*1 S01 1323.June 1999.] [No. PEOPLE, Plaintiff and Respondent,
THE WELCH, Defendant and Appellant. ESCO DAVID *17 720.
Counsel Boisseau, Court, C. under George appointment by for Defend- Supreme ant and Appellant. General, Williamson,
Daniel E. and Bill Lungren Lockyer, Attorneys George General, Bass, Chief Assistant Attorney Ronald A. Assistant Gen- Attorney eral, Rivlin, General, Ronald E. Niver and Catherine A. Deputy Attorneys for Plaintiff and Respondent.
Opinion
THE COURT. found A jury defendant David Esco Welch six of guilty of counts first murder in degree incident single the during morning December It 1986. also found him of two guilty counts attempted incident, in murder connection with the same one and count concealing firearm as a It felon. found true a multiple-murder special-circumstance Code, 190.2, (Pen. allegation. (a)(3).)1 subd. At the it fixed penalty phase, § his sentence at death. The trial court sentenced him This accordingly. appeal (§ (b).) automatic. subd. We affirm the its in judgment entirety.
1All further unspecified statutory references are the Penal Code.
I. Statement of Facts A. The Prosecution’s Case 8, 1986, and his at girlfriend the hours of December defendant
In morning time, Lewis, home down the front door of Barbara Mabrey’s the Rita broke Oakland, as in various rooms. and killed six were they sleeping in persons of Barbara 16-year-old dead Dellane the Among Mabrey, daughter the were defendant, and Darnell Barbara Mabrey, and lover of Sean Mabrey former sons, and her Catherine Walker 22-year-old and Mabrey’s 21-year-old Miller, son, Dellane and Morgan, Mabrey and Valencia Dwayne 4-year-old survived the attack: Bar- daughter. Four Morgan’s 2-year-old people Leslie door; avoided the back her son Stacey Mabrey bara Mabrey through escaped closet; in the in a Leslie shot Morgan, though detection bedroom by hiding door; arm, Dexter and the back and through death later escaped feigned child, the that one of bullets a nine-month-old was Mabrey, only grazed and killed his mother sister. in the head at close Sean had range. and had been shot
Dellane Valencia on the room couch. His in the chest and head while sleeping living been shot fatal, had Darnell also been Mabrey aorta. puncturing wounds were Miller Dwayne in head Catherine Walker and shot while fatally sleeping. too, had while both been They, on the sofa in den. had been shot sleeping in the head at close while range asleep. shot with each other had serious difficulties Mabreys
Defendant and had met defendant Mabrey early Barbara shooting. few months before Dellane, defendant and said dating daughter, Her 1986. had an Barbara and defendant father. Around September
was Dexter’s Dellane, him On October stay Barbara telling away. over argument born, into the house Dexter was defendant broke after shortly her Valencia daughter from Barbara. Dellane and took Dexter away gunpoint days. for three gone with defendant were went store, later, defendant drove Barbara was going up A when days few “Bitch, window, are dead.” He you her at her from car yelling and spat home, car to flee with his as she tried her in the knee striking followed her later he told one Barbara’s as he did it. A day her home and laughing into *20 she is a “dead and to tell Barbara that to out of his business stay friends 20, 1986, a her at again neighborhood he confronted bitch.” On October her, market, at he knocked her face. After cursing a into her throwing liquid the He ground. escaped as she was on kicked her several times down and his motorcycle. the from police 29, 1986,
On October defendant entered the about Mabrey house 3:00 Dellane, a friend named Leslie and Kenny Morgan a.m. with and confronted Barbara, the her latter the face. He the pointed pistol telling slapping not to near him and that she “better not to court and get saying testify go her, him or his or else were to “take care of’ and against they going people” that she would killed arms first then be her off her slowly, shooting legs. leave, He also ordered Leslie to to him flee in his under- Morgan forcing wear. He .45-caliber the floor as he pointed towards left Dellane’s pistol He room. told Darnell “don’t do he the Mabrey as anything” pointed gun Darnell’s direction. He left residence. incident,
Defendant was arrested the October 29th and wrote Barbara a letter from that jail she He requesting drop charges. eventually released on bail. Dellane, Darnell, Sean, Dexter,
While at home with Valencia and Stacey, 6, 1986, Barbara received visit from defendant on December who apolo- her, to gized Barbara did not although He came accept over apology. and, with his two bull which had in the pit been puppies, placed yard, when he Darnell, discovered one of them to be missing, began angrily accusing Sean (who and Steve house) was also at the Early taking puppy. he had taken the Denying dog, left in his car with Early defendant close behind. As he defendant left told those had find present they better his dog or all would be dead. they Defendant then shot back through Early’s window, all the while stole saying, “you my dogs, motherfucker.” He you said, also as he was that leaving, they had better find his or would dog they all be dead. next
Early day, on December Rita Lewis went house, court, the Mabrey asking Barbara not to against him in testify where she was scheduled to on December He 9. also talked about appear Barbara’s involvement in Later that car taking dogs. evening, Stacey’s defendant, was hit a car by driven Vanessa A car Walker. Dolores Walker, men, Henderson, and two “Billy Kid” and William drove up the scene. Defendant out car with a in his hand and got pistol car, friend He Dolores pistol-whipped Stacey’s Perry. kicked out of the something about a saying dog. Barbara heard him Stone City say “you niggers”—referring to the Stonehurst area get of Oakland—“better my dog or die.” he somebody’s Later told Dolores Walker going that “its [sic] to be going some bullshit tonight.” 8, 1986,
In the hours of early morning December defendant returned house. Barbara and Leslie Mabrey Stacey, all identified defendant Morgan as the shooter that all morning. identified Lewis as his They accomplice. *21 in an Uzi carbine his to this defendant was
According testimony, carrying went to Stacey and Lewis was a .38-caliber revolver. holding Mabrey hand as him the room room and hid near the closet defendant looked past Chuck,” brother, asked, who normally “where’s Stacey’s younger slept and leave, Lewis to by the room. heard several more shots. Stacey Urged house, left on to and another holding and Lewis limping into car. who him a person helped “no, woke and heard Dellane screaming,
Barbara also up gunshots Moochie,[2] and defendant to gun telling don’t.” She saw Lewis a pointing Barbara heard more out had a in her hands and Lewis get way. pistol out of the house rear. by before she gunfire escaped at close as he shot range Leslie testified that defendant stood Morgan Dellane, He in the “this is for bitch.” also shot Valencia head. you, saying, him, his Uzi to him and with knocking ground. Leslie grabbed struggled as After defendant Leslie in the shoulder they struggled. Rita Lewis shot in the arm and Leslie dead. found his he shot Leslie twice more gun, played however, did, Dellane’s and heard an- body Leslie see defendant straddle other gunshot. residence 2116 103d Jermany’s
Defendant and Lewis went Beverly murders, Defendant, about 5:00 a.m. Avenue in Oakland after the shortly and on the could not Jermany’s, porch was a second cousin was lying who told that she semiconscious. Lewis Jermany He was in and pain only walk. a asked pillowcase. Jermany had shot him. She was carrying accidentally she it did not. She took the drugs it contained and said Lewis whether return it. notified the eventually outside and did not Jermany pillowcase house, at her and he and Lewis were apprehended. that defendant was police in the backyard The were found in murder weapons pillowcase Uzi, and an a Smith and Wesson .357 handgun house. There was Jermany’s and capacity The Uzi had a twenty-five-round a .38-caliber Taurus revolver. the magazine. in the chamber and four rounds in loaded with one round live rounds and three was loaded contained three The .357 handgun two live rounds and .38-caliber revolver was loaded with rounds. The spent fired at the murder scene was One recovered slug four cartridges. expended could have been fired Other bullet fragments from Smith and Wesson .357. or a Taurus. either a Smith Wesson on tennis Blood found was recovered from clothing fireplace. Burned blood. Morgan’s matched Leslie from 2116 103d Avenue shoes recovered defendant’s nickname. 2“Moochie” was
One of the tennis could made a shoe on shoes have found Barbara print front door. Mabrey’s
B. The Defense The defense was by characterized trial counsel and differing strategies by defendant. Defendant was the first for the by witness defense. the Taking recess, stand without a and he over defense counsel’s that wanted protest ask, time to find with him to out what defendant speak testified questions he did not the generally commit murders. He declined to answer him, about who shot and questions had testified that he was shot in the leg store, and an between 5:00 a.m. in incident at midnight rather Scotty’s liquor than at Barbara home. Defendant claimed that he Mabrey’s had nothing 8, 1986, do with the at the shooting house of December morning and never threatened He any had to his house Mabreys. gone cousin’s after wounded because he there being believed be for his might warrants arrest related to other matters. He also testified he a that was victim of mistaken and that it identity, must have been some other “Moochie” who had com- mitted the murders. counsel, hand,
The thrust defense trial on the other presented by was that defendant’s mental from and impairment drug alcohol intoxication at the time he committed murders was such that he lacked the premedi- tation deliberation for a A necessary degree first murder conviction. urine screen and had qualitative blood been on analysis performed blood 8, drawn from defendant on December 1986. Defendant had alcohol in his blood, and heroin, cocaine and a morphine, metabolite of in his A urine. alcohol, never quantitative analysis was performed, so exact amounts heroin, and cocaine defendant had consumed could not be estimated. Dr. Paul Herrmann explained effects that these substances can generally heroin, have on central nervous Alcohol and both system. depressants, cocaine, stimulant, combination, whether or consumed separately can have a deleterious effect on motor skills and mental functioning, even low levels. to the very Testimony same effect was Dr. Fred provided Rosenthal, who also listed anas additional factor sleep deprivation affecting coherent thought processing. Trial counsel also a number of presented witnesses acquainted of demonstrat- apparent purpose that he tended ing to act impulsively.
C. Phase Penalty
1. Prosecution Evidence in Aggravation The prosecution introduced evidence that defendant had been convicted three felonies: assault with a in violation of section prior deadly weapon, 8, 1981; in violation (a), May receiving subdivision stolen property, 5, 1981; in violation and assault on officer
of section on August police (c), on of section subdivision 1983. April conduct was also uncharged a number of instances of violent Evidence of *23 1973, hit a counselor in hall in October defendant introduced. While juvenile the He had facility. just as he was to run from away and on him trying spit a from one of the to camps down for brought been disciplinary problems more facility. secure
Defendant, a a into discharged shotgun Faye when he was juvenile, 26, had been on December The McPhersons McPherson’s residence 1975. had with any his and had not years previously problems neighbors her child’s crib. him. The blast walls above damaged 1979, 20, chase involved in a with high-speed On March was his officers. When the finally stopped several San Francisco police police ensued, and off and a with defendant struggle punching he motorcycle, got clenched fists and kicked the officers. He hit one the officers with kicking with his motorcycle, He also tried to run over another officer him as well. out the way. within three to five feet before officer jumped getting 20, 1979, Officer Rose- On defendant assaulted Oakland Police December at the station she was at the warrant division mary working Dixon while house; a assault. suffered as result injuries she serious 21, T., lover, May a and sodomized Jaunell former
Defendant raped 1980. 22, 1985, defendant got in maximum January security custody,
On while ordered and a another inmate. He did not when stop fighting into with fight had to be subdued with Mace. eventually 1985, 12, they being another inmate while were
On he with July fought from court. transported jail case, 16, 1987, defendant refused for this
On December while custody officers. He at one of correctional to court and started go swinging of the head. He a blow the side Charles Utvick glancing gave Deputy to kill him or that he going Mark Johnson was made a statement Deputy taken care of killed, the rest the deputies and that he would have have him as well. defendant was incarcerated while
Several instances of violent behavior in a visiting while introduced. On December state were prison room, wife, West, he the neck and threw her grabbed Terry by against On wall. defendant struck correctional officer in the February 24, 1982, On June he on Correctional Steven D. Lawrence jaw. spit Captain after several times Lawrence meted out a loss of 30-day following privilege he cell hearing. Shortly thereafter when back to his from disciplinary got he threw some fecal matter at Correctional Officer disciplinary hearing Gowin, Wade in the He Roy hitting Gowin face. then started Gowin hitting officer, and another the handcuffs Gowin swinging during struggle. struck twice the handcuffs medical during struggle required treatment for the cuts on his forehead and Defendant also bit him. eyebrow. 25, 1982,
On while in defendant struck a September jail, sheriff deputy the face with a closed fist. After the defendant in the face deputy sprayed Mace, the defendant hit the in the face with his fists. The deputy again ribs, suffered lacerations of his chin and left deputy several cracked eye *24 and lost time from work for about two weeks.
2. Evidence Mitigation Defense Defendant told the trial court that he did not want to on put any mitigating evidence. had, Over his trial counsel indicated that he and protest, would put on, two witnesses to mitigation show defendant was under the influence of extreme mental time or emotional disturbance at the of the murders and that he lacked the ability of his conduct or to appreciate criminality conform his conduct law as result of mental disease requirements defect, or Pierce, or the effects of intoxication. Dr. William D. a clinical Benson, Jr., and Samuel psychologist, testified in psychiatrist, mitigation. Defendant did not.
Dr. records, records, Pierce reviewed defendant’s school court juvenile records, adult criminal and history records relating to murders. He that defendant opined time, was ill and had mentally been so for a long disorder, from suffering delusional paranoid substance abuse psychoactive disorder, disorder, paranoid and an schizophrenia, impulsive personality organic of an personality syndrome His delusional explosive type. paranoid disorder was of a His mental persecutory started as as type. problems early and kindergarten, were characterized uncontrolled by behavior. Defendant disorders, never received treatment for any his either in or outside of mistrust, His custody. behavior was characterized and the by paranoia, Alcohol, to control inability aggressive out. cocaine and acting heroin abuse effects, intensified these further his to control his reducing ability impulses and behavior. His condition was chronic.
Dr. Benson that defendant was mental similarly opined suffering from a defect and from a mental illness time of the commission of the included an intermittent explosive
murders. His basic which problems, disorder, disorder, delusional organic persecutory personality personality disorder, delirium, by and cocaine-induced were intoxication. aggravated courtroom, in the and “the Defendant and delusional perceived was paranoid Dr. Pierce ... as attorney, attorneys, being district his Judge, [and] him.” against Competency Self-representation Issues
II.
