Filed 8/13/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S137730
           v.                        )
                                     )
TROY LINCOLN POWELL,                 )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                 Super. Ct. No. BA240299-01
____________________________________)


        A jury convicted defendant Troy Lincoln Powell of the first degree murder
of Tammy Epperson (Pen. Code, § 187, subd. (a))1 and found true three special
circumstance allegations: that the murder was committed while defendant was
engaged in the commission of rape (§ 190.2, subd. (a)(17)(C)) and mayhem (§
190.2, subd. (a)(17)(J)), and the murder involved the infliction of torture (§ 190.2,
subd. (a)(18)). The jury also convicted defendant of forcible rape (§ 261, subd.
(a)(2)), mayhem (§ 203), and torture (§ 206). In a separate proceeding, the jury
found that defendant was sane when he committed the crimes of which he was
convicted.




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



                                          1
      The original jury was unable to reach a verdict in the penalty phase, but a
newly-selected jury returned a verdict of death after a second penalty proceeding.
Defendant moved for a new trial and for modification of his sentence to life
without the possibility of parole. The trial court denied those motions and
sentenced defendant to death.2 This appeal is automatic. (§ 1239, subd. (b).) For
the reasons that follow, we affirm the judgment.
                                     I. FACTS

      A. Guilt Phase Evidence

           1. Prosecution evidence
      Tammy Epperson was a recovering heroin addict who had recently
completed a 12-step treatment program and held a responsible job. Epperson lived
on her own at Ballington Plaza, an apartment complex that accepted referrals from
substance abuse recovery and inmate rehabilitation programs. The property
manager there described Epperson as “a very good tenant. . . . [S]he took care of
herself. She spoke well, she was very proud of what she was doing . . . , and she
paid rent on time.” Her apartment was “very neat, everything in the right places.”
      Defendant met Epperson in the summer of 2000, while he was residing at
Weingart Center in Los Angeles, which provided short-term housing and
programs for persons recovering from substance abuse. Defendant had recently
been released from prison. Epperson had gone to Weingart Center to visit
Timothy Todd, a mutual friend of defendant and Epperson who was working
there. Defendant noticed Epperson and later asked Todd to introduce him to her.
Epperson was “hesitant” to meet defendant because “she didn’t want a

2     The court also sentenced defendant to the upper terms of eight years on the
convictions for forcible rape and mayhem and to life imprisonment on the torture
conviction, all to be served concurrently and stayed pursuant to section 654.



                                         2
relationship” at that time. Not long before, Epperson had broken off a romantic
relationship when she discovered that her boyfriend, Ronald Sims, had lapsed
back into substance abuse. Todd persisted, however, and Epperson eventually
relented. Defendant, Epperson, and Todd soon began spending time together,
attending movies, eating out, and driving together in defendant’s truck.
          The nature of defendant’s relationship with Epperson was the subject of
conflicting testimony. Todd, who was employed as Epperson’s assistant and
claimed to be her confidant, did not believe she and defendant were ever
romantically involved. Photographs and other evidence, however, suggested that
Epperson and defendant eventually spent time together in Todd’s absence.
Without question, defendant became obsessed with Epperson, declaring to Todd
that he loved her and saying, “If I can’t have her, nobody will. I’ll kill her and
myself.” At some point, he became upset that she was “hanging around with other
men.” Defendant began to appear uninvited at Epperson’s workplace and to call
her repeatedly. His behavior eventually became distressing to Epperson. In late
October 2000, Todd testified, Epperson broke off relations with defendant, but he
continued to call her “constantly” at work.
          On a Sunday in early November, defendant was loitering across the street
from Epperson’s church after services ended. She spotted him while she was
standing outside the church, talking with Sims. Epperson and defendant were both
Caucasian, while Sims was African-American. As will be discussed below, the
inter-racial character of Epperson’s relationship with Sims may have been an
irritant to defendant, who was affiliated with a white supremacist gang while in
prison.
          Epperson told Sims she had to “deal with this matter now,” referring to
defendant, and crossed the street to talk to defendant. According to the visitors’
log at Ballington Plaza, defendant and Epperson entered the building that morning

                                           3
at 10:45 a.m., and defendant left at 1:26 p.m. The afternoon security guard,
however, saw defendant walk through the lobby toward the exit doors between
2:00 and 3:00 that afternoon. Because the building required all guests to be
escorted, the guard, who was familiar with Epperson and defendant, stopped
defendant and asked him where Epperson was. Defendant replied that she was
“ ‘in her unit resting.’ ” Later that day, defendant twice called Todd to ask him to
check on Epperson, saying he had killed her, but Todd did not take defendant
seriously.
       The police did not enter Epperson’s apartment until the next day, after she
failed to appear for work. Epperson’s body was lying on the floor, and her
apartment appeared to have been ransacked. Two days later, defendant was
arrested at a local motel. Epperson’s keys were found on a table next to the bed in
the motel room.
       Conclusions about the manner of Epperson’s death were based largely on
forensic evidence regarding the condition of her apartment and her body. Officer
Ronald Raquel, a criminalist who specialized in blood spatter and sexual assault
analysis, examined Epperson’s apartment on the day following the killing. Raquel
said Epperson’s body was located in the center of the apartment’s living quarters,
between the bed and a chest of drawers. She was wearing a blouse and hooded
sweatshirt on the upper portion of her body, but she was nude from the waist
down, with a towel covering her lower body. Her brassiere, underneath the
clothing, had been pushed up above the nipples of her breasts. The condition of
her blood-soaked sweatshirt suggested that her head had been lying on top of it for
some time without moving. A pair of jeans and women’s panties were piled at her
feet. Blood stains and spatters were found throughout the living quarters and
bathroom of the apartment.



                                         4
       Using a large number of photographs, Raquel described the pattern of blood
residue in the apartment, explaining the inferences that could be drawn from the
size, shape, and location of the stains and spatters. Based on his observations,
Raquel inferred that the assault began in the bathroom, where Epperson’s head
was slammed against the wall at least six times as her knees gave out, resulting in
a descending pattern of smears. She was then carried into the living quarters and
placed near the bed in the spot where her body was found. There the attack
continued.
       Large pieces of a plaster flower vase and a hard lamp, both weighing at
least ten pounds prior to breaking apart, were strewn about. Portions of each had
been used to strike Epperson’s head repeatedly. She had also been struck with a
wooden footstool and, after the footstool broke apart, its individual pieces. The
cord of the lamp had been wrapped around her head. Blood stains on the jeans at
her feet were consistent with a pair of bloody hands unfastening the jeans and
forcing them down. The inner surface of her thighs contained residues consistent
with “a bloody object [making] contact with the victim’s thighs after the . . . blue
jeans were removed.” A screwdriver found under Epperson’s arm had blood on
the tip and could have been used to inflict a wound below her eye.
       Following the assault, the assailant ransacked the apartment, going through
Epperson’s closet, drawers, and other property. Paper towels thrown into the toilet
had been used to clean a bloody object, possibly a pair of hands.
       Yulai Wang, M.D., a deputy medical examiner who performed an autopsy
on Epperson, testified about the condition of her body. Dr. Wang concluded that
Epperson died from multiple blunt force injuries. Epperson had bruises and
abrasions on the back of her arm, hands, and her right leg that Wang characterized
as “defensive wounds,” presumably suffered as Epperson sought to protect herself.
Blows to her head had caused a large laceration on her forehead, with an

                                          5
underlying open skull fracture, and there were multiple lacerations on her
forehead, both eyes, nose, cheeks, and upper and lower lips, both inside and
outside. The wound to her lower lip went “through and through,” and the open
skull fracture was “deep in through the inside of her head.” She also had a seven-
inch gaping skull fracture on the left side that ran from the front to the back of her
head and extensive fractures to the front and base of her skull. Her nose and both
cheekbones were fractured, and her face had been flattened by fractures of the
underlying facial bones. Three separate wounds had been cut into the left side of
her neck and head, three-quarters of an inch, one and one-half inch, and two and
one-half inches long. A similar wound was on the right side of her neck. These
wounds had been inflicted by a sharp, irregular object, such as broken glass, rather
than a knife. None of these cuts had severed the carotid artery, an injury that
would have been promptly fatal. Hemorrhaging in her eyes and bruises on her
neck suggested strangulation. Her brain showed bruising and bleeding in several
different places, and an area of bleeding beneath her scalp “almost cover[ed]” the
right side of her head. Pieces of glass of different colors were removed from her
body, clothing, head, and hair. In a career involving over 2000 autopsies, Dr.
Wang had seen only a “very small number” of beatings this severe.
       Epperson also suffered injuries suggestive of sexual abuse. She had bruises
and abrasions in the back and both sides of her vaginal area, with hemorrhaging
under the skin. Dr. Wang concluded these injuries had been caused by “the blunt
force penetration either by a penis with a lot of force or other kind of object of
similar shape and size.” She found the extent of trauma suffered by Epperson to
this part of her body to be “very rare[].”
       Because death causes a loss of blood pressure, Dr. Wang testified, injuries
inflicted after death do not cause bruising and bleeding. Accordingly, she
concluded that the “majority” of Epperson’s injuries, perhaps as much as 95

                                             6
percent, were inflicted while she was still alive, including the extensive injuries to
her vaginal area, face, and neck.
       The parties stipulated that DNA analysis identified defendant’s blood on
Epperson’s jeans and panties, her inner thighs, and a washcloth and plastic water
bottle found in the sink. In some of these areas, Epperson’s blood was mixed with
that of defendant, and her blood was identified in samples collected around the
living quarters. Defendant’s DNA was found in a vaginal swab, and his sperm
was found in and outside her vagina.
       The prosecution also presented evidence of two prior assaults by defendant.
A former girlfriend testified that, in 1992, she attempted to end their three-year
relationship. Defendant responded that he would kill her. He grabbed her by the
throat, dragged her to the ground and down the driveway, and kicked her twice in
the head and neck. As he dragged her, he told her, “You’re going to die.”
Neighbors prevented any further injury, but the woman has had lingering neck
pain. The second assault victim met defendant in January 1999 and had a few
dates with him. Two months after they met, she told him to stay away from her.
Soon after, defendant lured her to his apartment, where he blocked the door with a
chair and began yelling at her. When she responded, he hit her in the face,
knocking her to the ground, climbed on top of her, and choked her into
unconsciousness. When she recovered, defendant ordered her at knife-point to
take off her clothes, tearing at them in his impatience. Eventually, defendant
forced her, still at knife-point, to take him with her while she picked up her
children from day care and then to drive him home. Defendant continued
harassing the woman with telephone calls until she reported him to the police.




