whether he was there to administer the lethal
injection, a question Dr. Stewart considered bizarre under the circumstances. And
much of the evidence of the competency trial reflected similar preoccupation with
his children, the guilt of others, and inappropriate — even threatening — phone
contacts with family members. Defendant‟s perceived lack of involvement during
jury selection is notable, but is quite consistent with the evidence from the
competency trial indicating that he was not interested in the temporal proceedings,
but only in God‟s justice. There was little or no new evidence indicating that,
contrary to Dr. Cavanaugh‟s view that defendant‟s aversion to focusing on the
temporal trial was a matter of choice, it was actually a matter of mental illness.
       More troubling, perhaps, are defendant‟s own statements and actions. All
the competency experts agreed that defendant had suffered or was continuing to
suffer from major depression. It could be inferred from defendant‟s expressed
preference for the death penalty and to remain shackled that the depression
Dr. Cavanaugh believed was in remission in February 2004 had resumed an active
phase. The same inference could be drawn from defendant‟s steady weeping
during several days of testimony, and his more emphatic emotions during his
former wife‟s testimony — emotions that rendered him unable to remain in the
courtroom during important testimony. Defense counsel also recorded an
observation that it appeared defendant had not been sleeping.
       On the other hand, as defense counsel himself acknowledged, defendant
had suffered similar emotional difficulty with Cindi‟s testimony during the
preliminary examination years before, although it does not appear he was unable
to remain in the courtroom. Defendant had displayed wide mood fluctuations and
had wept at points during his interviews with Dr. Stewart in 2003. Indeed he was
weeping and very emotional during his encounters with the school principal and

                                         41
the deputy sheriff assigned to the school — both at school and at his home — the
day before the crimes. He also was reported to be rambling, random, paranoid,
and unfocused in his remarks during those interchanges. And during the
interviews conducted by the various experts in the months and years before trial,
he had displayed a lack of interest in his fate at the hands of the jury. The trial
court had observed defendant‟s behavior for years, including at the preliminary
hearing and the competency trial. The court was aware that during the early stages
of the proceedings, defendant had been prescribed Prozac and that after an interval
he took Remerol instead, but that he had stopped taking them more than a year
prior to the competency trial because he apparently was feeling better. There was
no evidence that psychiatric medication was prescribed subsequently. Under the
circumstances, we do not believe that the record includes substantial evidence of a
change of condition or new evidence casting doubt on the competency verdict that
would require the court to order a second competency hearing.
       Contrary to defendant‟s assertion, this is not a case like Maxwell v. Roe (9th
Cir. 2010) 606 F.3d 561, in which the federal appellate court reversed a conviction
on the ground that the state trial court erroneously declined to conduct a second
competency hearing. In that case, not only had counsel complained that the
defendant was incompetent, his outbursts were so violent he had to be put in
restraints. In addition, there was a midtrial suicide attempt and 72-hour and 14-
day involuntary psychiatric holds instituted under Welfare and Institutions Code
sections 5150 and 5250. Under those circumstances, it was error not to hold
another competency hearing. The federal court acknowledged that the prior
finding was relevant, but stated that “there was substantial evidence that
Maxwell’s mental condition had significantly deteriorated since the initial pretrial
. . . competency determination. . . . After [13 months] had passed the trial court
would have been unreasonable in relying solely on a stale competency

                                          42
determination in the face of contradictory evidence” — citing authority stating that
“once there is substantial new evidence of incompetency, a bona fide doubt is
raised that „cannot be dispelled by resort to [pre-existing] conflicting evidence.‟ ”
(Id. at p. 575.) The court went on to observe that “[t]here was overwhelming
evidence that regardless of the prior competency determination, Maxwell was
incompetent at the time of his . . . murder trial.” (Ibid.)
       We do not see the same substantial new evidence, much less overwhelming
evidence of incompetency in the present case. Defendant‟s conduct was muted
and his absence during testimony was much shorter than in the Maxwell case, nor
was it accompanied by evidence of a psychiatric crisis requiring involuntary
commitment. We note, too, that unlike in the present case, in Maxwell the trial
court was not the same court that had conducted the pretrial competency hearing,
and accordingly did not have the same lengthy personal knowledge of the case.
By contrast in defendant‟s case, the trial court was in a position to determine from
its own observations ever since the preliminary examination, including presiding
over the competency proceedings, that the proffered new evidence of defendant‟s
incompetence during trial, including his weeping, irrationality, and the reported
lack of engagement in his own defense, were not indicators of a change but were
consistent with behaviors and the evidence of incompetence that had been
considered at the competency trial.
       Next we examine events occurring during closing argument in the guilt
phase, before and after the sanity phase, during closing argument in the penalty
phase, and in connection with the defense motion for new trial. Relying on these
events, defendant contends they include new expert opinion evidence that should,
along with defendant‟s demeanor and conduct and the comments of counsel, have
indicated a change of circumstances or new evidence throwing doubt on the
competency verdict.

                                          43
       On November 9, 2005, when Deputy District Attorney Douglas Raynaud
mentioned in closing argument in the guilt phase that defendant had promised
Guadalupe that he would not hurt her mother, defendant exclaimed: “It‟s a lie.”
When Raynaud took up the issue of malice aforethought, defendant exclaimed: “I
didn‟t plan to kill my family.”
       The same day, defense counsel stated to the court that “once again . . .
[defendant] remains incompetent to stand trial. His demeanor and activities and
actions during the course of the trial over the past several days continue to be
consistent with a person who is unable to assist counsel in presenting a defense or
to relevantly participate in the proceedings.” He added that defendant had been
“consistently sobbing and crying throughout the proceedings.” Deputy district
attorney Rees stated that she had observed defendant conversing with counsel in a
way that seemed “somewhat articulate.” The court announced that it had
“observed [defendant‟s] behavior, [and] does not find it different in kind from the
behavior he has previously exhibited during the course of this case.”
       On November 29, 2005, at the conclusion of the sanity trial, the
government of Mexico filed an amicus brief asking the court to reconsider the
issue of competency. In addition to circumstances already related above,
including the various comments of defense counsel, the amicus curiae brief relied
upon a report by Dr. Wendy Weiss, a clinical and forensic psychologist appointed
by the court for the sanity phase. Defendant also places primary reliance upon her
testimony.
       Although Dr. Weiss was of the opinion that defendant was sane at the time
of the crime under the applicable legal standard, she also had testified that in her
interview with defendant in July 2005, several months prior to the trial, he
appeared to be “very depressed and disorganized in his thinking and my diagnostic
impression was major depressive disorder with psychotic features.” She based her

                                          44
opinion regarding his sanity at the time of the crime not only on her 2005
interview but also on previously assembled family history, records of his behavior
during the crime and when he was interrogated upon arrest, interview reports from
Dr. Schaeffer and Dr. Stewart, and mental health records from the jail.
       The trial court declined to reopen the competency issue in light of the
amicus curiae brief from the government of Mexico.
       We acknowledge that Dr. Weiss testified that “[i]f anything, I think when I
saw [defendant] he appeared to have deteriorated from the time . . . that the
records were assembled.” She believed that his mental state was similar at the
time of the crime to what it was at the time of her interview, although it was more
“severe” in 2005.
       On the other hand, Dr. Weiss‟s focus and task was to offer her opinion on
defendant‟s state of mind at the time of the crimes — not his current competency.
In addition, Dr. Weiss stated that defendant‟s demeanor during the 2005 interview
was consistent with the other evidence noted above, and that in the interview he
was “tearful and again somewhat disorganized and appeared depressed and
reported feeling depressed.” Her observations concerning defendant‟s symptoms
were very similar to the observations reported by defense experts even prior to the
competency hearing, and indeed, to defendant‟s interactions with school
representatives on the day before the crimes. She observed that school officials
had trouble getting defendant to “focus on the issue at hand” and that at that time
he was preoccupied with paranoid thoughts and suffered from disorganized
thinking. Indeed Dr. Weiss observed consistent paranoid features in defendant‟s
mental illness, such as that both during her interview with him in 2005 and in
December 2001 he expressed similar beliefs about the evils of the government and
that people were trying to hurt his children. In her interview with him, as well as
in earlier interviews, it seemed to her that he had a delusional belief that what he

