         IN THE SUPREME COURT OF
                CALIFORNIA

                      THE PEOPLE
                 Plaintiff and Respondent,
                             v.
              DANIEL CARL FREDERICKSON,
                 Defendant and Appellant.

                            S067392

                Orange County Superior Court
                         96CF1713



                       February 3, 2020

Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, and Groban concurred.

Justice Liu filed a concurring opinion.
                  PEOPLE v. FREDERICKSON
                             S067392


                 Opinion of the Court by Chin, J.


       A jury convicted defendant, Daniel Carl Frederickson, of
the first degree murder of Scott Wilson.             (Pen. Code,1
§ 187, subd. (a).) It found true the special circumstance
allegation that defendant committed the murder while engaged
in the commission of the attempted robbery (§ 190.2, subd.
(a)(l7)(i)), and it also found true that defendant personally used
a firearm while committing the crime (§§ 1203.06, subd. (a)(1),
12022.5, subd. (a)). Following a sanity trial, the jury found
defendant was sane at the time of the crimes. After a penalty
trial, the jury returned a verdict of death, and the trial court
imposed a judgment of death. This appeal is automatic.
      We strike an improperly imposed restitution fine and
affirm the judgment in all other respects.
                    I. FACTUAL BACKGROUND
      On June 13, 1996, defendant walked into a home
improvement store and shot the store manager once in the head,
killing him. Defendant represented himself at trial with the
assistance of advisory counsel.




1
        All further undesignated statutory references are to this
code.


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     A. Guilt Phase
         1. Prosecution Case
      On June 13, 1996, 30-year-old Scott Wilson was working
as a customer service manager at the HomeBase home
improvement store in Santa Ana. The store was crowded due to
a relocation sale. Around 11:30 a.m., cashier Maricela Saucedo
asked Wilson to make change for her to give to a customer.
Wilson walked to the store’s safe, which was located behind the
customer service area. Saucedo turned back to her customer.
Within seconds, she heard a gunshot. She turned and saw
defendant waving his gun while running out of the store.
Saucedo saw Wilson lying bleeding on the ground, holding 10
five-dollar bills in his hand.
      Cashier Susan Bernal saw Wilson walking toward the
customer service area and a man following him. Wilson did not
argue with anyone and did not call out for help. Bernal saw the
man shoot Wilson in the head at close range and then run out of
the store.
      Loss prevention employee Christopher Rodriguez saw
defendant run out of the store carrying what appeared to be a
silver revolver. Rodriguez followed defendant outside to an
alleyway. The man entered the passenger side of a white van,
which then drove away. Rodriguez memorized the license plate
number and provided it to the police.
     Santa Ana police officers arrived at HomeBase within a
few minutes of the shooting. Officer Ronald Dryva was on the
scene for two to three hours interviewing witnesses. During
that time, defendant called and spoke to an employee.
Defendant did not identify himself by name. The employee
handed the phone to Dryva. Defendant, who believed he was


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still speaking with the employee, told Dryva, “I’ve never killed
or shot anyone before. This is stupid. That is what I do for a
living. Do you understand?” Defendant continued, “You need to
tell your employees that money is not worth getting killed over.”
       Dryva asked defendant why he “pull[ed] the trigger.”
Defendant replied, “Because I was flustrated [sic]. He didn’t do
what I told him. Do you understand?” Defendant explained that
he followed Wilson to the safe. “While I pointed the gun at him
and told him to put the money in the bag, he just started
counting the money. I told him not to count the fucking money.
I told him to put the money in the box. He just closed the safe
and started walking away. The man continued — continued to
say [that] he didn’t believe I was serious. I got mad, flustrated
[sic], so I shot him.” Defendant told Dryva he would “probably”
turn himself in that night.
       The next day, June 14, 1996, police officers conducted
surveillance outside defendant’s residence. In the driveway,
officers observed a white van matching the description
Rodriguez had given.        Approximately three hours after
beginning their surveillance, officers observed the van, driven
by defendant, pull out of the driveway. An officer ordered
defendant to stop and exit the vehicle. Officers arrested him and
searched his residence, a camper located on his grandparents’
property. They found a .32-caliber revolver containing five live
rounds and one empty round.
     Santa Ana police investigators Phillip Lozano and Mark
Steen interviewed defendant shortly after his arrest on June 14,
1996. Steen advised him of his Miranda rights. (Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda).)               Defendant
acknowledged he understood his rights and agreed to speak with


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the officers. The prosecution played an audiotape recording of
the interview for the jury. Defendant admitted he had been
committing robberies for nearly 15 years and that he walked
into the HomeBase on June 13 with “a game plan.” Defendant
first looked around to “get a feel for the place” and to identify
the manager. After he identified Wilson as the manager, he
waited until Wilson needed to retrieve change for a customer.
He followed Wilson to the safe and said, “Excuse me?” When
Wilson looked up, defendant said, “Can you put that money in
this box?” Wilson ignored defendant and began counting five-
dollar bills. Defendant showed Wilson part of his gun, and
Wilson closed the safe door and stood up. Defendant said that
“the next thing I knew, you know, [the gun] was at his temple.”
He expected Wilson to hand over the money and was surprised
and “pissed off” that Wilson refused. After firing the shot, he
ran out of the store and into his van.
       Defendant explained that he called the HomeBase store
approximately one hour later and asked to speak with a
manager. Crying, he told the officers, “I just laid into him. I
told him, ‘You son of a bitch. That fucker didn’t need to die.’ . . .
I just told him man. He ought to make his fucking life mission
to instruct all of his employees of the proper procedures. Just
giving the money up, and that fucker died protecting [the
money].” He said he was “just tired of . . . being broke all the
time” and “just got frustrated with life and shit, and said, well,
fuck it man, if I get caught, you know, I’ll go back in for about
two or three years and, you know, . . . get out and try it again
later.”
      The following day, newspaper reporter Marla Jo Fisher
interviewed defendant in jail. Defendant admitted that he was
attempting to rob the store and shot Wilson during the attempt.

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                  Opinion of the Court by Chin, J.


He explained that Wilson did not hand over the money, and after
Wilson shut the safe door, defendant shot him. According to
Fisher, defendant thought “Wilson was brave but stupid. He
admired Wilson’s courage but thought [Wilson] was foolish for
defying him and that he should have complied with his request
for money.” He blamed HomeBase management for failing to
train their managers to hand over the money if they were
robbed.
      On July 25, 1996, defendant sent Officer Lozano a letter
asking to speak with the investigators again. Lozano and Steen
interviewed defendant at the jail on August 12. Defendant
explained that he had “held back some info” regarding
accomplices. He stated that he got the gun from his “associate”
John McCanns. McCanns met defendant in January or
February of 1996 and, at some point, moved into defendant’s
camper.     McCanns and defendant discussed the robbery
beforehand, and after the murder, McCanns took the spent shell
casing.
      Dr. Richard Fukomoto, the pathologist who performed the
autopsy on Wilson’s body, testified that Wilson died from a
single gunshot wound to the head. He opined that the barrel of
the gun was six to twelve inches from the wound when the gun
discharged.
         2. Defense Case
      Defendant represented himself during the guilt phase. He
called as a witness clinical psychologist Dr. Martha Rogers, who
had evaluated defendant regarding his sanity at the time of the
offense. Dr. Rogers met with defendant for almost 15 hours and
reviewed defendant’s juvenile records and prior psychological
testing records. Dr. Rogers found no neurological injury or


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impairment, and no loss of cognitive function. She found him to
be “a pretty high functioning individual.” She noted in her
report that defendant “most likely has not had a memory lapse
or loss of functioning such that he did not know or understand
his behavior was wrong or illegal as he claims.”
      The defense also called psychologist Dr. Roberto Flores de
Apodaca. Dr. Flores interviewed defendant for approximately
four hours and reviewed several relevant records. Dr. Flores did
not conduct any clinical testing, although he reviewed reports
from testing previously conducted. He opined that defendant
suffered from a personality disorder that expressed itself with
narcissistic and antisocial features. He concluded that no
psychiatric condition prevented defendant from knowing the
difference between right and wrong, and that defendant was not
insane.
      Attorney Wayne Dapser testified that he was defendant’s
mentor through an organization called Volunteers in Parole.
Dapser explained that he was struck by defendant’s high degree
of optimism, but there were also times when defendant got very
depressed. Defendant often told Dapser that he turned down
criminal activity, such as using stolen credit cards or getting
involved in drugs. Dapser never felt that defendant was a
danger to society. Dapser agreed that defendant had “fairly
good cognitive abilities,” including the ability to plot and
strategize.
      Defendant’s 22-year-old cousin, Nick Peres, testified that
defendant had previously asked Peres to kill him. When Peres
refused, defendant asked him to find an assassin to kill him. He
also asked Peres to help him get a gun. Peres testified that
defendant used drugs “all the time.”


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      Jan Moorehead testified that she became defendant’s
probation officer when he was 14 years old. Moorehead said that
defendant was a “high control” parolee because of his high
violence potential and mental instability. She tested him for
drugs approximately twice a month. When defendant told
Moorehead he felt depressed, she encouraged him to write down
positive thoughts. Moorehead had referred defendant to the
Volunteers in Parole program because she thought he was
“worth taking a chance on.”
     B. Sanity Phase
         1. Defense Case
      Defendant’s advisory counsel conducted the sanity phase.
Roger Wunderlich, a staff psychiatrist at Atascadero State
Hospital, testified that he examined defendant on June 17,
1994, to determine, in connection with a different case, whether
defendant was a Mentally Disordered Offender (MDO).2 After
interviewing defendant for 30 minutes, Dr. Wunderlich
concluded defendant was an MDO. As a result, defendant was
paroled to the hospital for treatment. Dr. Wunderlich testified
that defendant wanted treatment under the MDO law because
he “was afraid of what he might do if paroled” to the streets. On


2
      The Mentally Disordered Offenders Act (§ 2960 et seq.)
“addresses the treatment and civil commitment of offenders who
suffer from a ‘severe mental disorder.’ ” (People v. Blackburn
(2015) 61 Cal.4th 1113, 1127.) “The term ‘severe mental
disorder’ means an illness or disease or condition that
substantially impairs the person’s thought, perception of reality,
emotional process, or judgment; or which grossly impairs
behavior; or that demonstrates evidence of an acute brain
syndrome for which prompt remission, in the absence of
treatment, is unlikely.” (§ 2962, subd. (a)(2).)


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                    PEOPLE v. FREDERICKSON,
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cross-examination, Dr. Wunderlich said that the basis of his
MDO determination was that defendant had “violent fantasies”
that had, in fact, resulted in an assault. He further testified
that defendant was a “coherent, fairly intelligent individual.”
Dr. Wunderlich opined that defendant was able to distinguish
between right and wrong.
      Psychiatrist Joseph Chong-Sang Wu testified that he
performed positron emission tomography (PET) scans on
defendant. Defendant’s scans showed an impairment in his
frontal lobe function, which has been reported in patients with
attention deficit hyperactivity disorder. The scans also showed
increased activity in defendant’s temporal lobes, which is found
in people with “aggressive, explosive, [and] violent” behavior.
      Steven Clagett, a therapist and case manager for Health
Care Agency of Orange County, testified that he evaluated
defendant at the state hospital on May 5, 1995, about a year
before the Wilson murder, and concluded that defendant was
not suitable for release into the community. Clagett explained
that defendant had not met the agency’s release criteria, which
included 12 months of nonaggressive behavior, cooperation with
the treatment plan, and participation in the groups, programs,
and activities that the agency recommended. During the
evaluation, Clagett saw no evidence of a thought disorder,
hallucinations, or suicidal or homicidal ideation. Defendant told
Clagett that he had “played up” psychiatric symptoms in the
past, trying to “get out of the prison system” and “into the
hospital.”
      Defendant testified at the sanity trial. He said he was first
hospitalized when he was 13 years old. He had been running
away from home, sleeping on the streets, and getting into fights


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                   Opinion of the Court by Chin, J.


at school.     Defendant described “thought patterns” and
“fantasies” that led him to “act out and to destroy or to hurt
things.” Sometime after his first hospital stay, defendant
started taking medication that helped him control these
thoughts. Defendant was hospitalized again two years later. At
that time, he was diagnosed as having latent schizophrenia with
explosive personality disorder.
      Defendant spent his juvenile and adult life in and out of
institutions. He underwent several mental health evaluations
while incarcerated and testified that he functioned better while
medicated, both in and out of prison. Defendant was in prison
in 1994, and before his scheduled release, defendant indicated
to prison mental health professionals that he wanted to be sent
to the state hospital as an MDO because he did not receive
mental health treatment on the streets.           Following two
evaluations and a parole hearing, he was committed to
Atascadero on July 1, 1994. Defendant was released from the
state hospital on August 22, 1995. He did not meet with the
parolee outpatient doctor between the date of his release and the
date of the instant offense, nearly 11 months later. He
developed suicidal thoughts and, on June 13, 1996 (the date of
the Wilson murder), acquired a gun with which to commit
suicide. He drove to HomeBase later that day to buy material
for a project he was working on with a friend. He carried the
gun with him in case he found the opportunity to commit suicide
while running errands. Defendant testified that he did not
intend to rob the store.
     On cross-examination, the prosecutor questioned
defendant about several theft incidents: stealing cigarettes in
1977; possession of a stolen moped in 1978; stealing clothing
from a department store in 1979; possession of a stolen moped

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                   PEOPLE v. FREDERICKSON,
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in 1980; stealing a car in 1981; and armed robbery of a market
in 1982. Defendant also acknowledged that he pleaded guilty
for stabbing a fellow inmate in September 1984, although he
claimed he did not actually stab the individual. Regarding a
conviction for assault with a deadly weapon in 1991, defendant
testified that someone was attacking another person, and
defendant tried to intervene. The family of the attacker paid
defendant to plead guilty, and he agreed to do so because he
“needed an excuse” to go back to prison. He denied that he
committed the instant offense in order to go back to prison.
      The prosecutor asked defendant about his testimony on
October 7, 1997, when he testified as a gang expert for the
defense in an unrelated trial. The prosecutor in that case had
asked defendant if he considered himself to be insane, and
defendant replied, “No.” The prosecutor asked if he considered
himself insane at the time he murdered Wilson, and defendant
replied, “No, sir. I presented that as a defense, and it’s up to a
jury to decide whether I was insane at the time the crime
occurred.” Defendant also admitted testifying in the other trial
that he had claimed to have violent fantasies so that he could
get into Atascadero.
         2. Prosecution Case
      The prosecution recalled Drs. Flores and Rogers. Dr.
Flores testified that he reviewed defendant’s medical records
and spoke with defendant, and that he did not believe defendant
met the criteria for insanity under section 1026, which governs
insanity pleas. Dr. Flores opined that at the time of Wilson’s
murder, defendant knew the difference between right and
wrong, and he chose to ignore it. Dr. Flores believed defendant’s




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                   Opinion of the Court by Chin, J.


diagnosis of attention deficit hyperactivity disorder was
“debatable” and irrelevant to the issue of insanity.
     Dr. Rogers reviewed defendant’s medical records and
examined his behavior before, during, and after the Wilson
murder. In her opinion, defendant was sane when he murdered
Wilson.
      Phillip Kelly, a staff psychiatrist at Atascadero, testified
that he had daily contact with defendant between July 1994 and
September 1995. Defendant told Dr. Kelly that he had
“manipulated the examiners” into declaring him to be an MDO.
When Dr. Kelly told defendant that because he manipulated
himself into the hospital, he would “have to deal with the
problem,” defendant replied, “Well you are the experts, you
shouldn’t have let me get away with it.” Dr. Kelly ultimately
diagnosed defendant with antisocial personality disorder and
substance abuse. He did not believe defendant belonged in the
MDO program, concluding he did not have a mental illness.
    The jury found that defendant was sane at the time he
committed the crime.
     C. Penalty Phase
         1. Prosecution Evidence
      Four witnesses testified regarding defendant’s prior
criminal activity. Jeff Tawasha testified that he was working as
a cashier at a market on October 25, 1981. Around 3:00 p.m.,
defendant, wearing a stocking over his face, entered the market
with a sawed-off shotgun and said, “This is a robbery. Give me
the money or I’ll blow your head off.” A female customer walked
into the store, and defendant pointed the shotgun at her and
ordered her behind the counter. He then ordered Tawasha to



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take cash out of the cash register and put the money in his bag.
Defendant ran out on foot and entered a waiting vehicle.
      Correctional Officer Grant Henry testified that on
January 12, 1983, he conducted a search of defendant’s jail cell
and found a “manufactured stabbing implement.” The weapon
had been made by sharpening a metal rod.
     Correctional Lieutenant Richard Martinez testified that
on March 7, 1984, he was working as a floor officer in the prison
where defendant was housed. At approximately 8:00 p.m.,
Martinez was talking to an inmate when defendant began
stabbing the inmate. Defendant stabbed the inmate three to
seven times before Martinez separated them.
     Deputy Sheriff Bradford Blakely testified that on
November 15, 1990, he was working in a men’s jail where
defendant was housed. While searching defendant’s cell, he
found a five-inch stabbing instrument fabricated from a mop
bucket.
     The prosecutor also introduced defendant’s testimony
from an unrelated trial, in which he admitted that in 1991 he
had stabbed a man six times.
      Four witnesses testified regarding defendant’s mental
health.    Dr. Flores testified that defendant’s personality
disorder had minimal to no impact on his free will. He explained
that defendant’s “history is not indicative of someone who acts
in an irrational manner, out of touch with reality in ways that
don’t make sense. His history is consistent with someone who
violates the rights of others, consistently.”        Dr. Hannah
McGregor, a psychiatrist with the California Department of
Corrections, testified that she certified defendant as an MDO in
1994 after she reviewed reports from Dr. Wunderlich and


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                   Opinion of the Court by Chin, J.


another psychiatrist, Dr. Steven Moberg. Neurologist Dr. Helen
Mayberg testified that she reviewed defendant’s PET scans. She
disagreed with many of Dr. Wu’s findings and methods. She
further opined that defendant’s frontal lobes were “relatively
normal” and that his temporal lobes were normal. Psychologist
Dr. Leisla Howell testified that she had evaluated defendant in
1982 at a state prison following his armed robbery conviction.
She testified that defendant did not take responsibility for his
actions and blamed “everything on everybody for his
difficulties.”
      The prosecution also recalled reporter Marla Jo Fisher,
who testified that defendant had told her that he had committed
the robbery because he wanted to go back to prison. He told
Fisher that he did not like “life on the outside.” He appeared
apologetic for shooting Wilson, but blamed HomeBase officials
for failing to teach employees to hand over money without
arguing.
     Officer Mark Steen testified regarding his interview of
defendant, conducted with Officer Lozano, on June 14, 1996.
When Steen asked defendant why he tried to commit a robbery,
defendant replied that he was “tired of being broke all the time”
and “want[ed] to be rich.” Defendant told the investigators that
he was “in [his] right mind” during the attempted robbery.
       Three witnesses provided victim impact testimony.
Maricela Saucedo, the cashier who asked Wilson for change,
testified that Wilson had been her manager for two months,
during which time she saw him nearly every day. She described
Wilson as outgoing, understanding, friendly, and a hard worker.
She felt responsible for his death, because if she had not asked
him for change, he would not have walked to the safe and would


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not have been killed. Wilson’s aunt, Joyce Fyock, testified that
Wilson’s father had died when he was a toddler and that she had
helped his mother care for him. She described Wilson as
outgoing and said he cared about people. She discussed visiting
Wilson in the hospital before he died and having to take Wilson’s
mother to the mortuary. Wilson’s brother Kirk testified that
because he was 10 years older than Wilson and because their
father had died, the brothers had a father-son relationship. He
described walking into Wilson’s hospital room and staying in the
room until Wilson was pronounced dead about five hours later.
He testified that Wilson enjoyed working at HomeBase because
he liked being around people, but he said that Wilson was also
trying to pursue a career in sports broadcasting. Wilson had
just become an intern at a local network and produced one sports
promotional segment before he died.
         2. Defense Evidence
     The defense recalled Dr. Wu, who disagreed with Dr.
Mayberg’s conclusions and interpretations of defendant’s PET
scans.
      Defendant testified on his own behalf, with advisory
counsel conducting the examination. He explained that his
family moved frequently and that his father left when he was
five years old. He struggled to fit in with his peers and even
with members of his own family, because he was a “mixture of
Scandinavian and Hispanic.” He attended school through
seventh grade and applied for his General Educational
Development (GED) certificate in 1982, at the age of 19, while
incarcerated. Defendant served in the United States Navy for
five months in 1982, receiving an honorable discharge. From
the time he was 12 years old until trial, when he was 34 years