A. Marsden Motions a Marsden
Defendant had first counsel removed after appointed P.2d motion. v. Marsden Cal.3d 118 Cal.Rptr. (People and dur- Defendant made several Marsden motions before subsequent trial. He also on several occasions ing informally expressed displeasure He that “while the his counsel and asked substitution. states appeal does indicate a record Marsden motion not itself any specific particular defendant, the of the trial reveals conflict between counsel and record entire in a an the defendant and his counsel resulting essential conflict between of the .... At the heart attorney-client breakdown complete relationship to be the conflict a fundamental as to defense disagreement pre- above, a defense of actual innocence sented.” As noted defendant wanted the defense that defendant mistaken whereas counsel identity, pursued *25 alcohol, and and acted in under the influence of drugs impulsively, part and lacked deliberation. premeditation “1 assistance of counsel right
Under Sixth Amendment to “[a] record attorney] defendant entitled to another if the is appointed [substitute not that first is clearly attorney providing adequate shows appointed or defendant counsel have become em and representation [citation] in conflict is representation broiled such an irreconcilable that ineffective ’ ” 786, (1995) 11 Cal.4th 857 (People to v. Memro likely result.” [47 “ 1 219, Furthermore, a defend (Memro).) P.2d “When 905 Cal.Rptr.2d 1305] and and ant counsel substitute another attorney, seeks to discharge appointed trial must the defendant to asserts court permit inadequate representation, to of the of his contention and relate instances the basis specific explain ’ ” court’s rul (Ibid.) “We review the attorney’s inadequate performance.” (Ibid.) for an abuse of discretion.” ings a defense of his own
A does not have the right defendant present (See defense. to an choosing, adequate competent but merely right 701, 1142, 774 (1989) v. Hamilton 48 Cal.3d 1162 People Cal.Rptr. [259 attorney between defendant and his 730].) P.2d Tactical disagreements
729 an “irreconcilable conflict.” “When a defend- do not themselves constitute counsel, that ant chooses to be counsel by professional represented for and can make all but a few fundamental decisions ‘captain ship’ 312, Cal.4th (1997) the defendant.” 15 376 (People Carpenter v. [63 1, 708].) P.2d 935 Cal.Rptr.2d decided, case,
In the trial counsel of the overwhelm- light present on the of his for the six against guilt evidence defendant ing question “ murders, to lack ‘was argue likely Counsel premeditation. trying his enhance with the his client’s credibility jury by conceding guilt [all but] offense of evidence his of the which the and to focus overwhelming, ” (Memro, on the weakest link the state’s at supra, efforts case’ 11 Cal.4th 858). That tactical was not choice ineffective on counsel’s p. representation Defendant does court not assert that the trial failed to part. appeal permit Nor, him his motions. our adequate Marsden from opportunity present record, of the review is there evidence that lacked or counsel diligence in other We conclude that the trial court did competence not abuse respects. its discretion in defendant’s various Marsden motions. denying Denial
B. Faretta Motion
A criminal has a right himself at trial under represent (Faretta Sixth Amendment to the United States Constitution. v. Califor 2525, 422 (1975) nia U.S. S.Ct. (Faretta); 806 45 L.Ed.2d People [95 562] 1, 84, (1997) v. Marshall 15 Cal.4th 20 P.2d Cal.Rptr.2d [61 262] (Marshall).) A trial court must grant defendant’s request self-represen First, three tation if conditions are met. the defendant must be mentally and must make his competent, request intelligently, having knowingly (Faretta, been of the at apprised dangers self-representation. supra, p. 2541]; (1990) S.Ct. Cal.3d People Gallego [95 169]; 802 P.2d People v. Bloom 48 Cal.3d Cal.Rptr. Second,
1224-1225 774 P.2d he must make Cal.Rptr. *26 2541]; (Faretta, unequivocally. at 835 S.Ct. at request supra, p. p. [95 41, 554, v. (1992) Clark 3 People Cal.4th 98 833 P.2d Cal.Rptr.2d 561] [10 Third, (Clark).) he must his a make within reasonable time before request 20-21; Clark, 98; (Marshall, trial. at v. supra, pp. supra, People 121, 8, (1977) 1187].) Windham Cal.3d 560 P.2d Cal.Rptr. [137 168, (McKaskle (1984) Faretta error is reversible se. v. 465 U.S. per Wiggins 950, (McKaskle); fn. 8 S.Ct. 79 L.Ed.2d People 122] 34 Cal.3d 671 P.2d Joseph Cal.Rptr. 3, 1988, made a to
Defendant motion himself on October represent some three and one-half the start The months before selection. matter was jury Golde, trial on Stanley
continued and came before the eventually judge, 9, 1988, defendant a Faretta The November when was given questionnaire. 16, 1988, to Dr. Statten Joseph pursuant trial court November appointed issue of Code 730 to evaluate defendant on the sole Evidence section his to right he had the mental to waive constitutional capacity “whether a of the risks and of his counsel with realization probable consequences that he refuse to to Dr. Statten and speak action.” Defendant indicated would did to him. not apparently speak 21, 1988, the denied motion to
On November trial court defendant’s ruling extensive in of its and findings himself. It made oral support represent The court several the motion. trial initially offered reasons denying stated: has to the defendant has the
“The the Court decide is whether question with a realization mental to waive constitutional counsel capacity right of his of the risks and the action. probable consequences “The must further be deemed some minimal ability embody to waive If such defense. unable to a ability present competent present personal, defense, lack to stand trial without effective would capacity find finds and this court does benefit of counsel even court though standing he is trial. actually capable Court that the defendant is not mentally competent
“This determines reasons: The counsel and himself for represent following waive [H] in realistic defendant’s mental condition the Court’s opinion precludes HQ counsel. Mr. of the need for assistance and risk waiving assessment .[3] . to the . judicial system. between the alleges Welch conspiracy parties finds in court “The Court—defendant further the Court engaged disrup- and and interferes tion. The defendant verbal engages interrupts displays “In the matter heard before support finding, explained; 3In of this the trial court [Marsden] just I’ve a few acts. Judge Ballachey, alleges conspiracy, proceedings. he listed these HQ Court, acting been counsel have prosecution, [his] 3rd ... On October [he claimed] County] Bar October 3rd ... claimed] [Alameda in collusion each other. HQ [he [him], being conspiracy. in a representing from involved disqualified Association should be counsel. 4th . . an accusation of back-room discussion between HQ October . there’s HQ attorneys acting with the in collusion [of] 4th . . . Mr. Welch accuses defense October Further, Attorney’s alleges proceedings in the before . ... he [Marsden] District Office HQ alleges .. . Pulich—again, couple examples. November 8th Judge just [he] HQ court-appointed Attorney, department, and judge, police the District conspiracy between the alleges ... he police. . . . November 8th lawyers as well as the Public Defender HQ *27 [,«c] .. by department. November 8th . falsified the sheriff’s the ballistic materials was HQ by placing monitoring psychologists the interviews with alleges jail the officials were he room.” listening throughout devices with the conduct of the courtroom He constantly proceedings. interrupts court and counsel.” determination,
In connection that with the trial court relied not on the only it, that had preliminary proceedings been conducted before but also on defendant’s conduct in the two Marsden-related before two other hearings ante.) (See fn. judges. The trial court noted that in its presence, accused the bailiff of his with asked the court to tampering legal papers, interest, have his sit in the box due attorneys jury to a conflict of reluctant to to the court’s while respond questions that his civil repeating abused, were rights being Faretta on the interrupted proceedings motion the court and requesting various individuals be served with a civil in a federal complaint matter. defendant’s
Despite in the repeated interruptions course of the court’s of this rendering its the court part findings, further that defend- explained ant had in court previous in appearances engaged dis- disruptive physical motions, made plays, nonsensical and stated his own to inability in appear breakdown, court due to stress or mental as well as his to inability proceed. that, The court noted defendant’s been despite having to granted right himself represent assault prior proceeding subse- involving charges, case, quently during jury voir dire in that defendant had requested reappointment his attorneys because he had not allegedly adequately understood “the that would be problems incident to himself and representing realized it is that he have imperative to competent attorney him.” A represent mistrial resulted in those prior and a retrial proceedings, was set to trail the trial of the present capital proceedings. case,
In the present defendant, after further interruptions by the trial court continued as follows: “I find Mr. Welch is a defendant who does not appreciate and, therefore, extent of his own cannot disability be fully aware of the risk of I find the self-representation. of Mr. disability Welch significantly impairs to function capacity in a courtroom. I further fl[] find that one of the defendant’s reasons he wishes to dispense [his] defense is a attorney distrust paranoid of everyone connected with the judicial system. This is further evidence to this court that he lacks the mental capacity truly Further, waive his right to counsel. the defendant’s [^] history if not improper irrational behavior in in the courtroom in speaking the Marsden hearing, 995 further hearing indicates doubt to this Court that he has the mental Further, indicated, waive counsel. capacity as I have case case], presently trailing when capital [the given opportunity continue, be his own he could not attorney, asked for counsel.” After defendant interposed counsel request advisory pursuant Faretta, the trial court denied the “You request, concluding: have failed in
732 death and I have decided that a defendant the your showing, facing potential the assistance of counsel. You do not have the sentence requires competent mental to are capacity your attorneys.” waive. [Defense counsel] that,
Defendant contends found defendant to having competent trial, the erred in him standard of stand trial court a upon higher imposing to the assistance counsel. As the States Su- waive of United competence clear, are the Court has made the two standards of same. competence preme 389, 2680, (Godinez (1993) v. 2687- Moran 509 U.S. 400-401 S.Ct. [113 Godinez, 2688, the (Godinez).)- 125 L.Ed.2d In court the rejected 321] “that his the assistance of right a defendant who waives to proposition not, be since there counsel must more than a defendant who does competent reason to that the to waive counsel an is no believe decision requires level of mental than the decision to waive higher functioning appreciably (Id. 2686.) at S.Ct. at The high other constitutional 399 rights.” p. [113 “A a court further clarified that defendant is to by stating: finding competent trial, however, all that before be stand is not is he necessary may permitted or to to counsel. In addition to that guilty right determining waive plead a a defendant who to or waive counsel is trial seeks plead guilty competent, rights court must itself that the of his constitutional is waiver satisfy and this sense there knowing ‘heightened’ In voluntary. [Citations.] counsel, and for to but it is not right standard for the pleading guilty waiving at (Id. standard of 400-401 S.Ct. heightened competence.” pp. pp. [113 2687-2688], omitted.)4 fn. the Accordingly, & italics pursuant equivalent to the assistance of right standards mental waive competence trial, Godinez, the herein counsel and to stand as set forth in trial court erred that a counsel in its determination standard to waive higher competence that and defendant had not met that standard. higher applied it relied The trial court’s determination set forth above reveals that upon the circumstance defendant was not an adequate competent present 1988, yet been ruling 4At the time the court made its had not decided. Godinez trial enactments, retroactively. statutory judicial generally applied ... are “Unlike decisions may require But fairness that a decision be public policy considerations [Citation.] relevant to the given only prospective application. Particular considerations [Citations.] retroactivity parties’ reliance on the former determination include reasonableness rule, retroactivity’s effect on change procedural, nature of as substantive or (Woods justice, the new purposes administration of and the be served rule. [Citations.]” 613, law, 315, 455].) Young (1991) criminal 53 807 P.2d In the Cal.Rptr. v. Cal.3d 330 ordinarily be tested on under the law then similarly, appeal the rule is that “convictions should (People v. Charles (1967) at the 66 Cal.2d prevailing not time of trial.” applicable, law 385, 745, 545]; People (1984) v. Guerra 37 Cal.3d Cal.Rptr. 425 P.2d see 335 [57 applied We have decision Godinez Cal.Rptr. previously P.2d (see People Cal.Rptr.2d retroactively 15 Cal.4th 1363-1364 [65 Bradford 259]) the present P.2d do so in case. *29 to the of right and therefore not to waive his assistance competent defense and his did not waive to such knowingly intelligently right counsel—or Faretta, 422 at 835 S.Ct. at supra, assistance. In U.S. page page [95 2541], the a defendant need not himself have “Although court stated: high and in and to lawyer the skill of a order experience intelligently competently of the and he should be made aware dangers choose self-representation, ‘he of so that the record will establish that disadvantages self-representation, he his what is and choice is made doing eyes open.’ knows with [Citation.]” that decisions to the It is several trial court’s apparent contemporaneous and considered it concluded that Faretta had not eliminated the ruling by evaluation the of a to or ability of defendant himself required represent on the that such an theory herself—either evaluation was under properly counsel, in taken the defendant’s to waive in assessing or competence the assessing and nature of defendant’s waiver of coun knowing intelligent 1314, (See, (1987) sel. v. Burnett 188 1324-1325 e.g., People Cal.App.3d the rule in v. Moore U.S. Cal.Rptr. [concluding Massey 348 [234 67] 147, 135], 108 S.Ct. L.Ed. 99 that to waive competence [75 defense, includes the to counsel an ability present elementary survives Faretta', also existence the of “a threshold of to declaring competence a defense one below which cannot realize the risk of present genuinely doing so,” and further does not the declaring who appreciate “[a] defendant his extent own be disability fully cannot aware risk self-represen tation where the significantly disability impairs capacity his to function (italics added)]; courtroom” People (1990) 220 Monago Cal.App.3d 986-988 the Burnett standards in Cal.Rptr. [applying [269 the context 819] motion, of a Faretta to conclude that an undereducated and inarticulate lacked the minimal ability necessary self-representation].) Godinez, As the United States Court further clarified in Supreme however, the trial court not ascertain may a defendant’s competence counsel evaluating waive himself or by ability herself. represent (Godinez, 2686-2687].) 509 U.S. at at In supra, pp. 399-400 S.Ct. pp. [113 the difference between the and waiver explaining competence requirements, court stated: “The focus of a is the defendant’s high inquiry competency mental ability whether he has the to understand capacity; question The of the and proceedings. purpose ‘knowing voluntary’ inquiry, [Citation.] contrast, is to whether determine the defendant does understand by actually and of a decision and significance whether consequences particular decision is uncoerced. Faretta v. California, supra, See at [page] [422 U.S.] (defendant S.Ct. at counsel must be ‘made page waiving 2541] [95 of the aware so that dangers disadvantages self-representation, record will establish doing that “he knows what he is his choice is made ’)...; [238,] eyes Boykin [(1989)] v. Alabama U.S. open” 1709, 1712-1713, must (defendant 23 L.Ed.2d pleading guilty S.Ct. 274] its conse ‘a full of what the connotes and of understanding
have plea (Godinez, fn. 12 509 U.S. at S.Ct. supra, pp. quence’).” 2687-2688].)5 forbids to measure “explicitly any attempt Godinez evaluating defendant’s to waive the counsel right competency 516, 518.) 1994) (U.S. (9th himself.” v. Arlt Cir. 41 F.3d ability represent examine, of the of those offered in When we clarification standards light Godinez, the reliance the standard that defendant must trial court’s upon *30 to himself in order to be that some minimal ability represent granted possess it is that the trial court erred in this as well. right, apparent respect Nonetheless, trial court based the additional ruling ground the its upon that relied that defendant Defendant the trial court suggests was disruptive. its on the Faretta defendant’s behavior disruptive following ruling upon motion, and trial court’s that defendant conjecture might mere upon clear, however, relied to be It is that trial court also continue disruptive. dis- the circumstance that defendant had been extensively repeatedly upon hearings the course of Faretta during during ruptive proceedings motions in case. prior present itself that a trial terminate
Faretta warned court “may self-representation in serious and mis deliberately a defendant who obstructionist by engages 834-835, (Faretta, 422 U.S. fn. at conduct.” at 46 S.Ct. supra, p. pp. [95 2541].) We the same rule to the of a motion for assume denial applies to a conduct in the first instance when defendant’s prior self-representation believing Faretta the trial court a reasonable basis for motion gives create “The right self-repre his will self-representation disruption. abuse of the Neither is it sentation is not a license to courtroom. dignity not to relevant rules of and substantive a license comply procedural McKaskle, in 465 (Ibid.) law.” The court reiterated this high point supra, Amendment has a to conduct his U.S. “an accused Sixth noting right defense, that he his forgoes own only knowingly intelligently provided to counsel he is able and to abide rules willing procedure and that right added.) 948], at (Id. at 173 S.Ct. italics protocol.” p. p. and courtroom [104 A to the of the courtroom. functioning This rule is critical viable obviously himself, therefore defendant who and who constantly represents disruptive trial as a disrup be from the sanction proceedings against cannot removed tion, to to a have the his trial standstill. bring would capacity Godinez, 2688], the court supra, page 13 S.Ct. at page 5In U.S. at footnote [113 509 course, required competency a suggest, of that a court is to make “We do not mean to stated: right guilty to every plead in a defendant seeks to or to waive determination case which case, a court necessary only when any competency determination counsel. As criminal competence. to doubt the defendant’s [Citations.]” has reason Thus, trial court must undertake the task of whether a deciding disobedient, defendant is and will remain so disre- disruptive, obstreperous, or obstructionist in his or her actions or words to as spectful preclude exercise of the The trial court much right self-representation. possesses discretion when it comes to a defendant’s terminating right self-represen- tation and the of that exercise discretion “will not be disturbed in the absence of a of clear abuse.” strong showing v. Davis (People Cal.App.3d Clark, 859]; see also 3 Cal.4th at supra, Cal.Rptr. deference]; to revoke status entitled to self-representation [decision McKaskle, 177-178, 465 U.S. at fn. 8 supra, S.Ct. pp. pp. 950-951] for “the usual deference” to the trial when these [calling judge making calls”].) We no see reason not to use the same deference when it “judgment comes whether a defendant’s motion for deciding self-representation should be in the first instance. granted case, we conclude that the
Turning present trial court did not abuse its discretion in denying defendant’s Faretta motion based on the *31 behavior he had exhibited in the courtroom disruptive to that prior making motion. A of the review record of to pretrial proceedings prior deciding Faretta motion does indeed reveal a number of instances in which defendant He engaged behavior: denied a disruptive belligerently awareness of calendar date that was set in his he turned his back on the trial presence; it; court when he the trial addressing court several times to interrupted argue what court had declared to be a nonmeritorious he accused the point; him; court of he misleading refused to the court allow to and he speak refused several times to follow the court’s admonishment of silence. We are also aware that the extent aof defendant’s behavior not be disruptive may record, evident fully from the cold and that one reason for according deference to the trial court is that it is in the best to position judge defendant’s demeanor. Thus while no one of the above incidents single may have been sufficient itself to warrant a denial by of the of self- right taken representation, amount to a reasonable together they basis for the trial court’s conclusion that defendant could not or would not conform his conduct to the rules of and courtroom procedure and that his protocol, would be self-representation We therefore conclude unacceptably disruptive. that the trial court did not abuse its discretion in the Faretta denying motion.6 6The suggested denying trial court also an additional reason for the Faretta motion. In a one, trailing case that was the present charged burglary, in which defendant was
preventing dissuading testifying, likely or a witness from and produce assault with force to great bodily injury, initially requested granted right he had and had been represent to himself, subsequently self-representation jury but from after the panel withdrew had been sworn, causing delay in the trial. The trial court cited this incident in his denial of the Faretta error in
Defendant that the court committed also contends trial prejudicial defendant, although repre- a authorizing arrangement, whereby “hybrid” counsel, morn- to motions se each Friday sented was allowed make by pro not He cites our that a court should a defendant admonition trial ing. permit “ . that in the as cocounsel ‘on a substantial . . except showing participate the cause and that thereby circumstances of the case will be served justice and conduct not thereby of the court’s business will orderly expeditious ” Hamilton, hindered, be or v. substantially hampered, delayed.’ (People 1162.) 48 Cal.3d at Defendant claims the court abused its discretion supra, p. him time to his own But defendant in this case motions. by allowing argue these show he such an since does not how was prejudiced by arrangement, occurred outside the of the arguments presence jury. true, out, different
It is as defendant that he sought points present therefore, testimony defense than his counsel defendant’s theory the case of the trial have been inconsistent with guilt during may phase But not caused inconsistency by trial counsel such sought prepare. A does not chosen trial court. defendant who hybrid arrangement under for does not self-representation right Faretta have qualify Hamilton, (See 48 Cal.3d at dictate to his counsel. strategy People supra, 1162.) between we conclude that the conflict Accordingly, persistent defendant’s reversing his trial counsel not basis conviction.