                                          45
had done was justified. Dr. Weiss commented that during his jailhouse interview
at the time of his arrest, as well as in her interview with him, there was “an
element of not wanting to answer the questions that were being asked, that he
didn‟t want to talk about the subject matter” — including about the facts of the
crimes. She said she believed that “it was a very emotionally upsetting topic for
him and he didn‟t want to answer questions because it was upsetting to him.” The
overall import of the testimony, to the extent it was relevant to the issue of
competency at all, was to confirm the consistency of the condition defendant
exhibited in 2005, near the time of trial, with his earlier condition, even predating
the competency trial. Dr. Weiss‟s testimony therefore did not suggest a change in
status between the time of the competency hearing and July 2005, nor, being so
similar to evidence before the jury in the competency hearing, did it constitute
evidence tending to undermine the jury‟s verdict. (See People v. Lawley (2002)
27 Cal.4th 102, 136 [proffered evidence did not demonstrate any change but rather
“manifest[ed] the same arguably delusional beliefs reported” by the competency
evaluators].)
       Turning to other evidence assertedly requiring a new competency hearing,
defendant points out that during the penalty phase closing argument, when the
People attempted to refute the claim that defendant had believed he was helping
his children, defendant exclaimed with a curse, “leave my kids alone.” The court
directed defendant to remain silent or he would be removed, and defendant
responded: “Do whatever you want, but not my kids, okay. This is not — this is
wrong. They‟re talking about [my] killing somebody, and they want to kill me.”
After a recess, defendant apologized to the court and jury for his outburst. The
next day, defense counsel raised the issue of competence again: “I wanted once
again — as we have throughout this trial since October — [to] raise the issue of
the defendant‟s competence. I still don‟t think he‟s competent. I don‟t think he‟s

                                          46
been competent throughout the penalty phase. I think that was borne out by his
statements yesterday. . . . [¶] I just don‟t think he was ever able to assist counsel
in a meaningful way and make a decision about testifying.” (Italics added.) The
court responded: “I don‟t think there‟s been a change of circumstance. I think
[defendant‟s] competence level has been the same throughout.”
       Defendant renewed the competency issue by way of motion for new trial.
Counsel declared that “at all times” during each phase of trial, counsel were
convinced that defendant was not competent to assist them. (Italics added.)
Counsel‟s declaration stated that defendant had wanted to testify but in counsel‟s
view, because of his “ongoing mental problems” he was unable to convey any
rational information concerning his proposed testimony. The declaration
recounted that at some unspecified date counsel consulted Dr. Stewart, whose
view was that defendant‟s mental illness prevented counsel from advising him
regarding testifying, and at no time did counsel inform defendant that he had the
right to testify. Counsel argued that the defense had presented “overwhelming”
evidence of incompetence at the competency trial, also urging that because the
jurors in the competency phase of the trial returned its verdict in 15 minutes, it was
evident they had not given any consideration to the evidence. At the hearing,
counsel added that there was no case law outlining what change of circumstances
should be considered and the change of circumstance standard was “an impossible
burden.”
       The trial court denied the motion, stating that it had observed defendant and
his conduct “throughout the case from the beginning to end, and it was the Court‟s
observation that it was basically the same. [I]t was my observation that he was
more disturbed during the course of the trial proceedings than he had been in some
of the earlier hearings. But that was in the Court‟s opinion understandable in view
of the type of testimony that was presented and the type of events that were

                                          47
occurring during the course of the trial.” The court also referred to tape recordings
of defendant‟s phone conversations from jail, including some made after the guilt
phase verdict, adding that these did not “reflect the degree of depression or
moroseness that [defendant] displayed during courtroom proceedings where he
frequently and most often sat with his head down not observing the trial, the
proceedings as the record will reflect he is doing now. [¶] It was . . . and is the
Court‟s opinion that there were no changed circumstances between the time of
trial or during the trial proceedings.”
       Contrary to defendant‟s claim, his outbursts during the prosecutor‟s
argument did not indicate a change of condition or new evidence requiring a
further competency hearing. The trial court explained that his conduct appeared to
be a response to the difficult emotional content of the trial, not a product of
depression.
       Defendant emphasizes his trial counsel‟s repeated assertions to the trial
court that, because of defendant‟s mental illness, he was unable to assist them in
the defense. Certainly trial courts should consider and often rely on counsel‟s
statements regarding competency, but in this case counsel themselves insisted that
defendant always had been incompetent, that the competency jury simply had
erred in rejecting what they were convinced was an overwhelming case, and that
the law requiring a change of condition or new evidence was an “impossible
burden” for the defense. From the first time they raised the issue, they asserted
they were unable to secure defendant‟s meaningful assistance and their complaints
throughout the trial echoed the observations from the experts concerning
defendant‟s inability to focus, his religious preoccupation, and his lack of interest
in his legal predicament. (See People v. Medina (1995) 11 Cal.4th 694, 734
[unwillingness to cooperate with counsel predated the initial competency
determination; its continuation was not a change requiring a new hearing].) Under

                                          48
the circumstances, we see no reason to rely on counsel‟s comments to disturb the
trial court‟s view that defendant‟s conduct and demeanor had been basically the
same throughout the trial, and that his tears and emotional upset as the case
progressed were caused by the challenging testimony and argument he heard as he
sat in the court room.
       Nor do we agree that the passage of time between the competency trial and
counsel‟s various requests that the court institute a second competency proceeding
required the court to conduct another hearing. The passage of time may be
relevant, but in light of the court‟s lengthy experience observing defendant at
every stage of the proceedings, we do not find it determinative.
       Defendant asserts that the court itself apparently for a time believed
defendant was incompetent, pointing to a colloquy that occurred in early 2005
(shortly after the competency verdict) when defendant moved to represent himself.
In response to the court‟s inquiry regarding self-representation, defendant
suggested that the trial involved protection of his children, and said that if he
represented himself he would call on God‟s assistance. His comments were
consistent with views he espoused during the competency interviews. Although
the basis for the trial court‟s ruling later changed to one based upon untimeliness,
originally the court denied the motion because it believed defendant was
incompetent to represent himself even though he was not incompetent to stand
trial. The court believed that it could apply a different and higher standard of
competence to the self-representation motion than would apply to competence to
stand trial — a point of view subsequently confirmed by the United States
Supreme Court‟s decision in Indiana v. Edwards (2008) 554 U.S. 164, 174-178.
(See People v. Johnson (2012) 53 Cal.4th 519, 527-530.) Because the court was
applying a higher standard, the trial court‟s reaction to defendant‟s comments is of
no assistance in the context of the present claim on appeal.

                                          49
       Nor do we believe that defendant‟s rambling, religion-infused comments at
the sentencing hearing required a new competency hearing, contrary to trial
counsel‟s renewed claim. Defendant had been rambling in his speech even the day
before the crime, and this continued throughout the competency evaluations; he
expressed similar religious preoccupations during those evaluations. (See People
v. Blacksher (2011) 52 Cal.4th 769, 851 [the defendant‟s rambling remarks were
nothing new; an additional competency hearing not required]; People v. Lawley,
supra, 27 Cal.4th at pp. 136-137 [the defendant‟s repetition of delusional beliefs
did not require a new competency hearing].)
       Finally, defendant‟s reference to international jurisprudence is of no
assistance, but we reject the claim for the reasons stated above. Defendant largely
asserts that the international jurisprudence agrees with existing American
constitutional standards. To the extent he claims the international jurisprudence
embody a higher standard, he fails to demonstrate why such a higher standard is
required under the federal Constitution or state law.

       C. Defendant’s absence from the trial
       Defendant contends the trial court violated his state and federal
constitutional right to confrontation of witnesses and to due process of law, as well
as his rights under state statutes, when it permitted evidentiary portions of the trial
to proceed in his absence. Defendant refers to his absence from the courtroom
during the playing of a recording of Cindi Martinez‟s 911 call to police on the
night of the murders, as well as the portion of her testimony that followed that
evidence. He also bases his claim on his absence during the testimony of the next
witness, Jaime Hamiel, a criminalist who testified as an expert concerning
firearms. He also refers to additional absences to support his claim he did not
validly waive his right to be present during the two witness‟s testimony, arguing



                                          50
that the other excusals were “repeated, cursory, and almost automatic” and also
indicated the court and all counsel believed him to be incompetent.