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old, defendant estimated that he spent 15 years in group homes,
juvenile halls, or state institutions.
      Defendant studied religion and language while
incarcerated, and he spent time with several different religious
communities. In 1992, he earned vocational certificates in
drywall installation and small engine repair. In 1995, he earned
four computer and programming certificates.           Defendant
explained that he felt motivated and was able to focus on his
studies because of the “external controls” that existed in prison
and because of the guidance provided by deputies, counselors,
and correctional officers.
      Defendant further testified that he was “groomed” to join
the Mexican Mafia gang beginning in 1981 and that he officially
joined the gang in 1984. He withdrew from the gang in 1985
after he disagreed with the gang’s decision to go to war with
other prisoners. Shortly after, a fellow Mexican Mafia member
stabbed defendant with a welding rod, because leaving a gang
was punishable with death. Defendant’s subsequent prison
sentences had to be served in protective custody.
     He said that he asked his mother several times to attend
the penalty phase of his trial, but she did not want to testify,
because her husband’s parents did not know about the offense,
and she worried they would find out about it if she testified on
behalf of her son.
       Defendant asked the jury to return a verdict of death. He
explained that he had wanted to be put to death since the day of
his arrest. The death penalty would be a “fitting end to a ruined
life.” He also said that he would “like to apologize” and that he
had never denied his guilt. He said that he had tried to plead
guilty and “acknowledge full responsibility to all of the charges,


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including the special circumstances, even though I don’t believe
in my mind that they’re true.”
      The defense recalled Volunteers in Parole mentor Wayne
Dapser. Dapser testified that he knew defendant “probably
better than anyone in this courtroom.” He believed defendant
was one of the most intelligent men he knew. He stated that
defendant “had a childhood from hell” and “a history that very
few of us can even comprehend.” Dapser did not believe
defendant deserved the death penalty.
                   II. GUILT PHASE ISSUES
     A. Self-Representation and Desire to Plead Guilty
      Defendant raises several arguments in relation to his
decision to represent himself and his desire to plead guilty in
the municipal court prior to his preliminary hearing. Before
addressing the specific arguments, a detailed description of the
relevant procedural history is necessary.
         1. Procedural Background
       On June 18, 1996, defendant appeared for arraignment
before a municipal court magistrate. (Former §§ 859, 859b,
860.) At defendant’s request, the court appointed the public
defender to represent him, and the arraignment was continued
to a later date. On July 16, 1996, defendant filed a handwritten
motion seeking to proceed in propria persona (in pro. per.). At a
hearing in the municipal court on August 22, 1996, the court
asked defendant, “You are willing to roll the dice all by yourself
without any skills of an experienced attorney to assist you?”
Defendant replied that he did not trust the public defender’s
office. The court warned defendant that, as a self-represented
defendant, he would not have special privileges, that his
“opposition will be a skilled and talented attorney,” that if


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                   Opinion of the Court by Chin, J.


convicted he could not later complain he did not have effective
assistance of counsel, and that he would be unable to change his
mind during the trial. Defendant’s counsel then asked the court
to defer ruling on the motion, and the court continued the matter
to the date of the scheduled arraignment.
      At the arraignment on October 30, 1996, defendant
informed the municipal court that he did not then want to
represent himself, but he reserved the right to represent himself
at some later point. Additionally, defendant requested a
hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden), asking the judge to replace one or both of his
attorneys. The court conducted a Marsden hearing in chambers.
Defendant explained that he had “zero confidence” in his two
attorneys and that he did not want “that vigorous of a defense.”
He continued, “I want them to let me — allow me to steer them
away from certain witnesses that I don’t want called onto the
stand because of — you know, I just — I just don’t want certain
information coming out.” Defendant clarified that he was
concerned about information coming out in the penalty phase of
the case, not the guilt phase. The court explained, “Well, you’re
here now facing just a preliminary hearing, where the People
put on some of their evidence and the defense puts on nothing.
So you’re talking about way down the line at trial and then
sentencing rights.” Defendant replied that he wanted to waive
the preliminary hearing and plead guilty. He acknowledged
that his attorneys were not ineffective and that he was not yet
ready to represent himself, but he wanted counsel who would
not work as hard. The court explained that it could not remove
counsel for working too hard and denied the Marsden motion.
      After holding the Marsden hearing, the municipal court
arraigned defendant. Defense counsel acknowledged receipt of

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a copy of the complaint, waived reading and advisement, and
entered a plea of not guilty. Defendant then said, “Over my
objection.” Defense counsel clarified, “What he means is he
would like to have the complaint read.” Defendant did not offer
any further clarification, and the court noted his objection on the
record.
       One week later, on November 7, 1996, defendant made an
oral motion in the municipal court to proceed in propria persona.
Defendant said that he had a GED certificate, was aware he
faced the death penalty, and had previously represented himself
in superior court proceedings. Defendant’s only concern was
whether, as a self-represented defendant, he would still have the
ability to request funding for an investigator, and the court
assured him he would. The court stated that it found defendant
to be “a very bright person, mentally alert,” and it granted the
motion to proceed in propria persona. Defendant then accepted
the court’s offer to appoint advisory counsel, and the court
appointed Edgar Freeman. The court went through defendant’s
list of requested jail privileges related to his status as a self-
represented defendant, and it granted much of what defendant
sought.
      At an in camera hearing on December 5, 1996, defendant
asked the municipal court to award funds for a guilt phase
investigator and a penalty phase investigator. The court
explained that the district attorney had not yet declared an
intent to pursue the death penalty and therefore the case was
not yet a capital case. Defendant responded that the prosecutor
had stated in open court that it was a capital case. Defendant
also informed the court that he had submitted a letter to the
prosecution offering “to stipulate to the murder in the first
degree and admit all special circumstances and waive all

                                 18
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


appellate rights in order for a sentence of life without the
possibility of parole.” Defendant said, “The district attorney has
refused that. It’s a death penalty case, your honor. I wish it
wasn’t.” The court then explained that it only needed to provide
sufficient investigation funding to allow defendant to have a fair
preliminary hearing; after that, assuming defendant was held
to answer in the superior court, the superior court would be
responsible for disbursing investigation funds. The court then
appointed an investigator and explained that the investigator
could submit bills to the court for the court’s discretionary
consideration.
      On December 17, 1996, the municipal court called
defendant back for another in camera hearing, revoking all prior
orders concerning jail privileges and substituting a new order
that, among other things, granted no more than $3,000 in
investigative funds. When the court denied defendant’s request
for an additional $3,000 for office supplies, defendant
complained that the county provided the public defender’s office
with money for office supplies, and he accused the court of not
taking his case seriously. The court replied that “this is a very
serious case. I want you to appreciate your life is on the line and
that you’re not, despite what you think, you are not, I don’t
believe, capable of adequately representing yourself, that is,
doing a legally competent job. . . . I want you to know that my
offer to appoint counsel for you remains outstanding.”
Defendant replied, “I’ll accept if you are going to appoint
secondary counsel on the case under [section] 987, subsection
(d), which grants a second attorney to a capital defendant.” The
court asked whether defendant intended to continue to act as
his own lead counsel, and defendant responded in the
affirmative, indicating that his request was for appointment of


                                 19
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


cocounsel in place of advisory counsel. The court denied the
request without prejudice.
      On December 20, 1996, the municipal court called
defendant back once again, this time to make clarifications
regarding its prior orders. Defendant expressed frustration
with some of his self-representation jail privileges, mentioning
in particular his inability to reach his investigator via collect
calls. The court then acknowledged its previous denial of
defendant’s request for secondary counsel, and it offered
defendant the opportunity to show a need for such counsel.
Defendant argued that, given the limitations of his jail
privileges, it would help him to have second counsel to prepare
briefs and motions, and to make appearances on minor matters.
He told the court that writing motions was “a little bit above”
him but added, “I am stubborn enough that if the court does not
grant me a second chair, I will continue to fight the case as best
I can.” The court granted defendant’s request and appointed
Edgar Freeman as “second counsel,” vacating Freeman’s
appointment as advisory counsel. The significance of that
change was apparently that Freeman could make appearances
on behalf of defendant.
      As of December 24, 1996, the case was being formally
treated as a capital case, and a superior court judge, sitting in
camera, was handling disbursements of investigative funds
under section 987.9. (See Anderson v. Justice Court (1979) 99
Cal.App.3d 398, 402 [“[T]he superior court is the only court with
jurisdiction to entertain an application for funds under section
987.9. . . . A magistrate has only such powers as are statutorily
granted and it cannot be said that section 987.9 clearly grants
this power to the magistrate.”].) For purposes of the preliminary



                                 20
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


hearing, however, the case was still before a municipal court
magistrate. (See former § 860.)
      On January 23, 1997, a superior court judge held an in
camera hearing to discuss defendant’s request to replace his
investigator. The court stated at the outset of the hearing that
it had received notice that an officer had discovered a file folder
containing nude photographs in defendant’s jail cell. This
discovery indicated a violation of defendant’s self-representation
jail privileges, because the photographs were being stored in
plastic sheet protectors that defendant had requested from the
court for purposes of preparing his defense. When the superior
court judge raised the issue, defendant stated, “Well, if the court
would please hear my first motion, this matter could become
moot very fast.”
      Defendant then informed the superior court that he
wanted to “go public” — as opposed to in camera — and plead
guilty. He requested the court schedule the penalty phase for
February 5, 1997, and reappoint the public defender’s office to
represent him. He stated that he had already spoken with his
previous attorneys and that they had agreed to take the case for
the penalty phase after he pleaded guilty. The superior court
judge asked defendant if he had spoken to cocounsel Freeman
and received advice about pleading guilty. Defendant replied
that he had spoken to Freeman but “this is not on the advice of
anyone, sir. This is a decision that I have made based on the
fact that there is absolutely zero potential for me receiving any
type of justice whatsoever.” He expressed frustration over his
inability to get a working computer in jail and his difficulty
placing unmonitored telephone calls. He continued, “I do not
care to allow the State of California, the government, to run over
me. I just want to go ahead, plead guilty, go and put my life in

                                 21
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


front of a jury, and let the jury decide whether or not I should
get this death penalty, or whether I should get life
imprisonment. But as to the matter of death, I don’t even want
to play these games anymore. I want to just go ahead, I want to
enter a plea of guilty. I have a right to do so, and I wish to do so
at this time. [¶] I’ve spoken with counsel. And like I said, I
would drop my pro. per. status and accept the public defender’s
office to represent me as far as the penalty phase is concerned.
And if the court would take my waiver, I’m making a knowing
and . . . intelligent waiver.”
      As noted, this request to plead guilty arose while the
superior court was holding an in camera hearing solely to
address the disbursement of investigative funds under section
987.9. The case was not otherwise in the superior court, since
the preliminary hearing had not occurred and defendant had not
been held to answer. The superior court therefore explained to
defendant that “the issue as to whether or not you’re going to
plead guilty or waive a preliminary hearing is really not before
me today.” Defendant replied, “I would like it to be before you
because it would handle a lot of these other matters.”
      Defendant explained that he had received money from the
court for investigation services but had not received an
investigative report, and he had to “keep coming to this court
and begging for phone calls, begging for materials, begging for
this, while a criminal investigation needs to proceed.” The court
then stated that it would hold a hearing the following week on
the allegations surrounding defendant’s jail violation, and it
temporarily suspended his self-representation jail privileges.
The court continued, “But I would be frank with you and say this
is one of the things I tried to talk to you [about] out front when
I kind of bottom-lined it [on] one of the first days you were in

                                 22
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


court. I sincerely hope you’re sincere in wanting these privileges
to defend yourself.” Defendant replied that he did not believe
the court had ever been sincere in its efforts to assist him. He
added that he would “still like to make the matter moot” by
waiving the preliminary hearing, pleading guilty, and accepting
the appointment of the public defender’s office for the penalty
phase.
      The court then agreed to help defendant. It said, “With
your permission and request, I’ll contact — or have my clerk
contact — the judicial officer in Division [311 (where the
preliminary hearing was scheduled to be held)] and request your
matter be calendared as soon as possible because you
want [¶] . . . [¶] . . . to consider a change of plea or waiver of
preliminary hearing . . . .” Later, defendant said, “I’m pleading
guilty and that’s that.” The court responded, “Well, you haven’t
done that yet,” and defendant said, “Well, I’m attempting to
very, very, very hard.” When asked whether he had discussed
the matter with cocounsel Freeman, defendant answered that
he had done so. Defendant discussed the difficulties he was
having with his investigator, and he repeated that the problem
would be moot if the court would allow him to plead guilty. The
court then told defendant, “That part of the matter’s not before
me. [¶] . . . [¶] Okay. Those matters are pending in [Division]
311 [of the municipal court] [¶] . . . [¶] We’re going to make
arrangements to have you brought over to [Division] 311, and
you can discuss your desires there.”
      After more discussion concerning defendant’s request to
replace his investigator, the court denied that request. The
court then made clear that it intended to assist defendant in his
effort to waive the preliminary examination and plead guilty.
The court said, “[We]’ll do our best to get you calendared in

                                 23
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


[Division] 311 [of the municipal court] as soon as possible. I
can’t guarantee when that will be. As soon as we’re in recess,
I’m sure my clerk will call over there. If I have to call over there
personally, I would do it.” The hearing then came to an end.
The minute order for the hearing reflected the court’s effort to
help defendant achieve his aim of pleading guilty. It states:
“Defendant’s oral request that preliminary hearing in Div. 311
be advanced and waived, that defendant be allowed to change
his plea to a guilty plea and that the Public Defender be
appointed to represent defendant. Court orders that Div. 311 be
contacted by the Court clerk and that defendant’s requests be
expedited in Div. 311.”
      A few days later, on January 27, 1997, the superior court
held another in camera hearing, this time to address defendant’s
violation of his self-representation jail privileges. The court
stated, “It appears to me in this short time that I have been
involved in this case that Mr. Frederickson at least has a dual
focus in what he is doing. Part of it he is trying to defend
himself, and part of it he is trying to use his pro. per. privileges
to do other things that common sense would indicate just aren’t
appropriate and are a violation of the implicit terms of the pro.
per. privilege. [¶] . . . He was in court the other day on the 23rd.
He indicated that, well, judge, you don’t have to worry about it.
I am going to waive the preliminary hearing. I am going to plead
guilty. . . . [¶] He wanted me to contact the judge at [Division]
311 to see if he could be brought over there to waive [the]
preliminary hearing or whatever he was talking about doing.”
      Cocounsel Freeman then represented to the court that
defendant was dedicated and committed but had, in his opinion,
a low tolerance for frustration. Freeman stated that after a
“series of frustrations,” including a poorly functioning computer,

                                 24
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


defendant told him that he wanted to “ ‘go in and plead guilty in
muni[cipal] court and get this over with and get it on the road
and let the public defender handle [the] penalty phase.’ ”
Freeman continued, “I told him, ‘Well, Daniel, that is your
decision. That is up to you. I will not participate in entering
into a plea with you in your case.’ I have told him that.”
       Lieutenant Danny Jarvis, a facility master at the intake
center that housed defendant, then testified about defendant’s
violation of his self-representation jail privileges. Jarvis
explained that defendant was “very, very inconvenient to care
for,” because he was in protective custody due to his self-
representation. He continued, “What I see that he is doing
within the jail environment, he is using his pro. per. status to
manipulate his status within the areas that he is housed to try
to bring more credence on him so he can have some sort of status
and role within the jail population, which makes it doubly
difficult.” After more discussion among the court, defendant,
and cocounsel Freeman, the court revoked defendant’s self-
representation jail privileges. It closed the hearing by again
offering to help defendant to waive his preliminary hearing and
plead guilty, if that was what defendant still wanted: “We will
call [the municipal court judge assigned to your case] and see if
she can work it in sometime late this morning, or sometime this
afternoon.”
      That afternoon, defendant appeared in the department of
the municipal court assigned to his case. He explained to the
court, “[T]he guilt of my crime has been weighing heavily on me
with a remorseful heart. I would like to offer a change of plea
and enter a plea of guilty to murder in the first degree and admit
the special circumstances and waive all appellate rights at this
time.” The prosecutor then requested to speak with both

                                 25
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


defendant and Freeman off the record.             Following that
conversation, the prosecutor informed the municipal court that
he had explained to defendant that “by law he cannot plead
guilty to a special circumstances allegation case.”          The
prosecutor continued, “I told him no judge can accept your
plea. [¶] Furthermore, I told him that it was my opinion Mr.
Freeman would offer him the best possible representation and
suggested that he follow Mr. Freeman’s advice on the
matter. [¶] It’s my understanding Mr. Frederickson — despite
Mr. Freeman’s conversations with him and my own
conversations with him in Mr. Freeman’s presence — Mr.
Frederickson still wants to plead guilty, although I think he
realizes that he cannot.” The prosecutor added, “I think it’s his
desire to actually waive the preliminary hearing which is still
scheduled for February 5th. My last suggestion to him was not
to do anything today. That we just come on February 5th and
have more of a chance to think about it. To talk to Mr. Freeman,
or talk to his investigator, and then he can decide what he wants
to do on the 5th.”
      The court reminded the parties that the People also have
a right to a preliminary hearing, and even if defendant waived
his right, the People could choose not to do so. The prosecutor
stated that the People were not prepared to waive the
preliminary hearing at that time, although the People might be
willing to do so on the scheduled date of the hearing. The court
then explained to defendant, “If the People are unwilling at this
time, or at any time, to waive the preliminary hearing, it doesn’t
really matter [that you want to do so], because they have the
right to have a preliminary hearing in your case. . . . [¶] So [the
prosecutor] is telling me that he is not prepared today to make
that decision even if you are. So to have further discussions and


                                 26
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


undertake further proceedings today would be — for lack of a
better word — a waste of time, and I am going to suggest that
we terminate these proceedings today and that you come back
on February 5th. [¶] . . . You will have had another nine days
to think about this and decide whether or not you truly want to
waive [the] preliminary hearing or not.”3 Defendant agreed
with that solution.
      On the scheduled date of the preliminary hearing,
February 5, 1997, defendant never requested to waive the
hearing, and the hearing proceeded. At the end of the hearing,
defendant was held to answer the allegations of the complaint
in the superior court.
       By information filed in the superior court on February 18,
1997, the People formally charged defendant with one count of
first degree murder, an enhancement allegation of personal use
of a firearm, and a robbery-murder special circumstance
allegation. On February 24, 1997, defendant appeared in
superior court with cocounsel Freeman and entered pleas of not

3
      The magistrate’s statement implied that defendant could
waive the preliminary hearing despite his self-represented
status. The text of former section 860 and relevant case law
suggest otherwise. (See former § 860, Stats. 1963, ch. 1174, § 2,
p. 2670 [“. . . a defendant represented by counsel may . . . waive
his right to an examination . . . ,” italics added]; People v. White
(1963) 213 Cal.App.2d 171, 174 [“Unless represented by counsel
a felony defendant who appears before a committing magistrate
may not . . . waive a preliminary examination (Pen. Code, §
860).”].) Defendant did, however, have the assistance of Edgar
Freeman who, per the magistrate’s order, was serving as
“second counsel.” We need not decide whether, with Freeman
serving in that role, defendant could waive the preliminary
hearing, because, as noted in the main text, the People were not
prepared to join such a waiver.