                                          7
           2. Defense evidence
       Testifying in his own defense, defendant confirmed that he met Epperson in
June 2000, while he was living at the Weingart Center and working as a tutor in its
computer lab. At the time, he was being medicated with Sinequan, a sedative that
helps control paranoid feelings, as well as Depakote and Paxil. Without the
medications, defendant suffered from paranoid anxiety. Through the end of July,
defendant saw Epperson while in the company of Todd, but later Todd “no longer
was basically in the picture anymore.” Epperson began to call defendant and
invite him to visit her. By mid-August, he had a “standing invitation” to go to
Epperson’s apartment. On Fridays, defendant would escort Epperson from her
place of employment to the bank to deposit cash generated at the business, and
during a transit strike in September he drove her to and from work. In late
September, they began having sexual relations. Around that time, defendant
stopped taking his medication, believing the medications made it difficult for him
to maintain an erection. Photographs of Epperson’s apartment taken by defendant
displayed a variety of small gifts he had given her, and he identified a series of
furnishings he helped to install.
       One week before the killing, defendant said, he called Epperson to tell her
he was leaving Los Angeles for a period of time because he “needed some time
away.” During the conversion, he told Epperson he “expected to be put No. 1”
among her male friends. When they spoke the next day, Epperson was angry
because defendant had not consulted her about his decision to leave. They
exchanged repeated calls that day, and Epperson eventually pleaded for defendant
to return to her. He agreed that they would “call a truce and try and work this
out.” The day before the killing, they spent most of the day together, shopping
and visiting Epperson’s son. In the evening, they had sexual relations.




                                          8
       Epperson’s church was located across the street from the Weingart Center,
where defendant resided. On the morning of the killing, defendant testified, he
saw Epperson standing outside the church, while he was standing outside the
Center. As he watched, Sims approached her. She then crossed the street to
where defendant was standing and asked him to walk her home. When they
arrived, she asked him to come in. They later drove to a Christian book store,
returned to the apartment, and had consensual sexual relations. After they
finished, Epperson went to the bathroom and took a telephone call. From
Epperson’s side of the conversation, defendant said, he could tell she was making
social plans with someone. When defendant asked her what the call concerned,
she told him he did not “run her life” and refused to tell him who had called, other
than it was a person from her church. An argument ensued, during which
Epperson, standing in the bathroom, told him they were “done.” Defendant,
feeling “crushed,” struck her. He had no memory of what happened after that,
although he remembered seeing her on the floor. He said he had “blanked out”
like this a few times before. Defendant testified that he neither planned nor
intended to kill Epperson.
       The defense also presented testimony from an expert witness regarding the
biological materials found on the panties lying at Epperson’s feet, suggesting they
had been worn, if at all, for a short time before being removed.

           3. Prosecution rebuttal evidence
       Charles Vannoy, who acknowledged knowing defendant “[a] little bit,
vaguely” from prison, repeatedly denied remembering the substance of an
interview he had with police following Epperson’s killing. Over defense
objection, the prosecution was permitted to play a redacted videotape of the




                                         9
interview, which occurred three days after the killing and prior to defendant’s
arrest.
          During the interview, Vannoy told police he first met defendant in prison in
December 1999, and they became friends. After their release, Vannoy saw
defendant at the Weingart Center, and defendant helped him move into an
apartment three days before the killing.
          Late in the afternoon on the day Epperson was killed, Vannoy told the
police, defendant called him and asked to come to Vannoy’s apartment. When
defendant arrived, he was anxious and did not want to talk about what had
happened. Instead, he made phone calls to family members and others. Very
early the next morning, defendant told Vannoy he had beat Epperson to death
because she had “rejected him” and “was seeing somebody else.” Defendant said
he had been having sexual relations regularly with Epperson for two weeks to a
month prior to her killing. On the day of the killing, a man phoned Epperson
shortly after she and defendant finished having intercourse, and she appeared to
make plans to see the man. During an ensuing argument, Epperson insisted
defendant did not “own” her and that she would see “who I want, when I want.”
He then followed her into the bathroom, told her to sit on the toilet, and hit her
with a candle holder. As defendant was beating her, Epperson asked why he was
doing it. He told her, “All I wanted you to do was to love me, you know, and you
wouldn’t do that.” At some point during the beating she asked, “Are you going to
kill me, Troy?” and he responded, “Yes, Tammy, I am. I am going to kill you.”
Defendant told Vannoy he cut both sides of Epperson’s neck with glass, hit her on
the head with a wooden stool and a big lamp, and drove a screwdriver or ice pick
into her head, leaving a “big hole” in her forehead.
          After some sleep, defendant signed over ownership of his truck to Vannoy
and then asked Vannoy to take him to Hollywood. When Vannoy dropped him

                                           10
off, defendant said he was going “to have fun for a couple days” and then turn
himself in. He said he first intended to steal money from Epperson’s place of
employment, using keys he had taken from her.
       The prosecution also called a detective who had searched Epperson’s
apartment. The detective stated that he found a broken candle holder in the
bathroom and a broken stool and lamp elsewhere. The officer had also seen “a
hole to the middle of [Epperson’s] head” when he observed the body. The
detective later went to Epperson’s place of employment and confirmed that the
keys found in defendant’s possession at the time of his arrest fit the locks on its
doors. Finally, the detective described various wounds on defendant’s body at the
time of his arrest, including cuts and bruising on his hands, a small cut on his
forehead, and a one-inch cut on his calf.

       B. Sanity Phase Evidence
       Following defendant’s conviction in the guilt phase, the same jury heard the
trial of defendant’s insanity defense.

           1. Defense evidence
       Kyle Boone, Ph.D., a clinical neuropsychologist, administered to defendant
a series of “objective” standardized tests designed to detect brain abnormalities.
Dr. Boone found defendant’s intelligence to be at the low end of the average
range. Defendant did “well” on most of the characteristics measured, but his
problem solving skills, involving reasoning and logic, were “very low, very
impaired.” The tests on which defendant performed poorly measured the ability to
think creatively to solve problems, evaluate the consequences of behavior, and
cease behavior that is not appropriate to a situation. On a test that measured the
“ability to inhibit,” or to stop behavior that is inappropriate or incorrect, defendant
scored in the second percentile, suggesting “that in his daily life he would have a



                                            11
great deal of difficulty stopping a behavior that was not appropriate to the
situation.”
       Dr. Boone concluded that defendant’s poor performance on these particular
tests demonstrated that the frontal lobes of his brain, which enable problem
solving, emotional expression, and empathy, were “not working correctly” due to
“brain damage or brain dysfunction.” The dysfunction would cause defendant to
make bad decisions and lose control of his behavior. Stressful circumstances and
alcohol would worsen this effect. According to Dr. Boone, a person who
performed like defendant did on the tests “really doesn’t have the brain equipment,
the hardware, so to speak, to control their behavior. They simply don’t have the
apparatus to make reasoned decisions about their behavior.”
       Part of Dr. Boone’s testing involved an evaluation of defendant’s good faith
in participating in the tests, and Dr. Boone, a specialist in detecting malingering,
concluded defendant was “doing his best on the testing,” rather than faking
symptoms. In addition, as she pointed out, defendant’s normal to excellent
performance on many of the tests and consistently poor performance on others was
inconsistent with malingering, since he would have had to know on which tests to
do well and poorly.
       Roger Bertoldi, M.D., a neurophysiologist, testified regarding the
occurrence and effect of brain seizures, generically referred to as epilepsy. Some
types of epilepsy, in particular temporal lobe epilepsy, can result in a loss of
control, leading to acts of violence. A seizure of this type can result in
uncontrollable rage. Defendant began suffering seizures before he was three years
old. His seizures continued periodically during childhood, leading Dr. Bertoldi to
conclude defendant suffered from “true epilepsy,” caused by abnormal brain
activity. As an adult, Dr. Bertoldi testified, defendant continues to exhibit
symptoms of nocturnal seizures. An electroencephalogram (EEG) performed on

                                          12
defendant demonstrated two abnormalities. First, the frontal portion of his brain
had “too much slow activity,” which showed that this portion of his brain “is not
functioning correctly.” To this extent, Dr. Bertoldi said, his findings were
consistent with those of Dr. Boone. Second, defendant’s EEG indicated
“paroxysmal activity,” periodic spikes of activity that arose and receded, which is
also “consistent with underlying brain dysfunction.” A computer analysis
confirmed the abnormal slow function in the front of defendant’s brain, detected in
fewer than 1 percent of the population and suggesting defendant suffered from
epilepsy. Defendant was prescribed Depakote to control the seizures by limiting
the penetration of abnormal activity into his brain. Defendant had told Dr.
Bertoldi that prior to the various violent episodes in his life, he had ceased taking
the drug. This coincidence, in Dr. Bertoldi’s view, connected the violent episodes
to an underlying epileptic disorder. In Dr. Bertoldi’s experience, epileptic patients
commonly describe a sense of disassociation from their conduct at the time of a
seizure. He explained that the type of brain dysfunction he observed in defendant
can result in “extraordinary rage like a primitive, very primitive rage.”
       Saul Niedorf, M.D., is a psychiatrist who often worked with the victims and
perpetrators of domestic violence. Based on three interviews with defendant
during his incarceration and Dr. Niedorf’s review of “a dozen” reports on
defendant, he concluded defendant suffers from a mental condition known as
“intermittent explosive disorder,” which is characterized by destructive or violent
actions that occur suddenly and lack a “cutoff.” Dr. Niedorf based his diagnosis
on a number of factors, including (1) defendant’s history of neurological
abnormalities from an early age, (2) the continued presence of slow brain waves in
his recent EEG, which indicated a “failure of development,” (3) Dr. Boone’s
testing, which indicated “the absence of a certain kind of function,” and (4) a
recent positron emission tomography (PET) scan showing areas of abnormally low

                                          13
activity in defendant’s brain, which suggested that his brain lacked the capacity to
inhibit his rage once it started. In addition, Dr. Niedorf observed, the harsh facts
of defendant’s upbringing demonstrated that he was “programmed for violence”
by the brutal conduct of an abusive father toward his family members, conduct
that defendant internalized. Dr. Niedorf noted that defendant also had a history of
suicide attempts, beginning in childhood and continuing through his then-current
incarceration, which was consistent with his diagnosis. Further corroborating his
diagnosis was defendant’s positive response to mood stabilizing medications,
which reduce a person’s arousal level and prevent excessive agitation. Dr. Niedorf
also observed that, beginning in 1993 and continuing to the time of the killing,
defendant had been diagnosed repeatedly with a variety of mental disorders,
largely depression, bipolar disorder, and schizophrenia.
       In Dr. Niedorf’s view, defendant met the legal definition of insanity at the
time he committed the killing. He neither knew nor understood the nature and
quality of his actions at the time he was beating Epperson, existing instead in an
altered state of consciousness in which he failed to feel empathy or recognize the
significance of his actions. He may have been aware, at the time, of the events
occurring, but he was unable to register the emotions associated with the events
until later. Nor could defendant distinguish right from wrong because, at the time,
the parts of his brain that initiate good behaviors and stop bad behaviors, his
frontal and temporal lobes, were not functioning. Given the “practiced” nature of
the behaviors, he neither voluntarily initiated them nor had the ability to stop them
once they had begun, and he was not conscious of his conduct at the time it
occurred.
       William Vicary, M.D., a psychiatrist, first evaluated defendant in 1993 and
1994, when he was retained by the court to evaluate defendant’s mental
competence to stand trial. In connection with the present proceedings, Dr. Vicary

                                         14
had interviewed defendant on five or six occasions, for a total of ten hours. Based
on that investigation, he concluded defendant suffered from a “major mental
disorder,” primarily bipolar disorder. Dr. Vicary believed his conclusion was
supported by defendant’s psychoactive medication schedule. He said that the
medications prescribed for defendant, if given to a normal person, would place
him or her in “a semi-coma for a period of three days.” That defendant could take
the various medications at high doses and remain alert and rational at the time of
his testimony demonstrated “that these medications are fitting in with his illnesses
and helping him.” If defendant were faking his disorder, “he would have been
under the influence and barely able to speak.” Dr. Vicary explained that bipolar
disorder is characterized by alternating periods of moody, irritable, and frenetic
activity and periods of depression and inactivity, including attempted suicide.
Depression and bipolar disorder had featured in defendant’s diagnoses since he
was a teenager, and Dr. Vicary found that defendant’s conduct displayed the
diagnostic behaviors for bipolar disorder.
       Based on defendant’s account of the Epperson killing, Dr. Vicary believed
defendant understood the nature and quality of his acts at the time. He did not
believe, however, that defendant could distinguish right from wrong. One feature
of bipolar disorder is “explosive outbursts,” in which the person is “not thinking, .
. . just acting, and . . . there is no rationality, no restraint, there’s nothing that can
stop the explosion.” Although defendant had some understanding of what he was
doing, he was unable to stop himself. In Dr. Vicary’s view, defendant likely
recognized to some degree the wrongfulness of his conduct once he had finished
and regained his composure, but during the event he had no grasp of right and
wrong.