           1. Factual background
       Cindi Martinez‟s recorded 911 call to police on the night of the murders
was played for the jury during the prosecutor‟s opening statement. She
subsequently testified for the prosecution. In defendant‟s presence, and with
defendant evidently exhibiting some distress, Cindi testified that she had gotten a
telephone call from defendant in the early morning hours after the murders. She
recounted that during the call, he said he had killed her entire family. She testified
that she called her family home, that no one answered, and that she then called
911. Without objection, the prosecution introduced a transcript of the tape
recording, and then sought to play the recording for the jury. As recounted above,
defense counsel requested that defendant be permitted to leave the court room
during the playing of the recording, pointing out that defendant had already heard
it, and commenting on how upsetting it was for him. The court asked defendant
whether he waived his presence for the playing of the recording, and defendant
answered in the affirmative. During the call, Cindi identified herself, said that her
husband had called to say he had killed her mother and that she, Cindi, wanted to
go to her mother‟s home but she still had her three sons with her. She said
defendant had called to find out whether she was at home. She wept and said she
should not stay at the apartment. She agreed that the Ceres police could come to
check on her. She said that defendant said “I warned you.” In the recording,
Cindi remarked that defendant had never been in trouble with the law.
       When Cindi‟s testimony continued in defendant‟s absence, as noted, the
court inquired of counsel whether defendant would return to the court room.
Counsel explained in camera, still in defendant‟s absence, that defendant was



                                         51
upset and had expressed a strong desire not to be in the court room anymore.
Counsel stated that he would waive defendant‟s presence during the hearing,
adding that defendant was “not going to help himself in any way.” The court
suggested that it might be Cindi who was “triggering all of this,” and that if
defendant were absent from her testimony, he might be able to return thereafter.
Defense counsel responded that other evidence might also be upsetting, and the
court recommended that they reassess the situation if that turned out to be the case.
Counsel apparently agreed, commenting that defendant had also been very upset
when Cindi had testified at the preliminary hearing. Then the court explained to
the prosecutor that it had suggested defendant remain outside the courtroom
during Cindi‟s testimony. The prosecutor said she had no objection if defendant
waived his right to be present. When the jury returned, the court explained that
defendant had “elected” to be absent “at least” for the duration of Cindi‟s
testimony and that the jury should not consider this or hold it against him.
       Cindi‟s ensuing testimony — in defendant‟s absence — was to the effect
that prior to the 911 call, defendant told her he was coming to her apartment, and
that in response to the 911 call she and her sons were taken to the police station
and kept in isolation without any information for more than two hours. She
identified the weapons taken from the scene as either defendant‟s or her own
property, described where they were purchased and where they had been kept in
the home, and added that they were licensed. She stated that the couple had used
separate bedrooms for about one year and had not had marital relations. She
added that she had moved out of the family home about two weeks before the
murders. She was aware that defendant kept cash in the amount of about $10,000
in the house, and that this money was the proceeds of the sale of some family
property in Mexico. Cindi said that she was involved romantically with Chavez,
who lived at her parents‟ house, and that they had become intimate a short time

                                         52
before the murders. She said her children had had an acceptable relationship with
Chavez. She identified defendant‟s van, helmet, and guns, and said she was aware
of his bulletproof vest. She also identified a gas mask as one she had purchased at
a garage sale. Cindi testified that defendant had stopped working some five or six
years before the murders, and that she worked two jobs and paid him to take care
of the children.
       During cross-examination, defense counsel focused on photographs of the
couple‟s children found in defendant‟s van, and evidence that the weapons had
been in the house since 1995 or 1996 and had been kept locked up. Cindi testified
that defendant had been keeping the cash from the property sale for their children,
that he did not trust banks or the government, and that he had become very
suspicious. She said defendant had never hit her or threatened her before, and that
he did not take drugs or abuse alcohol. She said the tragedy came out of the blue
and she never would have expected it.
       On redirect examination, Cindi described defendant‟s mistrust of the police.
She denied telling a police officer that at one time, defendant had said that if she
did not leave the house, he would kill her. She conceded that there had been an
argument in which the couple pushed each other and defendant had put his hands
around her neck, though she did not know whether he was playing or was angry.
       As for criminalist Hamiel‟s testimony, the record indicates no discussion or
attempt to secure a waiver of defendant‟s presence in advance of the testimony.
Rather, the following interchange — in which defendant played no part —
occurred. After Hamiel‟s testimony concluded, the prosecutor asked whether the
record should reflect defendant‟s absence during the testimony. The court stated:
“Well, yeah. Following conference in chambers with defense counsel, it was
decided that [defendant] was not in very good shape to continue listening to the
testimony. We — I suggested to counsel that he be excused from attending at

                                          53
least for the testimony of . . . Cindi Martinez, which was accepted by defense
counsel.” The prosecutor noted that the absence had continued during Hamiel‟s
testimony and asked “And that was waived?” Defense counsel responded: “Yes,
we continue our waiver of our client‟s presence for ballistics evidence that was put
on here late this afternoon.” The court noted its hope that defendant would return
the following day.
       The substance of Hamiel‟s testimony was that the shell casings and bullets
found at the scene had been fired from the weapons also found there, and that all
three of the weapons were semiautomatic, functioned properly, and had an average
trigger pull.4

            2. Asserted statutory violation
       “[S]ection 1043, subdivision (a) provides that „[e]xcept as otherwise
provided in this section, the defendant in a felony case shall be personally present
at the trial.‟ Although, pursuant to section 1043, subdivision (b)(2), a felony trial
that has commenced generally may continue if the defendant subsequently is
voluntarily absent, this exception does not apply in capital cases. (§ 1043,
subd. (b)(2).) Similarly, section 977, subdivision (b)(1) requires, in part, that
defendants charged with a felony must be present „during those portions of the
trial when evidence is taken before the trier of fact.‟ Under that statute, a
defendant is not permitted to waive his or her presence at that stage of the

4       Defendant also notes that he also was absent pursuant to defense counsel‟s
waiver after little discussion during various interchanges between court and counsel,
including: (1) consideration of a jury questionnaire issue; (2) a brief colloquy on the
first day of trial regarding when a motion would be entertained, (3) discussion of the
wording of a guilt phase instruction; (4) discussion of evidentiary and instructional
issues at the sanity phase; (5) stipulated excusal of a juror at the sanity phase; and (6)
discussion of evidentiary matters and regarding spectator behavior at the penalty
phase.



                                            54
proceedings. [§ 977, subd. (b)(1); citation.] Thus, under the statutes, a capital
defendant generally must be present during the trial when evidence is taken.”
(People v. Rundle (2008) 43 Cal.4th 76, 134 (Rundle).)
       It is evident that the trial court erred under the applicable statutes when it
permitted defendant to be absent during the playing of the 911 recording and the
taking of testimony from Cindi and Hamiel. The People do not argue otherwise.
       3. Asserted constitutional violation
       The applicable law is settled. “ „As a constitutional matter, a criminal
defendant accused of a felony has the right to be present at every critical stage of
the trial. [Citation.] The right derives from the confrontation clause of the Sixth
Amendment to the federal Constitution and the due process clauses of the Fifth
and Fourteenth Amendments, and article I, section 15 of the California
Constitution.‟ [Citation.]” (Rundle, supra, 43 Cal.4th at p. 133.) The
constitutional right may be waived. “As with other constitutional rights, a capital
defendant may waive his right to presence at trial, as long as his waiver is
voluntary, knowing and intelligent under the standard set forth in Johnson v.
Zerbst (1938) 304 U.S. 458, 464.” (People v. Davis (2005) 36 Cal.4th 510, 531,
italics added (Davis); see Taylor v. United States (1973) 414 U.S. 17, 18-20.)
       What constitutes a knowing and intelligent waiver is less clear. We have
noted an unsettled state of the law on the question whether a waiver by defense
counsel is effective, but stated that “[a]t a minimum, there must be some evidence
that the defendant understood the right he was waiving and the consequences of
doing so.” (Davis, supra, 36 Cal.4th at p. 532.) In the Davis case, we found no
effective waiver of the right to be present during a pretrial evidentiary hearing
when “defense counsel represented to the court that counsel had discussed the
hearing with defendant and that defendant would waive his presence.” (Ibid.) We
commented that there was no evidence that counsel had informed the defendant of

                                          55
his right to attend or that defendant understood that he would be unable to
contribute to the discussion regarding the evidence if he was not present. (Ibid.)
On the other hand, when the court has admonished the defendant that he had the
right to be present and inquired regarding the waiver of that right, we have not
accepted a claim that waiver is ineffective without additional admonition from the
court regarding the importance of the decision to be absent. We have said that
“[d]efendant was represented by counsel, and he himself chose, for his own
reasons, to leave the courtroom. We find nothing improper about the procedure
used. . . .” (People v. Weaver (2001) 26 Cal.4th 876, 967.)
       In another case, we found the waiver adequate in the context of defendant‟s
absence from the taking of some evidence at the penalty phase when, after a
recess, “defense counsel informed the court that defendant had informed him
during the recess that he „would just as soon not hear the testimony of [certain]
witnesses.‟ ” (People v. Young (2005) 34 Cal.4th 1149, 1212 (Young).) The court
admonished the defendant, “ „you understand you have the right to be present or
not be present. That is your choice. And has [counsel] correctly stated your
position regarding future attendance here at the proceeding?‟ ” The defendant
responded in the affirmative. The court thereafter informed the jurors that
defendant had exercised the right not to be present “and admonished them that
they were not to speculate about defendant‟s exercising that right or allow it to
affect their deliberations on the issue of penalty.” (Id. at pp. 1212-1213.) On the
merits, we said that the “record reflects that defendant was voluntarily absent” and
we found “nothing improper about the trial court‟s acceptance of defendant‟s
conduct as voluntary waiver of his presence.” (Id. at p. 1213.) We were not
swayed by evidence of defendant‟s “ „borderline level‟ ” of intelligence in the
absence of evidence he was unable to understand and waive his right. (Ibid.)