                                 27
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


guilty and not guilty by reason of insanity. Defendant said
nothing about a desire to plead guilty. At an appearance the
following day, defendant confirmed that despite the revocation
of his self-representation jail privileges, he still intended to
represent himself. Then, during an in camera hearing on
February 28, 1997, the court granted defendant’s request to
appoint a second investigator, tasked solely with interviewing
his family. The court also reinstated defendant’s jail privileges.
      On March 14, 1997, the assigned trial judge began
presiding over defendant’s case. On the same date, the
prosecutor requested the court take a second waiver of
defendant’s right to counsel (see Faretta v. California (1975) 422
U.S. 806 (Faretta)), because the first waiver occurred before the
People had formally declared an intent to seek the death
penalty. Defendant stated he understood his rights and the
maximum sentence he faced, and he signed a written Faretta
waiver.
       At a pretrial hearing on July 25, 1997, defendant told the
court, “I’m contemplating withdrawing my right to . . . plead in
propria persona and ask for counsel to start representing me.”
Later in the hearing, defendant explained, “[O]ne of the reasons
why I would even be considering giving up my pro. per. status
would be [that] I feel, if counsel represents me, the court will
give counsel the funds to do it, whereas they won’t give it to me.”
The judge presiding over the trial of a capital case does not
oversee disbursement of investigative funds (§ 987.9, subd. (a)),
and therefore the court responded, “It’s an issue I’m not involved
in, so I really can’t comment.”
      On August 1, 1997, the trial court held a Marsden hearing
at defendant’s request, despite the circumstance that defendant


                                 28
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


was representing himself. Defendant explained, “I wanted to let
the court know, if the court was not aware, that I’m in pro. per.
I’m lead counsel; he is second chair. . . . This hearing was not
about [cocounsel] Freeman or whether or not he was effectively
representing me. It’s about whether I’m effectively representing
myself as a pro. per. defendant. It sounds funny, a pro. per.
defendant stating that he’s complaining of ineffective
representation, but through all the information that I’ve been
filing, the court has doggedly refused to give me funds for my
investigation. . . . And if that continues, your honor, then
obviously I’m going to lose. And I feel if I continue to represent
myself, it would be a danger to my life, and therefore, if the court
steadfastly refuse[s] to acknowledge that the defendant needs
[section] 987.9 funds for an investigation, then the defendant
would request that the court appoint counsel, [so] that the court
will give money to defend me, which is wrong. I shouldn’t have
to waive my right for defending myself just so I can have money
to effectively represent myself, that’s what I’m complaining of.”
      The court reminded defendant that by representing
himself, he could not claim incompetence of counsel. Defendant
replied, “I’m complaining actually of incompetence of judiciary
in this case.” The court then informed defendant that an
appointed attorney would not be given unlimited investigative
funds, and it asked, “So I just need to know if you want to
represent yourself, or do you want [the] court to appoint counsel
for you?” Defendant said that he was withdrawing his Marsden
motion and would continue to represent himself.
      The same issue came up again on September 25, 1997.
During an in camera hearing, the court read aloud a note it had
received from defendant: “ ‘Sir, I am requesting an ex parte, in
camera hearing with you to discuss the very possible mechanics

                                 29
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


of turning my case over to appointed counsel. My reasons are
legion, but the biggest is the fact that the court will not give me
investigative funds to fully investigate my cause. I know that it
is only due to my persistence of wanting pro. per. that this is the
case. [¶] So the issues to be discussed by us in camera and ex
parte are: 1. Appointment of new lead counsel; 2. Appointment
of new second chair; 3. Hear any argument by defendant and
counsel for the purpose of retaining some of the pro. per.
privileges now enjoyed to assist in the speedy transition of case
information.’ ” The note continued: “ ‘Sir, I know that a lot of
men go pro. per. just to confound the court’s process. I assure
you my intention was honorable. It is still my desire to defend
myself, but I cannot present a case to [the] jury without a full
and proper investigation. The court will be open to new
counsel’s requests, where they were closed to mine. I know that
this will also probably make me waive more time, a thing the
court knows I do not want to do, but if we could just sit down
and work out a good plan of action immediately, I am sure the
end of justice will be served. Thank you, sir.’ ”
      After a lengthy discussion, the court explained: “I’ve
always been prepared to work with you, sir, the problem, sir, I
can’t hold you to a lower standard than I hold everybody else.
Someone who represents himself or herself basically steps into
the shoes of someone that is represented by counsel, and so there
aren’t any special privileges. Your pro. per. privileges I don’t
think are special privileges; we basically afford you . . . the
privileges so you can basically be able to do the same things that
a lawyer can do if the lawyer were representing you.” Defendant
then asked to speak with cocounsel Freeman off the record. On
return, the court asked defendant to state his “desire with
respect to representation.” Defendant asked to discuss funding


                                 30
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


first, “because that’s the primary motivation of whether or not I
will continue in pro. per. or give the case over to counsel, but I
mean it seems dangerous . . . for me to set precedent for the rest
of the pro. per. [litigant]s if all the court has to do is set a few
harsh standards, and then the pro. per. [litigant] can lay down,
and counsel can step in and automatically start getting funds
available to do the case. It would be dangerous to future pro.
per. [litigant]s of the United States of America.” The court then
reminded defendant that there was no guarantee that an
attorney would receive investigative funds that defendant had
not received, and the court asked defendant if he wished to
continue to represent himself. Defendant said, “I intend to
proceed in pro. per.”
      On October 20, 1997, during a pretrial conference, the
court initiated a discussion on cocounsel Freeman’s role during
trial. The court opined that “advisory counsel is just that, an
advisory counsel. There is no such thing as a pro. per.
cocounsel.” Defendant explained that Freeman had been
relieved as advisory counsel and appointed as cocounsel under
section 987, subdivision (d). Defendant further related that he
planned to present the opening statement and closing
argument, and to conduct the examination of witnesses during
the guilt phase, while Freeman would conduct the sanity phase.
Defendant and Freeman planned to share responsibilities
during the penalty phase, with defendant conducting the
opening statement and the examination of witnesses, Freeman
conducting the direct and redirect examination of defendant,
and both of them conducting the closing argument.
      The court responded, “I’m somewhat puzzled at [the
municipal court’s] order, because the research that I’ve done
indicates that there is no such thing as cocounsel when the

                                 31
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


defendant is pro. per.” The court continued, “The reason I need
to sort that out is because in my opinion, if you are going to be
representing yourself, you need to represent yourself in all
processes — all stages of the trial.” After defendant requested
that Freeman be permitted to object on his behalf throughout
trial, the court said, “No. You either represent yourself or you
don’t. He can certainly advise you. . . . But in terms of him
acting as your attorney, either he is your attorney or he’s
advisory counsel, which means it’s up to you.” After more
discussion, the court concluded that the previous appointment
of Freeman as second chair was inappropriate. It said: “So I’m
going to be conducting this trial as if you are representing
yourself in pro. per., and Mr. Freeman is your advisory counsel.”
      Shortly thereafter, the prosecutor asked the court to order
defendant not to mention any discussion of a proposed plea deal
in front of the jury. Defendant replied by bringing up his earlier
attempt to plead guilty: “In Division 311 and on several
occasions the defendant has attempted to plead guilty, and the
prosecution has refused to accept that. Counsel at that time
refused to join, and the court refused to accept that or
acknowledge my plea of guilty, but it was placed on the record.”
The prosecutor acknowledged that “[i]t was placed on the
record” but pointed out that “the Penal Code specifically
disallows a guilty plea while he’s in pro. per., and no counsel has
ever agreed to join in his plea, so technically it’s an illegal,
unacceptable plea and still should not be mentioned to this
jury.” The court agreed that defendant’s attempts to plead
guilty were not relevant for the guilt phase, but the question was
“open to argument” for the sanity and penalty phases.
      On October 27, 1997, defendant again asked the court to
allow him to introduce evidence of his attempts to plead guilty.

                                 32
                     PEOPLE v. FREDERICKSON,
                     Opinion of the Court by Chin, J.


He said, “Your honor, a clear and distinct part of my testimony
and evidence is the fact of my remorse and confession. It would
appear to a trier of fact that I am playing a game by pleading
not guilty yet introducing evidence of my confessions of guilt.
Just because my attorneys have refused to join my plea
pursuant to [section] 1018 does not alter the truth. The truth is
that I have attempted to plead guilty and accept responsibility
for the [violation of section] 187. [¶] . . . [¶] . . . The jury is going
to feel like, well, if he’s confessing and now coming in front of us
and saying he’s not guilty, he’s pulling the wool over our eyes.
My veracity is at stake here, your honor.” Defendant then asked
the court to introduce evidence that defendant had “accepted
responsibility and guilt for [his] crime and [had] attempted to
plead guilty.”       The court reminded defendant that such
information was relevant at the penalty phase but not at the
guilt phase. Defendant nonetheless asked the court to “instruct
the jury on [section] 1018.” He asked that the court explain to
the jury “that the defendant has attempted to plead guilty” but
that, by law, he could not do so. The court again ruled that the
information was relevant only at the penalty phase, not at the
guilt phase.
          2. Right to Plead Guilty
      Defendant contends that he was denied his personal and
fundamental right to control his defense when the trial court,
acting under compulsion of section 1018, refused to permit him
to plead guilty without the consent of counsel. We conclude his
claim is forfeited because he never moved to plead guilty in the
superior court, thereby causing that court to invoke section
1018.




                                   33
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


             a. Legal Background
       Section 1018 provides in relevant part: “No plea of guilty
of a felony for which the maximum punishment is death, or life
imprisonment without the possibility of parole, shall be received
from a defendant who does not appear with counsel, nor
shall that plea be received without the consent of the
defendant’s counsel.” This portion of section 1018 was added in
1973 as part of an extensive revision to the death penalty laws.
(Stats.1973, ch. 719, § 11, p. 1301.) “The fact that the
requirement of counsel’s consent to guilty pleas in capital cases
was enacted as part of [an extensive revision of the state’s death
penalty laws in response to Furman v. Georgia (1972) 408 U.S.
238] demonstrates that the Legislature intended it to serve as a
further independent safeguard against erroneous imposition of
a death sentence.” (People v. Chadd (1981) 28 Cal.3d 739, 750
(Chadd).)
      Two years after the 1973 amendment to section 1018, the
high court recognized a defendant’s constitutional right to self-
representation in Faretta, supra, 422 U.S. 806. In Chadd,
supra, 28 Cal.3d 739, we reconciled the right of self-
representation with section 1018’s requirement that counsel
consent to a guilty plea in a capital offense. Defense counsel in
Chadd informed the trial court that the defendant wanted to
plead guilty against counsel’s advice, and counsel explained that
he would not consent to his client entering such a plea, because
the defendant’s desire was to commit suicide. (Id. at p.
744.) The defendant admitted to the court that he had
attempted suicide, and if he did not receive the death penalty,
he would “just have to do it myself.” (Id. at p. 745.) Defense
counsel reminded the court that a guilty plea by his client was
without his consent, and the prosecutor agreed that section 1018


                                 34
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


prohibited the court from accepting such a plea. (Chadd, at p.
745.)
      The trial court ruled that if it found the defendant
competent to act as his own attorney under Faretta, it could
accept his guilty plea despite section 1018. (Chadd, supra, 28
Cal.3d at p. 745.) The court questioned the defendant, found
him competent under Faretta, and then, without actually
dismissing defense counsel, allowed the defendant to plead
guilty to the information. (Chadd, at p. 745.) On appeal, the
Attorney General argued that section 1018 could be construed
to permit a capital defendant to discharge his attorney,
represent himself, and plead guilty. (Chadd, at p. 746.) We
rejected this contention, however, stating that the language of
section 1018 plainly required the consent of counsel to plead
guilty. (Chadd, at p. 746.) Construing the statute “to permit a
capital defendant to discharge his attorney and plead guilty if
he knowingly, voluntarily, and openly waives his right to
counsel” “would make a major portion of the statute redundant,”
we reasoned, because “that is precisely what the third sentence
of section 1018 expressly authorizes noncapital defendants to
do.” (Chadd, at p. 747.)
      We noted the larger public interest at stake in guilty pleas
in capital offenses, as well as the Legislature’s “increasing
concern to insure that no defendant enter a guilty plea in our
courts without fully understanding the nature and
consequences of his act.” (Chadd, supra, 28 Cal.3d at pp. 748–
749.)
     We read Faretta as not affecting the Legislature’s
authority to condition guilty pleas on counsel’s consent. (Chadd,
supra, 28 Cal.3d at p. 750.) “Nothing in Faretta, either


                                 35
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


expressly or impliedly, deprives the state of the right to conclude
that the danger of erroneously imposing a death sentence
outweighs the minor infringement of the right of self-
representation resulting when defendant’s right to plead guilty
in capital cases is subjected to the requirement of his counsel’s
consent.” (Chadd, at p. 751.) We further concluded that Faretta
did not grant a capital defendant the right to discharge counsel
and waive his automatic appeal, explaining that the state, too,
had an indisputable interest in correct judgments in capital
cases. (Chadd, at p. 752.)
      We again held section 1018 to be constitutional more than
25 years later in People v. Alfaro (2007) 41 Cal.4th 1277 (Alfaro).
In Alfaro, the defendant accepted complete responsibility for the
offenses in a videotaped confession on the day of her arrest. (Id.
at p. 1295.) Eleven days before jury selection began, defense
counsel informed the trial court that the defendant wanted to
plead guilty to the special circumstances against counsel’s
advice and asked the court whether it believed he should
withdraw from the case. (Ibid.) The defendant explained to the
court that she wanted to plead guilty because she feared for her
safety and that of her family should she implicate her
accomplice in the crime. (Id. at p. 1296.) The court responded
that under section 1018 she could not plead guilty against her
attorney’s advice. The court also declined to remove defense
counsel from the case, concluding that the disagreement
between counsel and the defendant involved trial tactics and
therefore did not require counsel’s removal. (Alfaro, at p. 1296.)
The prosecutor then argued during the penalty phase that the
defendant had not accepted responsibility and lacked remorse,
and the jury did not hear evidence that the defendant had
attempted to enter a guilty plea. (Id. at pp. 1296–1297.)


                                 36
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


      We acknowledged the defendant’s argument that “a
defendant has the ultimate, fundamental right to control his or
her own defense,” but concluded that section 1018 was “one of
several exceptions to the general rule.” (Alfaro, supra, 41
Cal.4th at p. 1298.) We noted that “[t]he statute constitutes a
legislative recognition of the severe consequences of a guilty plea
in a capital case, and provides protection against an ill-advised
guilty plea and the erroneous imposition of a death sentence.”
(Id. at p. 1300.) We rejected the defendant’s assertion that the
trial court improperly failed to inquire into her reasons for
desiring to plead guilty and that had it done so, it would have
discovered her intent to demonstrate remorse. We noted that
nothing in the record supported the defendant’s assertion on
appeal that her desire to plead guilty was motivated by a desire
to establish a defense of remorse or to establish that she
accepted responsibility for the murder. (Id. at p. 1302.)
“Accordingly, the trial court reasonably concluded that the
dispute between defendant and her counsel did not implicate a
constitutionally protected fundamental interest that might
override the plain terms of section 1018.” (Alfaro, at p. 1302.)
We left undecided whether a defendant might be able to make a
successful as-applied challenge to the constitutionality of
section 1018 in a case in which the evidence of guilt was very
strong and the defendant’s express reason for wanting to plead
guilty was to lay the foundation for a remorse argument at the
penalty phase.
      Most recently, in McCoy v. Louisiana (2018) __ U.S. __
[138 S.Ct. 1500] (McCoy), the United States Supreme Court held
that “it is the defendant’s prerogative, not counsel’s, to decide on
the objective of his defense: to admit guilt in the hope of gaining
mercy at the sentencing stage [of a capital case], or to maintain


                                 37
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


his innocence, leaving it to the State to prove his guilt beyond a
reasonable doubt.” (Id. at p. __ [138 S.Ct. at p. 1505], italics
added.) In McCoy, the defendant’s retained counsel determined
that the best strategy for avoiding a death sentence was to
concede guilt as to the three murders during the guilt phase and
plead for mercy during the penalty phase. (Id. at p. __ [138 S.Ct.
at p. 1506].) The defendant was “ ‘furious’ ” with counsel’s
strategy and wanted to pursue acquittal instead. (Ibid.) The
trial court denied the defendant’s request to remove his counsel,
as well as defense counsel’s request to be relieved if the
defendant secured other counsel. (Ibid.) The court told counsel
that it was his decision whether to concede guilt or put on a
defense case. (Ibid.) Defense counsel then acknowledged during
his opening statement to the jury that the evidence
unambiguously showed that the defendant had committed the
murders. Nonetheless, the defendant testified he was innocent.
(Id. at p. __ [138 S.Ct. at p. 1507].) The jury found the defendant
guilty and then returned three death verdicts. (Ibid.)
      The    defendant,      represented    by    new     counsel,
unsuccessfully moved for a new trial on the ground that the
court had violated his constitutional rights by allowing counsel
to concede his guilt over his objection. (McCoy, supra, __ U.S. at
p. __ [138 S.Ct. at p. 1507].) The Louisiana Supreme Court
affirmed the trial court’s ruling, concluding that the concession
was permissible because defense counsel reasonably believed
that admitting guilt offered the defendant the best chance to
avoid a death sentence. (Id. at p. __ [138 S.Ct. at p. 1507].)
      The United States Supreme Court reversed the judgment.
(McCoy, supra, __ U.S. at p. __ [138 S.Ct. at p. 1512].) It
explained that the Sixth Amendment guarantees a defendant
the right to make a defense; it “ ‘speaks of the “assistance” of

                                 38
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


counsel, and an assistant, however expert, is still an assistant.’ ”
(Id. at p. __ [138 S.Ct. at p. 1508].) While some decisions, such
as trial management, are best left to counsel, “[s]ome
decisions . . . are reserved for the client — notably, whether to
plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal.” (Id. at p. __ [138 S.Ct. at p. 1508],
italics added.) The high court held that a defendant who
“insist[s] on maintaining her innocence at the guilt phase of a
capital trial” cannot be forced by counsel to concede guilt.
Defense counsel can make strategic choices regarding how best
to achieve a defendant’s objectives, but the defendant chooses
those objectives. (Ibid.)
             b. Analysis
       If defendant wanted to challenge the constitutionality of
section 1018, whether on the ground that it precluded him from
using a guilty plea to lay the foundation for a penalty phase
remorse argument or on some other ground, he needed to
request to plead guilty in the superior court and ask that court
to make a ruling based on section 1018, thus preserving the
issue on appeal. He never did so. The claim is therefore
forfeited.
      Before 1992, there were clear jurisdictional lines
separating misdemeanor cases from felony cases:               The
municipal court had no jurisdiction in felony cases, and the
superior court had no jurisdiction in misdemeanor cases.
Therefore, in a felony case, the municipal court could not convict
a defendant on a plea of guilty, because it was not authorized to




                                 39
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


render a felony judgment. (See, e.g., former § 1462,4 Stats. 1976,
ch. 1288, § 21, p. 5765; People v. Callahan (1997) 54 Cal.App.4th
1419, 1424–1425 [magistrate had no authority under the pre-
1992 amendment to section 1462 to impose judgment in
noncapital felony cases]; People v. Miskiewicz (1984) 158
Cal.App.3d 820, 824–825; People v. Denton (1978) 84 Cal.App.3d
Supp. 1, Supp. 4–Supp. 6.) A municipal court judge, sitting as a
magistrate (not as a judge), could arraign a defendant in a
noncapital felony case, and if the defendant pleaded guilty (or
nolo contendere), the magistrate could accept the plea and
certify the case to the superior court for entry of judgment.
(Former § 859a,5 Stats. 1980, ch. 540, § 1, pp. 1495–1496; People

4
      Before 1992, former section 1462 provided:              “Each
municipal and justice court shall have jurisdiction in all
criminal cases amounting to misdemeanor, where the offense
charged was committed within the county in which such
municipal or justice court is established except those of which
the juvenile court is given jurisdiction and those of which other
courts are given exclusive jurisdiction. Each municipal and
justice court shall have exclusive jurisdiction in all cases
involving the violation of ordinances of cities or towns situated
within the district in which such court is established.”
5
      Before 1992, former section 859a provided in relevant
part: “(a) If the public offense charged is a felony not punishable
with death, the magistrate shall immediately upon the
appearance of counsel for the defendant read the complaint to
the defendant and ask him whether he pleads guilty or not
guilty to the offense charged therein . . . ; thereupon, or at any
time thereafter, while the charge remains pending before the
magistrate and when his counsel is present, the defendant may
plead guilty to the offense charged . . . . [¶] (b) . . . [T]he
magistrate shall, upon the receipt of a plea of guilty . . . ,
immediately appoint a time for pronouncing judgment in the
superior court . . . .” (Italics added.)