                                            15
           2. Prosecution evidence
       David Griesemer is a clinical neurophysiologist who studies epilepsy and
EEG’s. Prior to his testimony, he examined defendant and found his functioning
normal. According to Dr. Griesemer, defendant had no memory of suffering
seizures after childhood, and about half of persons with childhood seizures
“outgrow” them. Defendant’s childhood EEG was interesting because, although
the EEG was abnormal, he was not suffering symptoms, a finding “not
inconsistent with some of the benign epilepsies.” In reviewing defendant’s most
recent EEG, Dr. Griesemer found “some subtle abnormal findings,” but “they
were not epileptic findings.” In other words, although Dr. Griesemer
acknowledged the slowing in defendant’s EEG, he did not believe it indicated a
“tendency to have epilepsy.” Further, he did not believe it suggested “significant”
frontal lobe slowing.
       Kris Mohandie, Ph.D., a psychologist, interviewed defendant on three
occasions, reviewed his medical and psychiatric records, and administered two
“objective” psychological tests. The results of the tests, in particular, suggested to
Dr. Mohandie that defendant was faking at least some of his psychiatric
symptoms. On both tests, defendant claimed to have more problems than most
psychiatric patients claim, suggesting his responses were a “fake bad response.”
One test indicated probable feigning, while the other indicated feigning. Given
defendant’s “tendency to exaggerate his symptoms,” Dr. Mohandie was unable to
find reliable evidence to diagnose defendant with a major mental disorder. When
he interviewed defendant, Dr. Mohandie found no evidence of bipolar disorder,
although such symptoms would have been expected despite his medication. Nor
did he see any indication of such symptoms on the videotape of defendant’s police
interview, which occurred after he had stopped using medication.




                                          16
       Accordingly, Dr. Mohandie believed defendant was legally sane at the time
of the killing. As he explained, in defendant’s interviews with him, defendant
disclaimed any overt symptoms of mental illness, such as voices, delusions, or
hallucinations. He had a very specific memory of all events leading up to the
killing, and his behavior after the killing, which involved some cleaning up and
avoiding detection, was inconsistent with a failure to recognize his conduct was
wrongful. His claim of amnesia surrounding the moment of the killing seemed
“unlikely” to Dr. Mohandie. Instead, Dr. Mohandie believed, defendant suffered
from an antisocial personality with narcissistic traits, which caused him to commit
the “garden variety violence” of killing a woman who he believed had treated him
poorly. Dr. Mohandie also rejected the diagnosis of intermittent explosive
disorder, which he found inconsistent with the purposeful, motivated behavior
displayed in the killing.

       C. Penalty Phase Evidence

           1. Prosecution case in aggravation
       Because the original jury deadlocked during the initial penalty phase, this
proceeding was tried to a newly-selected jury. Given the new jury, the
prosecution presented essentially the same evidence regarding Epperson’s killing
that was presented during the guilt phase, including testimony by the same
percipient witnesses about the circumstances leading to the killing, the blood
spatter, autopsy, and DNA evidence, Charles Vannoy’s interview with police
about defendant’s statements and conduct afterward, and the two prior assault
victims.
       In addition, the prosecution presented two witnesses familiar with
Epperson’s life prior to meeting defendant. Bette Ruiz de Esparza is the mother of
Paul Grano, who was married to Epperson. She testified that Epperson’s mother,



                                         17
apparently an alcoholic, abandoned her when Epperson was a teenager. Ruiz de
Esparza and her son took Epperson in, looked after her, and treated her like
family. Grano, eight years older than Epperson, eventually married her, and they
had a child together. Both Grano and Epperson struggled with drug abuse, and
Epperson was in and out of treatment and jail for a significant period. In the year
or two before her death, however, Epperson “sounded real positive, and her life
was going good.” Although Epperson and Grano had separated at some earlier
time, “they were getting back together” at the time of her death. During the
separation, they had remained good friends, and Grano was “broken-hearted” by
her death.
       Ruth Steward was a lay minister at Epperson’s Church, which was located
on “skid row,” across the street from Weingart Center. She had known Epperson
for about a year prior to her death and was proud of Epperson’s strength, positive
attitude, and determination. During the year Steward knew her, Epperson was
drug-free. Steward was deeply affected by her “senseless” death.

             2. Defense case in mitigation
       Through the testimony of defendant’s mother and two sisters, the defense
provided evidence of defendant’s difficult family life and history of violence.
Both of defendant’s parents, Joyce and Joe Powell, came from homes marked by
alcohol abuse. Joyce’s parents were alcoholics, and her father sexually abused her
before she was ten years old. Joe’s mother also drank heavily, and he was raised
largely in a variety of foster homes. The couple married young.
       Defendant’s younger sister, Montana, characterized Joe as a “monster.” He
was emotionally and physically abusive to Joyce and all four children. As
Montana said, “If we went to Disneyland or something, he still would find a way
to make us feel bad.” When defendant was two years old and threw an older boy



                                         18
to the ground, Joe picked defendant up and threw him into a pole. Six months
later, defendant began having violent seizures. For seven years, he was given
medication to control the seizures. Over the years, defendant’s behavior would
occasionally trigger other angry responses from Joe, one time causing neighbors to
call the police. According to Joyce, similar incidents occurred “every time [Joe]
came home and was angry.” If Joyce attempted to intervene, Joe turned his anger
on her.
          The family lived in fear of Joe. Defendant’s older brother became so angry
with Joe that he once waited with a gun for him to return home, planning to kill
Joe. Only his older sister’s intervention prevented the confrontation.
          Defendant’s first suicide threat occurred when he was thirteen years old.
Around this time, Joyce said, “he was never actually really happy.” His older
sister recalled discovering him carrying a gun in a duffel bag, planning to harm
either himself or Joe. She talked him out of it.
          Defendant’s first violent outburst occurred before his eighteenth birthday
when, in anger over a girlfriend, he attacked Montana with a lead pipe while she
was sleeping. Afterwards, defendant had no memory of the incident. Although
Joyce attempted to get him counseling, Joe refused to pay for it. After a bout of
drinking when defendant was 22-years old, he became enraged when Joyce told
him she had no money to give him, and he threw her across the room, breaking a
vertebrae in her back. At some point he also assaulted his older sister when she
attempted to rouse him from a drunken stupor, pushing her down the stairs and
ripping a mirror from her car. Both Joyce and his sisters testified that defendant
would at times go into a state of vacant, uncontrolled rage. As his older sister
testified, “It’s like he’s doing things but he doesn’t know he’s doing them, but he’s
doing them.”



                                           19
         Joyce viewed such conduct as uncharacteristic, testifying that defendant
was a “caring and loving person” who was protective of others. They are very
close, and she does not fear him. Defendant’s older sister also testified that she
was close to him and believed he “had a big heart,” despite his anger.
         In addition to testimony by defendant’s family and friends, both childhood
and adult, defendant presented the testimony of the same four psychiatric experts
who testified during the sanity phase. Although different in some details, the
testimony was materially the same.

             3. Prosecution rebuttal case
         In rebuttal, the prosecution also presented the testimony of Drs. Griesemer
and Mohandie, which was materially the same as their testimony from the sanity
phase.

             4. Defense surrebuttal
         In surrebuttal, the defense presented Richard Romanoff, Ph.D., a clinical
and forensic psychologist who had met with defendant for thirteen or fourteen
hours. Dr. Romanoff believed defendant suffers from a “complex set of mental
disorders,” beginning with “organic impairment,” or abnormal brain function.
This was compounded by the dysfunctional family circumstances during his
youth, in which his “whole world [was] organized around fear of aggression and
seeing people being victims of aggression.” Dr. Romanoff agreed with the
diagnosis of intermittent explosive disorder and criticized Dr. Mohandie’s contrary
view as “incomplete.”




                                            20
                                   II. DISCUSSION

       A. Guilt Phase Claims

           1. The Ireland merger doctrine does not bar defendant’s convictions
               for torture-murder and mayhem-murder
       The trial court instructed the jury that it could convict defendant of first
degree murder either by finding that Epperson’s killing was done intentionally
with premeditation and deliberation or that it occurred during the commission or
attempted commission of, among other charged felonies, mayhem or torture. In
People v. Ireland (1969) 70 Cal.2d 522 (Ireland), we held that the crime of assault
with a deadly weapon cannot be used as the sole predicate crime for a second
degree felony-murder conviction because, when a firearm is used in a killing, such
an assault is “an integral part of the homicide.” (Id., at p. 539.) Defendant
contends that the Ireland holding, which has come to be known as the “ ‘merger’
doctrine” (id., at p. 540), should be applied here to preclude a verdict of first
degree murder in the course of the crimes of mayhem or torture because the
commission of these crimes was, in defendant’s characterization, an integral part
of his brutal heat of passion killing. We find the argument unpersuasive.
       “ ‘The felony-murder rule makes a killing while committing certain
felonies murder without the necessity of further examining the defendant’s mental
state.’ [Citation.] ‘Under the felony-murder doctrine, when the defendant or an
accomplice kills someone during the commission, or attempted commission, of an
inherently dangerous felony, the defendant is liable for either first or second
degree murder, depending on the felony committed. If the felony is listed in
section 189, the murder is of the first degree; if not, the murder is of the second
degree.’ ” (People v. Bryant (2013) 56 Cal.4th 959, 965.)
       The defendant in Ireland was convicted of second degree murder after he
shot his wife in the course of an argument in their home. (Ireland, supra, 70