C. Trial Failure to Declare a Doubt About Court’s Defendant’s Competence *32 the that substantial before
Defendant contends there was evidence trial, therefore trial court he was not to stand and that indicating competent to his to declaring the trial court erred in not a doubt as pursuant competence that the (a). Defendant asserts evidence presented section subdivision the led determine that to the trial court in the context of Faretta it to hearing that, counsel, having was to to and right defendant not waive competent determination, as to that the court have declared a doubt made should have to hearing defendant’s to stand trial and should ordered competence 1368. determine his to section pursuant competence above, found trial As reflected in the record described court expressly the. nonetheless, that, the trial. defendant to stand We do not competent agree the trial court’s that defendant was finding incompetent evidence supporting to the of counsel waive his assistance knowingly intelligently right to incident, itself, justify sufficient to motion. We need not and do not decide whether this is of a the denial Faretta motion. does, to, or must be deemed constitute substantial evidence that defendant trial, to stand or that the court’s to incompetent finding incompetence waive counsel as a matter of law must be equated finding to stand trial. incompetence
In
v. United
Dusky
States
Our state statute that a is provides person mentally to stand incompetent if, trial as a result of mental disorder or developmental disability, defendant is unable to understand the criminal nature of the or proceedings to assist counsel in the conduct of a defense in a (§ 1367.) rational manner. Our state statutes do not define separately to waive the assist- competence ance of counsel.
Section 1368 in relevant provides “(a) If . . . a doubt part arises in the mind defendant, trial as judge mental of the he competence or she shall state the doubt on the record and of the inquire attorney whether, defendant in the of the opinion attorney, mentally ... At the competent. of the defendant or his or her or request counsel motion, its own the court shall upon recess the ... proceedings permit counsel to confer with the defendant and to form an as to the mental opinion competence of the defendant at that point in time. [1] (b) If counsel informs *33 the court that he or she believes the defendant is or be may mentally the court shall order incompetent, that the of the defendant’s mental question is to be determined in a competence and even if hearing,” “counsel informs the court that he or she believes the defendant is the mentally competent, court nevertheless order a may hearing.” 80,
In (1982) v. People 32 Cal.3d 91-92 Stankewitz Cal.Rptr. [184 611, 578, 476], 648 P.2d 23 A.L.R.4th we observed that even section though
738 is of a doubt the the trial 1368 in terms whether arises in mind of phrased counsel, court in and is then confirmed defense as this judge by recognized 508, 374, (1967) 426 v. 66 Cal.2d 516-517 People Pennington Cal.Rptr. [58 942], accused of P.2d once the has come forward with substantial evidence trial, that a to stand due full incompetence requires competence process (Pate 375, (1966) be matter v. held as a of Robinson 383 U.S. hearing right. 836, event, 841-843, L.Ed.2d In that the trial 384-386 S.Ct. 15 [86 has no to Cal.2d Pennington, supra, discretion exercise. v. 66 judge (People noted, 518-519.) at also As we have substantial evidence of pp. incompe tence is sufficient to a full even if the evidence require competence hearing Stankewitz, 92-93.) in 32 at is conflict. v. Cal.3d We have (People supra, pp. concluded the evidence test is and a full that where substantial satisfied one, but the trial court fails hold hearing required competence (Ibid.) be must reversed. judgment defined has as reason
“Substantial evidence” been evidence raises a able doubt to stand v. (People defendant’s trial. concerning competence 894, 25, 183]; (1998) P.2d Frye 18 Cal.4th 959 951-952 Cal.Rptr.2d v. 527 P.2d Davis 10 Cal.4th People Cal.Rptr.2d 896 119].) In v. enunciated Pennington, Cal.2d we People supra, page would standards what constitute substantial evidence following regarding of to stand trial: “If a or incompetence psychiatrist qualified psychologist accused, [citation], had who has sufficient to examine states opportunity is, oath under with that in his the accused professional opinion particularity illness, because of of or nature understanding mental incapable purpose taken him or is against criminal proceedings being incapable counsel, or his defense with substantial-evidence assisting cooperating test is satisfied.” case,
In the neither defendant nor defense counsel present pre- sented substantial evidence of defendant’s to stand trial.7 incompetence court, Defendant that the trial reasons for giving contends nonetheless its fact, psychiatrist 7In that he to examine when the court informed defendant had ordered motion, prior ruling competence defendant on the in order to evaluate defendant’s Faretta counsel, objected, requesting that the court him with personally provide to waive defendant authorizing points the name of the Code section and and authorities such an evaluation Penal regard competence the court stated that it relied the issue of to waive counsel. When read, Burnett, supra, upon, People Cal.App.3d defendant advised (determination hearing on competent court that to waive counsel for trial evidence, psychiatric requiring was error sanity, restoration of made without benefit reversal), psychiatric asserted that such an order for a examination was defendant further competence personally trial. proceeding consistent with to stand Defendant a section ordering since inquired competence, of the its the examination court what basis was behavior,” “no been or and there was substantial evidence there had “no outbursts" “bizarre suggested counsel then justifying before the court” evaluation. Defense psychiatric
739 itself acknowledged for self-representation, defendant’s denying request that the evidence a facie of substantial showing requiring of prima presence to stand trial and proceed declare a doubt as to defendant’s competence court that the Defendant further contends to section 1368. to a hearing pursuant evidence, so, noted this substantial having trial court’s failure to do despite the trial Defendant relies specifically upon reversal of the judgment. requires of the judicial defendant’s distrust court’s findings regarding “paranoid beliefs in that regard and its related comments that defendant’s system” himself. disabled him from representing to court believed
Viewed in of the standard that the trial light applicable could and intelli- knowingly, decision whether defendant competently, counsel, of it is evident that the trial court found waive assistance gently to distrust and to act to the dictates of contrary that defendant’s disposition to a to himself effectively. amounted judicial system disability represent The record is instances defendant’s demonstrating knowledge with replete case courtroom and other authority, legal procedure, aspects representa- tion. It is that the trial court did not defendant’s regard thorough- apparent of the as an indication that defendant lacked going system distrust judicial “ ‘a rational as well as factual of the understanding proceedings against “ ” him’ or ‘sufficient to consult with his with ability lawyer present ” States, (Dusky reasonable of rational v. United su- degree understanding’ Instead, 788]). at at 362 U.S. 402 S.Ct. the trial court viewed pra, p. p. [80 defendant’s words and actions as evidence that he would not be to willing or with the cooperate, compromise, negotiate system, participants the detriment of his legal representation.
In that substantial evidence existed of his mental asserting incapacity trial, stand defendant also relies expert testimony upon psychiatric at the his considerable describing defense presented by penalty phase the correctness of the court’s mental We review problems. trial made, however, at the time it and not reference to evidence ruling was (1984) 37 (See at a later date. v. Turner Cal.3d People produced 669]; P.2d v. People Greenberger Cal.Rptr. trial court did not have this The Cal.App.4th Cal.Rptr.2d motion, it at time its the Faretta indeed ruling evidence before because, did not have evidence at that time any having requested expert himself, defendant refused to psychiatrist appointed represent speak determine whether defendant capable self-representation. on the Faretta “looking following ruling motion. have stated that a at” section We hearing merely counsel’s required competence upon court is not to order a based trial Frye, (People supra, may incompetent. be 18 Cal.4th perception that his or her client 953.) *35 740 considerations, conclude that the trial
In view of these we not may at the hearing court’s review of the evidence of defendant’s competence the Faretta motion revealed substantial evidence of present incompetence a doubt as to on behalf of the court to declare would trigger duty trial, to stand and to institute defendant’s competence proceed- competence Thus, declare a the trial court not to under section 1368. ings required this basis defendant’s to stand trial. doubt on as to competence above, trial
As we have determined that the although described failure, in substantial of incompetence court’s in a case which evidence to stand trial subjects to declare a doubt as to the defendant’s ability appears, reversal, on an ac- to the evidence doubt casting judgment “[w]hen . . a doubt as to only cused’s is less than substantial. sanity present where an abuse of be said to as a matter of law or where there is sanity may appear be disturbed on discretion the trial determination may judge’s appeal.” 518; Merkouris v. 66 Cal.2d at v. Pennington, supra, People (People p. 672, 1], P.2d on another in (1959) 52 Cal.2d 678-679 disapproved point [344 Therefore, 518.) next decide 66 Cal.2d at we Pennington, supra, v. People p. to matter of a doubt as to defendant’s be said sanity may appear whether as.a court, of defendant to law. If the trial in determining competence himself, to in effect declared a doubt as to defendant’s competence represent trial, as a matter of law. stand then doubt as to would exist sanity with, the trial court and ruled upon, It was in 1988 that was presented time, in this state held defendant’s Faretta motion. At that the decisional law is not to that mental to stand trial with equated competence competence Burnett, 188 supra, waive the assistance of counsel. v. (People Cal.App.3d trial is [“[Sjince the to stand determining 1321 standard competence p. counsel, to than the standard for waive determining lower competence stand trial that a has been found mentally fact person competent she is . . therefore does not mean he or necessarily assistance counsel . unassisted.”]; to trial to waive the to counsel right proceed competent 469, 703]; (1986) 180 482-483 Cal.Rptr. v. Powell People Cal.App.3d [225 853, 581]; (1985) 864 Cal.Rptr. v. Leever People Cal.App.3d [219 534, 643]; 541-543 see (1978) Zatko 80 Cal.App.3d Cal.Rptr. v. People (1992) 2 1361 Cal.Rptr.2d also v. People Cal.App.4th 825] Canfield counsel not necessarily higher the standard of to waive [finding competence from, than, “related but the standard distinguishable” compe- although (2d 1989) ed. trial]; Cal. Criminal Law tence to stand 5 Witkin Epstein, Trial, 3429; Hightower Cal.App.4th cf. People § Burnett, and other Canfield, Cal.Rptr.2d [disapproving 40] 1114-1116-[49 Godinez].) decisions in light 1993, Godinez, above, U.S. the high supra,
As explained clause, a defendant who that under the federal due process court clarified a defendant must than counsel need not be more competent wishes waive other It is rights. appropriate apply be to stand trial or to waive hold, in the discus- as we have preceding decision retroactively Godinez *36 court, motion, found defendant that the trial having of the Faretta sion trial, nonetheless that was determining to stand erred in competent (As of counsel. to his to the assistance right not waive sufficiently competent to above, of defendant’s motion the trial court’s denial discussed we uphold himself, so.) to do other than his grounds competence represent not, however, to decision retroactively also may apply We Godinez to the trial court found defendant waive incompetent conclude that because doubt, motion, had a or Faretta it also necessarily counsel in on the ruling doubt, to his to stand trial and should have should have had a as competence to section 1368. Two reasons conducted a hearing pursuant competence such holding. preclude
First, to do elevate the standard of mental to so in effect would capacity stand trial to the level of mental that the trial court higher obviously capacity himself. The believed for defendant to be to necessary represent permitted that to stand trial. trial court stated it found defendant specifically competent seen, As have the trial court’s discussion of defendant’s in competence we motion, the context of the Faretta relied defendant to establish upon trial, the court’s substantial evidence of to stand incompetence emphasizes determination that defendant was not an presenting adequate capable trial court erred in that defendant defense. Although requiring possess himself, order to be to some minimal in allowed legal ability represent our its in that error precludes equating findings regarding “competence” sense, to stand trial—because it is clear with findings regarding competence a standard of actual to oneself the trial court competence represent applied to stand trial. that was than that deemed higher necessary competence above, the court’s examination of defend- as trial Additionally, explained ant’s in the context of the Faretta motion it was suggests competence of the whether defendant had a “realization simultaneously examining prob- action,” is, “the able risks and of his that whether waiver consequences (Godinez, his constitutional rights knowing voluntary.” supra, findings U.S. at S.Ct. at Because the trial court’s p. factors, that the court was these additional its assessing clearly suggest him- ultimate determination that defendant was not competent represent and a set of factors than was self reflected a more standard wider demanding to stand trial. for the determination of defendant’s competence appropriate Second, to conclude decision simultaneously for us to apply Godinez standard of court erred in defendant an elevated that the trial imposing upon counsel, that the trial court erred to waive the assistance of competence to stand trial based to declare a doubt as to defendant’s failing competence its standard of would be to erroneously own elevated upon competence, error from a erroneous single derive two distinct conclusions of improperly determination. we not conclude as a matter of law that the trial may
Accordingly, court’s determination that defendant right waive incompetent determination be that a doubt assistance counsel must equated Thus, existed next consider as defendant’s to stand trial. we competence a doubt as whether the trial court abused its discretion in to declare declining trial, to defendant’s to stand of the evidence before it. light competence *37 When the evidence doubt on an accused’s casting compe present substantial, tence is less than rules following govern application section 1368. It is the discretion of the trial to order a within whether judge When the trial court’s declaration of a doubt is discre hearing. competence it a mere bizarre is clear “more is to raise doubt than tionary, required 236, (1964) .) actions v. 61 Cal.2d 243-244 . . or bizarre (People Kroeger 389, (1965) .) statements v. 235 . . or Williams 398 (People Cal.App.2d statements of defense counsel that defendant is incapable cooperating 101, (1959) .) his defense v. 175 108-109 . . or (People Dailey Cal.App.2d immature, that defendant is psychiatric testimony dangerous, psychopathic, to or homicidal or such with little reference to defendant’s diagnosis ability 572, [(1954)] 579).” assist in his own defense v. Jensen 43 Cal.2d (People (1967) Laudermilk Cal.2d 431 P.2d v. 285 (People Cal.Rptr. [61 case, 228].) In the the circumstances noted the court— by present that defendant and his counsel did not on which defense to agree employ, and that defendant had a distrust of the and had system paranoid judicial stated his counsel was in with the league suggesting prosecution—while trial, trial court ordered a to stand do not could have hearing competence so, establish that the trial court abused its discretion in to do failing justify reversal on that basis. ing reasons, that the court’s determination
For all of these we conclude trial to waive his knowingly intelligently that defendant was incompetent to the assistance of counsel not be with a determination may equated right to stand trial. We conclude that a doubt existed as to defendant’s competence that the trial court’s that defendant was findings determining incompetent of defendant’s to counsel do not constitute substantial evidence waive trial, under section 1368. We to stand mandating hearing incompetence did not abuse its discretion in not declaring also conclude that the trial court to stand trial. a doubt as to defendant’s competence that, ineffective his trial counsel rendered at this juncture, Defendant urges client’s of his to seek a determination failing of counsel assistance asserts he has received A defendant who to stand trial. competence both that “counsel’s repre of counsel must establish ineffective assistance and that standard of reasonableness” sentation fell below an objective (1984) (Strickland v. Washington as a result. defendant suffered prejudice 2064, 2067-2068, 668, 687-688, S.Ct. U.S. 693-694 case, determination of the L.Ed.2d In present prior motion, defense counsel referred to possibility pursuing Faretta court specifically to section 1368. The trial subsequently motion pursuant trial. In view of the to stand remarked that it found competent order a trial court not competence circumstances that the required be that his or her client may based counsel’s hearing merely perception upon 953), as 18 Cal.4th Frye, supra, to stand trial (People incompetent of defendant’s well as the absence of substantial evidence incompetence, to seek from the failure of his attorney defendant cannot establish prejudice a determination of defendant’s competence.