                                 40
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


v. Miskiewicz, at pp. 824–825 [upon entry of felony plea,
magistrate must immediately certify case to superior court].)
And, conversely, if the defendant pleaded not guilty, a municipal
court judge, again sitting as a magistrate, could preside at the
preliminary hearing and hold the defendant to answer. (Former
§ 859b, Stats. 1989, ch. 897, § 26.5, p. 3066–3067; former § 860,
Stats. 1963, ch. 1174, § 2, p. 2670.) But, as stated, the municipal
court lacked jurisdiction to render a felony judgment. Moreover,
under former section 859a, its judges, sitting as magistrates,
also lacked authority to accept a guilty plea to a felony
punishable by death.
      These jurisdictional lines began to blur in 1992. Former
section 1462 was amended, effective that year, to allow the
municipal courts to accept guilty pleas in “noncapital” felony
cases and to pronounce judgment in such cases, thus reducing
the burden on the superior courts. (Former § 1462,6 Stats. 1991,

6
       As a result of this change, former section 1462 provided:
“(a) Each municipal and justice court shall have jurisdiction in
all criminal cases amounting to misdemeanor, where the offense
charged was committed within the county in which the
municipal or justice court is established except those of which
the juvenile court is given jurisdiction and those of which other
courts are given exclusive jurisdiction. Each municipal and
justice court shall have exclusive jurisdiction in all cases
involving the violation of ordinances of cities or towns situated
within the district in which the court is established. [¶] (b)
Each municipal and justice court shall have jurisdiction in all
noncapital criminal cases to receive a plea of guilty or nolo
contendere, appoint a time for pronouncing judgment
under Section 859a, pronounce judgment, and refer the case to
the probation officer if eligible for probation. [¶] (c) The
superior courts shall have jurisdiction in all misdemeanor
criminal cases to receive a plea of guilty or nolo contendere,



                                 41
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


ch. 613, § 8, p. 2886; see former § 859a,7 Stats. 1991, ch. 613, §
6, pp. 2884–2885.) The same amendment allowed superior
courts to take guilty pleas in misdemeanor cases, thus giving
superior courts flexibility to accept misdemeanor plea bargains
as a way of resolving felony charges. (Stats. 1991, ch. 613, § 8,
p. 2886.) But the law remained unchanged for capital cases —
that is, the law continued to be that the municipal court lacked
jurisdiction to pronounce judgment in such cases, and its judges,
sitting as magistrates, lacked statutory authority to accept
guilty pleas in such cases. Former section 1462 was again
amended in 1998 in ways that are not relevant here. (Stats.
1998, ch. 931, § 417, p. 6633.) Finally, in 2002, due to unification
of the municipal and superior courts, former section 1462 was
repealed. (Stats. 2002, ch. 784, § 554.1.)
      Therefore, when defendant was in the municipal court in
1996, the judicial officers before whom he appeared were not
acting as judges; rather, they were sitting as magistrates. (See
former §§ 859, 859b, 860.) Moreover, because the offense


appoint a time for pronouncing judgment, and pronounce
judgment.” (Italics added.)

7
      As a result of this change, former section 859a provided in
relevant part: “(a) If the public offense charged is a felony not
punishable with death, the magistrate shall immediately upon
the appearance of counsel for the defendant read the complaint
to the defendant and ask him or her whether he or she pleads
guilty or not guilty to the offense charged therein . . . . While
the charge remains pending before the magistrate and when the
defendant’s counsel is present, the defendant may plead guilty
to the offense charged . . . . [¶] (b) . . . [T]he magistrate shall,
upon the receipt of a plea of guilty . . . , immediately appoint a
time for pronouncing judgment in the superior court, municipal
court, or justice court . . . .” (Italics added.)


                                 42
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


charged was a felony “punishable with death” (former § 859a,
subd. (a), Stats. 1992, ch. 78, § 1, pp. 274–275), the municipal
court judge (sitting as a magistrate) was, at most, empowered to
deliver to defendant a copy of the complaint (former § 859,
amended by initiative, Primary Elec. (June 5, 1990), commonly
known as Prop. 115), inform defendant that, if needed, counsel
would be provided for him at the public’s expense (ibid.), set a
time for the preliminary hearing (former § 859b, Stats. 1989, ch.
897, § 26.5, pp. 3066–3067), and, at that appointed time,
“proceed to examine the case,” unless such examination was
waived (former § 860, Stats. 1963, ch. 1174, § 2, p. 2670). The
magistrate was simply not authorized to accept a plea of guilty
and pronounce judgment, because former section 859a — which
authorized that procedure — only applied “[i]f the public offense
charged is a felony not punishable with death.” (Former
§ 859a.)8
       Hence, if defendant wanted to plead guilty before his
preliminary hearing, when his case was before a magistrate, his
only option was (1) to waive the preliminary hearing, and then
(2) enter his guilty plea in superior court to the information filed
in that court. (Former § 860, Stats. 1963, ch. 1174, § 2, p. 2670.)
Defendant was required to follow that two-step process. (See,
e.g., In re Van Brunt (1966) 242 Cal.App.2d 96, 101–102.)
Moreover, the People could insist on a preliminary hearing


8
      In a letter brief filed after oral argument, defendant
concedes this point, saying, “As it appears that the municipal
court could not accept his guilty plea under former section 1462,
the municipal court should have certified or transferred the case
to the superior court for acceptance of the plea.”



                                 43
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


notwithstanding defendant’s willingness to waive it. (Former
§ 860, Stats. 1963, ch. 1174, § 2, p. 2670 [“nothing contained
herein shall prevent the district attorney . . . from requiring that
[a preliminary] examination be held as provided in this
chapter”].)9
      Here, defendant’s attempts to plead guilty, all of which
occurred before the preliminary hearing, were all rejected for
procedural reasons unrelated to section 1018. Defendant first
mentioned wanting to plead guilty on October 30, 1996, during
a Marsden hearing. He complained that his attorneys were
working too hard and that he did not want “certain information
getting out” during the penalty phase. When the court
explained that the penalty phase was a long time away,
defendant stated that he wanted to waive the preliminary
hearing and plead guilty. He acknowledged that his counsel
were not ineffective, but he did not want attorneys who would
work so hard. The court denied the Marsden motion and
arraigned defendant that same day. Defense counsel waived
reading of the complaint and entered a plea of not guilty.
Defendant objected, but counsel explained that defendant’s
objection meant that he wanted the complaint read. Defendant
did not further clarify his reason for objecting. The case was one
in which the punishment might be death, and the municipal
court had no power to accept a guilty plea. At no point did the
municipal court rule that, based on section 1018, it would not
accept defendant’s guilty plea.



9
     As noted in footnote 3 on page 27, ante, defendant may also
have been precluded from waiving the preliminary hearing
because of his self-represented status.


                                 44
                     PEOPLE v. FREDERICKSON,
                    Opinion of the Court by Chin, J.


      On January 23, 1997, defendant was before a superior
court judge for an in camera hearing regarding investigative
funds under section 987.9, but the preliminary hearing had not
occurred and the case was still before the municipal court.
Defendant told the superior court judge that he wanted to “go
public” and plead guilty. He expressed frustration, saying, “I
don’t even want to play these games anymore. I want to just go
ahead, I want to enter a plea of guilty. I have a right to do so,
and I wish to do so at this time.” Because defendant was only
before a superior court judge on a section 987.9 hearing, the
superior court explained that “the issue as to whether or not
you’re going to plead guilty or waive a preliminary hearing is
really not before me today.” Defendant was insistent, and the
court agreed to help defendant to achieve his aim. As noted,
pleading guilty required a two-step process: (1) waiver of the
preliminary hearing; and (2) entry of a guilty plea in superior
court.10 Therefore, the superior court judge said, “With your
permission and request, I’ll contact — or have my clerk contact
— the judicial officer in Division [311 of the municipal court] and
request your matter be calendared as soon as possible because
you want [¶] . . . [¶] . . . to consider a change of plea or waiver of
preliminary hearing . . . .” Defendant continued to insist. At
one point he said, “I’m pleading guilty and that’s that.” The
superior court judge responded, “Well, you haven’t done that
yet.” And defendant said, “Well, I’m attempting to very, very,


10
      Significantly, several times when defendant expressed his
desire to plead guilty, he also said he wanted to waive the
preliminary hearing. It seems, therefore, that defendant had
been informed of the two-step process requiring him first to
proceed through (or waive) the preliminary hearing before he
could enter a guilty plea in superior court.


                                  45
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


very hard.” The court told defendant, “That part of the matter’s
not before me. [¶] . . . [¶] Okay. Those matters are pending in
[Division] 311 [of the municipal court] [¶] . . . [¶] We’re going to
make arrangements to have you brought over to [Division] 311,
and you can discuss your desires there.” The court added,
“[We]’ll do our best to get you calendared in [Division] 311 [of
the municipal court] as soon as possible. I can’t guarantee when
that will be. As soon as we’re in recess, I’m sure my clerk will
call over there. If I have to call over there personally, I would
do it.” Thus, the superior court judge made a considerable effort
to help defendant achieve his aim of pleading guilty.
      Defendant argues that these efforts were misleading. He
contends that the superior court could have accepted his guilty
plea and instead it misleadingly sent defendant to municipal
court, a court that lacked authority to accept the guilty plea.
Because defendant was proceeding in propria persona,
defendant argues, the superior court’s instructions were unfair
to him. Defendant points out that although a self-represented
defendant is held to the same standard as counsel, the court is
not permitted to mislead a self-represented defendant.
      But the superior court did not mislead defendant. The
superior court was only involved because the case was a capital
case that required disbursement of investigative funds under
section 987.9, and a municipal court judge was not empowered
to disburse such funds. (See Anderson v. Justice Court, supra,
99 Cal.App.3d at p. 402.) The case was not otherwise pending
in the superior court, and the superior court therefore could not
have accepted defendant’s guilty plea. Rather, the law required
a magistrate to hold a preliminary hearing (or accept a waiver
of such a hearing), and only then could defendant be held to
answer in superior court and plead guilty. Defendant cites no

                                 46
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


authority for the proposition that in 1996, when municipal court
judges sitting as magistrates conducted preliminary hearings in
felony cases, a defendant in a case in which the punishment
might be death could enter a guilty plea in superior court
without first having completed proceedings in the municipal
court. Here, the superior court judge who was holding the
section 987.9 hearing while defendant’s case was otherwise in
the municipal court could not accept defendant’s guilty plea.
Hence, the superior court judge did not mislead defendant;
rather, he sent defendant on the only path that would have
allowed defendant to achieve his stated aim.
      A few days later, on January 27, 1997, the superior court
held another in camera hearing and defendant’s request to plead
guilty was discussed. The superior court again offered to help
defendant waive his preliminary hearing and plead guilty, if
that was what defendant still wanted: “We will call [the
municipal court magistrate assigned to your case] and see if she
can work it in sometime late this morning, or sometime this
afternoon.”
      That afternoon, defendant appeared in the department of
the municipal court assigned to his case. He explained to the
court, “[T]he guilt of my crime has been weighing heavily on me
with a remorseful heart. I would like to offer a change of plea
and enter a plea of guilty to murder in the first degree and admit
the special circumstances and waive all appellate rights at this
time.” The prosecutor then told defendant, off the record
(although later described on the record), that “by law he cannot
plead guilty to a special circumstances allegation case” and “no
judge can accept your plea.” The court then reminded the
parties that the People also have a right to a preliminary
hearing, and even if defendant waived his right, the People

                                 47
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


could choose not to do so. The prosecutor stated that the People
were not prepared to waive the preliminary hearing, and so the
municipal court explained to defendant that there was no choice
but to proceed with that hearing. The court said: “So to have
further discussions and undertake further proceedings today
would be — for lack of a better word — a waste of time, and I
am going to suggest that we terminate these proceedings today
and that you come back on February 5th. [¶] . . . You will have
had another nine days to think about this and decide whether
or not you truly want to waive [the] preliminary hearing or not.”
Defendant agreed with that solution.
      Then, on the scheduled date of the preliminary hearing in
municipal court, February 5, 1997, defendant never requested
to waive the hearing, and the hearing proceeded. At the end of
the hearing, defendant was held to answer in superior court.
      Defendant was then charged in the superior court by
information filed on February 18, 1997. On February 24, 1997,
defendant appeared in superior court and entered pleas of not
guilty and not guilty by reason of insanity. Defendant said
nothing about a desire to plead guilty.
      As noted, if defendant wanted to challenge the
constitutionality of section 1018, he needed to ask to plead guilty
in superior court and ask the court to make a ruling based on
section 1018, thus preserving the issue on appeal. He never did
so. He did ask to plead guilty while his case was in the
municipal court, and both the superior court judge hearing his
section 987.9 motion and the municipal court magistrate
assigned to his preliminary hearing attempted to assist him.
But after the preliminary hearing, when defendant was held to
answer in superior court, he never renewed his request to plead


                                 48
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


guilty. On the contrary, he entered pleas of not guilty and not
guilty by reason of insanity.
      It is true that defendant was apparently persuaded that
he could not plead guilty. The prosecutor had told him that “no
judge can accept your plea.” Moreover, at the hearings on
October 20 and 27, 1997, he told the court that he had wanted
to plead guilty but could not do so, due to section 1018, and he
asked the court to allow him to inform the jury of that fact.11


11
      Defendant may have been under the impression that his
previous requests to plead guilty, made when his case was in the
municipal court, were denied pursuant to section 1018, but that
possibility does not change the fact that, under former section
859a, the municipal court lacked statutory authority to accept
defendant’s guilty plea.
      The concurring opinion argues that the municipal court
relied on section 1018 in rejecting defendant’s request to plead
guilty. It focuses on the prosecutor’s statement to the municipal
court that “by law [defendant] cannot plead guilty to a special
circumstances allegation case.” The concurrence describes that
statement as “an evident reference to section 1018.” (Conc. opn.
of Liu, J., p. 4, post.) But the prosecutor could equally well have
been referring to the municipal court’s lack of authority under
former section 859a. That would explain why the prosecutor
added, “I think it’s [defendant’s] desire to actually waive the
preliminary hearing,” meaning that defendant wanted to get his
case out of the municipal court. To be sure, the prosecutor also
said that “no judge” could accept defendant’s plea, but the
prosecutor may only have meant that no judge could do so at
that time, before defendant was charged in the superior court.
Significantly, in arguing to the municipal court that defendant
was barred from pleading guilty, the prosecutor never made any
reference to defendant’s unrepresented status, and the
prosecutor’s comments nine months later in the superior court
could not have influenced the municipal court, which clearly
relied on the People’s right to a preliminary hearing, not section
1018, in rebuffing defendant’s request to plead guilty.


                                 49
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


But, be that as it may, defendant never requested to plead guilty
before the superior court, and he never asked that court to make
a ruling based on section 1018, which would have preserved on
appeal the issue of that statute’s constitutionality. He may have
been acting based on the advice that no judge could accept his
plea, but he still needed to obtain a ruling and thus preserve the
issue. Self-represented defendants are “held to the same
standard of knowledge of law and procedure as is an attorney,”
and that point remains valid even in capital cases. (People v.
Clark (1990) 50 Cal.3d 583, 625; see People v. Espinoza (2016) 1
Cal.5th 61, 75; People v. Blair (2005) 36 Cal.4th 686, 734; People
v. Mendoza (2000) 24 Cal.4th 130, 157; Faretta, supra, 422 U.S.
806, 834–835, fn. 46.) “We have . . . rejected claims that the fact
or likelihood that an unskilled, self-represented defendant will
perform poorly in conducting his or her own defense must defeat
the Faretta right. [¶] . . . Instead, we have accepted that the
cost of recognizing a criminal defendant’s right to self-
representation may result ‘ “in detriment to the defendant, if not
outright unfairness.” ’ [Citations.] But that is a cost that we
allow defendants the choice of paying, if they can do so
knowingly and voluntarily.” (People v. Mickel (2016) 2 Cal.5th
181, 206; see People v. Taylor (2009) 47 Cal.4th 850, 866.)
       In summary, pleading guilty before the preliminary
hearing was simply not an option for defendant, because the
municipal court magistrate had no power to accept a guilty plea
in a capital case. The municipal court never made a section 1018
ruling prohibiting defendant from pleading guilty, because the
issue of a guilty plea was not before it and, for jurisdictional
reasons, could not be before it. The most the municipal court
could do for defendant was accept a stipulated waiver of the
preliminary hearing and then send the case to the superior


                                 50
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


court. But the People did not agree to waive the preliminary
hearing, and when the day of the preliminary hearing arrived,
defendant did not renew his request to plead guilty. Nor did he
renew it in the superior court after he was held to answer. Only
the superior court could have made a ruling based on section
1018, and once the case got to the superior court, defendant
never asked to plead guilty, so such a ruling never became
necessary.    We therefore reject defendant’s constitutional
challenge to section 1018 on the ground that the trial court
never made a ruling under section 1018, and his claim is
therefore forfeited.
         3. Validity of Waiver of Right to Counsel
      Defendant challenges the validity of his waiver of his right
to counsel, making several arguments. None of his arguments
has merit.
             a. Municipal Court’s Asserted Error in Denying
                Defendant’s Marsden Motion without Sufficient
                Inquiry
      Defendant first contends his waiver of the right to counsel
was induced by the municipal court’s errors during his first
Marsden hearing on October 30, 1996, when he said that he did
not want that vigorous of a defense and added that he wanted
to plead guilty. He asserts that the court made no inquiry into
his intent to plead guilty or his conflict with counsel, and it then
permitted counsel to enter a not guilty plea despite defendant’s
stated desire to plead guilty. He argues that the court’s actions
placed him in an unconstitutional dilemma of either (1)
defending himself with counsel who would not “accede to his
fundamental and personal right to control his defense by
pleading guilty and pursuing a case for life at penalty,” or (2)
defending himself without counsel. In these circumstances, he

                                 51
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


argues, there was no valid waiver of the right to counsel. He
asserts that the unaddressed and unresolved conflict he had
with his counsel negated the required showing that his waiver
was voluntary and intelligent.
      Defendant is wrong. After defendant made an oral
Marsden motion, the municipal court held a Marsden hearing in
chambers. The court started the hearing by asking defendant
to describe why he believed one or both of his attorneys were not
rendering competent or reasonable representation. Defendant
explained that he did not agree with “their idea of what they
want to do tactical-wise” and that he did not want them to call
witnesses over his objection. Defendant’s complaints regarding
trial preparation and strategy were tactical disagreements, as
defendant conceded in the hearing, which do not by themselves
constitute an irreconcilable conflict. (People v. Cole (2004) 33
Cal.4th 1158, 1192 (Cole); see People v. Bolin (1998) 18 Cal.4th
297, 334 [whether to call certain witnesses is a matter of trial
tactics].) Although the McCoy court acknowledged a defendant’s
fundamental right to choose the objective of his or her defense,
the court also acknowledged that it is defense counsel’s job to
determine how best to achieve a client’s objectives. (McCoy,
supra, __ U.S. at p. __ [138 S.Ct. at p. 1508].)
      Defendant did not indicate to the municipal court that the
conflict he had with counsel was so serious that he would
consider representing himself just to terminate his relationship
with his current public defenders, nor did defendant say that his
conflict with counsel concerned whether or not to enter a guilty
plea. On the contrary, defendant’s main concern was about
whether certain witnesses would be called at the penalty phase.
When the municipal court said that the penalty phase was still
a long way off, defendant responded that it was not a long way

                                 52
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


off, because he planned to waive the preliminary hearing and
plead guilty, which meant the penalty phase would occur
relatively soon. He added that his dispute with counsel
concerned how to conduct the penalty phase. His counsel
wanted “to check all avenues,” and defendant didn’t want that.
He also said that he didn’t want to represent himself and allow
the prosecutor “to just walk all over me.” He continued, “I’m
going to keep these counsel. I’m not saying they are ineffective.”
Defendant’s comments contradict his assertion that his waiver
of the right to counsel was due to a conflict over whether he
should plead guilty. On the contrary, what he told the court was
that the conflict was over how the penalty phase should be
conducted, and the court acted within its discretion in finding
no irreconcilable conflict requiring counsel’s replacement.
             b. Failure to Advise that Defendant Could Not
                Plead Guilty
       Defendant next contends his waiver was invalid because
the municipal court failed to advise him that even if he waived
his right to counsel, he still could not plead guilty. He notes that
his request to waive counsel “came one week after counsel was
allowed to thwart [his] stated intent to plead guilty,” suggesting
that the court should therefore have known that his reason for
waiving counsel was his desire to plead guilty. He points out
that section 1018 prohibits a capital defendant from pleading
guilty without consent of counsel, and he argues that court
failed to ensure he was aware of the rule.
     “The requirements for a valid waiver of the right to
counsel are (1) a determination that the accused is competent to
waive the right, i.e., he or she has the mental capacity to
understand the nature and object of the proceedings against him
or her; and (2) a finding that the waiver is knowing and

                                 53
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


voluntary, i.e., the accused understands the significance and
consequences of the decision and makes it without coercion.”
(People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070.) “On
appeal, we examine de novo the whole record—not merely the
transcript of the hearing on the Faretta motion itself—to
determine the validity of the defendant’s waiver of the right to
counsel.” (Id. at p. 1070.)
      Defendant here asserts, in effect, that the court did not
ensure he was aware of all of the disadvantages of self-
representation; namely, that he would not be able to plead guilty
because such a plea requires the consent of counsel under
section 1018. Defendant argues that the timing of his Faretta
request, made only one week after he attempted to plead guilty,
demonstrated that his request stemmed from a mistaken belief
that a guilty plea would be accepted after counsel was
discharged.
      Defendant cites no authority for the proposition that when
a defendant waives the right to counsel, the trial court must
inform the defendant of every possible specific disadvantage
that might later flow from the waiver. Countless disadvantages
might result from a waiver of the right to counsel, and a trial
court could not possibly predict each of those disadvantages in
advance. Therefore, the trial court need only inform the
defendant in general terms of the most common disadvantages.
(See People v. Riggs (2008) 44 Cal.4th 248, 277–278 (Riggs);
People v. Lopez (1977) 71 Cal.App.3d 568, 572–573.)
      Nor on this record was the municipal court made aware of
the need to inform defendant that he could not plead guilty if he
represented himself. On November 7, 1996, when defendant
made his oral motion to proceed in propria persona, he did not


                                 54
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


say anything about an intent to plead guilty. Quite the opposite:
Defendant’s only concern about representing himself was
whether he would have the ability to obtain funding for an
investigator to assist him. It is true that defendant had told the
court one week earlier, during the Marsden hearing, that it was
his plan to waive the preliminary hearing and plead guilty.
However, when the court arraigned defendant after the hearing,
counsel entered a plea of not guilty. Defendant then said, “Over
my objection,” but counsel clarified that defendant’s objection
related to the reading of the complaint, and defendant did not
dispute that point. Those facts do not support defendant’s
assertion that on the day of the Marsden hearing “counsel was
allowed to thwart [his] stated intent to plead guilty.”
      A week later when defendant waived his right to counsel,
defendant’s actions were too ambiguous for the court to have
reasonably known that the reason he sought to represent
himself was that he wanted to plead guilty. Furthermore, when
defendant later learned that he would be unable to plead guilty
as a self-represented defendant, he reaffirmed his desire to
continue without counsel.
      We conclude that the record “ ‘as a whole demonstrates
that the defendant understood the disadvantages of self-
representation, including the risks and complexities of the
particular case’ ” (Riggs, supra, 44 Cal.4th at p. 276), and that
because defendant did not make his intent clear, the municipal
court was not obligated to specifically inform defendant that he
would not be able to plead guilty if he waived his right to
counsel.