                                         56
“Moreover, counsel made no objection to defendant‟s waiver on this basis and
thus did not preserve the issue for appeal.” (Ibid.)
       Applying the law to this case, we observe first that, because it is plain that
defendant personally waived his presence in the court room during the playing of
the recording of the 911 call, no constitutional error occurred with respect to that
evidence. With respect to defendant‟s absence from the remainder of Cindi‟s
testimony and that of Hamiel, however, the absence occurred on the basis of
representations from counsel. Because it is unclear whether a waiver by counsel is
effective in these circumstances, we will assume without deciding there was error
and consider whether any error was prejudicial.

           4. Standard of review
       We first dispose of the claim — raised by defendant for the first time after
oral argument — that any constitutional or statutory error constituted structural
error that requires reversal without an examination of prejudice.
       The high court traditionally takes a categorical rather than a case-by-case
approach to defining constitutional error it designates as structural. (Neder v.
United States (1999) 527 U.S. 1, 14 (Neder).) It has cautioned that most
constitutional errors may be reviewed under a harmless error standard. (Arizona v.
Fulminante (1991) 499 U.S. 279, 306 (Fulminante).) “ „[I]f the defendant had
counsel and was tried by an impartial adjudicator, there is a strong presumption
that any other [constitutional] errors that may have occurred are subject to
harmless-error analysis.‟ ” (Neder, supra, 527 U.S. at p. 8.) Only a “ „very
limited class of errors‟ ” is considered structural and requires automatic reversal.
(United States v. Davila (2013) ___U.S. ___, ___ [133 S.Ct. 2139, 2149; 186
L.Ed.2d 139 [referring to structural errors as belonging to a “highly exceptional
category”].) “Errors of this kind include denial of counsel of choice, denial of



                                          57
self-representation, denial of a public trial, and failure to convey to a jury that guilt
must be proved beyond a reasonable doubt.” (Ibid.) “Those cases . . . contain a
„defect affecting the framework within which the trial proceeds, rather than simply
an error in the trial process itself.‟ [Citation.] Such errors „infect the entire trial
process‟ [citation], and „necessarily render a trial fundamentally unfair‟ [citation].
Put another way, these errors deprive defendants of „basic protections‟ without
which „a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence . . . and no criminal punishment may be
regarded as fundamentally fair.‟ ” (Neder, supra, at pp. 8-9.) Such errors “defy
analysis by „harmless-error‟ standards.” (Fulminante, supra, 499 U.S. at p. 309.)
       The high court has never suggested that a defendant‟s improper absence
from any critical stage of the proceedings constitutes structural error requiring
reversal without regard to prejudice. On the contrary, it has listed such
constitutional error as belonging to the broad class of errors that may be harmless.
(Fulminante, supra, 499 U.S. at p. 307; Rushen v. Spain (1983) 464 U.S. 114, 117-
118, fn. 2; see People v. Perry (2006) 38 Cal.4th 302, 312 (Perry); Hovey v. Ayers
(9th Cir. 2006) 458 F.3d 892, 896, 903; Campbell v. Rice (9th Cir. 2005) 408 F.3d
1166, 1172-1173; U.S. v. Arrous (2d Cir. 2003) 320 F.3d 355, 361-362; U.S. v.
Watkins (7th Cir. 1993) 983 F.2d 1413, 1422 (Watkins).)
       Defendant claims a structural error standard applies to his case because he
was absent from the taking of testimony rather than from an ex parte
communication between judge and juror, as in the Rushen decision. But this
circumstance does not mean that his absence during a limited period of testimony
— with counsel‟s approval — necessarily affected the whole framework within
which the trial proceeded (see Neder, supra, 527 U.S. at p. 8), or that any error
defies analysis for prejudice (Sullivan v. Louisiana (1993) 508 U.S. 275, 279;
Fulminante, supra, 499 U.S. at pp. 309-310; People v. Gamache (2010) 48 Cal.4th

                                           58
347, 396; People v. Dickey (2005) 35 Cal.4th 884, 924). We are aware of no
decision, and defendant cites none, establishing that a defendant‟s absence from
the courtroom during the trial testimony of two witnesses based on a waiver or
consent by counsel but without an effective personal waiver constitutes structural
constitutional error requiring automatic reversal. (See Watkins, supra, 983 F.2d at
p. 1422 [defendant‟s absence during taking of evidence was prejudicial under
Chapman v. California (1967) 386 U.S. 18]; U.S. v. Toliver (2d Cir. 1976) 541
F.2d 958, 965 [defendant‟s absence during the trial testimony of two witnesses
was constitutional error, but the error was nonprejudicial].) Defendant‟s reliance
on decisions involving a deprivation of counsel is misplaced. The high court has
recognized that complete deprivation of counsel, unlike other constitutional
violations, belongs to the small class of errors it recognizes as structural. (United
States v. Marcus (2010) 560 U.S. 258, 263; Fulminante, supra, 499 U.S. at
p. 309.) Defendant‟s absence from the courtroom during part of the testimony of
one witnesses and the entire testimony of another — with the consent or
acquiesence of counsel — does not necessarily render the adversary process
“ „presumptively unreliable.‟ ” (Roe v. Flores-Ortega (2000) 528 US 470, 483
[using the phrase in the context of defense counsel‟s failure to file a notice of
appeal].)
       Defendant also claims that the statutory error should be viewed as structural
error requiring automatic reversal, citing People v. Blackburn (2015) 61 Cal.4th
1113 (trial court‟s failure to obtain a valid jury trial waiver was statutory error and
a miscarriage of justice requiring reversal without inquiry into prejudice). But we
have already made it quite plain that we apply a harmless error standard to
statutory error under sections 1043 and 977. (Rundle, supra, 43 Cal.4th at pp.
134-135; People v. Riel (2000) 22 Cal.4th 1153, 1196 (Riel); People v. Mayfield
(1997) 14 Cal.4th 668, 738; People v. Jackson (1996) 13 Cal.4th 1164, 1211

                                          59
(Jackson).) Defendant argues that in none of those decisions was the defendant
both absent from testimony during the trial itself and absent without a personal
waiver of his presence. We do not see why these circumstances would transform
error from trial error to structural error, however, and defendant provides no
convincing basis for such a conclusion.
       Having rejected defendant‟s structural error claim, we reaffirm that review
of any error under sections 977 and 1043 is conducted under the Watson standard
(People v. Watson (1956) 46 Cal.2d 818, 836) — asking whether it is “reasonably
probable a result more favorable to the defendant would have been reached in the
absence of the error.” (Rundle, supra, 43 Cal.4th at p. 134.)
       “Under the federal Constitution, error pertaining to a defendant‟s presence
is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in
Chapman v. California (1967) 386 U.S. 18, 23.)” (Davis, supra, 36 Cal.4th 532;
see Perry, supra, 38 Cal.4th at p. 312.)
       5. Harmless error
       We first conclude that defendant‟s absence during the playing of the
recording of the 911 call was harmless under the Watson standard. Defense
counsel had been in possession of the 911 tape recording long before the trial
commenced, and Cindi had referred to it in her preliminary examination testimony
in January 2003. (See Davis, supra, 36 Cal.4th at p. 533 [defense counsel‟s prior
access to evidence gave them “ample opportunity to discuss the contents with
defendant and to seek his assistance”].) In addition, a transcript of the call was
introduced in evidence at trial while defendant was present. Moreover, the
recording had been played in defendant’s presence during the prosecutor‟s
opening argument. Defendant had ample opportunity to offer counsel any insight
he had — had he been willing to cooperate with counsel to that extent. Finally, in
the defense opening statement, counsel commented that the defense evidence was

                                           60
not going to change the picture presented by the recorded 911 call. There is no
reasonable probability that if defendant had been present when the recording was
played for a second time, a different verdict would have resulted.
       We next consider whether any constitutional error arising from defendant‟s
absence during the remainder of Cindi‟s testimony and that of Hamiel was
harmless beyond a reasonable doubt.
       With respect to defendant‟s absence for Cindi‟s testimony after the playing
of the 911 recording, contrary to defendant‟s complaint that the trial court “failed
to admonish the jury not to speculate or infer anything from [defendant‟s]
absence,” the court did so admonish the jury. That admonition helps to support
the conclusion that any error was harmless. (People v. Dickey, supra, 35 Cal.4th
at p. 924 [defendant‟s absence during certain testimony nonprejudicial under the
higher “not reasonably possible” prejudice standard applicable to penalty phase
error, relying in part on the court‟s admonition]; Jackson, supra, 13 Cal.4th at pp.
1211-1212 [defendant‟s absence nonprejudicial under the lower “reasonable
probability” standard of review, relying in part on the court‟s admonition].)
       In addition, of some relevance is defense counsel‟s statement that defendant
was not going to do himself any favors by remaining during that testimony. (Riel,
supra, 22 Cal.4th 1153, 1196 [noting relevance of counsel‟s views to issue of
prejudice, albeit under the standard of review for statutory error].)
       Most significantly, defendant‟s absence during Cindi‟s testimony was
harmless in light of the very limited nature of defendant‟s defense and the fact that
Cindi‟s testimony in favor of the prosecution was basically consistent with
elements of the prosecution case that the defense had conceded. For example, it
was not disputed that Mendoza killed the victims at their residence in the middle
of the night using weapons and equipment he brought from his home. Apart from
incriminating elements that he had conceded, Cindi‟s testimony was, if anything,