Defendant, 82-83 S.Ct. Ake v. Oklahoma 470 U.S. citing 1087, 1095-1096, assist- 84 L.Ed.2d that access psychiatric (requiring 53] a threshold that it will showing ance be defendants indigent provided upon issue), *38 be for an defense or that will be an insanity urges necessary adequate that the failure to offer evidence of defendant’s incompetence psychiatric denied him his assistance. As is right apparent, constitutional psychiatric defendant afforded access to assistance. was psychiatric Jury
III. Issues Selection/Venue A. Venue Motion Change of dire of
The defense moved for a of venue voir change prior due defend- to extensive prospective jurors, claiming pretrial publicity, In of ant would not be able to obtain a fair trial in Alameda County. support motion, Hubbert, it called B. a testified that a this Joie venue who specialist, individuals she had conducted disclosed that 65 of poll percent jury-eligible case, and that of those in Alameda had heard of County approximately of all had defendant 78 or about 50 those polled, prejudged percent, percent motion, denied the but left the possibility to be The trial court guilty. open The that it reconsider the motion after voir dire was completed. would court denied again the motion after voir dire and the trial defense8 renewed that the trial court erred. it. Defendant now contends attributing the actions of defense the usual convention of opinion, dispense 8In this we defendant, and his opinions the actions and of defendant counsel to the since in this case 744
A of must be defendant a change venue when the shows granted relief, reasonable that in trial cannot be likelihood the absence of such fair had. “Whether raised on for writ of mandate or on from a petition appeal conviction, of ‘the court must examine judgment reviewing independently ” the record and determine de novo whether a fair trial is or was obtainable.’ 468, 126, (1990) v. Cal.3d P.2d (People Douglas 788 Cal.Rptr. [268 640].) “The de novo standard of to our consideration of the review applies factors; offense; (2) (1) five relevant nature and of the nature and gravity (3) (4) extent of the media size of the coverage; community; community defendant; (5) status of the of the victim.” v. prominence (People Sully (1991) 163].) 53 Cal.3d 1236-1237 812 P.2d Cal.Rptr. case, these factors to the conclude that the we Applying present trial court did not err in of venue motion. The refusing grant change factor, offense, first the nature and of the does indeed in favor gravity weigh of the motion. The other factors do not. the media granting Although murders, was substantial at the time of the had coverage years two passed “ time that the made. venue motion was change ‘Through passage ” time, was reduced.’ any potential thereby significantly (People prejudice 1237.) Sully, 53 Cal.3d at Defendant was a resident of the supra, v. p. outsider, not an and there no racial crime community, motivation for the (See that would its nature. augment inflammatory People Williams addition, 48 Cal.3d 774 P.2d In Cal.Rptr. state, Alameda is the sixth in the “with County largest geographically diverse 53 Cal.3d at economically (Sully, supra, dispersed population” to San Mateo the eleventh most in the [referring County, populous state].)
The evidence most in favor of the weighing heavily venue change Hubbert’s that 62 of the had heard of testimony jury percent potential pool the case and 50 had But the guilty. percent prejudged import *39 that, this evidence is diminished the fact to by according jury questionnaires, (29 less than 10 of the actual in this case out of jurors percent prospective 294) that the only recollection the case. Defendant reported any argues to account for this results and between way discrepancy survey responses of the of the is that the members actual recollection case jury pool regarding of the case of the must have been their recollection jury underreporting pool and would have recalled it if their recollection had been refreshed. But based diverged. frequently rather than counsel frequently example, counsel so For defendant his testimony, misleading to state objections made to various remarks and and it would be object did not. We object” “defendant failed to when in fact defendant did but his counsel trial, generally personally to to or to defendant reserve the term “defendant” refer Otherwise, generally “the or “trial appellant appeal. as in this we will refer to defense” counsel” or “counsel.” record, The voir dire such an inference. we cannot draw on the present a as county large that in suggest: the above factors confirmed what process to obtain an unbiased jury it was feasible County, and as Alameda diverse received. We therefore the crime a fair trial publicity and despite pretrial the defense request not err in refusing grant the trial court did conclude a of venue. change Motion B. Wheeler/Batson Black, two Three of the were as were jurors
Defendant is Black.
its eleven
chal-
The
exercised three of
peremptory
alternates.
prosecution
a fourth
Black
jurors,
peremptory
to excuse
lenges
prospective
based on
The defense objected,
exclude a Black
alternate juror.
prospective
890, 583
(1978)
L.Ed.2d prosecution bias, to trial under in violation of defendant’s right jury basis group Constitution, I, of his the California right equal article section 16 of States of the under the Fourteenth Amendment to the United laws protection had made court stated that it did not believe defendant Constitution. The trial Wheeler, “if a facie case under but nonetheless invited prosecutor prima the reasons for excluding want to for the record” to you explain and at the end of his Black The jurors. obliged, prospective prosecutor bias showing the trial court ruled that no facie prima group explanation made, Defendant had been therefore motion. denying Wheeler/Batson claims the trial court erred. now ‘ Batson, believes his
“Under Wheeler and party opponent “[i]f bias to strike on the challenges jurors ground group using peremptory alone, and make a facie case he must raise the fashion timely prima point First, court. ... he should of such discrimination to the satisfaction of the Second, he as is feasible. make as a record of the circumstances complete of a cognizable group that the excluded are members must establish persons Third, a strong of the case he must show .... from all the circumstances of their are because challenged group likelihood that such being persons ’ court finds that has established association.” If trial [he] [Citations.] [f] case, ‘a race- burden shifts to opponent] provide facie prima [his case to be tried’ for the peremp neutral related to the particular explanation Cal.4th (1994) 8 Cal.4th 164-165 v. Turner tory challenge.” (People *40 court, 762, 440a, 521], omitted.) a trial 878 P.2d italics When 32 Cal.Rptr.2d made, the a motion has been requests prosecution after Wheeler/Batson has then the whether defendant its challenges, question justify peremptory (see either considered moot made a facie showing Hernandez prima 352, 1859, 1866, (1991) New York 500 U.S. S.Ct. 114 L.Ed.2d 359 [111 395]) or a of a facie is considered in the finding showing prima implicit (1991) v. Fuentes 54 Cal.3d 715-716 request (People Cal.Rptr. when, here, 75]). 818 P.2d But as the trial court states that it does not made, believe a facie case has been and then the invites prima prosecution its for the record on the justify challenges purposes completing appeal, mooted, a facie case has been made is not nor is a whether question prima (Turner, of a facie 8 Cal.4th at finding showing supra, prima implied. 167.) When the trial court under these circumstances that no rules prima made, facie case has been “the court considers the entire record of reviewing voir dire. ‘If the record which the “suggests grounds upon [Citation.] ” have in we prosecutor might reasonably challenged” jurors question,’ reject (People v. Cal.4th challenge. Davenport P.2d Cal.Rptr.2d whole,
After the record as a we affirm the trial court’s examining that defendant failed to make a facie ruling prima showing Wheeler/ Batson error. The fact that there were three Black Black jurors two motion, alternates seated at the time the trial court ruled not on the while conclusive, no facie too does finding favor So weighs prima showing. the fact that the exercised three of its eleven prosecution only peremptory on Black a even facie challenges prospective jurors. Finally, assuming prima made, had been the race-neutral challenge by explanations proffered the record. The had prosecutor appear plausible supported prosecutor Y., about the of Ladonna had said she had no who questions credibility who, bailiff, children voir dire but to a had a child seated during according on her in the room. H. struck the as mentally Theresa lap jury prosecutor slow, and the record is not inconsistent with that Gerald G. impression. about the death Pro- considerable reservations expressed penalty. imposing initial alternate Carl A. about the death reservations spective juror expressed short, In record race-neutral which penalty. suggests grounds upon have excused the might reasonably jurors prosecutor prospective question. C. Excusal Jurors Cause three
Defendant contends the trial court excused improperly pro- their the death because of views jurors regarding penalty. spective for cause if his or her “A be excused views juror may prospective ‘ would or substantially impair performance capital punishment “prevent of his duties as a ....’” Where juror prospective [or her] [Citations.] are or the trial court’s assessment of conflicting, juror’s responses equivocal of mind is Where there is no inconsis generally binding. state juror’s demonstrated a but whether tency, juror’s responses simply question *41 set not be will trial court’s judgment the the death penalty, bias for or against (1993) v. Wash (People substantial evidence.” aside if it supported 861 P.2d Cal.Rptr.2d Cal.4th juror claims excused erroneously prospective court that the trial
Defendant “if death for the Gilens, penalty he could vote he that stated although Martin However, the next court asked question, the when it I felt was appropriate.” stated, “I He death to be feeling appropriate?” see yourself “Could ever you trial cannot say we at best equivocal; don’t know.” His response erred. court excused claims court erroneously prospective that the trial
Defendant also death about the had reservations because “he Howard Gruber simply juror reservations, into calling mere went beyond But his responses penalty.” case. in a When capital his as a duty juror ability question perform felt that was death if he be able impose [he] asked whether “would stated, The trial court could do that.” “I’m not sure I he proper punishment” cause. this for juror did not err in excusing prospective for juror claims error is prospective defendant The third excusal which her death penalty, asked if she could ever impose Victoria Brown. When did not err The trial court and “I’m not sure.” were “I don’t know” responses Brown. in excusing prospective juror Guilt Phase Issues
IV. Hideout Backyard A. From Weapons Seizure above, shelter at sought and Rita Lewis As recounted 5:30 a.m. Beverly Jermany approximately house of his second cousin that 8, 1986, the murders. Later after he committed December shortly to a backyard pursuant a search of Jermany’s conducted morning, police Uzi, found the at 8:46 a.m. They form she had executed consent-to-search Wesson, used to commit Taurus defendant and the the Smith trial, murders, defendant moved Before backyard. in a pillowcase grounds the motion on The trial court denied this evidence. suppress search, standing lacked to the that defendant had consented validly Jermany had in any that the rights, pillowcase assert her Fourth Amendment erred. the trial court contends view. Defendant now event been within plain We disagree.