                                 55
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


            c. Sufficiency of the Court’s Inquiry
      Defendant further contends that the municipal court’s
Faretta inquiry was insufficient to support a valid waiver of the
right to counsel in a capital case. He asserts the court did not
specifically inquire into his understanding of capital case
proceedings and did not make him aware of the specific dangers
and disadvantages of proceeding without counsel in capital
proceedings or of the fundamental legal rights that would be
affected by proceeding without counsel. He also notes that his
Faretta form did not advise him of such disadvantages. We
conclude the court’s inquiry was sufficient.
      As noted, the trial court could not possibly predict every
disadvantage that might flow from a waiver of the right to
counsel, and therefore it need only inform the defendant in
general terms of the most common disadvantages. We have
upheld warnings similar to those that defendant here received.
(Riggs, supra, 44 Cal.4th at pp. 277–278 [advisements were
adequate where record showed the defendant was aware that
defending himself against capital charges was a complex process
involving extremely high stakes and that his ability to defend
himself might be hampered by his incarceration and lack of
training]; People v. Blair (2005) 36 Cal.4th 686, 709–710
[advisements were adequate where record reflects that the
defendant understood the nature of the charged offense, the
nature of a capital proceeding and penalty phase, and was
advised by the court to receive help from a lawyer].)
      On August 22, 1996, the municipal court discussed at
length with defendant his desire to plead guilty. Defendant
explained that he had been involved in several cases in the
criminal justice system and had previously represented himself



                                 56
                   PEOPLE v. FREDERICKSON,
                  Opinion of the Court by Chin, J.


against three felony charges, none of which went to jury trial.
He understood that he would be treated the same as an attorney
and would receive no special privileges. He affirmed that he
could read and understand English “very well” and that he had
a “healthy, clear mind.” On November 7, 1996, defendant
executed a written waiver of his right to counsel. The waiver
form emphasized that it was “almost always unwise to represent
yourself” and reminded defendant that he would be facing a
skilled and experienced prosecutor. During the oral colloquy,
defendant affirmed his awareness that he faced “murder with
special circumstances and [that] the maximum term is the death
penalty.”
      The record here reflects that defendant was aware of the
charges against him, that he knew he faced both a guilt phase
and, if found guilty, a penalty phase, that he could expect to
have access to only limited resources due to his incarceration,
and that the assistance of an attorney was highly recommended.
The court’s inquiry was sufficient.
            d. Requests to Reappoint Counsel
     Defendant next asserts the trial court erred by failing to
address and grant his requests on January 23 and 27, 1997, for
reappointment of counsel.
       The hearing on January 23 was an in camera hearing
before a superior court judge who was overseeing disbursement
of investigative funds under section 987.9. At the start of the
hearing, the court explained that it had received notice that
defendant had violated the terms of the order granting him jail
privileges. Defendant replied that he wished to plead guilty. He
expressed frustration with his lack of a working computer and
difficulty placing unmonitored phone calls. He explained that


                                57
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


he did not want the government to “run over” him and did not
“want to play these games anymore.” He told the court that he
preferred to plead guilty and have the public defender’s office
reappointed to represent him during the penalty phase.
Defendant complained that he had to “keep coming to this court
and begging” for phone calls, materials, and investigation
reports and did not believe the court was sincere in its efforts to
assist him. Defendant asked insistently to “go public” and allow
him to change his plea. The court, which was addressing only
the disbursement of investigative funds under section 987.9,
said, “That part of the matter’s not before me.” As noted, the
court told defendant he would need to discuss his desire to
change his plea in the proper department, and the court offered
to help him do so. (See ante, p. __.)
      Defendant returned to the superior court on January 27,
1997, for an in camera hearing on his alleged jail violation and
to further discuss his displeasure with his assigned investigator.
The court revoked defendant’s self-representation jail privileges
and closed the hearing by again offering to help defendant waive
his preliminary hearing and plead guilty, if that was what
defendant still wanted: “We will call [the municipal court judge
assigned to your case] and see if she can work it in sometime
late this morning, or sometime this afternoon.”
      That afternoon, defendant appeared in the department of
the municipal court assigned to his case and asked to plead
guilty. As already discussed, the municipal court had no
authority to accept a guilty plea in a capital case. Instead, if
defendant insisted on pleading guilty, the court would need to
proceed with the preliminary examination, hold defendant to
answer, and then defendant would have to plead guilty in the
superior court. The prosecutor told defendant that the law

                                 58
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


prevented him from pleading guilty. The municipal court then
explained that the People were not prepared to waive the
preliminary hearing, and therefore there was no choice but to
proceed with that hearing. The court said, “I am going to
suggest that we terminate these proceedings today,” adding that
defendant should return on the day scheduled for the
preliminary hearing, having considered the matter further.
Defendant agreed with that solution.
       A motion to abandon self-representation and have counsel
reappointed must be unequivocal. (People v. Lawrence (2009) 46
Cal.4th 186, 193 (Lawrence); see People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1002 (Lewis and Oliver).)
“Equivocation . . . may occur where the defendant tries to
manipulate the proceedings by switching between requests for
counsel and for self-representation, or where such actions are
the product of whim or frustration.” (Lewis and Oliver, supra,
39 Cal.4th at p. 1002.) A trial court’s denial of a Faretta
revocation request is reviewed for abuse of discretion.
(Lawrence, at p. 192.)
       At the hearing on January 23, 1997, defendant did not
simply request to have counsel reappointed. Instead, he
expressed an intent first to plead guilty, and only then to have
counsel reappointed to handle the penalty phase. As already
discussed, however, in order to plead guilty, defendant needed
to proceed through the preliminary hearing (or waive it), be held
to answer in superior court, and then enter his guilty plea in
that court. The superior court, which was handling only
disbursement of investigative funds under section 987.9, did not
fail to address defendant’s request. The court appropriately
informed defendant that the matter of his pleading guilty was
not before it and that he needed to raise that issue in the proper


                                 59
                   PEOPLE v. FREDERICKSON,
                  Opinion of the Court by Chin, J.


department. It then arranged a hearing in the division of the
municipal court that was assigned to defendant’s preliminary
hearing.    Because defendant’s request to have counsel
reappointed was expressly conditioned on his pleading guilty,
and because he could not plead guilty without proceeding
through the preliminary hearing (or waiving it), the court
properly directed defendant to the division of the municipal
court where he could begin that process.
      On January 27, 1997, when defendant was before the
municipal court division that was handling his preliminary
hearing, defendant again requested to plead guilty, but he did
not repeat his request to have counsel reappointed. Because the
People were not willing to waive the preliminary hearing, the
court had no choice but to proceed with that hearing as
scheduled.
     Contrary to defendant’s claim, the trial court did not fail
to address his request to plead guilty and have counsel
reappointed. Instead, it did what was within its power to assist
defendant. We conclude there was no error.
            e. Waiver of Right to Counsel after Defendant Was
               Held to Answer in Superior Court
      Lastly, defendant asserts he did not validly waive counsel
on March 14, 1997, when the superior court took a second
Faretta waiver. The prosecutor requested this second waiver of
defendant’s right to counsel, because defendant’s previous
waiver was before the prosecution had formally declared its
intent to pursue the death penalty.
       At the hearing on March 14, 1997, the superior court
advised defendant that he had the right to a speedy and public
trial, and the right to a trial by jury. The court also advised


                                60
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


defendant that he had the right to use the court to subpoena
witnesses or records he might need and the right to confront in
open court all witnesses called to testify against him. The court
then noted that, according to a minute order dated February 28,
another judge had gone “through all this” with defendant.
Defendant clarified that “those were in camera hearings.” The
court asked, “Were all these rights explained to you at that
time?” In response, defendant said, “Yeah, I’m fully aware of my
rights. I’m making a knowing and intelligent waiver of my
rights. I understand that this is a death penalty case and that
the minimum term, mandatory minimum is life without the
possibility of parole. I am also aware that by pleading not guilty
and not guilty by reason of insanity, I could spend the rest of my
life in a mental institution if a jury so finds, but I’m willing to
fill out your petition here.” The court stated, “As long as this
has all been gone over with you by [the other judge], I’m
satisfied.” Defendant then signed the Faretta waiver for the
court.
      Defendant contends the trial court’s failure to readvise
him of his rights violated section 987, subdivision (b), which
provides that if a capital defendant appears for arraignment
without counsel, the court shall inform him that he shall be
represented by counsel at all stages of the preliminary and trial
proceedings.
       In People v. Crayton (2002) 28 Cal.4th 346, a noncapital
defendant waived his right to counsel in municipal court. After
the defendant was held to answer, the superior court did not
readvise him of his right at his subsequent arraignment, as is
required by section 987, subdivision (a). We held that when “a
defendant has been fully informed of his or her right to counsel
at all stages of the proceedings (including trial), and voluntarily

                                 61
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


and knowingly has invoked the right to represent himself or
herself throughout all the proceedings, the trial court’s failure
to provide a new advisement and obtain a renewed waiver at the
arraignment (as required by section 987) does not operate to
terminate or revoke the defendant’s validly invoked
constitutional right to represent himself or herself at trial.”
(People v. Crayton, at p. 365.) We further held that a trial court’s
error in failing to comply with section 987 was susceptible to a
harmless error analysis. (People v. Crayton, at p. 365.) We
noted that a review of the record will reveal whether, despite the
absence of an explicit advisement by the superior court at
arraignment, the defendant was aware that he or she had the
right to appointed counsel at subsequent proceedings and
whether an explicit advisement at the arraignment would have
been likely to lead the defendant to reconsider the decision to
represent himself or herself. (Ibid.)
      The same rule applies to capital defendants under section
987, subdivision (b). Where, as here, the record reveals that the
defendant was aware that he had the right to appointed counsel
at subsequent proceedings and an explicit advisement at
arraignment would not have been likely to lead to the
defendant’s reconsidering his decision to represent himself, the
court’s failure to readvise the defendant is harmless beyond a
reasonable doubt. Defendant was well aware that he had the
right to appointed counsel at all stages. When the municipal
court took his Faretta waiver on November 7, 1996, the court
expressly stated that defendant’s motion “is to represent
yourself throughout the proceedings, prelim, pretrial, trial,
everything?” Defendant replied, “Yes, sir.” Defendant also
repeatedly reminded the court during in camera hearings that
he wanted to represent himself, that he was lead counsel on his


                                 62
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


case, and that he did not want the court to handle matters
through his advisory counsel. He also signed a second written
waiver of his Faretta rights. And when the court attempted to
readvise defendant of his rights, he told the court that he was
“fully aware” of his rights and was making a “knowing and
intelligent” waiver of those rights. We conclude that any
possible error was harmless under any standard.
     B. Failure to Suppress Statements
       Investigators first interviewed defendant shortly after his
arrest on June 14, 1996. Officer Mark Steen advised defendant
of his right to remain silent, that anything he said could be used
against him in court, of his right to have an attorney present
before or during any questioning, and that if he could not afford
an      attorney,    one      would    be     appointed     before
questioning. Following each advisement, Steen asked
defendant if he understood. To each question, defendant
replied, “Yes, sir.” Steen then proceeded to question defendant
about his involvement in the crime.
      Early in the questioning, defendant said, “Hey, when am I
going to get a chance to call my lawyer. It’s getting late, and
he’s probably going to go to bed pretty soon.” Steen replied,
“Your lawyer? Well you can call your lawyer after we’re done in
our facility.” Defendant said, “Oh, okay. So what do we got to
do in our facility here?” Steen explained, “Well, we’re
conducting this interview.” When defendant asked if they could
finish the interview the following day, Steen replied, “Um, we
can continue talking tomorrow; however, we’re not going to
continue the interview.” Steen then continued asking defendant
about the murder.




                                 63
                  PEOPLE v. FREDERICKSON,
                  Opinion of the Court by Chin, J.


      Eleven days later, on July 25, 1996, defendant sent
Officers Steen and Lozano a letter requesting to meet. The
investigators spoke with defendant at the jail on August 12,
1996. Lozano advised defendant that he was represented by the
public defender, who had invoked defendant’s right to remain
silent. Lozano asked if defendant would like to waive his right
to have an attorney present. Defendant replied, “I waive that,
and I have since fired him.”12 Lozano advised defendant of his
Miranda rights, and defendant signed a waiver. Lozano then
interviewed defendant.
       On June 23, 1997, defendant filed a pretrial motion to
suppress his statements from the June 14 interview. He also
moved to dismiss the information on the grounds that his
confession was obtained in violation of Miranda, and without
the confession, there was insufficient evidence to hold him to
answer on the murder charge. On September 8, 1997, defendant
filed a motion to suppress both the June 14 confession and his
statements from the August 12 interview. He argued the
August statements “still carried the taint” of the June 14
interview at which the investigators engaged in misconduct by
failing to notify his counsel when he requested to speak with
them. Defendant further argued that his “known history of
mental illness and current treatment with psycho[tropic]
medications are factors to consider.”
     At a hearing on September 26, 1997, the trial court denied
the motions. The court found that defendant’s statements


12
     Actually, defendant had submitted, on July 16, 1996, a
handwritten motion requesting to proceed in propria persona.
Defendant later withdrew that request, but he then made a new
request, which the court granted on November 7, 1996.


                                64
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


during the June 14 interview did not constitute a clear request
for an attorney. Rather, his inquiry into when he could call his
attorney indicated that he was “desirous of speeding up the
interview so he [could] call his lawyer when the interview was
over. There is certainly nothing close to a clear request for an
attorney.” The court found that because defendant initiated
contact before the August interview and signed written waivers
of the presence of counsel and of his Miranda rights, “defendant
can hardly complain that his statements were coerced,
involuntary, or in violation of his right to counsel.” The court
further found that defendant presented no evidence of any
mental defect that would preclude him from understanding and
waiving his rights.
      Defendant asserts the trial court erred in failing to
suppress his statements from the June 14 interview because he
did not validly waive his right to counsel. He further asserts the
trial court erred in failing to suppress statements from the
August 12 interview because there was no break in the causal
chain from the erroneous first interrogation. Lastly, defendant
asserts that the state violated his Sixth Amendment rights “by
approaching appellant [on August 12] without first contacting
his attorney,” and he further asserts that his mental illness
affected his ability to waive his rights. We disagree.
      In Miranda, supra, 384 U.S. 436, the United States
Supreme Court set forth prophylactic measures to protect an
individual’s right against self-incrimination from curtailment
under the “inherently compelling pressures” of custodial
interrogation. (Id. at p. 467.) A suspect “must be warned prior
to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he

                                 65
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.” (Id. at p. 479.) After a suspect
has heard and understood these rights, he or she may waive
them. (People v. Tate (2010) 49 Cal.4th 635, 683.) The
prosecution, however, bears the burden of showing that the
waiver was knowing, voluntary, and intelligent under the
totality of circumstances. (People v. Linton (2013) 56 Cal.4th
1146, 1171; see Maryland v. Shatzer (2010) 559 U.S. 98, 104.)
      On appeal, we view the evidence in a light most favorable
to the order denying the motion to suppress. (People v. Tully
(2012) 54 Cal.4th 952, 979.) “Moreover, the reviewing court
‘must accept the trial court’s resolution of disputed facts and its
assessment of credibility.’ ” (Ibid.)
       In People v. Whitson (1998) 17 Cal.4th 229, a police officer
interviewed the defendant on three separate occasions. At the
beginning of each interview, the officer advised the defendant of
his rights under Miranda and asked whether he understood
them. Each time, the defendant responded that he did. The
officer then proceeded to question the defendant. (Id. at
pp. 237–239.) We concluded the defendant’s statements were
voluntary, noting that the record was devoid of any suggestion
that the police resorted to physical or psychological pressure to
elicit them. (Id. at pp. 248–249.) We concluded the defendant
was aware of the rights he was waiving and the consequences of
his decision to do so, observing that there was no evidence that
during any interview his judgment was clouded or otherwise
impaired. (Id. at p. 249.) We further concluded that the
defendant’s waiver was intelligent, noting that there was no
evidence that he lacked sufficient intelligence to understand his
rights or the consequences of waiving them. (Id. at p. 250.) We
held:      “Although the police officers did not obtain

                                 66
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


an express waiver of defendant’s Miranda rights, decisions of
the United States Supreme Court and of this court have held
that such an express waiver is not required where a defendant’s
actions make clear that a waiver is intended.” (Ibid.; see North
Carolina v. Butler (1979) 441 U.S. 369, 374–375.)
       As in Whitson, ample evidence supports a finding here
that defendant’s waiver was voluntary, knowing, and
intelligent. Officers Steen and Lozano explained each Miranda
right to defendant, after which he indicated that he understood.
Following a complete admonition, defendant began to discuss
his role in the murder. His actions made clear that a waiver was
intended.
      Defendant also did not unequivocally invoke his right to
counsel when he subsequently asked, “Hey, when am I going to
get a chance to call my lawyer? It’s getting late, and he’s
probably going to go to bed pretty soon.” When a defendant has
waived his Miranda rights and agreed to speak with police, any
subsequent invocation of the right to counsel must be
unequivocal and unambiguous. (Davis v. United States (1994)
512 U.S. 452, 461–462.) “[A]fter a knowing and voluntary
waiver, interrogation may proceed ‘until and unless the suspect
clearly requests an attorney.’ ” (People v. Williams (2010) 49
Cal.4th 405, 427 (Williams).) Defendant’s statement that it was
getting late and his question about when he would get to call his
lawyer did not amount to an unequivocal and unambiguous
request for counsel. A reasonable officer in Steen and Lozano’s
position would have concluded that defendant’s remark
expressed concern over the length of the interview and a desire
to contact counsel when the interview was over. Defendant
never said that he wanted to stop the interview immediately and
consult counsel.