                                          61
consistent with his defense that he was distraught and that he acted without
premeditation.
       Defendant contends that his presence during Cindi‟s remaining testimony
“would have been extremely helpful in cross-examination of Cindi as [defendant]
was the only person with knowledge relating to the matters testified to by Cindi,”
including defendant‟s relationship with her and their children, her relationship
with Camarino Chavez, and evidence regarding the weapons and equipment
owned by defendant.
       Preliminarily, it is not true that defendant was the only person with
knowledge of all the facts Cindi covered in her testimony; other witnesses,
including Cindi‟s father and her sister, Guadalupe, were aware of and already had
testified regarding the relationship between the couple and their children, and
Cindi‟s relationship with Camarino Chavez. In addition, basic points concerning
the couple‟s relationship and the events leading up to and following the murders
had been covered, albeit without much detail, in Cindi‟s preliminary examination
testimony. Moreover, defense counsel‟s opening statement demonstrates that,
before Cindi testified, counsel already had gleaned from defendant the particulars
that counsel sought to develop on cross-examination during her testimony,
including evidence concerning defendant‟s relationship with Cindi and their sons,
as well as the absence of any criminal record. Finally, because Cindi was excused
subject to recall but was not recalled once defendant had returned to the
courtroom, we infer that even after an opportunity to consult with defendant,
counsel saw no need for further examination of Cindi.
       In sum, it is not reasonably possible under the totality of the circumstances
that if defendant had not been absent from the courtroom during Cindi‟s
testimony, there would have been a more favorable verdict. (See Rundle, supra,
43 Cal.4th at p. 136.)

                                         62
       As for Hamiel‟s testimony, defendant claims that had he been present and
“if he was competent, then he should have been able to assist counsel in
formulating questions on cross-examination as to trigger pull, which was relevant
to determining the degree of homicide.” As noted, the defense did not dispute that
defendant owned the firearms used in the murders. Evidence concerning whether
each weapon had an average trigger pull could not possibly have affected any
element in dispute. The jury had before it evidence that defendant had brought
three loaded semiautomatic firearms along with ample extra ammunition and other
equipment, to the home in the middle of the night, burst into the house through a
front window, fired his weapons until they were empty and reloaded, expending at
least 73 rounds as he shot through doors and shot off locks. The evidence was
overwhelming that he separately pursued three victims to their deaths from close-
range gunshot wounds to the head and body, then searched the home for an
additional victim, Cindi‟s father. Trigger pull evidence could have had no impact
on the jury‟s understanding that defendant had paused after killing two victims to
interact with Guadalupe, used her to lure Alicia out of her bedroom, and then shot
Alicia in the head at close range as she professed her love for him. Similarly, any
evidence that the weapons had a difficult trigger pull could have had no impact on
the verdicts in light of the multiple rounds fired at the door to Camarino‟s room
and in the room itself, the multiple fatal gunshot wounds inflicted on him, and the
statements overheard by Guadalupe regarding defendant‟s motive for killing
Camarino.
       Because there is no prejudice under Watson if there is no prejudice under
the more rigorous harmless error test for assessing federal constitutional error, the
violation of sections 1043 and 977 that occurred in this case is necessarily
harmless.



                                         63
       D. Asserted prosecutorial misconduct at the guilt phase
       Defendant contends the prosecutor committed misconduct in violation of
his state and federal constitutional rights to confrontation, due process, and a fair
trial. He claims that in closing argument at the guilt phase of trial, the prosecutor
improperly argued facts not in evidence and personally vouched for the
prosecution‟s case. We reject his claim.
       “ „A prosecutor‟s misconduct violates the Fourteenth Amendment to the
United States Constitution when it “infects the trial with such unfairness as to
make the conviction a denial of due process.” [Citations.] In other words, the
misconduct must be “of sufficient significance to result in the denial of the
defendant‟s right to a fair trial.” [Citation.]‟ ” (People v. Clark (2011) 52 Cal.4th
856, 960.) Even when the misconduct does not attain that level, it may be error
under state law, but “ „ “only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.” [Citation.]
When a claim of misconduct is based on the prosecutor‟s comments before the
jury, . . . “ „the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.‟ ” [Citation.]‟ ” (People v. Linton (2013) 56 Cal.4th 1146, 1205
(Linton).) Generally, “ „[t]o preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a timely and specific objection and ask the trial
court to admonish the jury to disregard the improper argument.‟ ” (Ibid.) A
failure to “object and request an admonition will be excused if doing either would
have been futile, or if an admonition would not have cured the harm.” (Ibid.)
“[T]he absence of a request for a curative admonition does not forfeit the issue for
appeal if „the court immediately overrules an objection to alleged prosecutorial
misconduct [and as a consequence] the defendant has no opportunity to make such
a request.‟ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill).)


                                           64
       Defendant refers first to a guilt phase closing argument in which Deputy
District Attorney Raynaud summarized evidence at the crime scene by
emphasizing the perpetrator‟s determined efforts to gain ingress to the home, the
many wounds the victims suffered, and evidence that there had been multiple
shots from multiple weapons that were emptied in the course of the shootings. He
said: “The house was a shooting gallery, folks. And those folks were like ducks
in a barrel. [¶] Unlike so many other cases where — murder cases where there‟s
an argument . . . .” At this point defense counsel objected, alleging “lack of
foundation.” The trial court overruled the objection and the prosecutor continued:
“if you can envision a case where somebody gets in an argument with another
person and tempers flare, somebody pulls a gun, shots are fired, one, two, maybe
three shots, and when the smoke clears, somebody is dead, and there‟s a question
and there‟s responses: Well I thought he had a gun. Well, I was just trying to
scare him. Well, I didn‟t know it was loaded. [¶] Those are cases where there‟s a
question as to whether or not there was an intent to kill, a question of malice
aforethought. [¶] In this case, the amount of evidence that goes toward malice
aforethought, manifestation of intent to kill, is absolutely overwhelming.” Then
the prosecutor went on to discuss many pieces of evidence that he argued
demonstrated premeditation and deliberation, also mentioning the jury instructions
and factual situations that would be “classic examples” of voluntary manslaughter
and second degree murder.
       Defendant contends these remarks impermissibly referred to facts not in
evidence and vouched for the strength of the prosecution‟s case.
       “Impermissible vouching occurs when „prosecutors [seek] to bolster their
case “by invoking their personal prestige, reputation, or depth of experience, or the
prestige or reputation of their office, in support of it.” [Citation.] Similarly, it is
misconduct “to suggest that evidence available to the government, but not before

                                           65
the jury, corroborates the testimony of a witness.” ‟ [Citations.]” (Linton, supra,
56 Cal.4th at p. 1207.)
       In the present case, to the extent the claim is based upon improper
vouching, it is forfeited. (People v. Zambrano (2007) 41 Cal.4th 1082, 1166
[“defendant‟s failure to raise a vouching objection at trial forfeits the claim on
appeal”] disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at
p. 421, fn. 22; Hill, supra, 17 Cal.4th at p. 820 [in order to preserve an objection
for review, defense counsel must object to the misconduct “ „on the same
ground‟ ”].)
       The objection based on lack of foundation served to preserve the claim that
the prosecutor asserted facts not in evidence. Although defense counsel failed to
request an admonition, the failure is excused because the objection was quickly
overruled. (Hill, supra, 17 Cal.4th at pp. 820-821.)
       It is well settled that it is misconduct for a prosecutor to base argument on
facts not in evidence. (Linton, supra, 56 Cal.4th at p. 1207.) We do not find,
however, that the prosecutor committed such misconduct in this case. The
prosecutor made the claim — based entirely on the evidence — that the crime
occurred in what looked like a “shooting gallery.” He made the point that the
perpetrator had made a concerted effort to get into the house in the middle of the
night and had emptied three fully loaded firearms and additional ammunition into
the victims and the walls. In order to make a legitimate point concerning
defendant‟s state of mind, the prosecutor sought to distinguish these established
facts from a hypothetical situation in which there might be a burst of shots and
then some debate about whether the perpetrator might have acted in self-defense
or even by accident. In order to illustrate the concept of malice, the prosecutor
compared the facts of the case with common, obviously hypothetical scenarios that
jurors readily could posit for themselves. The argument sought to distinguish a