“ constitutional rights the federal search or seizure violates ‘An illegal in the invaded of privacy a legitimate expectation of those who have only *42 (1992) or 2 Cal.4th seized v. McPeters place thing.’ (People [Citation.]” 1148, 146].) 1171 “A to search 832 P.2d valid consent Cal.Rptr.2d [9 eliminates the need for either a . . . The warrant or cause. probable fl[] in control of the consent to a search t may person premises h r o f
e ” e . (1990) Defendant cites v. S.Ct. Minnesota Olson 495 U.S. 96-97 [110 1684, 1688, 85], L.Ed.2d that the “status as an 109 proposition is alone to that had an overnight guest enough show person] expectation [a of home that is as reasonable.” privacy society recognize prepared assume, But even if we that defendant an arguendo, “overnight guest,” was not Olson does his That case did not involve situation support position. search, which the host consented to the and does not overnight guest’s that the host’s consent to a search not a render a search suggest lawful may Indeed, of the host’s house or a seizure therefrom. the Olson court premised its on the obser holding regarding privacy expectations houseguests host, that vation is there with the of his who is houseguest permission “[t]he to share his house and his with his . . . The host willing guest. may privacy admit or exclude from the house as he but it is that he will unlikely prefers, admit someone meet who wants see or over guest objections case, (Id. of the at S.Ct. at In the guest.” p. present defendant’s “host” consented to the search. unambiguously
Defendant cites Court Cal.2d Tompkins Superior 113], 378 P.2d held that “one who is joint which Cal.Rptr. occupant from the not authorize officers to enter and search away premises may police over the of another is at who premises objection joint occupant present time, at least where ... no is no exists warning given, emergency prior and the officer fails his to the even disclose who purpose occupant or to inform him that he has the consent of the absent present occupant Defendant, however, enter.” in no sense a but rather a was joint occupant, transient a critical difference in guest, defining expectation privacy. We conclude that consent rendered the search of her Jermany’s backyard lawful. Hearsay
B. Admission Statement Accomplice’s recounted, the house of As defendant and Lewis sought refuge had told her as were they testified Lewis Beverly Jermany. Jermany the house that had shot him. Trial accidentally defendant inside she helping The that her was inadmissible testimony hearsay. prosecu- counsel objected that of a The tor claimed the statement was admissible as coconspirator. that, also testified after she told Lewis she overruled. objection Jermany was house, that a she was Lewis said pillowcase into the bring drugs could not to the admissi- An objection did not contain drugs. into the house carrying also overruled. hearsay statement on grounds of this bility error, violating trial court committed claims that the Defendant now clause of as the confrontation as well hearsay state law against prohibition not Whether or properly to United States Constitution. the Sixth Amendment *43 however, defendant admissible, statement that she had shot neither Lewis’s was drugs remotely did not contain nor her statement that pillowcase and uncontradicted to defendant’s case. There was independent prejudicial and indeed that contained the murder weapons, that the evidence pillowcase committed The admission of these statements had the six murders. therefore not error. was prejudicial That Dealer Drug
C. Introduction Evidence Was Defendant one of the witnesses Morgan, the examination of Leslie During murders, was Morgan asked whether defendant employed. prosecutor was, and, about defendant’s answered that he when asked employment, that this stated that it Trial counsel “selling drugs.” timely objected was in viola- was and character evidence testimony highly irrelevant prejudicial that, 1101, (a), states tion of Evidence Code section subdivision which character or a trait of to certain “evidence of a subject person’s exceptions, (whether her in the form of an evidence of his or character opinion, conduct) her or instances of his or evidence reputation, specific conduct inadmissible when offered to his or her specified prove a mistrial. The trial court denied the occasion.” Counsel then moved for motion. hand, contend, that defendant on the other that evidence was
The People that he acted as a dealer tends to evidence drug negate impulsively employed murders, the evidence was admissible under and therefore committing states, alia, that (b), which inter Evidence Code section subdivision the admission of evidence that a person in this section “[n]othing prohibits (such fact as . . . a crime . . . relevant to some committed when prove such an act.” .) intent . . other than his or her to commit disposition for a discretion to or motion grant deny trial has “Generally judge [a [a] mistrial], receiving it on that a chances of determining and will grant party’s Witkin, (4th (7 Cal. Procedure trial have been damaged.” a fair irreparably case, Trial, the trial court did not 1997) 208.) In the ed. present § or not the a motion for a mistrial. Whether abuse its discretion in denying section it was violated Evidence Code introduction of such evidence is, not it is not that a result more prejudicial, reasonably probable to defendant resulted this favorable would have absent admission of evidence. (Pe v. Watson 46 Cal.2d P.2d The ople had before it uncontradicted evidence not that defendant jury virtually only murders, had in six murders and two but also that he had engaged attempted in numerous instances of his victims and engaged terrorizing harassing other The fact that the learned that defendant also a drug people. jury dealer was inconsequential.9
D. Trial Court’s Comment on Absence From the Defendant’s Courtroom The trial court ordered defendant removed from the courtroom a number occasions, of times because of his behavior. On some of these disruptive court remarked that defendant “could not Defendant trial.” now stop contends that the trial court’s comments jury prejudiced deprived him of a fair trial. he that the remarks would be argues Specifically, *44 the as that he to the by jury was interpreted implying trying stop proceedings because he he and be reads knew was would convicted. Defendant too guilty Moreover, much into the trial court’s brief of his removal. the explanation admonished that this behavior “cannot taken into jury disruptive [be in the or innocence of the defendant.” The determining guilt consideration] trial court did nothing improper.
E. Admission Autopsy Photographs
The defense moved to the admission prevent autopsy photo- of the murder victims as Defendant now claims unduly graphs prejudicial. that admission of some of the was reversible error. In determin- photographs whether the from admission of such its ing outweighs prejudice photographs value under Evidence Code section a trial court broad probative “enjoys (Memro, at 866.) discretion.” 11 Cal.4th supra, p. case,
In this the trial court consider the carefully appeared photographs and The the some others. by prosecution, admitting excluding proffered issue the was whether defendant had the during guilt requisite primary phase deliberation and to be convicted of first murder. The degree premeditation trial court admitted as evidence that defendant pos- autopsy photographs committed he the murders. these sessed these mental states when With rights Eighth 9Defendant also contends that his Amendment were violated because the trial guilt jury penalty phase phase court had instructed the at the that it could consider all evidence, might drug that defendant was a dealer jury and hence the have considered evidence against choosing Again, light weighing of all the evidence capital sentence. in to be guilt penalty phases, at both the we find the introduction of such evidence harmless error, be, any any if error there under standard. illustrate, nature of as well as the could explain, photographs pathologist wounds, at and in range had been done close killing to indicate that Memro, at (See 11 Cal.4th 866-867 supra, pp. [photo- a deliberate manner. malice].) manner” admissible to show of children “killed in a ghastly graphs Moreover, to Dellane Mabrey of the chest wounds the photographs upper defendant shot her in the chest corroborated Leslie Morgan’s testimony Furthermore, able to a reasonable would be jury she with him. while pleaded and the disfigure- inflicted from the murder between wounds distinguish 866.) conclude that (See id. at We therefore ment caused by autopsy. that the court did not abuse its discretion in determining probative the trial effect. of the their outweighed prejudicial value photographs Psychiatric Counsel to Introduce Failing F. Assistance Ineffective at the Phase Evidence Guilt discussed, defense that
As trial counsel on put guilt phase defendant had consisted cast doubt whether primarily attempting murders, and deliberated and was committing premeditated prior therefore of second murder. counsel tried guilty only degree Specifically, mental show that defendant had been unable to form the state requisite alcohol, cocaine, because of the use of and heroin before mur- shortly about the ders. Counsel two medical doctors to testify general presented in combi- mental caused these substances individually impairments nation. The defense did not any testimony guilt present psychiatric claims such for the Defendant now reserving testimony phase, penalty phase. *45 that counsel to introduce the rendered ineffective assistance in failing psy- chiatric of his to counsel testimony during guilt right violation phase, I, Amendment under the Sixth to the United States Constitution and article section 15 of the California Constitution. counsel,
To establish ineffective assistance of “a defendant must (1) show that: fell an standard of rea- objective below representation norms,” (2) and re- sonableness under professional prejudice prevailing sulted, “i.e., that counsel’s a more favorable result would absent failings (1993) have been 4 Cal.4th (People Cummings probable.” 1].) P.2d Cal.Rptr.2d defendant
In whether has demonstrated evaluating inadequate perfor mance, accord deference to the tactical decisions of trial counsel great “we and in order to avoid counsel’s tactics ‘second-guessing chilling vigorous ” (In re Fields 51 Cal.3d Cal.Rptr. advocacy.’ case, conclude defendant has not 800 P.2d In we present his burden Two showing psychiatrists, carried inadequate performance. Pierce, defend at the regarding both testified penalty phase Drs. Benson and disturbances, and impulse his including paranoia poor ant’s mental general not performance defendant that it was inadequate control. We disagree reasonable of the trial. It was at the guilt phase to introduce such testimony effective at that would not be testimony conclude that such for counsel that defendant of the six murders and all the evidence Given the fact point. deliberated, decided that general could have reasonably indeed counsel had been or counterproductive, would have unhelpful ized testimony psychiatric at the testimony guilt phase to focus the and that it was psychiatric proper the time of the murders. intoxication at defendant’s Moreover, burden of that such showing cannot carry Indeed, did not testimony since the resulted in psychiatric strategy prejudice. at the without possibility parole to choose life jury imprisonment sway same the same with the jury that unlikely confronting it is penalty phase, for second caused them vote at the would have guilt evidence phase murder. degree murder over first degree Closing Argument Guilt Phase During Prosecutorial Misconduct
G. Claims Related Assistance Ineffective acts of miscon- that the committed several
Defendant asserts prosecutor trial, him of a fair in violation that deprived duct during closing argument I, and article to the United States Constitution the Fourteenth Amendment Constitution. section 7 of the California committed misconduct asserts that the prosecutor
Defendant at one referred The credibility. prosecutor point trial counsel’s disparaging hand, defendant testified on the one in the defense—that the contradiction murders, other, trial counsel tried commit and on the did that he not deliberate. The prosecutor defendant did not premeditate prove there. But if “So, because I wasn’t defense is I’m not guilty the basic stated: me, murder second-degree don’t believe it only find me there and you .... Remember and mental impairment mental delusions because my *46 in a both Trial counsel objected that. it ways.” that. Remember want They manner that the argument improper. timely argument, makes a timely objection prosecutorial
When a defendant occurred, misconduct has first whether must determine court reviewing “ to state its has broad discretion in mind that prosecution keeping ‘[t]he be drawn may and what inferences evidence shows as to what views ” 537, 405, 463 v. Sims (1993) Cal.Rptr.2d 5 Cal.4th (People [20 therefrom’ his case’ argue ‘vigorously 992]), “may and that the prosecutor 853 P.2d
753 ” , v. . the evidence.’ (People . . warranted ‘[using] appropriate epithets 855, 572, 1144].) P.2d (1983) 33 Cal.3d 580 659 Fosselman Cal.Rptr. [189 Second, occurred, it “reasonably if misconduct had we determine whether occurred” that a more favorable to the defendant would have result probable 946, (1974) 11 Cal.3d 955 absent misconduct. v. Strickland (People [114 632, 672].) It a in closing 523 P.2d is misconduct when Cal.Rptr. prosecutor counsel instead of the evidence. Personal attacks on argument “denigrares] and to the issues.” v. counsel are irrelevant opposing improper (People 155, 342, 862].) (1992) Sandoval 4 Cal.4th 184 841 P.2d Cal.Rptr.2d [14 Here we find the did not commit misconduct in above making prosecutor It did statements. is no misconduct to as the pointedly highlight, prosecutor here, (See (1993) the contradictions in defendant’s case. v. Clark People 950, 689, 1099].) Cal.4th 857 P.2d 1029-1030 Cal.Rptr.2d [22 Defendant also contends the committed misconduct when he prosecutor Salcido, him to Ramon a notorious murderer trial compared whose multiple occurred around the same time as his. Trial did not to this counsel object Therefore, remark at trial. defendant did not the misconduct claim preserve on “unless an would have been futile or an admonition appeal objection (1996) ineffective.” v. Arias 13 Cal.4th (People Cal.Rptr.2d case, P.2d In an (See this admonition would have cured harm. any Bloom, 1213.) 48 Cal.3d at can People supra, Nor we conclude that the remarks were of the evidence defendant. light prejudicial against
Next, defendant asserts certain statements to which he personally at trial objected of the crime on the victims relating impact were improper. During closing argument, trial counsel recounted how he had of his thought a barbecue for one of children. closing argument during his theme, The to that stated: likes to prosecutor, referring pamper “[Counsel] chill, and that me daughter, because consider this. I’m sure really gave Dellane would have loved to Valencia. I’m sure she would have pamper liked to have with her. Valencia will never be ladies grown again, pampered and Dellane can’t her and Valencia can’t be gentlemen. pamper pampered, because neither of them have all their heads left. Moochie took care of that.” Defendant contends that such remarks an to the were unlawful appeal jury’s (see v. Fields 35 Cal.3d 362-363 passions prejudices People 680]). P.2d Trial counsel failed to Cal.Rptr. object claim is therefore not can that the Nor we conclude preserved appeal. remarks were of the evidence defendant. prejudicial light against
Defendant also claims that in the failure above instances object constituted ineffective assistance of on the counsel. Counsel stated record that his failure to to the “a statements was object prosecutor’s inflammatory *47 the matter of trial Counsel’s decision was within bounds of strategy.” well the norms. He could have determined that risks of professional reasonably and the or the what- raising objection offending annoying jury outweighed have from remarks that ever benefit been obtained might prosecutorial no were little his client. Therefore we find ineffective likely prejudice assistance. to the
Defendant also contends that counsel should have objected prosecu- that been unable to the “hard choice” tor’s remarks counsel had make innocence, or in his a counsel’s statement regarding guilt closing play the choice” the faced first and second jury remarks “hard between regarding was, But a again, murder. such not of degree argument disparagement defense, the and counsel but a assertion of the of was pointed inconsistency not It ineffective of counsel misconduct. was therefore not assistance failure to object. and
H. Assistance During Opening Closing Arguments Ineffective Defendant that trial counsel rendered ineffective assist- contends as in closing ance the statement and as well his during opening arguments, of the at trial. redirect examination defendant when latter testified We disagree. counsel’s brief statement came an emotional
Trial after opening opening crimes statement of the com- magnitude prosecutor emphasizing mitted, the crimes as Oakland’s characterizing “day infamy” occurring to the after the of Pearl Harbor. Trial counsel’s years day bombing almost 45 statement emotion aside and case emphasized deciding opening putting It on the evidence. also told the “to attention jury based pay particular and evidence that bears ... on mental state mental frame mind.” that and Defendant contends this statement unfocused inad- was opening murder that it did not set forth second equate, degree theory adequately But even basis of trial counsel’s defense. assuming was primary deficient, in this we cannot regard that counsel’s arguendo performance client, to his and therefore cannot that it was detrimental say demonstrably that it constituted assistance of counsel. conclude ineffective he because all closing argument Defendant criticizes trial counsel’s part In the but as commission of six murders. face of guilt conceded to the murders, these fact committed evidence that overwhelming choice, indeed, well contrary may little have counsel had approach Memro, (See guilt 11 Cal.4th been untenable. supra, [concession case be valid tactic may on “weak link” in focusing prosecution’s guilt overwhelming].) when evidence *48 set forth
Defendant also criticizes trial counsel for failing adequately murder defense. We Trial counsel disagree. competently his second degree to the that defendant’s of alcohol and argued jury drugs consumption led to that did not rise to killing his mental state and an impulsive impaired and deliberation for first murder. necessary degree the level of premeditation intoxication, and He called the attention to the evidence of defendant’s jury’s intoxication would likely to the effects such expert testimony regarding control. the state of evidence in judgment have Given impulse case, did such not constitute deficient argument performance.