                                          21
Cal.2d at p. 528.) The jury had been instructed that it could convict the defendant
of second degree murder if the killing occurred during the commission of a felony
inherently dangerous to human life, expressly including assault with a deadly
weapon. (Id., p. 538.) In reversing, we concluded, “[t]o allow such use of the
felony-murder rule would effectively preclude the jury from considering the issue
of malice aforethought in all cases wherein homicide has been committed as a
result of a felonious assault — a category which includes the great majority of all
homicides. . . . We therefore hold that a second degree felony-murder instruction
may not properly be given when it is based upon a felony which is an integral part
of the homicide and which the evidence produced by the prosecution shows to be
an offense included in fact within the offense charged.” (Id., at p. 539 [first italics
added, second italics in original, footnote omitted].)
       In two subsequent decisions, we extended this doctrine to preclude
convictions for first degree felony murder premised on a killing during the course
of a burglary when the intended felony underlying the burglary was the assault
that led to the homicide. (People v. Sears (1970) 2 Cal.3d 180, 188-189 (Sears);
People v. Wilson (1969) 1 Cal.3d 431, 440 (Wilson) [precluding application of the
felony-murder rule when “the entry would be nonfelonious but for the intent to
commit the assault, and the assault is an integral part of the homicide”].)
       Although second degree felony murder is grounded in an interpretation of
section 188, no statute specifically addresses second degree felony murder.
(People v. Chun (2009) 45 Cal.4th 1172, 1182-1183.) In contrast, first degree
felony murder, along with the predicate crimes underlying it, is expressly
described in section 189. Citing this distinction in People v. Farley (2009) 46
Cal.4th 1053 (Farley), we reconsidered and disapproved the extension of the
merger doctrine to first degree felony murder. As Farley reasoned, “ ‘ “ ‘the
power to define crimes and fix penalties is vested exclusively in the legislative

                                          22
branch.’ [Citation.]” ’ [Citation.] The courts may not expand the Legislature’s
definition of a crime [citation], nor may they narrow a clear and specific
definition. In the context of second degree felony murder, courts must interpret
section 188’s reference to an ‘ “abandoned and malignant heart.” ’ [Citation.] In
the context of first degree felony murder, however, there is no need for
interpretation of the Legislature’s clear language. Thus, the differences between
the statutory bases for first and second degree felony murder support the
conclusion that although this court properly may limit the breadth of second
degree felony murder in a manner consistent with its interpretation of the
Legislature’s intent, there is no room for interpretation when the Legislature has
defined first degree felony murder to include any killing ‘committed in the
perpetration of, or attempt to perpetrate, . . . burglary.’ ” (Id., at p. 1119.)
       The rationale of Farley requires us to reject defendant’s argument.
Although Farley was concerned with felony murder based on burglary, its
rationale applies equally to all of the predicate felonies expressly listed in section
189. Even prior to Farley, we had never applied the merger doctrine to first
degree felony murder premised on a predicate crime other than burglary. (See
People v. Gonzales (2011) 51 Cal.4th 894, 942 [“our preexisting jurisprudence had
limited Wilson to cases of burglary felony murder where the defendant’s only
felonious purpose was to assault or kill the victim”].) We have declined to apply
Farley to cases involving convictions for first degree felony murder premised on
burglary that were committed prior to the issuance of that decision in order to
avoid retroactivity concerns (People v. Covarrubias (2016) 1 Cal.5th 838, 882;
Farley, supra, 46 Cal.4th at p. 1121), but there is no risk of an ex post facto
violation in the circumstances presented here. Because we have never suggested
that the merger doctrine applies to murders premised on torture and mayhem,
precluding that application on the rationale of Farley does not constitute “an

                                           23
unforeseeable judicial enlargement of a criminal statute.” (Farley, at p. 1121;
People v. Blakely (2000) 23 Cal.4th 82, 91 [“an unforseeable judicial enlargement
of a criminal statute, applied retroactively, operates in the same manner as an ex
post facto law”].) Given the absence of any indication in our prior decisions that
first degree murder premised on torture or mayhem is subject to the merger
doctrine, and given our failure to extend the doctrine, over the course of thirty
years at the time of defendant’s crimes, to any first degree felony murder other
than one premised on the type of burglary involved in Sears and Wilson, our
refusal to extend the doctrine to torture and mayhem is not a legal result “ ‘that the
accused could not have foreseen at the time of the alleged criminal conduct.’ ”
(People v. Whitmer (2014) 59 Cal.4th 733, 742.) Accordingly, we hold that
defendant’s argument fails because the merger doctrine is inapplicable to first
degree felony murder.

           2. The evidence was sufficient to support defendant’s conviction for
               torture murder
       Defendant contends there was insufficient evidence before the jury to
support the torture conviction, the first degree torture-murder conviction, and the
special circumstance finding based on that theory.
       “When considering a challenge to the sufficiency of the evidence to support
a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence — that is, evidence
that is reasonable, credible, and of solid value — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” (People v.
Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).) In so doing, a reviewing court
“presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978,
1053.) The same standard of review applies to the sufficiency of the evidence


                                         24
supporting special circumstance findings. (People v. Chatman (2006) 38 Cal.4th
344, 389.)
       “ ‘All murder which is perpetrated by means of . . . torture . . . is murder of
the first degree.’ (§ 189.) Murder by torture requires (1) an act or acts causing
death that involve a high degree of probability of death, (2) a causal relationship
between the torturous act and death, (3) a willful, deliberate, and premeditated
intent to inflict extreme and prolonged pain on a person for the purpose of
revenge, extortion, persuasion, or for any other sadistic purpose, and (4)
commission of the act or acts with such intent.” (People v. Edwards (2013) 57
Cal.4th 658, 715-716 (Edwards).) The elements of a torture-murder special
circumstance (§ 190.2, subd. (a)(18)) are similar but not identical. “To prove that
special circumstance allegation, the prosecution had to establish that ‘defendant
intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or
suffering for the purpose of revenge, extortion, persuasion, or another sadistic
purpose.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 65 (Brooks).)
       In a sufficiency of the evidence challenge to a torture-murder conviction or
special circumstance finding, the focus is generally on “defendant’s torturous
intent.” (Brooks, supra, 3 Cal.5th at p. 65.) The perpetrator must intend to
“ ‘ “cause pain and suffering in addition to death.” ’ ” (Edwards, supra, 57 Cal.
4th at p. 716.) Torturous intent “ ‘is a state of mind which, unless established by
the defendant’s own statements (or by another witness’s description of a
defendant’s behavior in committing the offenses), must be proved by the
circumstances surrounding the commission of the offense [citations], which
include the nature and severity of the victim’s wounds.’ ” (People v. Smith (2015)
61 Cal.4th 18, 52.) In this regard, “evidence that the defendant intentionally
inflicted nonlethal wounds on the victim may demonstrate the requisite ‘ “sadistic
intent to cause the victim to suffer pain in addition to the pain of death.” ’ ”

                                          25
(Hajek and Vo, supra, 58 Cal.4th at p. 1188.) Such wounds support a finding of
intent because they “evidence[] deliberate and gratuitous violence beyond that
which was necessary to kill the victim.” (Ibid.) The focus, as noted, is on
defendant’s intent to inflict pain and suffering, which is “at the heart of” torture
murder. (People v. Davenport (1985) 41 Cal.3d 247, 268 (Davenport).) It need
not be demonstrated that that the victim was actually conscious and suffered pain
at the time otherwise painful injuries were inflicted. (Brooks, supra, 3 Cal.5th at
p. 67.)
          Our most recent decision addressing the evidence necessary to support a
torture-murder conviction is Brooks, in which we affirmed both a torture-murder
conviction and special circumstance finding. The defendant in Brooks developed
a jealous, possessive attitude toward the victim, with whom he was having a
romantic affair. (Brooks, supra, 3 Cal.5th at pp. 17, 66.) He came to believe she
was having a sexual relationship with another man and began spying on her. One
day after she left that man’s home, the defendant confronted her, strangled her into
unconsciousness, placed her in her car, and, aware that she was still alive, set her
and the car on fire. (Id., at p. 66.) We concluded that “a reasonable jury could
infer from evidence of defendant’s intense possessiveness and all-consuming
suspicions . . . , coupled with his dousing her and her car with accelerant and
lighting them on fire, that defendant intended to inflict severe pain on [the victim]
for the purpose of revenge.” (Id., at pp. 66-67.)
          In this case, the jury could have concluded that defendant became similarly
obsessed with Epperson, thereby satisfying the “purpose” element of torture
murder. He told Todd that he loved her and said “If I can’t have her, nobody will,
I’ll kill her and myself.” He was concerned that she might be seeing other men,
began to appear uninvited at her place of work, and telephoned her persistently.
By defendant’s own testimony, the immediate cause of the assault on Epperson

                                           26
was a phone call that she took from another man, whom she refused to identify,
during which she made social plans. When this caused an argument, Epperson
told defendant they were “done.” Feeling “crushed,” he hit her. As related earlier,
defendant told Charles Vannoy that he instructed Epperson to sit on the toilet and
then hit her with a candle holder. As he began beating her, Epperson asked why
he was doing it. He told her, “All I wanted you to do was to love me, you know,
and you wouldn’t do that.” Accordingly, defendant’s own account of the killing,
as well as the circumstances surrounding the crime, provide substantial evidence
to support a finding that his purpose in assaulting her was revenge for Epperson’s
romantic rejection.
       The testimony and forensic evidence further demonstrated that defendant
engaged in far more violence than that necessary to kill Epperson, some of it
unrelated to any attempt to kill, which provided substantial evidence to support a
finding that he intended to inflict extreme and prolonged pain. The beating alone
was savage and beyond that necessary to cause death. Defendant struck Epperson
repeatedly in the bathroom, carried her into the living room, and then beat her with
several different objects, striking with such force that each item was broken into
pieces and flattening the features of her face. In addition, he used broken glass to
inscribe cuts into both sides of her neck and the left side of her face and drove a
screwdriver or ice pick into her face. Finally, defendant inflicted wounds to
Epperson’s vaginal area of a severity the coroner found to be “very rare[].” While
some vaginal injury might be expected from a rape, the injuries inflicted on
Epperson were extreme, suggesting an intent to inflict suffering beyond that
caused by the violation of rape. As the coroner testified, the majority of these
injuries, perhaps as much as 95 percent, occurred while Epperson was still alive.
       In short, there was substantial evidence from which a reasonable jury could
have concluded that defendant, motivated by revenge for Epperson’s rejection of

                                         27
him as a romantic partner, chose to inflict extreme pain and suffering on her,
causing the dreadful injuries from which she eventually died.3
       The same evidence supports the jury’s true finding of the special
circumstances allegation, which requires an intent to kill and an intent “ ‘to cause
extreme pain or suffering for the purpose of revenge, extortion, persuasion, or
another sadistic purpose.’ ” (Brooks, supra, 3 Cal.5th at p. 65.) Defendant’s own
statements to Vannoy and the extreme nature of the beating provide adequate
evidentiary support for a finding of intent to kill.
       Defendant properly argues that the severity of Epperson’s wounds cannot
be the sole evidence to support a finding of torturous intent. (See, e.g., People v.
Gonzales (2012) 54 Cal.4th 1234, 1273 [“Horrible wounds may be as consistent
with a killing in the heat of passion or an explosion of violence, as with the intent
to inflict cruel suffering”].) But it is not so much the severity of Epperson’s
wounds, as their nature, that supports a finding of intent to inflict pain and
suffering here. Defendant used three separate heavy objects to bludgeon
Epperson, discarding each in turn as it broke into pieces, and presumably
continued the beating long after she was rendered unconscious.4 He gratuitously
cut both sides of her face and drove a sharp object into it, and inflicted severe
injuries to the area around her vagina. The nonfatal but undoubtedly painful




3      Defendant concedes that if the intent element of torture murder is supported
by the evidence, his conviction for torture, apart from torture murder, is supported
by the evidence.
4      Defendant contends there is no reason to believe these objects were used
“in so skillful a manner as to deliberately impose pain and suffering — but not
death,” but there is no requirement that a defendant calculate each of his or her
blows so as to cause suffering without death.