                                 67
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


      We conclude that defendant’s statements from the June 14
interview were properly obtained. It follows that his subsequent
statements at the August 12 interview did not carry any taint
from the previous interview. Furthermore, the investigators
readvised defendant of his Miranda rights before beginning the
August 12 interview, and defendant signed a waiver.
       Defendant’s contention that the August 12 interview
violated his Sixth Amendment right to counsel also fails. Officer
Lozano reminded defendant that the investigators were present
for the interview because defendant had initiated contact
through a letter indicating a desire to speak with them. While
advising defendant of his Miranda rights, Lozano said, “You are
being represented, at this point, that we know of, by a public
defender, okay, . . . who has invoked your right to remain silent
with the court. He’s filed papers to that effect, . . . that you are
just . . . [to] remain silent, okay? You have the right to have your
attorney . . . present while we talk to you, okay? Uh, . . . do you
wish to have him here at this time, or do you waive that right to
have that attorney . . . here at this time?” Defendant replied, “I
waive that, and I have since fired him.”13
       “The Sixth Amendment guarantees the accused, at least
after the initiation of formal charges, the right to rely on counsel
as a ‘medium’ between him and the State.” (Maine v. Moulton
(1985) 474 U.S. 159, 176.) A suspect has the right, however, to
knowingly and intelligently waive the right to counsel,
especially if the accused himself initiates such communication.
(Patterson v. Illinois (1988) 487 U.S. 285, 291.) Defendant

13
      As noted, defendant had filed a motion to proceed in
propria persona, but the court had not ruled on it. Defendant
later withdrew the motion.


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                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


initiated contact with the investigators when he sent them a
letter requesting to meet. He was then thoroughly advised of
his right to have counsel present during the interview, and he
unequivocally waived that right. Moreover, his waiver was not
invalidated by his asserted mental illness. Defendant relies on
a declaration he submitted to the trial court with his motion to
suppress, in which a psychologist declared that defendant was
“mentally ill” and that his letter requesting a meeting with the
investigators “was a product of this deteriorated mental state.”
On review of this declaration, the trial court expressed concern
over the lack of cross-examination by the People and found that
the psychologist’s statement was “a legal conclusion that would
not be admissible, as it is without foundation.” In its written
order, the trial court stated that defendant failed to present
evidence of any mental defect that would prohibit him from
waiving his rights.
     The record does not demonstrate that defendant failed to
understand or validly waive his rights. We conclude that
substantial evidence supports the trial court’s findings.
     C. Failure to Suppress Evidence
      Santa Ana Police Corporal Richard Reese testified at trial
that he arrested defendant on the evening of June 14, 1996.
After the arrest, Reese and other law enforcement personnel
conducted a parole search of defendant’s camper. They located
a .32-caliber revolver in its holster, hidden under a blanket.
Reese testified that they found five live rounds in the revolver.
      Defendant objected and asked the trial court to strike
Reese’s testimony. Outside the jury’s presence, defendant
explained the basis of his objection: “No probable cause for the
search. The evidence that he’s attempting to introduce is the


                                 69
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


object of an illegal search and seizure. I believe that Officer —
Corporal Reese testified that the defendant was already in
custody [and hence no longer on parole], and . . . I believe that
there was no exigent circumstances for them to conduct a search
without a search warrant. They could have obtained a search
warrant, so on and so forth.” The prosecutor replied that if
defendant wanted to suppress the evidence of the search, “he
had ample time before the proceedings” to do so. He argued the
search was actually conducted by parole agent Jan Moorehead
pursuant to a parole condition. The prosecutor explained that
he “did not want to raise the specter of a parole search” before
the jury, and he had only vaguely questioned Reese as to
whether other investigators were present, so as not to reveal to
the jury that defendant was on parole. Defendant replied that
he was in custody at the time of the search and no longer on
parole.
       The court stated that the objection was “extremely tardy”
and asked defendant why he waited until mid-trial to raise the
issue. Defendant explained that he was under the assumption
that the officers had conducted the search pursuant to a
warrant, but he realized after Reese’s testimony that they did
not have a warrant. The prosecutor responded that an evidence
list from the parole search had listed a revolver, holster, and
bullets, thus informing defendant that the gun was found during
the parole search, not during a later search of the same camper,
done pursuant to a warrant.
     The court denied defendant’s motion, stating: “If there’s
nothing in any of the discovery to indicate that the weapon was
taken during a search pursuant to a warrant, I’m somewhat
confused as to how you would not be aware that it was taken by
Corporal Reese during his search of the camper.” Defendant

                                 70
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


explained that the documents confused him and that he did not
purposefully wait to make the argument. The court replied,
“The problem presented here is that if I were to allow this
motion to be heard at this time, it would be granting favoritism
to an individual who decided to represent himself. I don’t
believe that it’s fair to the process of justice to do that. The
defendant, having chosen to represent himself, is bound to know
the rules and procedures. I frankly can’t see any justification
for waiting mid-trial to make a motion to suppress.”
       Section 1538.5, subdivision (a), provides that a defendant
may move to suppress as evidence any tangible thing obtained
as a result of an illegal search or seizure. A defendant is not
permitted to raise a search and seizure issue for the first time
during trial, however, unless the opportunity for the motion did
not previously exist or the defendant was not aware, prior to
trial, of the grounds for the motion. (§ 1538.5, subd. (h); People
v. Brooks (1980) 26 Cal.3d 471, 476.)
      We conclude that sufficient evidence supported the trial
court’s finding that defendant’s motion to suppress the evidence
was untimely. The discovery provided to defendant clearly
indicated that the gun was located during Reese’s post-arrest
search of the camper, not during the subsequent execution of the
search warrant. Defendant said the paperwork confused him;
he did not claim, however, that he had been provided erroneous
or incomplete pretrial discovery and therefore was incapable of
discovering the grounds for his motion. Defendant’s failure to
bring his motion to suppress prior to trial therefore does not fall
within the exceptions recognized in section 1538, subdivision
(h).




                                 71
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


      D. Disclosure of Reporter’s Unpublished Notes
       Defendant contends the trial court violated his right to
obtain evidence when it refused to require a reporter to disclose
her notes from her jailhouse interview with him. He asserts
application of the newsperson’s shield law (Cal. Const., art. I,
§ 2, subd. (b); Evid. Code, § 1070) limited his ability to challenge
testimony from Marla Jo Fisher, a reporter with the Orange
County Register (the Register).
      On June 15, 1996, the day after defendant’s arrest, Fisher
visited the jail to conduct an interview. After Fisher identified
herself to defendant and explained the purpose of her visit, he
agreed to speak with her. He admitted that he was attempting
to rob the HomeBase store and that he shot Wilson. The
following day, the Register published an article containing
several statements and admissions from defendant.
      The prosecution subpoenaed Fisher to testify at trial.
Defendant in turn subpoenaed the Register for any notes and
materials it had regarding Fisher’s interview. The Register
provided a copy of the published article. After defendant argued
that the Register wanted to “quash the unpublished” notes, the
trial court issued an order to show cause why the Register
should not produce the requested documents. In response, the
Register, on its own behalf and on behalf of Fisher, moved for a
protective order limiting the scope of subpoenas to information
not protected under the California reporter’s shield law and also
the First Amendment to the United States Constitution.
Defendant opposed the motion, arguing that statements he
made during the interview would establish mitigating
circumstances relative to the penalty determination, might
establish that the murder was not in furtherance of a robbery,



                                 72
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


and might be relevant for the sanity phase. He further argued
that Fisher published his statements out of context, and he
needed the ability to impeach her credibility and to show that
she was acting as a government agent.
      At a hearing on the matter, the court concluded that
defendant could cross-examine Fisher regarding the
circumstances surrounding the interview, including statements
he may have made that were not published. The court also
concluded, however, that it would not order Fisher to turn over
her notes at that time, stating that making such an order would
depend on her testimony and whether she relied on those notes
in refreshing her recollection while testifying.
      The trial court then conducted another hearing before
Fisher testified to determine whether she would be using any
unpublished notes to refresh her recollection. Attorney Alec
Barinholtz appeared on behalf of Fisher and the Register’s
parent company. Fisher did not testify regarding whether she
had taken notes during her interview with defendant. Rather,
she said that prior to coming to court, she had refreshed her
recollection by reviewing the published newspaper article and
watching a videotape of a televised interview. The court ruled
that because Fisher did not rely on any notes to refresh her
recollection, any notes she may have taken were shielded by law.
The court concluded that defendant could “inquire about
matters that were discussed during his interview with her. . . .
Well, anything that he recalls that he wants to talk to her about
that occurred during the course of the interview is subject to be
examined upon.”
     Article I, section 2, subdivision (b) of the California
Constitution provides, as relevant to this case, that a


                                 73
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


“reporter . . . shall not be adjudged in contempt by a judicial,
legislative, or administrative body . . . for refusing to disclose
any unpublished information obtained or prepared in gathering,
receiving or processing of information for communication to the
public.” The constitutional provision is codified in section 1070
of the Evidence Code. This law, known as the “shield law,”
“protects a newsperson from being adjudged in contempt for
refusing to disclose either: (1) unpublished information, or (2)
the source of information, whether published or unpublished.”
(Delaney v. Superior Court (1990) 50 Cal.3d 785, 797 (Delaney).)
A newsperson’s immunity, however, must yield to a criminal
defendant’s constitutional right to a fair trial. (Id. at p. 805;
People v. Charles (2015) 61 Cal.4th 308, 325 (Charles).) “ ‘In
order to compel disclosure of information covered by
the shield law, the defendant must make a threshold showing of
a reasonable possibility that the information will materially
assist his defense. The showing need not be detailed or specific,
but it must rest on more than mere speculation.’ ” (People v.
Ramos (2004) 34 Cal.4th 494, 526 (Ramos).)
      We have previously “set forth a number of factors to guide
the trial court in balancing the interests of a criminal defendant
seeking      to   overcome     the     immunity      granted    by
the shield law with the newsperson’s interests. Those factors
are: (a) ‘whether the unpublished information is confidential or
sensitive’; (b) whether ‘the interests sought to be protected’ by
the law would be thwarted by disclosure; (c) ‘the importance of
the information to the criminal defendant’; and (d) ‘[w]hether
there is an alternative source for the unpublished information.’ ”
(Charles, supra, 61 Cal.4th at p. 325; see Delaney, supra, 50
Cal.3d at pp. 810–811.)



                                 74
                   PEOPLE v. FREDERICKSON,
                  Opinion of the Court by Chin, J.


       Defendant asserts that the shield law should not apply
because he was both the source of the unpublished information
and the person seeking its disclosure. In Delaney, supra, 50
Cal.3d 785, we acknowledged that when “the criminal defendant
seeking disclosure is himself the source of the information, it
cannot be seriously argued that the source (the defendant) will
feel that his confidence has been breached. The reporter’s news-
gathering ability will not be prejudiced.” (Id. at pp. 810–811.)
      Before the court may weigh the interests sought to be
protected by the shield law, however, the defendant must first
make the threshold showing that there is a reasonable
possibility that the information will materially assist his
defense. In Ramos, supra, 34 Cal.4th 494, a newspaper reporter
interviewed the defendant about the charges pending against
him. The newspaper published the interview. When the
prosecution subpoenaed the reporter, he filed a motion to quash
on the ground that the information the prosecution sought was
protected by the shield law. (Id. at p. 523.) Following an in
camera hearing, the trial court decided the defense could cross-
examine the reporter on his observations of the defendant’s
mental status and demeanor, but it did not require the reporter
to produce his notes of the interview. (Id. at p. 524.)
      We concluded that the defendant’s assertion that the
reporter’s notes were material to his defense was mere
speculation. (Ramos, supra, 34 Cal.4th at p. 527.) The
defendant had not established that the notes contained
anything different from the reporter’s testimony, and the record
did not suggest the notes contained anything of substance that
the jury had not already heard. (Ibid.) Because the defendant
failed to meet the threshold showing, we did not balance the
Delaney factors to determine whether disclosure was required,

                                75
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


and we found the trial court did not abuse its discretion in using
the shield law to protect the reporter’s notes. (Ibid.)
      Here, defendant has likewise failed to make a threshold
showing that there was a reasonable possibility, beyond mere
speculation, that the information contained in Fisher’s notes
would have materially assisted his defense. Indeed, he has not
established that such notes even existed. Although he asserted
in his motion that he had been misquoted in various passages of
the article, the statements attributed to him in the article were
consistent with his statements to the investigators. Defendant’s
vague assertion that he needed the notes to “test her credibility”
does not show a reasonable possibility that the notes would have
materially assisted his defense. He has not made an adequate
showing that any notes made by Fisher contained anything
different from her testimony or from what the jury had already
heard.
      Further, the trial court permitted defendant to cross-
examine Fisher on “all of the circumstances” surrounding the
interview, including statements defendant may have made that
were not published. As the court told defendant during the
hearing, “Considering the interview was of you, I think there is
significant areas of testing the credibility available to you.”
       The trial court likewise did not err when it denied
defendant’s motion to strike Fisher’s testimony. For the reasons
discussed above, defendant was not, as he asserts, unable to
effectively cross-examine Fisher without her notes.
      E. Instructional Error
         1. Instruction on First Degree Murder
     Defendant contends that the instructions permitting him
to be convicted of first degree murder on a theory of either


                                 76
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


premeditated murder or felony murder violated his rights under
the Eighth and Fourteenth Amendments to the federal
Constitution because he was not charged with first degree
murder. He asserts that because he was charged only with
second degree murder under section 187, he cannot be found
guilty of first degree murder. He further asserts that the trial
court committed reversible error by failing to require the jury to
unanimously agree on the theory of first degree murder. We
have repeatedly rejected substantially similar claims and do so
again here. (People v. Geier (2007) 41 Cal.4th 555, 592; Cole,
supra, 33 Cal.4th at p. 1221; People v. Hughes (2002) 27 Cal.4th
287, 369; People v. Kipp (2001) 26 Cal.4th 1100, 1132; People v.
Silva (2001) 25 Cal.4th 345, 367; People v. Carpenter (1997) 15
Cal.4th 312, 394–395.) Defendant offers no persuasive reason
to revisit these holdings.
         2. Attempted Robbery–Murder Instruction
      Defendant contends the trial court erred when it
instructed the jury on attempted robbery–murder. He asserts
the instruction was “tantamount to a directed verdict on the
issue of whether the killing occurred during the commission of
attempted robbery, because the undisputed evidence showed
that [he] fatally shot the victim long before he had reached a
place of ‘temporary safety.’ ”
      The court instructed the jury in the language of CALJIC
Nos. 8.21: “The unlawful killing by a defendant of a human
being, whether intentional, unintentional or accidental, which
occurs during the commission or attempted commission of the
crime of robbery is murder of the first degree when the
perpetrator had the specific intent to commit that crime.” It also
instructed the jury in the language of CALJIC No. 8.21.1: “For



                                 77
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


the purposes of determining whether an unlawful killing has
occurred during the commission or attempted commission of a
robbery, the commission of the crime of robbery is not confined
to a fixed place or a limited period of time. An attempted
robbery is still in progress after the attempted taking of the
property while the perpetrator is fleeing in an attempt to escape.
Likewise it is still in progress so long as immediate pursuers are
attempting to capture the perpetrator. An attempted robbery is
complete when the perpetrator has eluded any pursuers and has
reached a place of temporary safety.”
       Defendant asserts that the evidence showed the
attempted robbery and murder were two distinct crimes, not one
continuous transaction, and that the instruction erroneously
removed a factual issue from the jury’s consideration by
directing the jury to conclude that the attempted robbery was
still in progress when he shot the victim. He relies on People v.
Sakarias (2000) 22 Cal.4th 596 (Sakarias). In that case, the jury
asked the court for clarification regarding when a burglary
begins and ends. The court responded, “ ‘Although it is alleged
that the killing in the present case occurred sometime after it is
alleged the defendant entered the house, if the jury finds that
the defendant committed burglary by entering the house with
the intent to steal, the homicide and the burglary are parts of
one continuous transaction.’ ” (Id. at p. 623.) In Sakarias, we
concluded that the trial court’s response relieved the jury of its
obligation to determine whether all the elements of first degree
murder and the burglary-murder special circumstance had been
proven beyond a reasonable doubt, but we further concluded
that the error was harmless. (Id. at pp. 624–625.)
    Subsequent to our decision in Sakarias, we have held
CALJIC No. 8.21.1 to be a correct statement of the law. (People

                                 78
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


v. Debose (2014) 59 Cal.4th 177, 204–205.) Defendant concedes
that CALJIC No. 8.21.1 “may be a proper instruction under
appropriate circumstances,” but he asserts that the instruction
was erroneous in this situation. He is mistaken. In Sakarias,
the trial court’s written response to the jury’s question was
erroneous because it did not instruct the jury that it must decide
for itself whether the homicide and burglary were part of a
single continuous transaction. (Sakarias, supra, 22 Cal.4th at
p. 626.) The CALJIC No. 8.21.1 instruction given here did not
suffer from the same flaw. The jury was left to decide whether
the attempted robbery was complete before the murder took
place.
         3. Special Circumstance Instruction
      Defendant contends the trial court erroneously instructed
the jury on the special circumstance allegation of attempted
robbery–murder. He contends that the instruction, combined
with CALJIC No. 8.21.1, permitted the jury to find the special
circumstance true without finding that he killed the victim
while engaged in an attempted robbery. We reject the claim.
      Over defendant’s objection, the trial court instructed the
jury using a modified version of CALJIC No. 8.8.17 as follows,
with the modified portion in italics: “To find that the special
circumstance, referred to in these instructions as murder in the
commission of attempted robbery, is true, it must be proved:
1. The murder was committed while the defendant was engaged
in the attempted commission of a robbery, or the murder was
committed during the immediate flight after the attempted
commission of a robbery by the defendant and 2. The murder
was committed in the course of the commission of the crime of
attempted robbery or to facilitate the escape therefore or to



                                 79
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


avoid detection. In other words, the special circumstance
referred to in these instructions is not established if the
attempted robbery was merely incidental to the commission of
the murder.”
       The standard jury instruction at the time of trial read,
“The murder was committed in order to carry out or advance the
commission of the crime . . . .” (Italics added.) Defendant
asserts that the evidence supported instructing the jury with the
standard “carry out or advance” language, because the jury
could have reasonably concluded that any intent to steal no
longer existed when he shot the victim. We have previously
held, however, that there “is nothing magical about the phrase
‘to carry out or advance’ the felony. Indeed, we ourselves have
stated the requirement without using that phrase.” (People v.
Horning (2004) 34 Cal.4th 871, 908.) We reiterated in Horning
that if the felony was merely incidental to the murder, no
separate felony-based special circumstance exists, and the
instruction’s explanation that the robbery must not be “ ‘merely
incidental to the commission of the murder’ ” adequately
conveys this requirement. (Ibid.) Because the court properly
instructed the jury that it could not find the special
circumstance true if it found the robbery to be merely incidental
to the commission of the murder, there was no error.
         4. Proof Beyond a Reasonable Doubt
      Defendant contends the instructions on circumstantial
evidence (CALJIC Nos. 2.01, 2.02, 8.83, 8.83.1) diluted the proof-
beyond-a-reasonable-doubt standard because they “informed
the jurors that if [he] reasonably appeared to be guilty, they
could find him guilty even if they entertained a reasonable doubt
as to guilt.” We have previously rejected similar challenges to



                                 80
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


these instructions. (People v. Brasure (2008) 42 Cal.4th 1037,
1058.) Defendant offers no persuasive reason for us to revisit
our precedent.