                                          66
case in which malice aforethought might be in question from the defendant‟s case,
in which, the prosecutor argued, the facts on the record demonstrated there could
be no such question. The use of hypotheticals is not forbidden and there is no
misconduct when, as here, “[n]o reasonable juror would have misunderstood the
expressly hypothetical example to refer to evidence outside the record.” (People
v. Davis (1995) 10 Cal.4th 463, 538; accord, People v. Barnett (1998) 17 Cal.4th
1044, 1141.)
       In any event, even if the vouching claim were preserved, it would be
without merit because the comment would not be understood to refer to facts
available solely to the government or to the prosecutor‟s personal knowledge or
beliefs or the prestige of her office. (See Linton, supra, 56 Cal.4th at p. 1207;
People v. Williams (1997) 16 Cal.4th 153, 257.)
       Defendant also complains of a statement in the rebuttal portion of the
prosecutor‟s argument. The defense had argued there was reasonable doubt
concerning the elements of premeditation and deliberation, pointing in part to
evidence of defendant‟s deteriorating mental condition, especially in the days and
hours before the crimes. The defense reminded the jury that defendant‟s marriage
was falling apart, that he was anguished over the loss of his children, and that he
had become deeply depressed and unusually distraught.
       Deputy District Attorney Raynaud sought to counter the defense argument,
beginning the rebuttal as follows: “Everybody who commits murder has a
particular reason: Greed, lust, anger, jealousy, revenge. Everybody before they
commit murder has to have a reason. And why that reason finally hits and ripens
to the point where that person comes to grips with what they‟re going to do and
they decide to do it and take action, it is an ugly emotion. It is an ugly state of
mind. [¶] But nobody who goes out and intentionally takes a life does it when
they’re all right in the head. I‟m not going to sit here and tell you that [defendant]

                                          67
was calm and happy and everything was wonderful in his life before he went out
and murdered those folks. That‟s not the case.” (Italics added.)
       Defendant claims that the prosecutor referred to evidence outside the record
and improperly vouched for the strength of his case when he uttered the italicized
phrase.
       Because there was no objection on any ground, nor would an objection
have been futile, the claim is forfeited. (Linton, supra, 56 Cal.4th at p. 1205.)
Although, as we have seen, the court overruled one of counsel‟s objections, with
respect to counsel‟s sole other objection, the court responded by ordering the
prosecutor to rephrase his argument. There is no evidence to suggest that the court
would have been predisposed to rule against defendant on subsequent objections.
       Moreover, even had the issue been preserved, we would find no
misconduct. When considered in context, the argument was essentially an appeal
to common sense — to the idea that no one who intentionally kills in a domestic
setting is in a normal or calm state of mind. From this commonsense point, the
prosecutor sought to persuade the jury that although defendant was distraught, he
remained responsible and had premeditated. “Counsel may argue facts not in
evidence that are common knowledge or drawn from common experiences.”
(Young, supra, 34 Cal.4th at p. 1197.) Contrary to defendant‟s claim, the
prosecutor was not suggesting the existence of any facts unknown to the jury, nor
was he trading on the prestige of his office.

       E. Constitutional challenges to sentence on the basis of evidence of
          mental illness
       Defendant contends imposition of the death sentence on him is
impermissible under the Eighth Amendment‟s prohibition against cruel and
unusual punishment and violates the guarantee of due process of law, because
defendant “was seriously mentally ill at the time of the offenses and at trial.”


                                          68
Defendant made a similar claim at trial, also citing Atkins v. Virginia (2002) 536
U.S. 304, which holds that the Eighth Amendment prohibits imposition of the
death penalty on mentally retarded persons, and Roper v. Simmons (2005) 543
U.S. 551, which reached a similar conclusion with respect to persons who were
juveniles at the time of their offenses. The trial court rejected the claim.
       To the extent defendant‟s claim on appeal is that persons who are
“severely” mentally ill may not constitutionally be subject to the death penalty by
analogy to Atkins and Roper, we have rejected similar claims based on the
rationales of those cases. In People v. Hajek and Vo (2014) 58 Cal.4th 1144
(Hajek and Vo), a case in which defendant Hajek presented evidence of his
cyclothymic and bipolar disorders, we observed that the defendant had
“identifie[d] no controlling federal authority barring imposition of the death
penalty on mentally ill offenders.” (Id. at p. 1251.) Defendant‟s argument suffers
from the same deficit in authority.
       In Hajek and Vo, supra, 58 Cal.4th 1144, we analyzed the claim in light of
a prior decision of this court, People v. Castaneda (2011) 51 Cal.4th 1292, an
opinion that considered the problem in light of both Atkins and Roper. The
Castaneda decision had rejected the claim that antisocial personality disorder was
“analogous to mental retardation or juvenile status for purposes of imposition of
the death penalty.” (Castaneda, supra, 51 Cal.4th at p. 1345.) As we explained
the Castaneda analysis in Hajek and Vo, in contrast to the action of many state
legislatures forbidding execution of mentally retarded persons, no “ „objective
evidence‟ ” indicated the same view with respect to persons having an antisocial
personality disorder. (Hajek and Vo, supra, at p. 1251.) We recalled that the
Castaneda decision commented that members of the latter class of persons have
greater personal culpability for crime because they retain more awareness and
personal autonomy than mentally retarded persons. (Ibid.) Moreover, the

                                          69
Castaneda decision had said, “ „the justifications for the death penalty —
retribution and deterrence — may be served by application of the law to such
individuals.‟ ” (Hajek and Vo, supra, at p. 1251.)
       We concluded that the same analysis applied to defendant Hajek‟s claims,
and indeed reached a holding that is of broader application than the particular
mental illness — antisocial personality disorder — exhibited by Castaneda or the
bipolar and cyclothymic disorders exhibited by Hajek. “Most significantly, the
circumstance that an individual committed murder while suffering from a serious
mental illness that impaired his judgment, rationality, and impulse control does not
necessarily mean he is not morally responsible for the killing. There are a number
of different conditions recognized as mental illnesses, and the degree and manner
of impairment in a particular individual is often the subject of expert dispute.
Thus, while it may be that mentally ill offenders who are utterly unable to control
their behavior lack the extreme culpability associated with capital punishment,
there is likely little consensus on which individuals fall within that category or
precisely where the line of impairment should be drawn. Thus, we are not
prepared to say that executing a mentally ill murderer would not serve societal
goals of retribution and deterrence. We leave it to the Legislature, if it chooses, to
determine exactly the type and level of mental impairment that must be shown to
warrant a categorical exemption from the death penalty.” (Hajek and Vo, supra,
58 Cal.4th at p. 1252; accord, People v. Boyce (2014) 59 Cal.4th 672, 722 (Boyce)
[confirming that we have refused to extend Atkins to “mental illness in general”].)
That broad holding applies in the present case as well — especially considering
that in this case the jury, after a separate trial involving copious testimony from
mental health experts, rejected defendant‟s claim that he was not culpable for the
murders on the ground of insanity as defined by our law, and at the penalty phase



                                          70
rejected his argument that because of his mental illness the death penalty was not
warranted.
       We also decline to reconsider the position we took just one year ago in
Hajek and Vo, supra, 58 Cal.4th 1144, simply because defendant has identified
observations dating back several years from members of the psychiatric profession
urging that mentally ill persons not be eligible for the death penalty, or a 2002 poll
assertedly showing that 75 percent of respondents stated that they “opposed the
death penalty when asked whether they favored or opposed it for the „mentally
ill.‟ ” Nor are we prepared to reconsider on the basis of defendant‟s incomplete
citations to United Nations sources and his accompanying undeveloped argument.
For example, he cites United Nations Safeguards Guaranteeing Protection of the
Rights of Those Facing the Death Penalty (Economic & Soc. Council res.
No. 1984/50, annex, No. 1 1984 U.N. ESCOR Supp. at p. 33, U.N. Doc.
E/1984/84 (May 25, 1984)), for the proposition that “the execution of those with
severe mental illness is prohibited by international law, and by virtually every
country in the world.” In fact the cited document does not speak in terms of
“severe mental illness.” Rather, it states that persons who committed their crimes
before they were 18 years of age should not be sentenced to death “nor shall the
death sentence be carried out . . . on persons who have become insane.” (Ibid.;
italics added.) Defendant was found by a jury not to have been insane at the time
of commission of the crime. If he becomes insane he is not subject to execution
under existing federal law (Ford v. Wainwright (1986) 477 U.S. 399; see Panetti
v. Quarterman (2007) 551 U.S. 930 [discussing elements of competency to be
executed]), although that question will be determined after his execution date is
set. (Leonard, supra, 40 Cal.4th at p. 1430.)
       Defendant argues that in addition to considerations involving retribution,
deterrence, and emerging community standards, Atkins and Roper asked whether