                                           28
injuries, particularly, evidenced an intent to inflict pain apart from an inevitably
fatal beating.
       Defendant also argues the evidence was consistent with a killing due to an
“ ‘explosion of violence’ ” (Davenport, supra, 41 Cal.3d at p. 268), rather than an
intent to torture. He cites People v. Anderson (1965) 63 Cal.2d 351 (Anderson), in
which the defendant killed a young girl who may have resisted an attempted
sexual assault. The manner of the homicide — the infliction of more than 40 knife
wounds — was certainly consistent with an intent to inflict pain and suffering (id.,
at p. 355), but the court found insufficient evidence to support a conviction for
torture murder. The court explained that the record lacked sufficient evidence of
“the requisite intent,” but its subsequent discussion made clear that the term
“intent” in that phrase refers to purpose or motive — that is, the infliction of pain
and suffering “for the purpose of revenge, extortion, persuasion, or for any other
sadistic purpose.” (Edwards, supra, 57 Cal.4th at pp. 715, 723.) Because there
was no evidence to suggest the Anderson defendant had a proscribed purpose in
inflicting the wounds, the court held, “the instant case shows only an explosion of
violence.” (Anderson, at p. 360.) A similar result was reached in People v.
Mungia (2008) 44 Cal.4th 1101, in which the Attorney General “d[id] not contend
that defendant was motivated by revenge, extortion, or persuasion” and sought to
demonstrate a “ ‘ “sadistic intent to cause the victim to suffer pain in addition to
the pain of death” ’ ” merely on the basis of the defendant’s delivery of repeated
blows to the victim’s head. (Id., at p. 1136.) In that case we found insufficient
evidence to support a torture-murder special circumstance, concluding “[t]he
killing was brutal and savage, but there is nothing in the nature of the injuries to
suggest that defendant inflicted any of them in an attempt to torture [the victim]
rather than to kill her.” (Id., at p. 1137.)



                                               29
       That is simply not the case here. First, there was substantial evidence from
which the jury could reasonably have found that defendant was motivated by
revenge, beginning with his acknowledgment that he first struck Epperson because
she had terminated their relationship. Second, as discussed above, defendant’s
infliction of gratuitous injuries in addition to the fatal beating provided substantial
evidence of an intent to inflict pain and suffering for their own sake.5

           3. The evidence was sufficient to support defendant’s conviction for
               rape-murder
       Defendant contends there was insufficient evidence to support the rape
conviction, the rape-murder theory of first degree felony murder, and the special
circumstance finding based on that theory.
       A homicide “committed in the perpetration of, or attempt to perpetrate . . .
rape” is first degree murder. (§ 189; People v. Berryman (1993) 6 Cal.4th 1048,
1086.) Forcible rape is “an act of sexual intercourse accomplished . . . [¶] . . .
[¶] . . . against a person’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the person or another.” (§ 261,
subd. (a)(2); People v. Harris (2013) 57 Cal.4th 804, 850.) A rape-murder
special-circumstance finding requires the homicide to be committed while the
defendant was engaged in the commission of, or attempted commission of, rape.
(§ 190.2, subd. (a)(17)(C); People v. Lewis (2009) 46 Cal.4th 1255, 1292 (Lewis).)

5        Defendant also cites People v. Leach (1985) 41 Cal.3d 92, in which we
reversed a torture-murder special-circumstance finding because the jury was not
instructed that intent to inflict pain and suffering was an element of the finding.
(Id., at pp. 109-110.) We declined to affirm in spite of the error because the
evidence did not demonstrate intent to inflict pain “ ‘as a matter of law,’ ” noting
the “strong evidence of intent to kill militates to some extent against a finding of
intent to inflict pain.” (Id., at p. 110.) Because the jury was properly instructed
here, the evidence need not demonstrate intent to inflict pain as a matter of law.
Leach has no application.



                                          30
As noted above, we review the jury’s verdict for substantial evidence. (Lindberg,
supra, 45 Cal.4th at p. 27.)
       There was substantial evidence of forcible rape here. Defendant’s DNA
was found in a vaginal swab, and his sperm was found in and outside Epperson’s
vagina. When her body was discovered, Epperson was still wearing a sweatshirt,
blouse, and bra on her upper body, but her lower body was nude, a pattern
consistent with forced intercourse. (Lewis, supra, 46 Cal.4th at p. 1290.) In
addition, her brassiere had been pushed above her nipples. Blood stains on her
jeans, which were found lying near her body, suggested that defendant had, with
bloody fingers, unbuttoned the pants, put his hands inside the pockets, and pulled
the pants off, and the blood stains on the inner surface of Epperson’s thighs were
consistent with the forcing apart of her legs. The medical examiner found the
degree of trauma to Epperson’s vaginal area “very rare[],” caused by “the blunt
force penetration either by a penis with a lot of force or other kind of object of
similar shape and size.” From these facts, the jury readily could have concluded,
beyond a reasonable doubt, that Epperson had forced intercourse and that her
death occurred while defendant was engaged in this rape.
       Defendant’s argument to the contrary focuses on the fact that Epperson’s
jeans were found lying on top of her panties, the reverse of what would be
expected if defendant had removed her clothing, and the testimony of a defense
forensic expert who examined a liner in the panties and concluded it was likely she
had not worn them. This evidence, defendant argues, suggests that Epperson was
not wearing clothing on her lower body at the time the assault began. Defendant’s
interpretation of the forensic evidence, however, fails to account for the unusual
blood stains on her jeans, which suggest that they were removed after both
Epperson and defendant had been bloodied. If she were not wearing jeans at the
time of the assault, there would be no explanation for the blood stains in her

                                          31
pockets. It may simply be that Epperson was wearing the jeans without
underwear, a circumstance that would also explain how the jeans ended up on top
of the panties. Defendant’s interpretation also ignores the pattern of blood stains
on her thighs and the severe trauma to her genitals. In any event, that Epperson
might not have been clothed from the waist down is not inconsistent with a
forcible rape.
       Noting that he testified to having had voluntary intercourse with Epperson
prior to the assault, defendant argues that Epperson’s vaginal trauma could have
been the result of consensual sexual intercourse between a relatively small woman
and a very large man.6 It is unlikely, however, that Epperson would willingly
have endured intercourse that caused vaginal injury as severe as that found by the
medical examiner. In any event, the totality of the evidence provides substantial
evidence of rape, notwithstanding the possibility of an alternate explanation.
       Defendant contends these circumstances are comparable to those in People
v. Craig (1957) 49 Cal.2d 313 (Craig), and Anderson, supra, 70 Cal.2d 15, in
which the evidence was found insufficient to support first degree felony-murder
convictions based on rape. Both cases are distinguishable. In Craig, the victim
had been beaten to death. When found, her body was dressed in a slip or
nightgown, covered by a raincoat. Her panties, which had been found underneath
the body, were torn open. (Id., at p. 316.) Yet the court in Craig found
insufficient evidence to support a rape-murder conviction because,
notwithstanding the suggestive condition of the victim’s clothing, neither the
defendant’s nor the victim’s clothing “bore any evidence of the sexual act” (id., at
p. 318), and there was no other evidence to suggest sexual intercourse had

6       At the time of the killing, defendant was between 6 feet, three inches and 6
feet, four inches tall and weighed about 280 pounds.



                                         32
occurred. (Ibid.) In Anderson, as noted above, the victim had been stabbed to
death. Her body was nude, and the crotch had been cut from her underwear. (Id.,
at pp. 20-21.) Again, the court found insufficient evidence to support a charge
under section 288 of lewd and lascivious conduct with a child under the age of 14
years because there was no physical evidence of sexual contact or any evidence
that the defendant harbored sexual feelings toward the victim or had ever engaged
in lewd conduct with her. (Id., at pp. 35-36.) In contrast with these cases, the
state of Epperson’s clothing was not the only evidence supporting the charge of
rape. As discussed above, there was no question defendant had sexual intercourse
with Epperson, and there was substantial forensic evidence to support the charge
that the intercourse had occurred by force and against her will.7

           4. The trial court’s admission of gang affiliation evidence during the
               guilt phase was harmless
       Defendant contends the trial court committed prejudicial error in permitting
the introduction of evidence during the guilt phase that he had been affiliated in
prison with a white supremacist gang and that he had tattoos suggesting racist
sympathies. He also argues that the prosecutor committed misconduct in eliciting
some of this evidence.
       Epperson was Caucasian. Around the time she met defendant, Epperson
had broken off her romantic relationship with Sims, an African-American, but the


7      Defendant also contends his conviction for premeditated first degree
murder was not supported by substantial evidence. Because we have concluded
that substantial evidence supports defendant’s first degree murder conviction on
the theories of torture murder and rape murder, and because defendant has not
challenged the sufficiency of the evidence supporting the theory of mayhem-
murder, we need not, and do not, address the sufficiency of the evidence
supporting the charge of premeditated first degree murder. (See Hajek and Vo,
supra, 58 Cal.4th at p. 1192, fn. 20.)