Defendant also claims that trial counsel rendered ineffective assistance defendant’s He testified trial counsel’s that he during over testimony. protest that, needed time to talk to him to determine what to ask. Denied questions crime, trial counsel defend- asked about the which general questions during cross-examination, ant related his version of what had On happened. of defendant’s version of events and his claim of mistaken incredibility redirect, On identity brought fully light. trial counsel allowed defend- fashion, ant to in an if there an area of testify asking “was open-ended . . . about which would like to tell.” Defendant contends testimony you now tactic, that this as trial well as counsel’s statements that he and defendant time, had not discussed defendant’s ahead of constituted ineffec- testimony tive assistance. We counsel was to defendant’s disagree. Although opposed could, while he as best he testifying, the same time cooperated subtly himself distancing from defendant so that he would not be tainted defendant’s own lack of by Such conduct was not deficient credibility. performance.
I. First Murder Degree Instructions
Defendant claims that the trial court erred in several instruc- giving First, tions from standard CALJIC instructions. he claims the departed trial court misled the the difference between second jury regarding degree murder and manslaughter that malice “is by instructing jury expressed where there is manifested an unlawfully intention to kill human being,” than, 8.11, rather as in CALJIC No. to kill a human We “unlawfully being.” We fail to see disagree. how of the infinitive could have splitting given rise to confusion.
Nor would the have been misled about the difference jury between murder, claims, manslaughter as defendant also the trial court’s words, further clarification of the malice instruction: “In other express malice is where shows an intent kill.” Read in context express activity malice, with the trial court’s of the standard instruction on delivery express malice, is reason- this statement definition implied and of its subsequent the difference further clarifying jury understood as merely ably *49 Moreover, because no manslaughter malice. and implied between express instruction, the like- no such instruction was and evidence given supported and was manslaughter second murder degree lihood of confusion over jury nil. court’s nonstandard instruction with also to the trial objects
Defendant instruction The trial court the standard gave patterned to deliberation. respect cold, calcu- inter alia: “A stating No. 8.20 on after CALJIC premeditation, time; but be arrived at in a short period lated and decision may judgment it included an intent to and rash even though a mere unconsidered impulse, kill, fix an unlawful killing and as will is not such deliberation premeditation a To constitute deliberate premeditated as murder of the first degree. killing, and consider the question must killing, slayer weigh and, mind the choice in having consequences, reasons for and such against words, added: “In other The trial court then he decides to and does kill.” a that think about it. It’s . . deliberation means you ladies and . gentlemen, of what or bad You think reasoning. It can either be good reasoning process. a sudden do it instead of acting upon impulse to do before going you you’re idea of thought.” else which or something precludes “blurs the distinction between that this instruction Defendant contends murder virtu- first-degree murder second-degree by making first-degree kill, is only second-degree intent to which tantamount ally performed context, the trial court’s instruction merely Taken in murder.” We disagree. murder that deliberate and premeditated requires clarifies the basic concept to kill. than a mere intent of reflection greater some quantum in this “misleading that the instruction was also contends above Defendant ‘bad was case, reasoning’ that defendant’s there was evidence where condition, alcohol, or some other medical cocaine and heroin use product to the of deliberate charge as a defense have been considered which should in its murder, But considered again, of that charge.” not evidence supportive context, the trial court also because likely, no such confusion was proper in miti- intoxication on the of voluntary instructed the jury place properly that no act committed “Our law for a homicide: provides gating culpability either or drugs intoxication by in a state of voluntary while by person condition .... been in such having reason of his alcohol is less criminal by however, in the murder, element is the existence a necessary crime of In the talked about we just mental state which defendant of specific mind of the the defend- the evidence shows If deliberation and premeditation].... [i.e. offense, his state consider you may at the time of the ant intoxicated was intoxication, if if the defendant had such mental any, determining required instruction, states.” this there is no reason to Given subsequent suppose think that the trial court’s reference to “bad while reasoning” would jury and deliberation a reference to im- defining reasoning was premeditation intoxication. paired by voluntary
Defendant further claims that the intoxication instruction voluntary quoted above not and the have been unclear as might was sufficiently specific, jury the trial court stated consider his state of what referred when it “you may intoxication, if that defendant had such mental any, determining required states.” But that this a reference “to the given injunction preceded *50 mental state which we talked about” and that the trial specific just given deliberation, court had instructed on such confusion is just premeditation “ 1“ Moreover, the court an instruc exceedingly unlikely. gives ‘[i]f law, tion correct in but the that it is too lacks party complains general, or is he clarity, must the additional or instruc incomplete, request qualifying ” ’ ” (Weeks tion in order to have the error reviewed.’ v. Baker & McKenzie 1128, (1998) 510], 63 italics in Cal.App.4th original.) Cal.Rptr.2d [74 Trial counsel failed to do so here.
Defendant further claims that the should an have received instruction jury But the trial voluntary manslaughter. court was under no duty give when, here, such instruction no as credible evidence it. v. (People supported 703, 1, (1974) Sedeno 10 Cal.3d 913].) 518 P.2d Cal.Rptr. [112 J. Instruction Modify Flight Refusal “Now,
The trial court instructed the as follows: of a jury flight after the commission a person immediately of crime or after he is accused of which,
a crime is not sufficient in itself to establish his but it a fact guilt; if be considered in the proved, may by you of all other facts in light proved of determining guilt or innocence.” Defendant a question requested sentence be added inference to the instruction: “While this guilt of goes it does not tell us about identity The trial court refused. anything degree.” error, Defendant contends that this due “in violation of his right and reliable death under the federal process judgment constitution.” committed The trial court no error in this modification to the refusing instruction, standard which flight accurately conveys signifi- potential cance of flight. instruction not address the defendant’s flight “[T]he ‘[does] time mental state at the of offense and not direct or compel [does] ” of inferences in drawing thereto.’ v. Nicolaus impermissible regard (People (1991) 893].) 54 Cal.3d 817 P.2d 579-580 Cal.Rptr. Premeditation and Deliberation K. Evidence Sufficiency contends there is insufficient evidence premeditation Defendant (35) “When and deliberation to the first murder verdicts. degree support defendant that a verdict was not sup- the claim of a criminal considering evidence, record in the ‘the court must review the whole sufficient ported it discloses to the below to determine whether most favorable light judgment credible, is, reasonable, and of evidence which is substantial evidence—that a trier of fact could find the defendant solid value—such that reasonable ” Hawkins 10 Cal.4th a reasonable doubt.’ beyond (People guilty 897 P.2d Cal.Rptr.2d of evidence used to court has identified three types This previously “ ‘(1) These are: facts and deliberation. sustain finding premeditation actual which killing defendant did to the prior about how and what [the] toward, directed engaged activity show that the defendant was in, be characterized as intended to result the killing—what may as explicable and/or (2) facts about the defendant’s prior relationship activity; “planning” could infer reasonably conduct with the victim from which jury motive, victim, facts of to kill the which inference of together “motive” *51 (3), in turn an inference that the was (1) killing or would support type of and “careful and thought weighing result of “a reflection” pre-existing or rash impulse hastily considerations” rather than “mere unconsidered [citation]; (3) the nature of the from which killing executed” facts about and exacting manner of was so killing could infer that the particular jury to a killed intentionally according “preconceived the defendant must have for a “reason” which to take his life in a particular way victim’s design” ” Hawkins, (1) (2).’ or (People infer from facts of type can jury reasonably (1968) 70 Cal.2d v. Anderson People 10 Cal.4th supra, p. quoting stated, have these guidelines 447 P.2d As we 26-27 Cal.Rptr. law, case and are not definitive formulated as a synthesis “were prior in and deliberation of the premeditation statement prerequisites proving 957.) Cal.4th at (Hawkins, case.” supra, every case, evidence were amply all three In the present types numerous statements defend- chiefly There is evidence planning, present. in he to kill everybody and others that was planning ant made the victims had also obtained a before so. He doing house a few hours the Mabrey out the There was killing. for the of carrying semiautomatic weapon purpose Mabrey the desire to Barbara of several motives: prevent also evidence them, his harassment of him about against others in the house from testifying Del- with relationship Barbara for with interfering his animus towards Leslie Mor- lane, for her relationship directed at Dellane his jealousy As had stolen his dog. in the Mabrey family and his belief that someone gan, through Mabrey for the manner of he moved killing, systematically household, it, them in the or to kill in killing everyone shooting attempting Dellane, he her body head or chest at close In the case of straddled range. defendant’s after he had shot her once and shot her We therefore find again. deliberation to be claim of insufficient evidence of with- premeditation out merit.
V. Penalty Phase Issues
A. Threat to Kill Correctional Officers
The introduced as evidence in under prosecution aggravation, of “criminal the defendant the use or category activity which involved use of force or violence or the or threat to use attempted express implied 190.3, (§ force or violence” (b)), factor defendant’s assault on Alameda Sheriff’s County Charles Utvick while the latter was in the Deputy process him to court 1987. Utvick testified that after transporting immediately incident, this defendant stated that he would kill one of Utvick’s fellow killed, or have him “and he would have the rest of us taken care of deputies, statement, as well.” Defendant now to the admission of that objects which trial counsel timely Defendant out that this threat was not objected. points as a alleged incident and is connected separate aggravation insufficiently with the Utvick assault to warrant admission. Defendant further contends threat, shackled, that this kind of idle made while he handcuffed and was an of frustration and not the merely of evidence expression type admissible under the or threat to use force or violence” “express implied 190.3, (b). clause of section factor He claims both state error and law violation of his Amendment Eighth as an unreliable determination of rights We As we stated in Melton 44 Cal.3d penalty. disagree. People v. *52 713, 867, 741], 757 750 P.2d ‘criminal Cal.Rptr. activity’ [244 “[v]iolent context, be shown in so that the has full presented aggravation may jury the to determine its serious- opportunity, deciding appropriate penalty, Here, ness.” defendant’s remarks to the context in were relevant clearly which Utvick’s assault occurred.
B. Prosecutorial Misconduct Phase During Penalty Closing Argument misconduct Defendant claims numerous instances of during prosecutorial the Trial counsel failed to of penalty phase closing argument. object any instances of misconduct and therefore failed to these alleged preserve on claims unless a would have failed to cure the timely objection appeal Arias, harm. 159.) v. 13 Cal.4th at Because defendant also (People supra, p. claims that the failure these instances of object alleged prosecutorial
760 counsel, consider assistance of we will amounted to ineffective misconduct the merits.
1. Error Boyd stated, in the context of explaining process
The prosecutor will tell you factors: “And Golde Judge aggravating mitigating weighing And I’m extenuates the crime. gravity other circumstances which any contends that those be.” Defendant might kind of still to hear what waiting that there was no to the suggested jury argument improperly prosecutor’s this fact as an aggra and that the could consider jury evidence mitigating claims stated in was a violation of principle circumstance. This he vating P.2d Cal.Rptr. 38 Cal.3d Boyd 782] v. People those factors” set must be “relevant to admitted in aggravation evidence Here, in effect that argued the prosecutor out in section 190.3. We disagree. be little or no weight. given evidence mitigating presented (1996) 13 Cal.4th (See Cal.Rptr.2d v. Jackson People (Ibid.) misconduct. form of is not argument P.2d Such referred in error occurred when the Boyd prosecutor Defendant also claims urinated in a courtroom well that he had testimony closing argument room when fitting apprehended a trial and in a J.C. during Penney’s the statutory fit within any of misconduct that do not shoplifting—forms The men- under section prosecutor factors enumerated 190.3. aggravating of defendant’s assaults in the context of a discussion tioned these incidents officer, at the officer. defendant threw feces a correctional which during he real cute? See how a comment: “Isn’t it concluded his discussion with He exceed the bounds of These remarks did not handles his waste products.” Sims, (See 5 Cal.4th argument. People supra, permissible prosecutorial 463.) Those Whom Concerning 2. The Prosecutor’s Defendant Reference Hates to counter defendant’s closing argument prosecutor attempted
During not way therefore was in some control and claim that he had poor impulse that because The surmised for his actions. prosecutor fully responsible hated many people present he authority figures, likely defendant hated *53 counsel, himself, court, his own the judge, the including prosecutor in the in court bailiff, restrain himself able nonetheless to but that he was and the inferred from this fact these He against people. from violence committing and self-serving commission calculated of violence was that defendant’s the contends that control. Defendant of rather than the result poor impulse 761 as an of his hatred of authority figures was the using supposition prosecutor the factor. But it is clear from above aggravating additional nonstatutory that the remarks in this were for the regard proper context prosecutor’s evidence, of and did not suggest defendant’s addressing mitigation purpose of the factors enumerated in that the exceed the bounds jury aggravating section 190.3. Future Dangerousness
3. that the committed misconduct by Defendant claims prosecutor and that he would be to fellow inmates others with whom arguing dangerous he came in contact if he were sentence of life without given imprisonment of he that defendant demonstrated argued possibility parole. Specifically, that he other inmates and that his violent “sodomy urges,” endangered visitors, and behavior would health “jeopardize safety any guards, workers, social inmates or who come into contact with him.” As clergy may we have stated: “It is settled that a defendant’s future argument concerning as a dangerousness life is where it is based on evidence of prisoner proper crimes admitted under one or more factors in past statutory aggravation.” 96, 418, (1998) v. (People Millwee 18 Cal.4th P.2d Cal.Rptr.2d case, above, 990].) In this as reviewed there is evidence of defend- ample ant’s violent numerous assaults on officials past, including jail prison and the commission of The sodomy. defend- prosecutor’s argument regarding violence, future ant’s based on this not dangerousness, was history misconduct.
4. Religious Sanction the Death Penalty conscience,” that he
Stating wanted alleviate the jury’s “pang read various from the Bible prosecutor sanctioning passages apparently Exodus, states, verse which capital punishment, including chapter man, die, “He that smiteth a so that he be shall to death.” surely put reiterated, As we have “an recently religious authority appeal of the death it to diminish the because tends support penalty improper sense of for the verdict. Such jury’s personal responsibility [Citations.] also carries the should argument will believe law potential jury higher be the trial court’s instructions.” v. Hill ignore (People applied Cal.4th 836-837 P.2d We Cal.Rptr.2d note “was not to a defense prosecutor responding argument invoking (Id. 837.) he religious Nor was authority.” p. referring religious in order exhort the not to resort to canons to decide authority jury “religious Arias, 180.) 13 Cal.4th at On appropriate penalty.” (People supra, biblical references in contrary, using assuage prosecutor part sense jury’s personal responsibility. *54 Moreover, the defendant’s imagine the then asked jury prosecutor he mur the two children whom in some afterlife with meeting supposed the dered, at the and before be whole” and will “look who “will [defendant] ” words, Moochie.’ ‘Why, but two two words. final witnesses . . . will say retribution, as it did the biblical account of following This otherworldly reinforces the notion that some higher the death further of approval penalty, of fostering death defendant. The against law favors or the penalty requires Hill, the of a trial. v. (People this notion has no at penalty phase capital place 837.) 17 Cal.4th supra,
Nonetheless,
in this instance was not preju-
the
misconduct
prosecutor’s
the murders
taken
a discussion of
dicial. Most of his
argument
up
offenses,
committed,
as his numerous violent prior
that defendant
as well
the conclu-
and the lack of mitigation.
both
and
Toward
charged
uncharged,
all
to me
the
stated: “Now
swore
you
sion of his argument
prosecutor
if
found
. . . that each of you,
you
selection
jury
process
personally
[the]
outweighed
mitigating
that the
circumstances substantially
aggravating
true,
circumstances,
. could
here to be
. .
which we have
shown
absolutely
verdict,
make this choice.”