         5. Flight Instruction

      Defendant raises three challenges to the trial court’s
instruction on flight, CALJIC No. 2.52.
      He first asserts the instruction was unnecessary because
it was duplicative of the general jury instructions regarding
circumstantial evidence, citing CALJIC Nos. 2.00, 2.01, and
2.02. We have previously rejected this claim, concluding:
“ ‘CALJIC Nos. 2.00, 2.01, and 2.02 instruct[] the jury on the
definition of circumstantial evidence and its sufficiency in
establishing facts to establish guilt. On the other hand, CALJIC
No. 2.52 [is] a cautionary instruction that benefit[s] the defense
by “admonishing the jury to circumspection regarding evidence
that might otherwise be considered decisively inculpatory.”
[Citation.]’ ” (People v. Leon (2015) 61 Cal.4th 569, 608.)
      Defendant next contends the instruction was
impermissibly argumentative in light of People v. Mincey (1992)
2 Cal.4th 408, which he contends rejected, as argumentative, an
instruction structurally similar to CALJIC No. 2.52. We have
described the instruction in Mincey, like that in CALJIC No.
2.52, as having an if/then structure: “ ‘If [certain facts] are
shown, then you may [draw particular conclusions].’ ” (People v.
Bonilla (2007) 41 Cal.4th 313, 330.) We explained in Bonilla,
however, that the structure of the instruction given in Mincey
was not problematic. Rather, the Mincey instruction was flawed
because it contained argumentative language that focused on
the defendant’s version of the facts, not his legal theory of the



                                 81
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


case. (Bonilla, at p. 330.) In Bonilla, we also rejected the
defendant’s argument that CALJIC No. 2.03, another
consciousness of guilt instruction, was argumentative simply
because it, too, contained the if/then structure. (Bonilla, at p.
330.) For the same reason, we reject defendant’s argument here.
      Lastly, defendant asserts that the instruction permitted
the jury to draw an impermissible inference concerning his guilt.
We have previously rejected this contention (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 438; People v. Rundle
(2006) 43 Cal.4th 76, 153–154), and defendant presents no
compelling reason to reconsider these decisions.
         6. Motive Instruction
      Defendant contends the trial court erred in instructing the
jury with CALJIC No. 2.51, regarding motive, because it
improperly allowed the jury to determine guilt based upon the
presence of an alleged motive and thus shifted the burden of
proof to the defense. We have repeatedly rejected substantially
similar contentions, and we do so again here. (People v. Nelson
(2016) 1 Cal.5th 513, 552–553; People v. Capistrano (2014) 59
Cal.4th 830, 876–877.)
                 III. PENALTY PHASE ISSUES
     A. Refusal of Defendant’s Requested Jury
        Instructions
         1. Instructions on Aggravating Factors
      Defendant contends the trial court erred when it refused
his proposed instruction that would have informed the jurors
that they could not double-count the facts underlying the special
circumstance. The proposed instruction read: “You must not
consider as an aggravating factor the existence of any special
circumstances if you have already considered the facts of the


                                 82
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


special circumstance as a circumstance of the crime for which
the defendant has been convicted. [¶] In other words, do not
consider the same facts more than once in determining the
presence of aggravating factors.” The trial court rejected the
proposed instruction, concluding that defendant’s concern was
addressed in CALJIC No. 8.88.
      Defendant cites People v. Monterroso (2004) 34 Cal.4th
743, in which we held the trial court committed harmless error
when it denied the defendant’s request to instruct the jury
against double-counting the special circumstances. (Id. at
p. 789.) The court had instructed the jury with CALJIC
No. 8.85, “which instructed the jury to consider, take into
account, and be guided by, inter alia, ‘the circumstances of the
crime of which the defendant was convicted in the present
proceeding and the existence of any special circumstances found
to be true.’ ” (People v. Monterroso, at p. 789.) We noted that,
even without the clarifying instruction the defendant had
requested, the possibility that a jury would believe it could
weigh each special circumstance twice was remote, and thus, in
the absence of any misleading argument by the prosecutor or
some other event substantiating the claimed double-counting,
reversal was not required. (Id. at pp. 789–790.)
      In the present case, the trial court also instructed the jury
in the language of CALJIC No. 8.85. Defendant does not allege
that the prosecutor argued the issue in a misleading manner,
nor does he point to anything in the record giving rise to a
substantial likelihood of double-counting. Even assuming error,
it was harmless beyond a reasonable doubt.
      Defendant next contends that the trial court erred when it
refused his proposed instruction that read: “In deciding whether


                                 83
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


you should sentence the defendant to life imprisonment without
the possibility of parole, or to death, you cannot consider as an
aggravating factor any fact that was used by you in finding him
guilty of murder in the first degree unless that fact establishes
something in addition to an element of the crime of murder in
the first degree.” Section 190.3, factor (a), however, expressly
permits the penalty phase jury to consider the circumstances of
the crime in determining penalty, and on that ground, we have
previously upheld the rejection of substantially similar proposed
instructions. (See People v. Moon (2005) 37 Cal.4th 1, 40.)
         2. Refusal of Additional Penalty Phase Instructions
      Defendant contends that the trial court erroneously
refused to give several requested penalty phase instructions
that would have clarified the standard penalty phase
instructions and provided guidance to the jurors. We disagree.
      The first proposed instruction would have told the jury
that certain sentencing factors could only be considered as
mitigating. The trial court concluded the instruction was
duplicative of CALJIC No. 8.85. It did not err. As we have
previously held, the trial court need not define which statutory
factors could be considered aggravating and mitigating. (People
v. Hillhouse (2002) 27 Cal.4th 469, 509.)
      The second proposed instruction would have told the jury
that its consideration of mitigating factors was not limited to the
factors provided and that jurors could consider any other
circumstances relating to the case or to defendant as reasons for
not imposing the death penalty. We have previously held that
such instructions are not necessary because “the catchall section
190.3, factor (k) instruction ‘allows the jury to consider a




                                 84
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


virtually unlimited range of mitigating circumstances.’ ”
(People v. Smithey (1999) 20 Cal.4th 936, 1007.)
      The third proposed instruction would have told the jury it
could not consider evidence of defendant’s lifestyle or
background as an aggravating factor, but it could consider such
evidence as a mitigating factor. In People v. Ochoa (2001) 26
Cal.4th 398, 457, we concluded that the court’s refusal to give a
substantially similar instruction was not erroneous because, as
in this case, the court properly instructed the jury on
aggravating and mitigating factors.
      Defendant also proposed instructing the jury that it could
consider as a mitigating circumstance whether defendant was
under the influence of any mental or emotional disturbance at
the time of the offense and whether his capacity to appreciate
the criminality of his conduct was a result of mental disease,
mental defect, or intoxication. The court rejected these
instructions, concluding they were cumulative. Defendant now
asserts the proposed instructions were not cumulative because,
unlike CALJIC No. 8.85, they did not contain the term
“extreme.” (See, e.g., CALJIC No. 8.85 [permitting the jury to
consider “[w]hether or not the offense was committed while the
defendant was under the influence of extreme mental or
emotional disturbance” (italics added)].)      He asserts this
distinction is important because jurors “must be allowed to
consider a defendant’s entire personal history and
characteristics, not just those that may be seen as ‘extreme.’ ”
We have previously held, however, that the “use of restrictive
adjectives — i.e., ‘extreme’ and ‘substantial’ — in the list of
mitigating     factors     in section  190.3 does    not     act
unconstitutionally as a barrier to the consideration of
mitigation.” (People v. Harris (2005) 37 Cal.4th 310, 365.) We

                                 85
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


have also held that the instruction allows a jury to consider a
defendant’s mental condition as mitigation even if not
“ ‘extreme.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 720–721.)
      In addition, defendant requested that the court instruct
the jury that defendant bore no burden to prove the existence of
mitigating factors, that a mitigating factor need not be proven
beyond a reasonable doubt, and that the jury need not
unanimously agree on any fact or circumstance offered in
mitigation. We again conclude that the trial court did not err in
refusing these instructions. (Kansas v. Carr (2016) 577 U.S. __,
__ [136 S.Ct. 633, 642] [“our case law does not require capital
sentencing courts ‘to affirmatively inform the jury that
mitigating circumstances need not be proved beyond a
reasonable doubt’ ”]; Riggs, supra, 44 Cal.4th at p. 328 [the court
was not required to instruct the jury on burden of proof]; People
v. Breaux (1991) 1 Cal.4th 281, 314–315 (Breaux) [the court is
not required to instruct the jury that unanimity on mitigating
factors was not required].)
      Defendant also proposed three instructions regarding the
jurors’ consideration of aggravating factors. The first proposed
instruction would have told the jury it could consider rebuttal
evidence offered by the prosecution only as it relates to the
existence or weight of a mitigating factor; it could not consider
it as an aggravating factor. Because the prosecutor did not
present rebuttal evidence during the penalty phase, the court
did not err in refusing to give this proposed instruction.
Defendant asserts that the prosecutor nonetheless presented
rebuttal evidence during its case in chief (namely, evidence of
his background and character) and that such evidence should
have instead been presented as rebuttal evidence. Therefore,
defendant argues, the court should have provided the proposed

                                 86
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


instruction. Because defendant does not actually challenge the
admissibility of this evidence during the prosecutor’s case in
chief, we decline to decide whether or not it was improper. As
the Attorney General notes, even if the evidence was improperly
introduced during the case in chief and should have been
introduced as rebuttal evidence, defendant’s proposed
instruction would have confused the jury, as the jury would not
have understood what evidence the instruction referred to.
      The second proposed instruction would have told the jury
that it must find an aggravating factor has been proven beyond
a reasonable doubt. We have repeatedly held that, except for
evidence of other crimes and prior convictions under section
190.3, factors (b) and (c), the jury need not find the aggravating
factors have been proven beyond a reasonable doubt. (People v.
Rangel (2016) 62 Cal.4th 1192, 1235; Williams, supra, 49
Cal.4th at pp. 458-459.) We have no cause to reconsider those
holdings here.
      The third proposed instruction would have instructed the
jurors that they could not allow sympathy for the victim or the
victim’s family to divert their attention from their sentencing
role, and they could not impose a penalty of death as a purely
emotional response to the evidence. The court did not err when
it found this proposed instruction cumulative. The court
instructed the jury with CALJIC No. 8.84.1, which in relevant
part provides, “You must neither be influenced by bias nor
prejudice against the defendant, nor swayed by public opinion
or public feelings.” We presume the jurors understood and
followed the court’s instruction. (People v. Homick (2012)
55 Cal.4th 816, 873.)




                                 87
                    PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


      Lastly, defendant requested instructions regarding the
jurors’ weighing of factors and their consideration of mercy and
sympathy. The first proposed instruction would have told the
jury that it could decide to impose life without the possibility of
parole even if it found no mitigating factors present. We have
previously held that the trial court is not required to so instruct
the jury. (People v. Perry (2006) 38 Cal.4th 302, 320; People v.
Johnson (1993) 6 Cal.4th 1, 52.)
      The second proposed instruction would have told the jury
that the presence of a single mitigating factor is sufficient to
support a vote against imposing the death penalty. We have
previously held a trial court does not err in refusing such an
instruction. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1160–
1161.)
      The third proposed instruction provided: “The law of
California does not require that you ever vote to impose the
penalty of death. After considering all of the evidence in the
case and instructions given to you by the court, it is entirely up
to you to determine whether you are convinced that the death
penalty is the appropriate punishment under all of the
circumstances of the case.” We have previously held that such
instruction is misleading and argumentative if it does not also
inform the jury that the law has no preference for the
punishment of life without the possibility of parole. (People v.
Earp (1999) 20 Cal.4th 826, 903.) Rather, a correct statement
of California law is that “our law ‘expresses no preference as to
the appropriate punishment.’ ” (Ibid.) The trial court properly
rejected defendant’s proposed instruction.
     Defendant also requested that the jury be instructed that,
on the basis of mercy, it could decide not to impose the death


                                 88
                    PEOPLE v. FREDERICKSON,
                    Opinion of the Court by Chin, J.


penalty, regardless of whether or not defendant deserved their
sympathy, and that if any of the evidence aroused sympathy to
such an extent that they believed death was not an appropriate
punishment, the jury could act on that sympathy by imposing
life in prison without the possibility of parole. In rejecting these
proposed instructions, the trial court concluded they were
duplicative of CALJIC No. 8.85, factor (k), which informed the
jury that it could consider “any sympathetic or other aspect of
the defendant’s character or record that the defendant offers as
a basis for a sentence less than death, whether or not related to
the offense for which he is on trial.” (Ibid., internal brackets
omitted.) “As we have previously explained, CALJIC No. 8.85
adequately instructs the jury concerning the circumstances that
may be considered in mitigation, including sympathy and
mercy. [Citation.] We therefore ‘must assume the jury already
understood it could consider mercy and compassion.’ ” (People
v. Ervine (2009) 47 Cal.4th 745, 801.)
      B. Instruction on Applicable Sentencing Factors
      Defendant contends the trial court prejudicially erred in
delivering its oral instructions to the jury.
      While reading the penalty phase instructions to the jury,
the court read CALJIC No. 8.85 as follows: “In determining
which penalty is to be imposed on the defendant, you shall
consider all of the evidence which has been received during any
part of the trial of this case except as you may hereafter be
instructed. You may consider, take into account and be guided
by the following factors, if applicable . . . .” (Italics added.) The
court erroneously said “may consider” instead of “shall
consider,” but the written version of CALJIC No. 8.85 correctly
instructed the jury that it shall consider the enumerated factors.



                                  89
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


      The court also instructed the jury with CALJIC No. 8.88,
which read in part: “After having heard all of the evidence, and
after having heard and considered the arguments of counsel, you
shall consider, take into account and be guided by the applicable
factors of aggravating and mitigating circumstances upon which
you have been instructed.” (Italics added.) The court also
instructed the jurors, “You are to be governed only by the
instruction in its final wording.”
      We presume the jury understands and follows the trial
court’s instructions, including the written instructions. (People
v. Wilson (2008) 44 Cal.4th 758, 803.) Moreover, “[t]o the extent
a discrepancy exists between the written and oral versions of
jury instructions, the written instructions provided to the jury
will control.” (Ibid.) Defendant cites to nothing in the record to
rebut the presumption that the jurors followed the written
instructions that were provided.
                       IV. OTHER ISSUES
     A. Challenges to the Death Penalty
      Defendant presents a number of challenges to California’s
death penalty law that our prior decisions have considered and
rejected. He provides no persuasive reason for us to reexamine
the following conclusions:
      “California’s death penalty law ‘adequately narrows the
class of murderers subject to the death penalty’ and does not
violate the Eighth Amendment. [Citation.] Section 190.2,
which sets forth the circumstances in which the penalty of death
may be imposed, is not impermissibly broad in violation of the
Eighth Amendment.” (People v. Williams (2013) 58 Cal.4th 197,
294.)



                                 90
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


     “Allowing the jury to consider the circumstances of the
crime (§ 190.3, factor (a)) does not lead to the imposition of the
death penalty in an arbitrary or capricious manner.” (People v.
Kennedy (2005) 36 Cal.4th 595, 641.)
       “Nor is the death penalty statute unconstitutional for not
requiring ‘findings beyond a reasonable doubt that an
aggravating circumstance (other than Pen. Code, § 190.3, factor
(b) or (c) evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.’ ” (People v. Erskine (2019) 7 Cal.5th 279,
304.)
     CALJIC No. 8.88 is not impermissibly broad. (Breaux,
supra, 1 Cal.4th at p. 316, fn. 14.)
      The death verdict need not be based on unanimous jury
findings. “While all the jurors must agree death is the
appropriate penalty, the guided discretion through which jurors
reach their penalty decision must permit each juror individually
to assess such potentially aggravating factors as the
circumstances of the capital crime (§ 190.3, factor (a)), prior
felony convictions (id., factor (c)), and other violent criminal
activity (id., factor (b)), and decide for him- or herself ‘what
weight that activity should be given in deciding the penalty.’ ”
(People v. Demetrulias (2006) 39 Cal.4th 1, 41 (Demetrulias).)
      The trial court need not instruct the jury that it must
return a sentence of life without the possibility of parole if it
finds that mitigation outweighs aggravation. (People v. Duncan
(1991) 53 Cal.3d 955, 978.)
     Instructions on the meaning of a sentence of life
imprisonment without the possibility of parole and on the



                                 91
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


“ ‘presumption of life’ ” are not constitutionally required.
(Demetrulias, supra, 39 Cal.4th at p. 43.)
      “The trial court has no obligation to delete from CALJIC
No. 8.85 inapplicable mitigating factors, nor must it identify
which factors are aggravating and which are mitigating.”
(People v. Cook (2006) 39 Cal.4th 566, 618.)
     “Comparative intercase proportionality review by the trial
or appellate courts is not constitutionally required.” (People v.
Snow (2003) 30 Cal.4th 43, 126.)
      “The capital sentencing scheme does not violate equal
protection by denying to capital defendants procedural
safeguards that are available to noncapital defendants.” (People
v. Thomas (2012) 53 Cal.4th 771, 836 (Thomas).)
      California’s death penalty does not violate international
law or international norms of decency. (Thomas, supra, 53
Cal.4th at p. 837.)
     B. Restitution Fine
      The abstract of judgment indicates that the trial court
imposed a $10,000 restitution fine. However, the court did not
actually impose the fine at the sentencing hearing; it was merely
added to the abstract of judgment later. Defendant contends
that because the court never imposed the fine in open court in
his presence, it should be stricken from the abstract of
judgment. (See § 1202.4; People v. Tillman (2000) 22 Cal.4th
300, 303.) The Attorney General properly concedes the error.
We order the restitution fine stricken from the record and the
minutes, and the abstract of judgment modified accordingly.




                                 92
                   PEOPLE v. FREDERICKSON,
                   Opinion of the Court by Chin, J.


     C. Cumulative Error
      Defendant contends that the cumulative effect of the
asserted errors requires reversal of the judgment. We have
identified one error, the imposition of the restitution fine, and
assumed other errors but found no prejudice. Nor is this error
and any assumed error cumulatively prejudicial.
                        V. CONCLUSION
      The restitution fine is ordered stricken from the abstract
of judgment. The judgment is affirmed in all other respects.
                                                      CHIN, J.
We Concur:

CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                 93
                PEOPLE v. FREDERICKSON

                            S067392



              Concurring Opinion by Justice Liu



      I agree with the judgment and with today’s opinion, except
that I would reach the merits of whether Penal Code section
1018 is constitutional after McCoy v. Louisiana (2018) 584 U.S.
__ [138 S.Ct. 1500] (McCoy) and hold that it is.
      Penal Code section 1018 says that no guilty plea to an
offense punishable by death or life without the possibility of
parole “shall be received from a defendant who does not appear
with counsel, nor shall that plea be received without the consent
of the defendant’s counsel.” (All statutory references are to the
Penal Code.) Frederickson’s primary argument in his automatic
appeal is that the trial court denied his repeated requests to
plead guilty based on section 1018 and that section 1018 violates
his right to control his defense under the Sixth Amendment to
the United States Constitution. The court dismisses this
argument exclusively on the basis that he failed to secure a
ruling from the superior court rejecting his plea on section 1018
grounds. (Maj. opn., ante, at pp. 50–51.) But the record is too
muddled to support that conclusion, and in any event, this court
has often excused forfeitures raising pure questions of law. On
the merits, I would reject Frederickson’s claim that section 1018
is unconstitutional after McCoy. McCoy does not upend our long
and unbroken precedent holding that section 1018 constitutes a
valid balance between society’s interest in ensuring the



                               1
                   PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


reliability of judgments in capital cases and a criminal
defendant’s right to conduct his own defense.
                                 I.
      I am skeptical of dismissing Frederickson’s section 1018
challenge on the ground that he failed to secure a ruling from
the superior court that section 1018 barred him from pleading
guilty as a self-represented capital defendant. The record is at
least ambiguous as to whether the municipal court on January
27, 1997 implied such a ruling and therefore indicated to
Frederickson that any attempt to plead guilty at his preliminary
hearing would be futile because of section 1018.
      As today’s opinion recounts (maj. opn., ante, at pp. 17–27),
Frederickson diligently pursued his desire to plead guilty before
trial until the prosecution informed him that he could not
lawfully do so, and the municipal court appeared to endorse that
view. Frederickson expressed a desire to waive his preliminary
hearing and plead guilty on December 24, 1996 at an in camera
hearing in the superior court to address the disbursement of
investigative funds. At this point, he was representing himself
with the aid of advisory counsel. Because only the disbursement
issue was before it, the superior court explained that “the issue
as to whether or not you’re going to plead guilty or waive a
preliminary hearing is really not before me today.”
Frederickson repeated his wishes by saying, “I’m pleading guilty
and that’s that.” The court responded, “Well, you haven’t done
that yet.” Frederickson said, “Well, I’m attempting to very, very,
very hard.” The superior court said it would contact the
municipal court, where the rest of Frederickson’s case was
pending, and ask it to calendar his preliminary hearing as soon
as possible.