                                         33
two remained friends, and defendant was aware of their relationship. On the
morning of the day Epperson was killed, defendant saw her talking to Sims outside
her church.
          Although Sims and defendant had lived in the same building during two
years of rehabilitation, they had never formally met or spoken. When Sims
testified that he felt “intimidated” by defendant because defendant was a “white
supremacist,” the trial court struck this testimony and admonished the jury to
disregard it. Timothy Todd, Epperson’s friend and assistant at her workplace,
later testified, without objection, that defendant, “on several occasions,” said that
“he would kill that nigger [Sims] if he kept trying to see” Epperson.
          During the cross-examination of defendant, he acknowledged, without
explanation, that he “had a problem” with Sims because of “what he did to”
Epperson. When defendant denied being a “racist” and disliking Sims because he
was an African-American, the prosecutor was permitted to introduce, over
objection, photographs of defendant’s tattoos, two of which read, “White Pride”
and “White Anger.” Defendant said he had gotten the tattoos “years ago” in
prison.
          During the prosecution’s rebuttal case, the trial court permitted the
introduction of gang-related statements made by defendant’s friend, Charles
Vannoy, during his police interview. The jury therefore heard Vannoy describe
himself as a one-time member of the Aryan Brotherhood, although he had since
left the group. Vannoy acknowledged having tattoos, one of which was a
swastika, and said he was aware defendant did not like Sims, whom the
interviewer had referred to as Epperson’s “Black boyfriend.” In closing argument,
neither attorney mentioned the tattoos or gang evidence.
          We review a trial court’s decision to admit or exclude evidence “for abuse
of discretion, and [the ruling] will not be disturbed unless there is a showing that

                                            34
the trial court acted in an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.” (People v. Wall (2017) 3 Cal.5th 1048, 1069.) When
evidence is erroneously admitted, we do not reverse a conviction unless it is
reasonably probable that a result more favorable to the defendant would have
occurred absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836; see
People v. Covarrubias (2016) 1 Cal.5th 838, 887-888 (Covarrubias) [Watson
standard applies in evaluating prejudice from state law error in admitting
evidence].) We apply a similar standard of prejudice when considering a claim of
prosecutorial misconduct. (E.g., People v. Peoples (2016) 62 Cal.4th 718, 798-
799, 804.)
       We need not address the propriety of the trial court’s admission of this
evidence or the prosecutor’s conduct in eliciting it during the guilt phase because
any error in its admission was harmless. The evidence of defendant’s guilt was
very strong. There was no question that he was the killer. The forensic evidence
powerfully revealed the manner of Epperson’s death, and the testimony, including
defendant’s own testimony, provided ample evidence of the obsession that appears
to have motivated the crimes. At most, the evidence of defendant’s possible racist
sympathies would have provided an additional reason for the intensity of his anger
at the time of the killing. Defendant’s gang membership was therefore largely
irrelevant to the issues before the jury in the guilt phase, and any negative reaction
the jurors might have had to the gang evidence would not have had a significant
influence on their evaluation of the evidence.
       Nor do we conclude, for similar reasons, that any misconduct by the
prosecutor in eliciting this testimony “infect[ed] the trial with such unfairness as to
make the conviction a denial of due process.” (People v. Seumanu (2015) 61
Cal.4th 1293, 1331.)



                                          35
       Defendant argues admission of the evidence was “inherently prejudicial”
because it created a risk the jury would improperly infer defendant has a criminal
disposition and is therefore guilty of the offense charged, citing People v. Williams
(1997) 16 Cal.4th 153, 193 (Williams). Whether defendant had a “criminal
disposition” was rendered moot by the strength of the evidence bearing on his
guilt. Concerns about the possible “inflammatory impact” of this type of evidence
(id., at p. 193) were similarly alleviated by the nature of the evidence of
defendant’s guilt.8

           5. The special circumstance findings of torture murder and mayhem
               murder are supported by the evidence
       Defendant argues that the jury’s torture-murder and mayhem-murder
special-circumstance findings were not supported by sufficient evidence because
he had no “independent felonious purpose” in committing the predicate crimes.
(People v. Green (1980) 27 Cal.3d 1, 61 (Green.) According to defendant, the
acts of torture and mayhem were, in effect, a means to the end of killing Epperson,
rather than ends in themselves.9
       The requirement of an independent felonious purpose applies to felony-
murder special-circumstance findings under section 190.2, subdivision (a)(17).
(People v. Coffman and Marlow (2004) 34 Cal 4th 1, 87.) This subdivision
authorizes a special circumstance finding when the murder “was committed while


8       We also reject defendant’s contention that the introduction of this evidence
in the guilt phase violated his right to due process, since any error in the admission
of this evidence was harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18, 24.)
9       Although a heading in defendant’s brief asserts that this argument is
addressed to “all” of the special circumstance findings, he concedes in a footnote
that the argument actually applies only to the torture-murder and mayhem-murder
special-circumstance findings.



                                          36
the defendant was engaged in . . . the commission of [or] the attempted
commission of ” various other specified felonies. (§ 190.2, subd. (a)(17).) Section
190.2 was enacted in response to United States Supreme Court decisions requiring
that a jury’s discretion in imposing the death penalty be “suitably directed and
limited so as to minimize the risk of wholly arbitrary and capricious action.”
(Gregg v. Georgia (1976) 428 U.S. 153, 189; Green, supra, 27 Cal.3d at p. 61.)
With respect to the felony-murder special circumstances, Green explained that the
Legislature found it appropriate for the jury to consider a penalty of death when a
defendant “killed in cold blood in order to advance an independent felonious
purpose.” (Id., at p. 61.) The Legislature’s goal, Green concluded, would not be
achieved “when the defendant’s intent is not to [commit the predicate felony] but
to kill and the [predicate crime] is merely incidental to the murder . . . because [the
predicate crime’s] sole object is to facilitate or conceal the primary crime,” i.e., the
murder. (Ibid.) In the intervening years, these phrases from Green, “independent
felonious purpose” and “merely incidental,” have become talismanic, but they
remain useful concepts that give meaning to the statutory requirement that the
murder occurred “in the commission of” the predicate felony. They are not
separate and independent requirements for a felony-murder special circumstance.
(Brooks, supra, 3 Cal.5th at p. 117.)
       Although defendant raises this claim with respect to both the torture-murder
and mayhem-murder special-circumstance findings, we have never required an
independent felonious purpose to support a special-circumstance finding for
torture murder. From its inception, section 190.2 has codified the special
circumstance for a murder involving torture separately from the felony-murder
special circumstances. (See Green, supra, 27 Cal.3d at p. 49.) At the time of
defendant’s crimes, as today, the felony-murder special circumstances were
codified in section 190.2, subdivision (a)(17). A different subdivision defines the

                                          37
torture-murder special circumstance, permitting the finding when “[t]he murder
was intentional and involved the infliction of torture.” (§ 190.2, subd. (a)(18).)
Because subdivision (a)(18) lacks the requirement that the murder be committed
while the defendant was “engaged in . . . the commission of” torture, the
requirement of an independent felonious purpose, which implements this
language, does not apply to a torture-murder special circumstance. Defendant
provides no reason for questioning this conclusion, which follows directly from
the statutory language. His argument therefore provides no basis for challenging
the sufficiency of the evidence to support the torture-murder special-circumstance
finding.
       The jury also found true the mayhem-murder special circumstance
allegation, which is specified in Section 192, subdivision (a)(17). Mayhem
requires, in very general terms, the intentional infliction of a maiming or
disfiguring injury. (See People v. Santana (2013) 56 Cal.4th 999, 1004-1005; §§
190.2, subd. (a)(17)(J), 203.) Defendant has not challenged the sufficiency of the
evidence to support his conviction for the crime of mayhem, and we have no
reason to question the jury’s conclusion that, in the course of his assault, defendant
intentionally inflicted disfiguring injuries on Epperson.10 In convicting defendant
of the underlying crime of mayhem, the jury necessarily found that defendant
possessed the specific intent to disfigure Epperson, which would have been
independent of any intent to kill her. This independent purpose to disfigure




10 The superfluous ragged gashes in Epperson’s neck, at a minimum, would
qualify as intentional disfigurement. (See People v. Newble (1981) 120
Cal.App.3d 444, 447, 449-450 [infliction of three-inch facial laceration likely to
leave a permanent scar constitutes mayhem].)



                                         38
provided adequate evidentiary support for the mayhem-murder special-
circumstance finding.
       Defendant argues that he elected a particularly brutal method of murdering
Epperson and his infliction of disfigurement upon her was an incidental
consequence of his chosen manner of killing. Whether defendant simply used a
brutal means to kill Epperson, or whether his brutality was part of an independent
design to commit mayhem, was a factual determination for the jury to make. As
discussed above, in convicting defendant of the underlying crime of mayhem, the
jury necessarily found that defendant did possess that independent design.
       According to Charles Vannoy, at some point during the beating defendant
admitted to Epperson that he planned to kill her. We have repeatedly held,
however, that a defendant’s possession of the intent to kill concurrently with the
intent necessary to support a predicate felony does not necessarily render
commission of the predicate felony incidental to the murder. As explained in
People v. Castaneda (2011) 51 Cal.4th 1292, “ ‘a jury deciding the truth of the
special circumstance allegation is not required to assign a hierarchy to the
defendant’s motives in order to determine which of multiple concurrent intents
was “primary,” but instead the jury need only determine whether commission of
the underlying felony was or was not merely incidental to the murder.’ ” (Id., at
pp. 1326-1327; see also, People v. Davis (2009) 46 Cal.4th 539, 609 [“even if a
defendant harbored the intent to kill at the outset, a concurrent intent to commit an
eligible felony will support the special circumstance allegation”].) Evidence that
defendant intended to kill Epperson at the time he committed mayhem did not
preclude the jury from finding true the mayhem-murder special-circumstance
allegation.




                                         39
       B. Sufficiency of the Evidence Supporting the Jury’s Verdict at the
          Sanity Trial.
       Defendant contends the jury’s finding that he was sane at the time of the
killing must be reversed because “the evidence of insanity was of such weight and
quality that a jury could not reasonably reject it.”
       “Under California’s statutory scheme, ‘[p]ersons who are mentally
incapacitated’ are deemed unable to commit a crime as a matter of law. (§ 26, par.
[2].) Mental incapacity under section 26 is determined by the M’Naghten test for
legal insanity provided in section 25, subdivision (b). (M’Naghten’s Case (1843)
8 Eng.Rep. 718, 722; People v. Phillips (2000) 83 Cal.App.4th 170, 173; see Stats.
2007, ch. 31, § 5, pp. 138–139.) Under M’Naghten, insanity is established if the
defendant was unable either to understand the nature and quality of the criminal
act, or to distinguish right from wrong when the act was committed.”11 (People v.
Elmore (2014) 59 Cal.4th 121, 140.)
       In a sanity trial, the burden is on the defendant to prove insanity by a
preponderance of the evidence. (§ 25, subd. (b); People v. Hernandez (2000) 22
Cal.4th 512, 521.) A defendant “may suffer from a diagnosable mental illness
without being legally insane under the M’Naghten standard.” (People v. Mills
(2012) 55 Cal.4th 663, 672.)



11      Section 25, subdivision (b), enacted by Proposition 8 in 1982, actually
states that a person can be found insane only if “he or she was incapable of
knowing or understanding the nature and quality of his or her act and of
distinguishing right from wrong at the time of the commission of the offense.”
(italics added.) In People v. Skinner (1985) 39 Cal.3d 765, we held that
Proposition 8 was intended to embody the traditional M’Naghten test, which holds
that insanity is demonstrated if a defendant was unable to understand the nature
and quality of the criminal act or to distinguish right from wrong when the act was
committed. (Id., at p. 777.)