                                         71
there was an enhanced risk of unjustified or mistaken execution in the case of
juveniles and persons with intellectual disabilities. He argues that the same
considerations apply in cases of mental illness, especially as manifested at trial,
maintaining that “the record here is replete with evidence of how [defendant‟s]
illness reduced his ability to assist and to trust counsel, thus heightening the risk of
an unjustified death sentence.” Defendant‟s briefing also argues that his mental
illness “made him unable to conform his conduct to the requirements of courtroom
procedure and decorum: he sobbed; he swore; he had outbursts. For these same
reasons, his attorneys did not believe he would make a good witness, even though
his testimony otherwise could have been helpful.” To the extent the claim is that
the penalty was unwarranted under the facts of this particular case, we consider
that issue under the appropriate legal standard below. To the extent this is an
argument that mental illness or even “serious” mental illness presents a risk of an
“unjustified death sentence,” such that the mentally ill must be categorically
exempted from the reach of the death penalty by analogy to Roper and Atkins, we
are not persuaded. All defendants, including this one, have the opportunity to
establish that they are not competent to stand trial. Moreover, defendant has not
argued convincingly that impaired competence of the sort faced by persons who
are minors or who have particular intelligence measurements and developmental
history is so widespread among all types of serious mental illnesses that all those
so diagnosed must be spared the death penalty. And unlike the benchmarks that
courts apply in the case of persons with intellectual disability or the simple age
measurements that exist for establishing minority, defendant does not offer a
definition of what level of mental illness would constitute serious mental illness.
       Regarding defendant‟s claim that, because of his mental illness, the
sentence is so disproportionate to his individual culpability that it violates state
and federal constitutional prohibitions against cruel and/or unusual punishment,

                                          72
our conclusion after conducting intracase proportionality review is that the
argument fails. “ „ “The cruel and unusual punishments clause of the Eighth
Amendment to the United States Constitution prohibits the imposition of a penalty
that is disproportionate to the defendant‟s „personal responsibility and moral
guilt.‟ [Citations.] Article 1, section 17 of the California Constitution separately
and independently lays down the same prohibition.” ‟ [Citations.] To determine
whether a sentence is cruel or unusual under the California Constitution as applied
to a particular defendant, a reviewing court must examine the circumstances of the
offense, including motive, the extent of the defendant‟s involvement in the crime,
the manner in which the crime was committed, and the consequences of the
defendant‟s acts. The court must also consider the personal characteristics of the
defendant, including . . . age, prior criminality, and mental capabilities. [Citation.]
If the penalty imposed is „grossly disproportionate to the defendant‟s individual
culpability‟ [citation], so that the punishment „ “ „shocks the conscience and
offends fundamental notions of human dignity‟ ” ‟ [citation], the court must
invalidate the sentence as unconstitutional.” (People v. Lucero (2000) 23 Cal.4th
692, 739-740 (Lucero).)
       In the present case, defendant, then 37 years of age, invaded the home of
his wife‟s family in the early hours of the morning as they slept, equipped with a
sledgehammer, three firearms, copious amounts of ammunition, a gas mask, a
bulletproof vest, camouflage clothing, and a pair of handcuffs. He killed his
wife‟s cousin upon entry, then sought out her lover and killed him in a blaze of
semiautomatic weapon fire. He then used his young sister-in-law to lure his
mother-in-law from behind a locked door to her death, using the false promise that
he would not hurt the older woman. His motives included jealousy and anger that
his children had, as he thought, been exposed to his wife‟s love affair in the home.
He injured his sister-in-law with his indiscriminate fire, but was aware enough of

                                          73
what he was doing to decide not to kill her too. He complied with her request that
he take her to the hospital only after he had accomplished another errand. In
consequence of his murders within the family, his sons and the rest of the family
suffered grievous losses, including depriving his sons of his own apparently tender
care as a father.
       Defendant asked the jury to evaluate his culpability in light of considerable
evidence of a relatively long-standing and untreated depression accompanied,
some of the experts said, with psychotic features. Defendant urged the jury that
this evidence, along with evidence of the emotional turmoil that preceded the
crime, should reduce the degree of the crime, but the jury was not persuaded.
Defendant urged the jury to consider even more detailed psychiatric evidence to
determine whether he should be held criminally responsible at all, or whether he
should be found to have been insane at the time of the crimes. The jury, having
considered the evidence, determined that he was sane. Finally, the jurors
considered the evidence of defendant‟s mental illness, along with evidence
indicating the absence of any criminal record or record of substance abuse, and
defendant‟s positive characteristics, in connection with their penalty
determination. Again, the jury concluded that despite this evidence, the death
penalty was warranted. We cannot say, under the facts before us, and in light of
the careful consideration already accorded to defendant‟s evidence of mental
illness at the trial level, that the penalty is grossly disproportionate to defendant‟s
culpability such that it “ „ “ „shocks the conscience.‟ ” ‟ ” (Lucero, supra, 23
Cal.4th at p. 740.)
       We also reject defendant‟s claim that it offends the guarantees of equal
protection and due process of laws to spare minors and those with certain
intellectual disabilities from the death penalty, but not to accord the same
treatment to mentally ill persons. As we explained in Boyce, in rejecting the same

                                           74
analogy to Atkins, these constitutional principles afford “ „equality under the same
conditions, and among persons similarly situated,‟ ” but do not require that
“ „ “things . . . different in fact or opinion [must] be treated in law as though they
were the same.‟” ‟ ” (Boyce, supra, 59 Cal.4th at pp. 722-723.)

       F. Constitutionality of the death qualification process in jury selection
       In a challenge to both the guilt and the penalty phase verdicts, defendant
asks us to declare that the process of excluding jurors who would not impose the
death penalty violates multiple constitutional provisions, including the Fifth, Sixth,
Eighth and Fourteenth Amendments to the federal Constitution and article I of the
California Constitution. He asks us to reconsider the factual and analytical basis
for decisions permitting exclusion of such jurors for cause such as Hovey v.
Superior Court (1980) 28 Cal.3d 1, People v. Fields (1983) 35 Cal.3d 329, and
Lockhart v. McCree (1986) 476 U.S. 162 (Lockhart). He alleges that excluding
persons opposed to the death penalty in all cases generally has a “negative impact
on the racial, gender, and religious composition of juries.” He asserts equal
protection violations because capital defendants receive different, more
conviction-prone juries than other defendants. He also argues without any factual
basis that prosecutors commonly abuse the death-qualification process to increase
the chance of securing a conviction. He asserts that the death-qualification
process fails to produce the heightened reliability required for death judgments
under Woodson v. North Carolina (1976) 428 U.S. 280, 305, and that it also
violates the right to jury trial. Defendant also argues that in the present case, the
prosecutor “systematically” used peremptory challenges to exclude jurors who
were “not excludable for cause” but “had reservations about the death penalty.”
He argues that the process of death qualification in California is unconstitutional




                                          75
because the questioning process permitted by Hovey and Fields “persuades jurors
to adopt pro-conviction and pro-death views.”
       Defendant cites nothing in the record indicating that he raised any of these
arguments or challenges in the trial court at any point, and does not dispute the
Attorney General‟s contention that no objection was made, nor does he make any
reply to the Attorney General‟s contention that the claims thereby were forfeited.
Our review of the record has not disclosed any objections on any of the bases
mentioned in defendant‟s briefing.
       Defendant‟s claims against the general propriety of questioning prospective
jurors regarding their views concerning the death penalty, permitting challenges
for cause as to persons who would be unable to impose the death penalty in any
circumstances, and permitting the exercise of peremptory challenges against
persons with apparent reservations concerning the death penalty, are forfeited
because they were not raised below. (People v. Tully (2012) 54 Cal.4th 952, 1066
(Tully); People v. Howard (2010) 51 Cal.4th 15, 26 (Howard); People v. Jennings
(2010) 50 Cal.4th 616, 687-688 (Jennings); People v. Gurule (2002) 28 Cal.4th
557, 597 (Gurule).)
       In any event, as defendant acknowledges these challenges have been
rejected on the merits in many decisions of this court. Defendant has not produced
any compelling reason for a different result. (People v. Taylor (2010) 48 Cal.4th
574, 602-604 (Taylor), and cases cited; see Tully, supra, 54 Cal.4th at p. 1066;
Howard, supra, 51 Cal.4th at p. 26; Jennings, supra, 50 Cal.4th at pp. 686-688;
People v. Mills (2010) 48 Cal.4th 158, 172 (Mills); People v. Salcido (2008) 44
Cal.4th 93, 144.) As we summarized in Howard: “The death qualification process
is not rendered unconstitutional by empirical studies concluding that, because it
removes jurors who would automatically vote for death or for life, it results in
juries biased against the defense. [Citations.] [¶] Lockhart[, supra,] 476 U.S. 162