                                 2
                   PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


      On January 27, 1997, the superior court held another in
camera hearing, this time to address Frederickson’s violation of
his self-representation jail privileges. Frederickson’s advisory
counsel reiterated Frederickson’s desire to waive the
preliminary hearing and plead guilty, and the superior court
again offered to contact the municipal court.
      That afternoon, Frederickson and his advisory counsel
appeared in municipal court. Frederickson stated to the court,
“[T]he guilt of my crime has been weighing heavily on me with
a remorseful heart. I would like to offer a change of plea and
enter a plea of guilty to murder in the first degree and admit the
special circumstances and waive all appellate rights at this
time.” Before the municipal court could rule on his request, the
prosecutor asked to speak with Frederickson and his advisory
counsel off the record. Following that conversation, the
prosecutor summarized the conversation for the court: “What I
did your honor, for the record I had a brief conversation with Mr.
Frederickson in the presence of Mr. Freeman [advisory counsel]
and I had suggested to Mr. Frederickson that he seriously
reconsider his thoughts about what he was planning on
doing. He wants to plead guilty to the charges. I told him by
law he cannot plead guilty to a special circumstances allegation
case. He understands that, but I told him no judge can accept
your plea. Furthermore, I told him that it was my opinion Mr.
Freeman would offer him the best possible representation and
suggested that he follow Mr. Freeman’s advice on the
matter. It’s my understanding Mr. Frederickson despite Mr.
Freeman’s conversations with him and my own conversations
with him in Mr. Freeman’s presence Mr. Frederickson still
wants to plead guilty, although I think he realizes that he
cannot. I think it’s his desire to actually waive the preliminary


                                 3
                   PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


hearing which is still scheduled for February 5th. My last
suggestion to him was not to do anything today. That we just
come on February 5th and have more of a chance to think about
it, to talk to Mr. Freeman, or talk to his investigator and then
he can decide what he wants to do on the 5th.” (Italics added.)
      The court responded: “Well, that is all true, but Mr.
Tanizaki [the prosecutor], the People also have a right to a
preliminary examination. So even if Mr. Frederickson does
want to waive preliminary hearing, the People may choose not
to.” The court went on to explain to Frederickson that the
prosecution was not prepared to waive the preliminary hearing
at that time and suggested that Frederickson reassert his
request if he wished to do so on February 5 at his preliminary
hearing. At the preliminary hearing, Frederickson did not
request to waive the hearing or to plead guilty.
      The prosecutor’s summary of his January 27, 1997
conversation with Frederickson and advisory counsel suggests
that he told Frederickson that section 1018 prevented him from
pleading guilty to a capital crime. The prosecutor specifically
stated that Frederickson “by law . . . cannot plead guilty to a
special circumstances allegation case,” an evident reference to
section 1018. The prosecutor reinforced this by saying that “no
judge can accept your plea.” He did not say that Frederickson
could not plead guilty at this hearing or that he could not plead
guilty before a municipal court; instead, he suggested that the
legal bar to pleading guilty was unconditional for Frederickson,
who proceeded pro per. This categorical statement did not
suggest that “the prosecutor may only have meant that no judge
could [accept his plea] at that time.” (Maj. opn., ante, at p. 49,
fn. 11). Indeed, at a hearing on October 21, 1997, the prosecutor
asked the court to bar Frederickson from mentioning that he

                                 4
                   PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


had previously attempted to plead guilty because “the Penal
Code specifically disallows a guilty plea while he’s in pro per.”
      The municipal court then endorsed the entirety of the
prosecutor’s remarks to Frederickson, stating, “Well, that is all
true.” The court did not expressly deny Frederickson’s attempt
to plead guilty based on section 1018, and according to today’s
opinion, it appears that the municipal court had no jurisdiction
to accept such a plea. (Maj. opn., ante, at pp. 42–44.) But the
municipal court’s endorsement of the prosecutor’s admonition
that “no judge can accept [Frederickson’s] plea” informed
Frederickson that section 1018 barred him from pleading guilty
regardless of which court he was in.
      Today’s opinion relies heavily on the fact that the
municipal court on January 27, 1997 did not have jurisdiction to
accept Frederickson’s guilty plea and that Frederickson should
have pressed for a ruling on his request to plead guilty at his
February 5, 1997 preliminary hearing. (Maj. opn., ante, at
pp. 47–50.) But Frederickson had no reason to press for a ruling
on his guilty plea request at the preliminary hearing; in light of
the municipal court’s endorsement of the prosecutor’s statement
that “no judge can accept [his] plea,” Frederickson had good
reason to believe any further effort to plead guilty would have
been futile. Indeed, based on the prosecutor’s remarks at the
hearing on October 27, 1997, it appears that both parties
operated on the assumption that a court had in fact rejected
Frederickson’s plea on the ground that it was precluded by
section 1018. Given Frederickson’s diligent efforts to plead
guilty until the municipal court endorsed the prosecutor’s
statement that “by law he cannot plead guilty to a special
circumstances allegation case,” I would not reject Frederickson’s
section 1018 challenge on forfeiture grounds.

                                 5
                   PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


       In any event, we regularly excuse forfeiture where the
defendant has asserted the deprivation of a fundamental
constitutional right (People v. Vera (1997) 15 Cal.4th 269, 276
[“A defendant is not precluded from raising for the first time on
appeal a claim asserting the deprivation of certain fundamental,
constitutional rights.”]), and we have recognized, approvingly,
that the Courts of Appeal have excused forfeiture “when a
forfeited claim involves an important issue of constitutional law
or a substantial right” or “when applicability of the forfeiture
rule is uncertain or the defendant did not have a meaningful
opportunity to object at trial” (In re Sheena K. (2007) 40 Cal.4th
875, 887–888, fn. 7 [collecting cases]). Frederickson’s claim
implicates his Sixth Amendment rights, and ample precedent
supports excusal of any forfeiture here.
                                II.
      On the merits, I would hold that section 1018 is
constitutional notwithstanding the high court’s decision in
McCoy. I addressed this issue in People v. Miracle (2018) 6
Cal.5th 318, 360–361 (dis. opn. of Liu, J.), and reprise the main
points here. I note that the Attorney General in this case,
contrary to his position in Miracle, contends that section 1018 is
constitutional and assured this court at oral argument that
going forward he will no longer take the position that section
1018 is unconstitutional.
      At the core of the question is whether the Eighth
Amendment requirement of “reliability in the determination
that death is the appropriate punishment” (Woodson v. North
Carolina (1976) 428 U.S. 280, 305 (Woodson)), when balanced
against a capital defendant’s Sixth Amendment right to control
his own defense, allows the Legislature to limit that defendant’s


                                 6
                    PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


ability to plead guilty without consent of counsel. A long and
unbroken line of precedent has upheld section 1018 as striking
an appropriate balance between these interests, and McCoy
does not disturb that precedent.
                                 A.
      The Sixth Amendment “grants to the accused personally
the right to make his defense.” (Faretta v. California (1975) 422
U.S. 806, 819 (Faretta).)       This right, grounded in the
“fundamental legal principle that a defendant must be allowed
to make his own choices about the proper way to protect his own
liberty” (Weaver v. Massachusetts (2017) 582 U.S. __, __ [137
S.Ct. 1899, 1908]), guarantees to the accused the “ultimate
authority to make certain fundamental decisions regarding the
case” (Jones v. Barnes (1983) 463 U.S. 745, 751 (Barnes)).
      However, “the right to self-representation is not absolute,”
particularly in capital cases where there are competing
constitutional concerns. (Martinez v. Court of Appeal of Cal.,
Fourth Appellate Dist. (2000) 528 U.S. 152, 161 (Martinez).) The
Eighth Amendment’s prohibition on cruel and unusual
punishment imposes a “high requirement of reliability [in] the
determination that death is the appropriate penalty in a
particular case.” (People v. Bloom (1989) 48 Cal.3d 1194, 1228
(Bloom).) The high court has long recognized that the Eighth
Amendment requires “a greater degree of reliability when the
death sentence is imposed” because of the “qualitative difference
between death and other penalties.” (Lockett v. Ohio (1978) 438
U.S. 586, 604 (plur. opn.); see also Beck v. Alabama (1980) 447
U.S. 625, 637 (Beck); cf. People v. Horton (1995) 11 Cal. 4th 1068,
1134.) This heightened requirement reflects “the fundamental
respect for humanity underlying the Eighth Amendment”


                                 7
                    PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


(Woodson, supra, 428 U.S. at p. 304) and the “ ‘vital importance
to the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on reason
rather than caprice or emotion’ ” (Beck, at pp. 637–638). As a
result, certain procedural safeguards may be warranted in a
capital case because they mitigate “risk [that] cannot be
tolerated in a case in which the defendant’s life is at stake.” (Id.
at p. 637; see id. at pp. 637–638 & fn. 14 [requiring lesser
included offense instruction in a capital case but “not decid[ing]
whether the Due Process Clause would require the giving of
such instructions in a noncapital case”].)
      This court has recognized that the “rights and decisions
that are normally personal to a criminal defendant may be
limited or overruled in the service of death penalty reliability.”
(People v. Mai (2013) 57 Cal.4th 986, 1055 (Mai); see Martinez,
supra, 528 U.S. at p. 162 [“[T]he government’s interest in
ensuring the integrity . . . of the trial at times outweighs the
defendant’s interest in acting as his own lawyer.”].) In
particular, we have long recognized that section 1018, which
reflects the legislative judgment that heightened requirements
for guilty pleas to capital crimes are necessary to mitigate the
risk of unreliability in California’s death penalty scheme, strikes
a constitutionally valid balance between competing Sixth
Amendment and Eighth Amendment considerations.
      In People v. Chadd (1981) 28 Cal.3d 739 (Chadd), we
upheld section 1018 against a constitutional challenge that the
statute “denies [the defendant] his ‘fundamental right’ to control
the ultimate course of the prosecution.” (Chadd, at p. 747.) We
explained that the Legislature amended section 1018 to require
capital defendants to appear with counsel and obtain counsel’s
consent before pleading guilty “to serve as a further independent

                                 8
                    PEOPLE v. FREDERICKSON,
                          Liu, J., concurring


safeguard against erroneous imposition of a death sentence.”
(Chadd, at p. 750.) We noted that the amendments to section
1018 were part of a comprehensive revision of California’s death
penalty statutes in response to the Eighth Amendment concerns
raised in Furman v. Georgia (1972) 408 U.S. 238, which held
that the operation of the death penalty was arbitrary at the
time. (Chadd, at p. 750 [chronicling legislative history of section
1018].)
       Moreover, we rejected the Attorney General’s argument
that section 1018 as we construed it “is unconstitutional because
it allows counsel to ‘veto’ a capital defendant’s decision to plead
guilty.” (Chadd, supra, 28 Cal.3d at p. 747.) We specifically
recognized that section 1018 was a constitutionally permissible
balance between the constitutional concerns of reliability and
defendant autonomy: “[The Attorney General] fails to recognize
the larger public interest at stake in pleas of guilty to capital
offenses. It is true that in our system of justice the decision as
to how to plead to a criminal charge is personal to the defendant:
because the life, liberty or property at stake is his, so also is the
choice of plea. [Citation.] But it is no less true that the
Legislature has the power to regulate, in the public interest, the
manner in which that choice is exercised.” (Chadd, at pp. 747–
748.) We continued, “The Attorney General in effect stands
Faretta on its head: from the defendant’s conceded right to
‘make a defense’ in ‘an adversary criminal trial,’ the Attorney
General attempts to infer a defendant’s right to make no such
defense and to have no such trial, even when his life is at stake.
But in capital cases, as noted above, the state has a strong
interest in reducing the risk of mistaken judgments. Nothing in
Faretta, either expressly or impliedly, deprives the state of the
right to conclude that the danger of erroneously imposing a


                                  9
                   PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


death sentence outweighs the minor infringement of the right of
self-representation resulting when defendant’s right to plead
guilty in capital cases is subjected to the requirement of his
counsel’s consent.” (Id. at p. 751.)
      This holding — that section 1018 strikes a permissible
balance between Eighth Amendment reliability concerns and
the defendant’s Sixth Amendment interest in control over an
aspect of the defense — has been a consistent through-line in
our capital jurisprudence.        In 2007, we reaffirmed this
understanding of section 1018 in People v. Alfaro (2007) 41
Cal.4th 1277 (Alfaro). Relying extensively on Chadd, we
concluded that defense counsel’s refusal to consent to a guilty
plea was reasonable where a capital defendant sought to plead
guilty in order “to prevent the presentation of evidence
regarding an accomplice.” (Alfaro, at p. 1301.) We rejected the
defendant’s argument that her desire to plead guilty “concerned
a fundamental aspect of her defense that . . . must remain within
defendant’s control.” (Id. at p. 1302.) Our unanimous opinion
reaffirmed that “[t]he consent requirement of section 1018 has
its roots in the state’s strong interest in reducing the risk of
mistaken judgments in capital cases and thereby maintaining
the accuracy and fairness of its criminal proceedings. [Citation.]
The statute constitutes legislative recognition of the severe
consequences of a guilty plea in a capital case, and provides
protection against an ill-advised guilty plea and the erroneous
imposition of a death sentence.” (Id. at p. 1300.)
      We have never suggested that autonomy interests
implicated by a capital defendant’s desire to plead guilty take
precedence over heightened reliability interests. Rather, the
baseline requirement that the prosecution “discharge[] its
burden of proof at the guilt and penalty phases” has been the

                                 10
                     PEOPLE v. FREDERICKSON,
                          Liu, J., concurring


fundamental point of departure for our evaluation of capital
defendants’ autonomy rights. (Bloom, supra, 48 Cal.3d at
p. 1228.) In such cases, we have reiterated that “a defendant
may not discharge his lawyer [in a capital case] in order to enter
. . . a [guilty] plea over counsel’s objection.” (Mai, supra, 57
Cal.4th at p. 1055; see People v. Daniels (2017) 3 Cal.5th 961,
983, fn. 1 (Daniels).)
      Reliability concerns are particularly significant at the plea
phase, since the plea substitutes for the prosecution’s discharge
of the burden of proof, a bedrock component of the adversarial
process ensuring that outcomes are reliable. (See Boykin v.
Alabama (1969) 395 U.S. 238, 242 [describing the plea as “itself
a conviction”].) Thus “a trial, even one where a defense is
voluntarily forgone, is fundamentally different from a guilty
plea” because in a trial, “the state [i]s put to its burden of proof.”
(Daniels, supra, 3 Cal.5th at p. 983.) At the same time, the
defendant does not have the “absolute right under the
Constitution to have [a] guilty plea accepted by [a] court.”
(North Carolina v. Alford (1970) 400 U.S. 25, 38, fn. 11; see
Lafler v. Cooper (2012) 566 U.S. 156, 168 [“It is, of course, true
that defendants have ‘no right to be offered a plea . . . nor a
federal right that the judge accept it.’ ”].)
      Finally, we have found similar legislative judgments
limiting a defendant’s prerogative to direct his representation to
be permissible because they further society’s interests in the
reliability of criminal judgments. For example, a capital
defendant cannot waive automatic appeal of a judgment of death
(Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b)) because
“the state . . . has an indisputable interest in it which [a capital
defendant] cannot extinguish.” (People v. Stanworth (1969) 71
Cal.2d 820, 834.) We have likewise recognized the requirement

                                  11
                    PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


that defendants be represented by counsel in competency
proceedings as a constitutionally valid legislative choice insofar
as it limits defendants’ right of self-representation in service of
reliability. (People v. Lightsey (2012) 54 Cal.4th 668, 696–697
[noting     special   concern     with     the   possibility    for
“breakdown . . . in the process of meaningful adversarial testing
central to our system of justice”].) Section 1018 represents a
similarly valid legislative judgment in light of competing
constitutional considerations.
                                 B.
       The high court’s recent decision in McCoy does not upend
our longstanding precedent. In McCoy, the high court reversed
the conviction of a capital defendant whose counsel had
conceded his client’s guilt at trial over defendant’s objections.
(McCoy, supra, 584 U.S. at p. __ [138 S.Ct. at p. 1512].) Before
trial, McCoy’s attorney had determined that the best strategy
for avoiding a death sentence was to admit to the three murder
charges during the guilt phase and plead for mercy during the
penalty phase. (Id. at p. 1506.) McCoy disagreed and was
“ ‘furious’ ” with his attorney’s strategy. (Ibid.) He insisted that
his attorney pursue acquittal instead. The trial court denied
McCoy’s request to remove his counsel and defense counsel’s
request to be relieved if McCoy secured other counsel. It
instructed counsel to decide how to proceed. At trial, McCoy’s
counsel acknowledged during his opening statement that the
evidence unambiguously showed McCoy committed the
murders, while McCoy testified he was innocent. (Id. at
p. 1507.) The jury ultimately found the defendant guilty and
returned three death verdicts. (Ibid.)




                                 12
                    PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


       The high court reasoned that by availing himself of the
Sixth Amendment right to assistance of counsel, McCoy did not
“surrender control entirely to counsel.” (McCoy, supra, 584 U.S.
at p. __ [138 S.Ct. at p. 1508].) While “[t]rial management is the
lawyer’s province,” the court explained, “[s]ome decisions . . . are
reserved for the client — notably, whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo an
appeal.” (Ibid; see also id. at p. 1505 [“[I]t is the defendant’s
prerogative, not counsel’s, to decide on the objective of his
defense: to admit guilt in the hope of gaining mercy at the
sentencing stage, or to maintain his innocence, leaving it to the
State to prove his guilt beyond a reasonable doubt.”].) The high
court concluded that because McCoy’s decision to assert
innocence was a choice about the objectives of his case, his
counsel could not override that decision over his objections. (Id.
at pp. 1508–1509.)
      Although McCoy explained that the choice of “whether to
plead guilty” (McCoy, supra, 584 U.S. at p. __ [138 S.Ct. at
p. 1508]) or “to admit guilt in the hope of gaining mercy at the
sentencing stage” is “the defendant’s prerogative” (id. at
p. 1505), the high court was not announcing any new legal
principle in doing so. Rather, it was restating established Sixth
Amendment principles, as evidenced by its citation to Jones v.
Barnes, supra, 463 U.S. 745, which in turn relied on earlier
authority to explain that “the accused has the ultimate
authority to make certain fundamental decisions regarding the
case, as to whether to plead guilty, waive a jury, testify in his or
her own behalf, or take an appeal, see Wainwright v. Sykes, 433
U.S. 72, 93 n. 1 (1977) (Burger, C.J., concurring); ABA
Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980).”
(Barnes, at p. 751; see McCoy, at p. __ [138 S.Ct. at p. 1508].)


                                 13
                    PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


This dicta adds nothing to the legal landscape that already
existed when we decided Chadd and Alfaro.
      More importantly, the Eighth Amendment concerns
reflected in section 1018 were not at issue in McCoy. Rather
than insist upon pleading guilty, the defendant in McCoy sought
to maintain his innocence and subject his case to the rigors of
the adversarial process. He did not seek to avoid that process
and its accompanying safeguards. As a result, the high court
had no occasion to address, and did not address, the heightened
Eighth Amendment reliability interests where a capital
defendant seeks to forgo trial on the issue of his guilt. McCoy
did not weigh a defendant’s autonomy interests against
countervailing reliability interests because there was no conflict
between the defendant’s objectives and the reliability interests
of the Eighth Amendment; it did not address whether a capital
defendant may enter a guilty plea against the advice of counsel
in the face of a state statute requiring counsel’s consent as a
measure to lessen the risk of a mistaken judgment. (See People
v. Ghobrial (2018) 5 Cal.5th 250, 285 [“ ‘[A] decision is not
authority for propositions not considered.’ ”].) By contrast, we
expressly addressed the interplay between the heightened need
for reliability in capital cases and a defendant’s right to control
his own defense in Chadd, and our reasoning and holding
remain controlling.
      It is no light matter to find a statute unconstitutional,
particularly one that we have upheld on numerous occasions.
That is especially true here, given the ramifications of a guilty
plea in a capital case. (Chadd, supra, 28 Cal.3d at p. 748.)
Against the backdrop of all that we have said about the
constitutionality and importance of section 1018’s requirement
of counsel’s consent, McCoy’s broad dicta is not a sufficient basis

                                 14
                    PEOPLE v. FREDERICKSON,
                         Liu, J., concurring


for jettisoning decades of precedent. This is not to suggest that
any restriction on a capital defendant’s right to his own defense
in the name of reliability is constitutionally valid. That right is
foundational and rooted in “ ‘respect for the individual which is
the lifeblood of the law.’ ” (Faretta, supra, 422 U.S. at p. 834.)
The balance to be struck is a delicate one, and with respect to
section 1018, it is a balance we struck decades ago.
       I would hold that the trial court did not err in refusing to
allow Frederickson to plead guilty without counsel’s consent. In
all other respects, I join the opinion of the court.


                                               LIU, J.




                                 15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Frederickson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S067392
Date Filed: February 3, 2020
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: William R. Froeberg

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, and Douglas Ward, Deputy State Public Defender,

Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Lance
E. Winters and Dane R. Gillette, Chief Assistant Attorneys General, Julie L. Garland, Ronald Matthias and
Gary W. Schons, Assistant Attorneys General, Holly D. Wilkens, Theodore M. Cropley, Annie Featherman
Fraser, Ronald A. Jakob and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Douglas Ward
Attorney at Law
350 Bay Street, P.M.B. #199
San Francisco, California 94133
(415) 494-9252

Tami Falkenstein Hennick
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9223