                                          40
           1. A finding of sanity is subject to the substantial evidence standard of
               review
       Before we address defendant’s sufficiency of the evidence argument on its
merits, it is necessary to settle the standard of review. Defendant’s argument, that
the jury’s sanity determination must be reversed because the expert evidence he
presented “was of such weight and quality that a jury could not reasonably reject
it,” is based on a misreading of People v. Drew (1978) 22 Cal.3d 333 (Drew). In
that case, we adopted an alternative to the M’Naghten sanity test, a decision that
was subsequently abrogated by the electorate with the 1982 passage of Proposition
8, which re-adopted the M’Naghten test. (See People v. Skinner (1985) 39 Cal.3d
765, 768-769.) In changing the sanity test in Drew, we also recognized that the
defendant was entitled to review of the jury’s finding that he was sane under the
M’Naghten standard, the standard prevailing at the time. (Drew, at p. 349.) As we
noted, “Defendant Drew argues that even under the M’Naghten test the jury’s
finding of sanity is not supported by substantial evidence. If Drew should prevail
in this contention, he would be entitled to an order directing the trial court to find
him insane, thus avoiding a retrial of the case” under the newly adopted test.
(Ibid.) In undertaking a review of the jury’s finding, we confirmed, quoting
People v. Wolff (1964) 61 Cal.2d 795, 804, that the applicable standard of review
was substantial evidence. (Drew, at p. 350.)
       The only evidence introduced at the sanity trial of Drew was the testimony
of two court-appointed psychiatrists, both of whom opined that defendant was
insane under M’Naghten. The prosecution presented no evidence at all. (Drew,
supra, 22 Cal.3d at pp. 338-339, 350.) In arguing for reversal of the finding of
sanity, the defendant relied on the unchallenged unanimity of expert opinion. We
explained, however, that a finding of sanity could be upheld even “in the face of
contrary unanimous expert opinion.” (Id., at p. 350.) Because the defendant has



                                          41
the burden of proof, “if neither party presents credible evidence on that issue the
jury must find him sane.” (Id., at p. 351.) When no affirmative evidence of sanity
has been presented, we held, “the question on appeal is not so much the
substantiality of the evidence favoring the jury’s finding as whether the evidence
contrary to that finding [i.e., the unanimous expert opinions] is of such weight and
character that the jury could not reasonably reject it.” (Id., at p. 351.) For reasons
the decision explained, the value of both experts’ evaluations could be questioned,
permitting the jury to reasonably reject both. Accordingly, Drew affirmed the
finding of sanity. (Ibid.)
       As the foregoing suggests, the Drew standard, focusing the substantial
evidence inquiry on the “weight and character” of the expert opinions of insanity,
arose in the context of a sanity trial in which the expert evidence of insanity was
uncontested, and we have applied Drew’s articulation of the standard only in that
specific context. Most recently, in In re R.V. (2015) 61 Cal.4th 181, we were
required to determine the standard of review for a finding of competency to stand
trial in a juvenile wardship proceeding. (Id., at p. 199.) We determined that the
appropriate standard was “the deferential substantial evidence standard” (id., at p.
200), but we noted that “[t]here is . . . no single formulation of the substantial
evidence test for all its applications.” (Ibid.) Because the only evidence bearing
on the juvenile’s competence was provided by a defense expert, we applied the
Drew standard for substantial evidence, noting it was the appropriate standard “in
a case such as this one, in which the evidence before the court consists of the
opinion of a qualified expert . . . and the materials on which the expert relied.”
(Id., at p. 203.)
       Here, the evidentiary record is considerably more complex, consisting of
the testimony of several expert witnesses for each side. We have been provided
with no justification for departing, in these circumstances, from the most common

                                          42
formulation of the substantial evidence test, in which the appellate court reviews
the entire record in the light most favorable to the jury’s determination and affirms
that determination if it is supported by evidence that is “reasonable, credible and
of solid value.” (People v. Dunkle (2005) 36 Cal.4th 861, 885.) This is the
standard of review applied to a jury finding of competency to stand trial, an
analogous inquiry in which the defendant bears the burden of proof by a
preponderance of the evidence. (Ibid.; People v. Marshall (1997) 15 Cal.4th 1,
31.) We therefore hold that a jury’s finding of sanity will be affirmed if it is
supported by evidence that is reasonable, credible, and of solid value, from which
a reasonable trier of fact could find the defendant sane by a preponderance of the
evidence.

            2. The evidence was sufficient to support the jury’s finding that
                defendant was not insane at the time of the killing
       Having determined the appropriate substantial evidence test to be applied in
these circumstances, we have no difficulty in finding substantial evidence to
support the jury’s finding that defendant was legally sane at the time he committed
the murder. Although one of the prosecution’s experts, Dr. Griesemer, found
some slowing in defendant’s EEG test, he did not believe it indicated organic
deficiencies and concluded defendant’s functioning was normal. Dr. Mohandie,
the prosecution’s other expert, believed defendant was feigning at least some of
his psychiatric symptoms. He also found no evidence that defendant suffered
from bipolar disorder, as testified by the defense experts. In Dr. Mohandie’s view,
some symptoms of the disorder would have been expected despite defendant’s
medication, yet, as he noted, defendant disclaimed symptoms of mental illness,
such as voices, delusions, or hallucinations. Dr. Mohandie found the defense
experts’ diagnosis of intermittent explosive disorder inconsistent with the
purposeful behavior displayed in the killing. Based on his observations, Dr.


                                          43
Mohandie believed defendant was aware of the nature of his actions at the time of
the killing and could distinguish right from wrong. These experts’ testimony
suffices to support the jury’s finding of sanity.
       Further, although the testimony of defendant’s experts provided strong
evidence that defendant suffered from mental or emotional disabilities, that is not
the same as legal insanity, and their testimony was less clear in demonstrating the
elements of insanity. For example, the defense experts were unified in suggesting
that defendant was unable to control his conduct as a result of mental defects.
Merely because a person finds it difficult or impossible to control his or her
behavior, however, does not necessarily mean that the person lacks the ability to
understand the nature and quality of that behavior or to distinguish right from
wrong. On the latter issues, the defense experts were less unified, and the
evidence supporting their conclusions was less compelling.
       Defendant’s claim of insufficiency of the evidence is based on a detailed
comparison of the testimony of his own experts with that of Drs. Griesemer and
Mohandie, which, he contends, demonstrates that the prosecution experts failed to
account for all of the various factors that were cited by the defense experts. The
issue of legal sanity is, of course, a complex and uncertain one about which fully
competent experts can reasonably disagree. While their testimony might not have
revealed that Drs. Griesemer and Mohandie took into account all of the matters
raised by the defense, we are satisfied by their qualifications and the nature of
their testimony that their opinions were of sufficient quality that the jury could
rely on them in finding defendant sane. Nothing more is required to constitute
substantial evidence.




                                          44
       C. Penalty Phase Issues

           1. The trial court did not err in admitting evidence of defendant’s
               possible gang affiliation and racist beliefs
       As noted ante, part A.4, defendant argues that the trial court committed
prejudicial error in admitting evidence of his racist tattoos and gang membership.
We discuss the admission of gang-related evidence separately for the guilt and
penalty phases because they were tried to different juries and the exact nature of
the evidence introduced at the two proceedings differed. The penalty phase jury
was unaware of, and therefore unaffected by, the tattoo and gang membership
evidence introduced in the guilt phase.
       Prior to the second penalty phase trial, the defense sought to exclude
evidence of defendant’s tattoos. The court acknowledged that the contemplated
gang-related evidence was “dangerous” and asked the prosecution to justify its
admission. The prosecutor responded that defendant had seen Sims and Epperson
together on the morning of the killing and could have believed they were getting
back together. Racial animus, the prosecutor claimed, could have been “the spur,
the additional spur that caused the defendant to murder her and to torture her.
That’s the People’s theory.”
       The court agreed with the prosecutor and declined to exclude the evidence,
explaining, with regard to the tattoos, “This isn’t somebody else’s opinion that
he’s a racist. He puts this on himself. . . . [T]hat this white woman, the victim in
the case, was interested in an African-American man, would make a racist very
angry.” Racial animus, the court believed, might explain the extreme nature of
defendant’s rage, expressed in the savage beating of Epperson. As the court
summarized its thinking, evidence of the tattoos “goes to the motivation and
explosive nature of his conduct at the time of the crime.”




                                          45
       When called to testify, Charles Vannoy, defendant’s friend, confirmed that
he had both a swastika tattoo and a lightning bolt tattoo and that lightning bolts are
a “sign” of the Aryan Brotherhood. Vannoy, however, denied affiliation with the
Aryan Brotherhood. When the prosecutor asked, “Isn’t it true that you and
[defendant] belong to . . . ,” she was stopped in mid-sentence by an objection,
which was sustained. Soon after, the prosecutor noted that defendant told Vannoy
that Epperson’s ex-boyfriend was an African-American and asked whether
Vannoy saw “any significance to saying that the boyfriend was black.” Defense
counsel objected, and the prosecutor withdrew the question after being persuaded
that the detective interviewing Vannoy, rather than defendant, had brought up
Sims’s race. No admonishment was requested or given.
       As in the guilt phase, Timothy Todd, Epperson’s friend and assistant,
testified that defendant told him, “if [Sims] kept pursuing [Epperson], he would
kill [Sims].” An objection was sustained to the prosecutor’s follow-up inquiry
whether defendant had used a “racial epithet” when he made the threat, but not
before Todd confirmed that an epithet had been used. Counsel did not request that
the answer be stricken. Todd was thereafter allowed to testify, over objection, that
in the year 2000, defendant told Todd he belonged to a “white gang.” Although
Todd did not recall which gang, he said, “Well, I know there’s several white
gangs. There’s the LRL, Aryan Nations, gangs like that.”
       Sims testified that while he was together with defendant in a rehabilitation
program, Sims did not know defendant well and avoided him. Over objection,
Sims was permitted to testify that he avoided defendant because defendant had
tattoos on his calves and arms, without describing the tattoos. Sims also testified
that on four separate occasions defendant had engaged in intimidating conduct
with him, although he described only one incident, when defendant swore at Sims
as he was entering the Weingart Center.

                                          46
       When the defense presented the testimony of an African-American friend
of defendant, whom he had met at the Weingart Center, the prosecutor asked the
witness whether she was aware of defendant’s tattoos, without describing them.
The witness said she had seen the tattoos and was not bothered by them, again
without any express indication of their content. Defendant’s mother, Joyce,
testified that defendant’s father was a “bigot, . . . major big time,” but she said that
defendant had not “picked up on that.” Joyce confirmed that she was aware of
defendant’s prison tattoos, but when the prosecutor suggested the tattoos were
“associated with, for want of a better word white supremacist,” Joyce said she
“didn’t know that, no, I did not.”
       In closing argument, the prosecutor never raised the possibility that
Epperson’s killing was related to Sims or his race.
       As the foregoing indicates, the evidence of defendant’s alleged gang
membership admitted during the penalty phase was limited. Vannoy testified
about his tattoos and denied gang membership, but he was prevented from
testifying about defendant’s gang membership. Todd testified that defendant
claimed to have belonged to a white gang and had used a racial epithet in speaking
about Sims. Sims confirmed that he felt threatened by defendant, without
expressly attributing his discomfort to perceived racism. Two African-American
witnesses acknowledged an awareness of defendant’s tattoos, but neither described
them; only the fact that the topic arose during the testimony of African-American
witnesses hinted at their content. When the prosecutor eventually attempted to
suggest to defendant’s mother that the tattoos related to racist sympathies, his
mother denied it. And, as noted, none of this featured in the prosecutor’s closing
argument.
       Evidence of a defendant’s racist beliefs is inadmissible in the penalty phase
of a capital trial if it is not relevant to an issue in the case. (Dawson v. Delaware