                                         76
. . . , which approved the death qualification process, remains good law despite
some criticism in law review articles. [Citations.] „We may not depart from the
high court ruling as to the United States Constitution, and defendant presents no
good reason to reconsider our ruling[s] as to the California Constitution.‟
[Citation.] [¶] The impacts of the death qualification process on the race, gender,
and religion of the jurors do not affect its constitutionality. [Citations]. Nor does
the process violate a defendant‟s constitutional rights, including the Eighth
Amendment right not to be subjected to cruel and unusual punishment, by
affording the prosecutor an opportunity to increase the chances of getting a
conviction. [Citations.] Defendant claims the voir dire process itself produces a
biased jury. We have held otherwise. [Citation.] [¶] Death qualification does not
violate the Sixth Amendment by undermining the functions of a jury as a cross-
section of the community participating in the administration of justice.
[Citations.] Finally, defendant‟s constitutional rights were not violated by the
prosecutor‟s use of peremptory challenges to exclude jurors with reservations
about capital punishment. [Citation.]” (Howard, at pp. 26-27; see Taylor, at
p. 602 [rejecting argument for reconsideration on the basis of “current empirical
studies” assertedly demonstrating that death-qualified juries are conviction and
death prone ]; Salcido, at p. 144 [“ „[s]kepticism about the death penalty is a
permissible basis for a prosecutor‟s exercise of a peremptory challenge‟ ”];
Gurule, supra, 28 Cal.4th at p. 597 [prosecutor‟s use of peremptory challenges to
excuse death doubtfuls not improper]; People v. Lenart (2004) 32 Cal.4th 1107,
1120 [rejecting argument that death qualification results in a jury that is not a fair
cross-section of the community]; People v. Jackson, supra, 13 Cal.4th at pp. 1198-
1199 [even if death qualified juries are shown to be more conviction prone, it does
not follow that the process is constitutionally prohibited]; People v. Cummings
(1993) 4 Cal.4th 1233, 1279 [death qualification process does not violate 14th

                                          77
Amend. right to fair trial]; People v. Carrera (1989) 49 Cal.3d 291, 331, 333
[death qualification does not violate right to fair and impartial jury]; People v.
Johnson (1989) 47 Cal.3d 1194, 1214-1215 [death qualification process not shown
to result in underrepresentation of African-Americans on juries].)
       Defendant does not argue on appeal that the court erred in granting any
specific challenge for cause made by the People under the authority of
Witherspoon/Witt. He argues that the use of peremptory challenges in his own
case demonstrated systematic exclusion of persons with reservations concerning
the death penalty, mentioning peremptory challenges to three potential jurors as
evidence, but as noted, the prosecution is permitted to peremptorily challenge
prospective jurors on the basis of their attitudes toward the death penalty, and in
any event, any claim based on these peremptory challenges was not preserved for
appeal. (Gurule, supra, 25 Cal.4th at p. 597.)
       G. Common challenges to California’s death penalty scheme.
       Defendant raises a number of challenges to California death penalty law
that he acknowledges have been rejected in many prior decisions. We respond
briefly.
       “The jury‟s consideration of the circumstances of the crime (§ 190.3,
factor (a)) does not permit imposition of a death sentence in an arbitrary and
capricious manner in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. [Citations.] [¶] California‟s death
penalty law does not violate the Sixth Amendment right to a jury trial, the Eighth
Amendment prohibition against cruel and unusual punishment, or the Fourteenth
Amendment right to due process for failing to require proof beyond a reasonable
doubt that aggravating factors exist, outweigh the mitigating factors, and render
death the appropriate punishment. [Citations.] „The federal Constitution is not
violated by the failure to require a penalty phase jury to reach unanimity on the

                                          78
presence of aggravating factors [citation], or on whether prior violent criminal
activity has been proved. [Citation]‟ [Citation.] The high court‟s decisions in
Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S.
584 do not change this result. [Citations.]” (Boyce, supra, 59 Cal.4th at pp. 723-
724.)
        “This court and the United States Supreme Court have repeatedly rejected
the claim that separate [guilt and penalty phase] juries are required because jurors
who survive the jury selection process in death penalty cases are more likely to
convict a defendant.” (People v. Davis (2009) 46 Cal.4th 539, 626; accord, People
v. Hawthorne (1992) 4 Cal.4th 43, 77.)
        Section 190.3, factor (i) does not violate the due process clause or Eighth
Amendment of the federal Constitution in that it permits consideration of
defendant‟s age without guidance on the relevance of the factor. (Mills, supra, 48
Cal.4th at p. 214; People v. Smithey (1999) 20 Cal.4th 936, 1004-1007.)
        CALJIC No. 8.85 is not unconstitutionally vague. (People v. Williams
(2013) 56 Cal.4th 630, 697 [“The jury need not . . . find beyond a reasonable
doubt that an aggravating circumstance is proved (except for § 190.3, factors (b) &
(c)), find beyond a reasonable doubt that aggravating circumstances outweigh
mitigating circumstances, or find beyond a reasonable doubt that death is the
appropriate penalty”].) “The use of certain adjectives such as „extreme‟ and
„substantial‟ in the list of mitigating factors in section 190.3 does not render the
statute unconstitutional.” (People v. Thompson (2010) 49 Cal.4th 79, 144; accord,
People v. Adams (2014) 60 Cal.4th 541, 579.) “The court need not instruct the
jury that mitigating factors can be considered only in mitigation, or to omit
mitigating factors that do not apply to defendant‟s case.” (Boyce, supra, 59
Cal.4th at p. 724.)



                                          79
       Contrary to defendant‟s claim, “[t]he death penalty law adequately narrows
the class of death-eligible defendants.” (Boyce, supra, 59 Cal.4th at p. 723.)
       “The failure to instruct the jury that the prosecution bears some burden of
persuasion regarding the jury‟s penalty determination does not violate the Sixth,
Eighth or Fourteenth Amendment.” (Taylor, supra, 48 Cal.4th at p. 662.) “There
is no requirement for a jury in a capital case to make written findings.” (People v.
Martinez (2010) 47 Cal.4th 911, 967.)
       “The trial court need not instruct the jury that a life sentence is mandatory if
circumstances in aggravation do not outweigh those in mitigation.” (People v.
Davis, supra, 46 Cal.4th at p. 628.)
       “Our state death penalty statute is not unconstitutional for failing to require
intercase proportionality review or disparate sentence review.” (People v.
Eubanks (2011) 53 Cal.4th 110, 154 (Eubanks).)
       “The imposition of the death penalty in accordance with state and federal
constitutional and statutory law does not violate international law or the Eighth
Amendment to the federal Constitution.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 469.) Nor does the accumulation of all the above
unmeritorious claims regarding the constitutionality of our death penalty scheme
indicate any violation of the Eighth or Fourteenth Amendment. (Eubanks, supra,
53 Cal.4th at p. 154.)

       H. Delay in notification of Mexican consulate
       Defendant contends a violation of article 36 of the Vienna Convention on
Consular Rights, April 24, 1963, 21 U.S.T. 77 (Vienna Convention) occurred
when the police neither notified him at the time of his arrest of his right as a
Mexican national to contact the Mexican consulate, nor promptly notified the
consulate of his arrest. He asserts that prejudice cannot be determined on the



                                          80
appellate record and raises the issue simply to preserve it for review by way of
petition for writ of habeas corpus. We agree that is the appropriate procedure by
which to raise the claim.
       As is our practice with claims of this nature, we assume without deciding
that article 36 of the Vienna Convention created rights enforceable by individuals.
(See In re Martinez (2009) 46 Cal.4th 945, 957, fn. 3.) Defendant does not assert
that he can establish prejudice on this record. Rather, he believes it is possible
there is evidence outside the record on appeal demonstrating prejudice, including,
for example, that timely intervention of the consulate could have affected the
decision whether to seek the death penalty, and a more timely contact would have
permitted the consulate to discuss the case, especially circumstances in mitigation,
with defendant before his mental condition assertedly declined materially. It is
evident that his current view of the prejudicial impact of the violation is broader
than it was in his pretrial motion, as is his view concerning the broad range of
potential remedies. Defendant explains that he has asserted the basis for the claim
in the current proceeding to avoid any procedural bar to raising the claim in a
petition for writ of habeas corpus.
       We agree with defendant that a claim concerning the asserted prejudicial
effect of a violation of article 36 of the Vienna Convention that is based on
material outside the record on appeal appropriately should be raised in a petition
for writ of habeas corpus. (People v. Mendoza (2007) 42 Cal.4th 686, 710.)
Contrary to the People‟s claim, we cannot say that the appellate record
demonstrates that there is no possibility that evidence outside the record might
demonstrate prejudice. For example, the People‟s argument that defendant
inevitably would have been capitally charged because of the nature of the crimes
without respect to any intervention on the part of the Mexican consulate is
speculative on this record.

                                          81
                             III. CONCLUSION
     For the foregoing reasons, the judgment is affirmed in its entirety.
                                                       CANTIL-SAKAUYE, C. J.
WE CONCUR:


WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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

Name of Opinion People v. Mendoza
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S143743
Date Filed: February 11, 2016
__________________________________________________________________________________

Court: Superior
County: Stanislaus
Judge: John G. Whiteside

__________________________________________________________________________________

Counsel:

Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell and Christina Hitomi
Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathy Moreno
P.O. Box 9006
Berkeley, CA 94709
(510) 717-2097

Christina Hitomi Simpson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-1213