12 are the ones to
you
return a death penalty
Moreover,
its
of
jury
defense’s closing argument adequately apprised
magnitude
penalty phase
under California law. Given
responsibility
defendant,
the religious
minor
relatively
evidence against
place
whole,
effect of the
as a
and the balancing
in the
argument
closing argument
that the jury
there is no reasonable
closing argument,
possibility
defense
not heard the
the lesser verdict if it had
prosecution’s
would have chosen
(1988) 46 Cal.3d
446-448
references.
v. Brown
(People
[250
religious
a reasonable
1135].)
beyond
It was also harmless
758 P.2d
Cal.Rptr.
824, 17 L.Ed.2d
(1968)
Defendant portion complains an and were selected to render “You are in this case jurors closing argument: An You’re Don’t that. forget opinion. as to the penalty. opinion appropriate there at San You are not to be over going executioners. not the grim reaper function. You in. That is not your Quentin people dropping pellets, strapping the court what is the appropriate penalty.” are to advise you are a juror Amendment his Eighth this violated argument Defendant claims form because, it impermissibly the terms “advise” and “opinion,” by using rights, making penalty proper sense of jury’s responsibility undermined (See determination, the court. lies with suggesting responsibility 2633, 2640, S.Ct. (1985) 472 U.S. v. Mississippi Caldwell
763 227, 231]; (1988) L.Ed.2d Milner 45 Cal.3d 257 see also v. People [246 713, was, 669].) 753 P.2d But the use of these terms Cal.Rptr. prosecutor’s most, above, made As the elsewhere ambiguous. explained prosecutor decision an exercise of clear the jury’s sentencing personal respon- the No reasonable after the rest of sibility. juror, hearing prosecutor’s instructions, the defendant’s and the trial court’s would argument, argument, have been mistaken as to the role as the arbiter of defendant’s fate. jury’s
6. Prosecution’s Comment on Lack Remorse Alleged Defendant’s of the recounted
During closing argument, prosecution testimony T., the of Jaunell that defendant sodomy rape recalling attempted the out of concerned for the witness. interrupt testimony supposed upsetting The stated: “Well I almost choked on that one.” thereaf- prosecutor Shortly ter, the stated in reference to this incident: “This is a true prosecutor one who over all else. The bottom line is David sociopath, puts feelings Welch, Moochie I’m first.” Defendant these remarks as a interprets general remorse, comment on lack of he prosecutorial which claims violates his Eighth Amendment to a reliable rights determination. He also claims penalty a violation of his Fifth Amendment because the rights, remarks implicitly (See defendant for penalized failing testify during penalty phase. 605, 1891, 1894, (1972) Brooks v. Tennessee 406 U.S. 610 S.Ct. 32 [92 L.Ed.2d 358].)
We conclude that commit did not misconduct. He was prosecutor incident, on the merely commenting as well as sodomy numerous rape evidence, other incidents introduced into which showed defendant’s disre for others. gard Such remarks were within the bounds “wide latitude” given to prosecutors during (1997) v. closing argument. (People Williams 16 153, 123, Moreover, Cal.4th 710].) P.2d Cal.Rptr.2d [66 pros ecutor never that lack suggested of remorse was an independent aggravating (See (1991) factor. v. People Fierro 1 Cal.4th 224 Cal.Rptr.2d 1302].) 821 P.2d did the Nor that the prosecutor suggest should consider jury the fact that defendant did not at the testify penalty phase. (People Hardy 2 Cal.4th 825 P.2d conclude Cal.Rptr.2d We remarks, that the did not commit misconduct prosecutor above through and that defendant’s Fifth and Amendment Eighth were not violated. rights
C. Assistance Counsel Phase During Penalty Ineffective Defendant’s ineffective assistance claims are of during penalty phase First, two different defendant claims that trial counsel’s failure to types. to the misconduct constituted object alleged ineffective assist- prosecutorial above, instances, one, ance. As reviewed none of these had alleged except use of biblical refer- merit. The one bona fide instance misconduct—the and defense counsel could have legitimately ences—was not prejudicial, not to but to decided that it was wise tactically interrupt prosecutor to the use of references his own religious during closing argument, respond as he in fact did. We therefore find no ineffective assistance failing *56 to the object closing argument. prosecutor’s
Second, that trial argument defendant claims counsel’s own closing deficient and We disagree. During penalty phase, was prejudicial. health to establish that defense was to call two mental strategy experts because his crimes were committed defendant’s was mitigated culpability influence under the of extreme mental or emotional disturbance while 190.3, the criminal- (§ (d)) factor and that defendant’s capacity appreciate was of his conduct or to conform his conduct to the law ity requirements defect, or the effects of intoxication as a result of mental disease or impaired 190.3, record, that this (§ (h)). From the it does not factor present appear focus was itself or unsound. strategically tactically psychiatric fact that called him during Defendant to the trial counsel “crazy” points context, as an instance of ineffective assistance.10Read closing argument however, been an the use of that resonant term have appears colloquial to the jury’s likely perception to move beyond legalisms appeal attempt defendant. Use that there was with something quite wrong psychologically discussion of factors and statutory mitigating of the term was followed by “craziness” fit into these factors. reasoned about how defendant’s argument did not commit ineffective assistance in this regard. Trial counsel also “The fact that trial counsel stated: argument During closing [defend- me. He doesn’t have the have doesn’t humanity surprise doesn’t any ant] mental that I mean a mind that is free from mind to have humanity. By him. that I have been with dealing illness. He hasn’t had it for whole year he all the he has been alive to an early point He hasn’t had it for years up it?” Defendant faults counsel for speaking hasn’t. should he have Why context, counsel But as from the was him as lacking “humanity.” appears think, Gentlemen, you analyze history, that “I Ladies and if [defendant’s] 10Counsel stated: time, you see a continuum of say beginning, youth, present from his to the will is to from ample, ample, ample evidence of mental disorders. mental disorders. You will see suffering give Right. They it a name. call it he’s from psychiatrist psychologist “The suffering paranoia, from a belief that suffering from lack of control. He’s delusions. He’s things happening they’re are when not. Gentlemen, think really any you is there one of who doesn’t thing, “The Ladies and simple my crazy? that client they honestly say there and can that don’t “Really? any you there one of who sits who Is crazy?” think Mr. Welch is illness, lack of mental in an defendant’s with equating supposed humanity that turn to his client’s attempt advantage jury’s probable perception defendant had few visible features. This did not consti- redeeming argument tute ineffective assistance.
Defendant also faults trial counsel for attention to the fact that he calling was, indeed noted it was trial. Counsel how unusual uncooperative during his 30 to have client who was so years uncooperative practice, was, But this in the of a discussion discussion context attorney. again, larger of defendant’s mental These remarks served to further underscore problems. behavior in which defendant a theme self-defeating continually engaged, in the This discussion was emphasized psychiatric testimony. therefore consistent with trial counsel’s reasonable penalty phase strategy.
Defendant claims ineffective assistance of counsel because of remarks *57 Rosenthal, made counsel’s he during had Dr. explanation why replaced the chief the with Dr. Benson and Dr. psychiatric expert during guilt phase, Pierce. Counsel told the that the he had on jury during guilt phase put that was not inconsistent with the of actual psychiatric testimony position maintained, innocence that defendant but that at the he could penalty phase introduce the psychiatric testimony on that defendant premised supposition did in fact commit the crimes. Defendant claims that now such an argument undercut counsel’s with the credibility that he had been less jury, suggesting than honest with the at the He also contends that jury guilt this phase. admission also cast him in a less favorable As to this latter it is light. point, doubtful indeed that counsel’s remarks could have further reduced defend- ant’s much diminished stature and already before the Nor credibility jury. Rather, did the remark undercut counsel’s likely own with the standing jury. counsel to the the reason for the competently explained jury change between the and a that the psychiatric experts guilt penalty phases, change had claimed was These remarks did not inef- prosecutor constitute suspect. fective assistance.
D. Failure to Give Instruction Deterrent Value and Regarding Monetary Cost Death Penalty
Defendant claims the trial court erred in his instruction to refusing the not to consider the jury deterrent effect of the death or the penalty costs of versus him in for monetary executing prisoner maintaining prison instruction, life without In the trial court possibility parole. rejecting reasoned that instruction backfire and might cause consider jury matters it would otherwise have We have noted that a was ignored. jury 313, 355, instructed in similarly Ray 13 Cal.4th and People P.2d While instructing jury footnote Cal.Rptr.2d 846]. cases, this be in some it not error for trial may was point appropriate refuse such an The was informed that it jury court to instruction. adequately to limit to the statutory mitigating was itself supposed aggravating circumstances its determination. The never making prosecutor penalty comment of cost and or introduce evidence issues regarding attempted deterrence. The trial court not to furnish an instruction exhort- required was which, factors to refrain under reasonable jury considering from ing instructions, of the it should have known were understanding jury improper to consider. Doubt Other
E. Reasonable Instruction Crimes Evidence for The trial court “factor in jury aggravation instructed any It it must be a reasonable doubt.” also instructed that was to beyond proved as that defendant had been convicted of being accept conclusively proven three felonies—assault force likely produce great bodily injury, prior officer, Defendant of a stolen now battery peace receipt property. that the would have been confused this instruction into jury contends that the these had been conclu- underlying conduct convictions believing and that such not sively proven, prosecution required prove to count against conduct a reasonable doubt in order that conduct beyond defendant as violent criminal activity. *58 fact, law,
In the trial court the but did so to defendant’s benefit. misstated must a It is untrue that all factors in be reason aggravation beyond proven doubt; criminal must be so unadjudicated proven. able violent only activity 400, 795, (1997) Cal.4th 862 938 Samayoa v. 15 (People Cal.Rptr.2d [64 instruction, 2].) P.2d When reviewing supposedly ambiguous jury “ the “whether there is a reasonable likelihood that has jury ‘we inquire ” in a that the the instruction violates Constitution.’ challenged way” applied 957.) at In the case Frye, supra, v. 18 Cal.4th (People present of criminal instructed as to each instance violent unadjudicated the jury the and was that it had believe instructed activity charged by prosecution, a reasonable in order to count the other crimes against this doubt beyond likelihood in the There was no reasonable sentencing process. of have misunderstood to defendant’s detriment this scope would jury reasonable doubt instruction. Class Penalty Failure Death Statute to Narrow
F. of California Death Murders Eligible States Supreme
As we have stated: “As construed the United Court, that a ‘rationally Amendment death law the Eighth requires penalty
767 those individuals for whom death is an between distinguish appropriate (1984) sanction and those for whom it is not’ v. Florida 468 U.S. (Spaziano 3154, 3162, 447, 340]), 82 L.Ed.2d and establish ‘rational 460 S.Ct. [104 as to the circum- criteria that narrow decisionmaker’s whether judgment (McCleskey stances of a defendant’s case meet threshold.’ v. particular 279, 1756, 1774, (1987) 262].)” L.Ed.2d Kemp 481 U.S. S.Ct. 95 [107 619, 782, (1997) v. Holt 15 Cal.4th 937 P.2d (People Cal.Rptr.2d [63 statute, 213].) Defendant that the death contends California because penalty inclusiveness of the circumstances makes categories, virtually special all murderers for death and therefore fails to measure eligible penalty up to the constitutional standard articulated above. haveWe repeatedly rejected Holt, 619, 698, (see this claim v. People 15 Cal.4th and cases cited supra, therein) and continue to do so.
G. Failure to Give Burden and Standard Instructions of Proof of Proof Defendant that the contends California death statute is unconsti penalty tutional under the Eighth Amendment of the United States Constitution inasmuch as it fails to with instructions on the burden of provide jury and standard of proof circum proof finding aggravating mitigating stances in reaching determination. We have penalty rejected repeatedly such an determination argument. “Unlike the ‘the sentenc guilt, normative, function is moral and ing not factual’ inherently [citation] ” ‘not thus to a susceptible burden-of-proof (People quantification.’ (1995) 12 1129].) Cal.4th 906 P.2d We Cal.Rptr.2d Sanchez have therefore that the of a rejected arguments reasonable doubt imposition factors, standard on the jury’s or the that the finding aggravating finding ones, factors aggravating substantially outweigh mitigating is constitution reason, (Id. 80-81.) ally required. For much the same pp. we have concluded that “neither the nor the defense has the burden of prosecution proof’ during v. Daniels 52 Cal.3d penalty phase. (People 802 P.2d decline Cal.Rptr. We to revisit these deci *59 that, do sions. Nor we in the agree with absence of a specific instruction, the jury to believe that it is bound the likely by reasonable doubt instruction in given during guilt whether evidence phase deciding can count in defendant’s favor as On the because the mitigating. contrary, trial court instructed that the reasonable doubt standard specifically applied factors, (partially erroneously) and mentioned aggravating nothing about factors, the reasonable infer that no mitigating juror would such reasonable doubt standard factors. applied mitigating
Defendant further contends that as a matter of construction statutory section should be as 190.3 Evidence interpreted implicitly incorporating 115, otherwise by in as “Except provided
Code section which provides part: law, of the evidence.” a by the burden of requires proof preponderance proof to include should also be read claims that section 190.3 Defendant also states that as otherwise “[e]xcept pro- section which Evidence Code or law, to each fact the existence the burden of as a has by party proof vided or defense that he is to the claim for relief nonexistence of which is essential on the he the burden pros- These two argues, place asserting.” provisions, at the circumstances aggravating penalty phase. ecution prove was intended to incorpo- to believe that section 190.3 There is no reason Indeed, of section the final 190.3 paragraph Code section 115. rate Evidence determination: phase the sui nature of generis jury’s penalty makes clear evidence, heard and after having and received all the “After heard having consider, counsel, take the trier of fact shall arguments and considered circumstances mitigating and be by aggravating into account guided section, trier of of death if the and shall sentence referred to this impose the mitigating circumstances outweigh fact concludes that aggravating of sentencing section describes process circumstances.” Because 190.3 burden of quantifi- that is basically proof determination incompatible Sanchez, 81), it is most 12 Cal.4th at (see v. supra, cation People either is outside scope to infer that section 190.3 simply reasonable to such not intended to apply which was Evidence Code section matters, the latter statute’s “otherwise provided or else fits within sentencing case with the relationship The same be the law” would exception. section 500. and Evidence Code between section 190.3 Unadjudicated Instruction H. Failure to Give Burden of Proof Activity Criminal consider any unadjudicated that before it could The was instructed jury circumstance, it had to be satis- as an aggravating criminal activity violent did, fact, commit such doubt that defendant a reasonable fied “beyond erred in that the trial court . .” Defendant contends criminal . . activity innocent and that that he was sua presumed to instruct failing jury sponte held that no such We have had the burden proof. the prosecution in this regard the court fulfills its obligation and that instruction is required, doubt standard. (People on the reasonable it instructs the jury when 885 P.2d Cal.Rptr.2d Cal.4th 1090-1091 Rodrigues matter, federal either state or under decline to reconsider We theories. constitutional 190.3, (d) Factor Section Unconstitutionality
I. 190.3, (d), to instructed, *60 factor with section in accordance The was jury defendant was the committed while or not the offense was consider “whether
769 Defendant extreme mental or emotional disturbance.” under the influence of unconstitutional because it claims that such an instruction is precludes factors, and in mitigating from all jury considering mitigating particular than extreme. of a mental or emotional disturbance that less evidence that “the ‘catchall’ We have that rejected argument, explaining provi 190.3, (k), other circumstance “[a]ny sions in section factor ‘referring crime,” nonex extenuates the of the allow consideration of which gravity ” Turner, treme mental or emotional conditions.’ 8 Cal.4th (People supra, 208.) at decline to revisit this We p. question. 190.3, (a)
J. “Double Section Factor Counting” of The was instructed to consider circumstances of the crime of jury “[t]he in which defendant was convicted and the existence of proceeding (See 8.85.) circumstance found to be true.” CALJIC No. As in any special (1995) 1224], Cain People v. 10 Cal.4th 892 P.2d Cal.Rptr.2d motion, defendant contends “the court on its was own to instruct obliged, not to ‘double count’ the same jury facts as circumstances of the crime and Cain, as As circumstances.” we stated in “We have special repeatedly claims of in rejected reversible error this where the defense did not regard an instruction double and there no request against counting, was misleading argument by the same facts should be prosecutor suggesting weighed twice, case, (Ibid.) once under each rubric.” In the there was neither present a defense nor on the request any misleading prosecutorial argument point.