                                          47
(1992) 503 U.S. 159, 167; People v. Merriman (2014) 60 Cal.4th 1, 104
(Merriman).) When evidence suggesting racist beliefs by a defendant is probative
of an issue raised by the proceedings, however, we have affirmed its admission,
notwithstanding any risk of prejudice. (See, e.g., People v. Townsel (2016) 63
Cal.4th 25, 66-67 [evidence of a racial slur used in the course of making a threat
held admissible when the threat was relevant to the killing]; Merriman, at pp. 104-
105 [evidence of defendant’s racist beliefs admissible to explain defendant’s past
attacks and fights]; People v. Richardson (2008) 43 Cal.4th 959, 1030 [evidence
of defendant’s leadership of white prison gang admissible to explain his ability to
control others].)
       We agree with the trial court that evidence of defendant’s tattoos and racial
gang membership was relevant to explain the motivation for and savagery of his
attack on Epperson. Wounded racial pride could have caused him not only to
assault Epperson, but to do so in a manner intended to cause her both great
suffering and disfigurement.
       Nor do we find error in the trial court’s decision not to exclude the evidence
under Evidence Code section 352, which permits the court to exclude otherwise
relevant evidence if its probative value is substantially outweighed by the
probability that its admission will create a substantial danger of undue prejudice.
“ ‘Evidence is substantially more prejudicial than probative [citation] [only] if,
broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the
reliability of the outcome.” ’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 144;
see People v. Booker (2011) 51 Cal.4th 141, 188 [“ ‘Prejudice’ in the context of
Evidence Code section 352 is not synonymous with ‘damaging’: it refers to
evidence that poses an intolerable risk to the fairness of the proceedings or
reliability of the outcome”].) Further, as we have noted in connection with the
admission of crime scene photographs during the penalty phase, “ ‘the trial court’s

                                          48
discretion [at the penalty phase] to exclude circumstances-of-the-crime evidence
as unduly prejudicial is more circumscribed than at the guilt phase. During the
guilt phase, there is a legitimate concern that crime scene photographs . . . can
produce a visceral response that unfairly tempts jurors to find the defendant guilty
of the charged crimes. Such concerns are greatly diminished at the penalty
phase because the defendant has been found guilty of the charged crimes, and the
jury’s discretion is focused on the circumstances of those crimes solely to
determine the defendant’s sentence. Indeed, the sentencer is expected to
subjectively weigh the evidence, and the prosecution is entitled to place the capital
offense and the offender in a morally bad light.’ ” (People v. Moon (2005)
37 Cal.4th 1, 35.) We review a trial court’s decision to admit evidence over an
Evidence Code section 352 objection for abuse of discretion. (Eubanks, at
pp. 144-145.)
       A crime involving the degree of violence demonstrated here is in some
manner incomprehensible and inexplicable. In attempting to affix the appropriate
penalty, the jury was entitled to hear evidence bearing on the factors that possibly
brought on the violence, whether, in the defense’s view, defendant’s mental
instability, or otherwise. One of those possible factors was Epperson’s past
intimate relationship, and her continued personal relationship, with an African-
American man. Although we recognize the potential adverse consequences
resulting from the introduction of evidence suggesting defendant held racist
beliefs, those consequences do not constitute undue prejudice because his alleged
beliefs might have contributed to the commission of the crime. In these
circumstances, we find no abuse of discretion in the trial court’s conclusion that
the risk of undue prejudice was outweighed by the probative value of the evidence.




                                         49
           2. Imposition of the death penalty on a mentally ill defendant does not
               violate the Eighth Amendment
       Defendant contends that even if he was not found to be legally insane at the
time of the killing, the evidence demonstrates that he was and is mentally ill. He
contends that imposition of the death penalty on a mentally ill person violates the
Eighth Amendment’s prohibition against cruel and unusual punishment.
       We considered the identical argument in Hajek and Vo, supra, 58 Cal.4th
1144, concluding that neither the Eighth Amendment nor United States Supreme
Court authority precludes imposition of the death penalty on mentally ill persons.
(Id., at p. 1251.) As we held, “[m]ost significantly, the circumstance that an
individual committed murder while suffering from a serious mental illness that
impaired his judgment, rationality, and impulse control does not necessarily mean
he is not morally responsible for the killing. There are a number of different
conditions recognized as mental illnesses, and the degree and manner of impairment
in a particular individual is often the subject of expert dispute. Thus, while it may
be that mentally ill offenders who are utterly unable to control their behavior lack
the extreme culpability associated with capital punishment, there is likely little
consensus on which individuals fall within that category or precisely where the line
of impairment should be drawn. Thus, we are not prepared to say that executing a
mentally ill murderer would not serve societal goals of retribution and deterrence.
We leave it to the Legislature, if it chooses, to determine exactly the type and level
of mental impairment that must be shown to warrant a categorical exemption from
the death penalty.” (Id., at p. 1252.)
       Soon after the issuance of Hajek and Vo, our decision in People v. Mendoza
(2016) 62 Cal.4th 856 (Mendoza), re-affirmed its holding. We noted that Hajek and
Vo’s “broad holding applies in the present case as well — especially considering that
in this case the jury, after a separate trial involving copious testimony from mental



                                          50
health experts, rejected defendant’s claim that he was not culpable for the murders on
the ground of insanity as defined by our law, and at the penalty phase rejected his
argument that because of his mental illness the death penalty was not warranted.”
(Mendoza, at p. 910.) Just as in Mendoza, a jury found defendant legally sane after a
trial and rejected his argument in the penalty phase that, because of his mental illness,
he should not be put to death.
       Defendant has presented no argument that was not considered and rejected
in Hajek and Vo and Mendoza, and his claimed mental illness is not of a type that
is materially different, for purposes of the Hajek and Vo analysis, from the
impairments suffered by the defendants in those cases. We therefore decline to
hold that the Eighth Amendment precludes defendant’s execution by reason of
mental illness.

           3. Defendant’s various constitutional challenges to California’s
               imposition of the death penalty fail
       Defendant raises a series of challenges to California’s death penalty statute.
As he acknowledges, these arguments have been rejected by this court in past
decisions. As he anticipates, we decline to revisit our prior holdings with respect
to these issues, which are listed below. Given the longstanding nature of our
rulings, we do not reiterate their rationale.
       California’s death penalty laws adequately narrow the class of murderers
subject to the death penalty. (People v. Henriquez (2017) 4 Cal.5th 1, 45
(Henriquez).) In particular, the special circumstances of section 190.2, which
render a murderer eligible for the death penalty, are not so numerous and broadly
interpreted that they fail adequately to narrow the class of persons eligible for
death. (People v. Johnson (2016) 62 Cal.4th 600, 654-655; People v. Myles
(2012) 53 Cal.4th 1181, 1224-1225.)




                                           51
       Section 190.3, factor (a), which permits the jury to consider the
circumstances of the capital crime in its penalty determination, does not license
the jury to impose death in an arbitrary and capricious manner in violation of the
United States Constitution. (Henriquez, supra, at p. 45; People v. Brown (2004)
33 Cal.4th 382, 401.)
       The federal Constitution does not require that the jury agree unanimously
on which aggravating factors apply. (People v. Jackson (2016) 1 Cal.5th 269, 372
(Jackson); People v. Lewis (2008) 43 Cal.4th 415, 533.) Nor is the death penalty
unconstitutional for failing to require proof beyond a reasonable doubt that an
aggravating circumstance has been proved (other than section 190.3, factor (b) or
(c) evidence), that the aggravating factors outweigh the mitigating factors, or that
death is the appropriate sentence. (People v. Rangel (2016) 62 Cal.4th 1192,
1235.) For that reason, again other than section 190.3, factors (b) and (c), the jury
need not be instructed that proof beyond a reasonable doubt is required. (People v.
Leonard (2007) 40 Cal.4th 1370, 1429.) These conclusions are not affected by
Apprendi v. New Jersey (2000) 530 U.S. 466 or Ring v. Arizona (2002) 536 U.S.
584. (People v. Fuiava (2012) 53 Cal.4th 622, 732.)
       The jury need not make written findings regarding the existence of
aggravating factors. (Mendoza, supra, 62 Cal.4th at p. 916; People v. Clark
(2011) 52 Cal.4th 856, 1007.)
       There is no Eighth Amendment requirement that our death penalty
procedures provide for intercase proportionality review. (People v. Johnson,
supra, 62 Cal.4th at p. 656; People v. Lang (1989) 49 Cal.3d 991, 1043.)
       The jury’s reliance on unadjudicated criminal activity as a factor in
aggravation under section 190.3, factor (b), without any requirement that the jury
unanimously find that the activity was proved beyond a reasonable doubt, does not
deprive a defendant of any federal constitutional right, including the Sixth

                                         52
Amendment right to trial by jury and the Fourteenth Amendment right to due
process. (People v. Clark, supra, 52 Cal.4th at p. 1007; People v. Balderas (1985)
41 Cal.3d 144, 204-205.)
       Nor does section 190.3’s use of adjectives such as “extreme” and
“substantial” in factors (d) and (g), respectively, act as a barrier to the jury’s
consideration of mitigating evidence, in violation of constitutional commands.
(People v. Johnson, supra, 62 Cal.4th at p. 656; People v. Adcox (1988) 47 Cal.3d
207, 270.) The court was not required to instruct the jury that the statutory
mitigating factors were relevant solely to mitigation, and the court’s instruction
directing the jury to consider “whether or not” certain mitigating factors were
present did not invite the jury to use the absence of such factors as an aggravating
circumstance, in violation of state law and the Eighth and Fourteenth
Amendments. (People v. Johnson, supra, 62 Cal.4th at p. 656; People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 123.)
       The failure to afford capital defendants at the penalty phase the same
procedural safeguards afforded to noncapital defendants does not offend equal
protection principles, because the two groups are not similarly situated. (Brooks,
supra, 3 Cal.5th at p. 116; People v. Whalen (2013) 56 Cal.4th 1, 91.)
       California does not regularly use the death penalty as a form of punishment,
and “its imposition does not violate international norms of decency or the Eighth
Amendment’s prohibition against cruel and unusual punishment.” (People v.
Clark, supra, 52 Cal.4th at p. 1008.)

       D. Alleged Cumulative Effect of Asserted Errors
       Defendant argues that the cumulative impact of the asserted errors at the
guilt and penalty phases rendered his trial fundamentally unfair and deprived him
of other constitutional rights. Because we have concluded there was no



                                           53
error related to the trial on the capital offenses or their punishment, there is
nothing to cumulate and, in any event, we reject the claim that any asserted
cumulative effect warrants reversal.
                                  III. DISPOSITION
       The judgment is affirmed in its entirety.


                                                         CANTIL-SAKAUYE, C. J.


WE CONCUR:

CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
JOHNSON, J.*




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




                                           54
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Powell
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S137730
Date Filed: August 13, 2018
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William Pounders

__________________________________________________________________________________

Counsel:

R. Clayton Seaman, Jr., under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and Pamela C. Hamanaka, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

R. Clayton Seaman, Jr.
P.O. Box 12008
Prescott, AZ 86304
(928) 776-9168

Pamela C. Hamanaka
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6208