K. Failure to Instruct That Jury Is Not to Consider Unanimity Required Factors Mitigating
Defendant contends that the trial court erred in to instruct the failing jury sua that it did not need in order to consider sponte unanimity particular evidence. mitigating As we v. Breaux recognized People 585], Cal.4th P.2d is settled that Cal.Rptr.2d “[i]t limits requirement unanimity consideration evi improperly mitigating Breaux, italics.) dence.” As (Original we also noted in the nothing standard California instructions that number jury “suggests] any particular of jurors was to find a circumstance. The required mitigating only require (Id. 315.) ment of was for verdict itself.” The instructions unanimity also that conveyed were to an individualized unmistakably jurors undergo conclude, factors. We as in process weighing aggravating mitigating Breaux, that there little likelihood into instruc jury’s reading tions a circumstance or requirement they agree unanimously any evidence as mitigating.
L. Failure Criminal Regarding Activity to Instruct Nonviolent
The instructed to “take into account and be guided by was jury and each of and then was read following aggravation mitigation” factors (b), in section it came to the jury the factors enumerated 190.3. When factor instructed to each of the violent criminal acts that the was as prosecution “Now, defendant. The was instructed: evidence sought prove against jury been for the that the defendant has showing has introduced of purpose or committed criminal which involve the following activity express of or force Before use force or violence the threat of violence. implied [or] such or an activity consider criminal acts as you may any aggravating case, circumstance must first be satisfied a reasonable you beyond in this commit doubt that the defendant did in fact such criminal or acts.” activity Defendant the fact both the during that points penalty phase and the defense introduced evidence of incidents of unadjudi- prosecution violence, criminal as well as concern- involving cated not evidence activity He then claims it was a of juvenile adjudications. various violation ing not Amendment to fail to instruct that it could Eighth explicitly jury these acts or “a level juvenile consider nonviolent adjudications, interjecting into be that cannot uncertainty unreliability factfinding process of (Beck v. tolerated in case.” Alabama U.S. capital instruction, 2382, 2392, a context in S.Ct. 65 L.Ed.2d But the read in only it was that the court was forth the that could which clear setting factors and then forth the be considered in aggravation mitigation, setting that exclusive list of incidents could be considered whether deciding had of criminal left little if any defendant been violent guilty past activity, of their likelihood that the would misunderstand limits jurors proper and no vio- We therefore find no instructional error constitutional inquiry. lation. Penalty M. Lack Failure to Testify Instruction Defendant’s Phase at the of the The trial court Defendant did not trial. testify penalty phase that the to draw no did not instruct sua the fact regarding jury sponte failure As defendant we inferences from this negative testify. recognizes, Amendment has no under the Fifth held the trial court duty have to furnish States or other constitutional any provision United Constitution 209.) 2 Cal.4th at (People Hardy, supra, such instruction sua sponte. reexamine decline his this question. We request Execution Method Illegal N. death, the execution in the time was sentenced to method of
At
method
execution was
lethal
this
gas.
this state was by
Subsequently,
*62
(N.D.Cal. 1994)
(Fierro
found to be cruel and unusual.
v.
865
Gomez
301,
1387,
1996)
309.)
(9th
affd.
Fierro v.
Cir.
77 F.3d
by
F.Supp.
Gomez
Fierro,
The United States
Court
certiorari in
vacated
granted
Supreme
Court of
and remanded the case to the United States
Appeals
judgment,
,
[sjection
the Ninth Circuit “for further consideration in
of .
.
3604.”
light
285,
(Gomez
(1996)
204].)
v. Fierro
Of be could made that it is at least as that the argument likely more, of lethal as a method of execution made adoption injection has juries less, case, rather than to select a death sentence. In willing when any verdict, reviewing jury that presume jurors comprehend accept “[w]e 612, 689, the court’s directions.” v. 54 Cal.3d fn. 17 (People Mickey 801, 818 P.2d Cal.Rptr. Defendant’s about the speculation jury’s [286 does not serve to in the decisionmaking process dispel presumption case. We therefore that the method of execution did not present presume a role in the deliberations. play jury’s penalty phase O. Other Constitutional the Death Objections Penalty Statute above, In addition to the constitutional claims discussed defendant raises number of other constitutional to the death statute iden- objections penalty tical to those we have These include the failure of the rejected. previously death statute to between penalty distinguish aggravating mitigating
772 1005, (1997) 14 Cal.4th 1059 [60 (People circumstances Bradford 225, death statute 544]); the failure of the penalty P.2d Cal.Rptr.2d are factors as to which aggravating from the findings jury written require 877, (1993) 5 Cal.4th 943 [21 be true v. Montiel (People found to 705, 1277]); the lack of intercase proportionality 855 P.2d Cal.Rptr.2d (1997) 14 Cal.4th Cal.Rptr.2d v. Mayfield review (People as a activity violent criminal 485]); the inclusion of unadjudicated P.2d (1993) Cal.4th 198-199 v. Garceau (People factor in aggravation of a unanimous 664]); the lack of a 862 P.2d requirement Cal.Rptr.2d *63 criminal activity unadjudicated that the defendant committed prior finding (1994) 9 v. Crittenden (People considered in aggravation before that factor is 474, 887]); 83, vague P.2d the supposed 885 Cal.4th 153 Cal.Rptr.2d [36 190.3, factors in section and “substantial” found the terms “extreme” ness of 764, (1995) Cal.Rptr.2d 10 Cal.4th Stanley and v. (d) (People (g) discretion in curb on the 481]); the lack of any prosecutor’s P.2d Arias, v. (People supra, not to seek the death penalty whether or determining v. 189); Bradford, the methods of execution (People at and 13 Cal.4th p. our as 1059). holdings We decline to reconsider 14 Cal.4th at supra, p. constitutional these questions. regarding the instruction jury also contends that standard
Defendant He ad- mitigation. to define factors11 is generally inadequate mitigating in the instruc- language not on by focusing any particular vances this claim former tion, that interviews with articles claiming but rather two by citing of the subjects show that many selected randomly subjects or with jurors after they mitigation correctly of concept understand failed properly & (See Lynch, Comprehending No. 8.88. Haney had been CALJIC given Life Penalty Capital Preliminary Study Death Matters: A and California’s of al., 411; et Deciding Hum. Behav. (1994) Haney 18 Law & Instructions 11The trial court stated: is, one, while the defendant was committed whether or not the offense mitigation “A factor mental or emotional disturbance. the influence of extreme was under appreciate defendant to capacity of the at the time of the offense “Whether or not impaired law was requirements to the of to conform his conduct criminality of his conduct or or the effect of intoxication. mental disease or defect as a result of account, consider, guided by the and be may take into determining penalty, you “In mitigation: aggravation, following factors in though it’s not gravity of the crime even extenuates the “Any circumstance which other legal excuse for the crime. consider, words, take into account mitigation you may determining as penalty, in “In other may be though it not gravity the crime even extenuates the of any circumstance which other the crime. legal excuse for and is not character, background, his of the defendant’s any aspect other may further consider “You than death. a sentence less as a basis of history record that he offers or Gentlemen, compassion for you may consider may sympathy, consider you “Ladies and defendant.” Juries, and the Jurisprudence Take Decisions Capital Sentencing Life: (1994) 149.)
Death 50 J. Issues In the latter study, Soc. example, authors to demonstrate that of 30 interviewed who had purported people cases, served on 13 showed a formerly juries only “reasonably capital accurate comprehension aggravating mitigating,” concepts while one-third of our refocused the “fully sample penalty phase inquiry itself, nature of the crime and did so in a that amounted entirely way Issues, al., to a favor death.” et 50 J. Soc. presumption (Haney supra, 162, 169, omitted.) italics pp. earlier, As stated presume jurors comprehend accept “[w]e court’s directions.” Mickey, 17.) v. 54 Cal.3d at fn. (People supra, The that the in this presumption jurors case understood and followed the mitigation instruction to them is not rebutted asser- supplied by empirical tions to the based on contrary research that is not of the record part present and has not (See been to cross subject examination. Court Hovey Superior 28 Cal.3d 616 P.2d We Cal.Rptr. accordingly reject defendant’s claim.
P. Absence Trial Defendant’s from above,
As recounted defendant the trial frequently disrupted pro- result, As a he ceedings. was removed on a number of occasions from the courtroom. At other times he or demanded to absent requested himself from the courtroom. He claims now that his Sixth Amendment to confront right witnesses, his to due right under the Fourteenth Amendment and his process to be right personally with counsel “in a criminal present cause” under I, 15, article section of the California Constitution all were violated thereby. “ concluded, As we have ‘as a matter of both federal and state constitutional law, ... a defendant capital waive at critical may validly presence stages ” Jackson, of the trial.’ Moreover, (People 1210.) 13 Cal.4th at supra, p. waive may his to be at his trial right present by being disruptive trial, courts must considerable deference to the trial appellate give court’s as to judgment when has occurred or disruption may be reasonably (See 337, 1057, Illinois v. Allen anticipated. 397 U.S. 343 S.Ct. 1060-1061, 353]; Jackson, 25 L.Ed.2d People v. 13 Cal.4th at supra, 1211.) We find no constitutional error from defendant’s removal or arising absence at various the trial. during points
Defendant also contends that his were violated under statutory rights 977, (b), section subdivision which in that in provides pertinent part felony cases “the accused shall be at the at the time of present arraignment, plea, during preliminary hearing, those of the trial when during portions fact, the time of the imposition the trier of and at evidence is taken before at all other be proceedings sentence. The accused shall personally present court, court, shall, a written waiver execute in open unless he with leave Furthermore, (a), recites part subdivision . . . .” section section, in a felony the defendant in this as otherwise provided “[e]xcept inter- which have at the trial.” “The cases case be present shall personally is not held that the accused sections have uniformly the foregoing preted at bench discussions either in chambers or to be entitled personally present or other on of law of the jury’s presence questions occur outside which ‘a substan- “reasonably does not bear matters in which defendant’s presence defend of his against relation to the fullness opportunity tial ’ ” (1980) 28 Cal.3d Cal.Rptr. v. Jackson charge.” (People P.2d Moreover, in section is subject to be found the right present (b)(1), felony which permits under section subdivision qualification defendant, after he absence in case in which “[a]ny trial in a defendant’s be removed if he continues that he will has been warned by judge behavior, in a manner himself conducting nevertheless insists disruptive cannot the court that the trial disorderly, disruptive, disrespectful so above, courts him stated in the courtroom.” As appellate be carried on with when determining disruption discretion accord trial courts considerable who a defendant of the record reveals quite plainly has occurred. Our review did not abuse its discre- find the trial court We was persistently disruptive. to his absence for removal or consenting either defendant’s tion by ordering the courtroom. order in maintaining the sake
Q. Proceedings Failure to Report on the that not conducted trial were Defendant to seven proceedings points Ab in a settled statement. are documented record. These proceedings the basis for a reversal omissions are not of these sent showing prejudice, Holt, 708.) at Defendant 15 Cal.4th supra, p. v. (People of conviction. that omission from He claims in no in this case. particular shows prejudice of the phase a discussion involving penalty conferences the record two review, in violation to meaningful appellate denied his right instructions jury these Amendment of due But unreported right process. of his Fourteenth and were pre in the settled statement been documented conferences have Moreover, are able we on the record. more extensive discussions liminary that were the subject themselves instructions to review penalty phase right been denied his has therefore not Defendant these conferences. review. meaningful appellate
R. Cumulative Error error,
Defendant contends that cumulative both at the guilt penalty constitutes error. We find that none of the error made at reversible phases, trial was either considered or in singly aggregate. prejudicial, 190.4, (e),
S. Section Motion Subdivision Defendant’s motion to the verdict of death to life modify imprison- 190.4, (e) ment without to section subdivision possibility parole, pursuant (section 190.4(e)), denied the trial He that the was court. now contends by trial court erred in this determination because its decision on the making motion rested on considerations. We impermissible disagree.
Defendant first contends that the trial court relied on the wrongly proba- tion officer’s in on the motion. The trial court did indeed state report ruling 190.4(e) while on the section motion that he had “read and ruling consid- ered” that “As we have the trial when court reviews a report. explained, 190.4, death (e), verdict under section it is limited to penalty subdivision consideration of the evidence to the which presented jury, penalty phase Hawkins, not does include the 10 Cal.4th probation report.” (People supra, 971.) at It is nonetheless that “the court was not influenced presumed by irrelevant matters in the absent evidence to the probation report, contrary.” case, (Ibid.) In the there was more than a reference present nothing passing to the The trial court otherwise focused on the evidence probation report. trial, such evidence in presented carefully assessing its reaching ruling influenced defendant’s motion. There is no indication that it deny irrelevant matters.
Defendant also contends that the trial court erred in the manner in which it considered in aggravating evidence on the section mitigating ruling 190.4(e) motion. he claims it considered the ab- Specifically, mistakenly sence of “extreme mental or emotional disturbance” as set forth section 190.3, circumstance, (d), factor to be an and that it aggravating improperly discounted evidence of his intoxication at the time of the crimes. committing shows, however, The record the trial court did not consider the absence circumstance, extreme mental disturbance to be an but was aggravating it believed this factor was not in this case to merely explaining why present It was also within its discretion mitigate culpability. concluding *66 the evidence did not his claim that his actions influ- were support greatly enced or alcohol intoxication. We therefore conclude that it did not by drug err in his motion to the verdict. denying modify
T. to a Right Speedy Appeal
Defendant that an almost in the contends three-year delay appointment counsel denied him a to a in violation of his right appellate speedy appeal, Amendment He v. Antoine Fourteenth of due relies U.S. right process. 1379, 1382, (10th Cir. (9th 1990) F.2d and Harris v. Champion Cir. 1538, 1546, the existence of such a As we stated in right. 15 F.3d 1994) Holt, an identical 15 Cal.4th at supra, page addressing People claim, demands of these decisions do not address “the unique appellate court, [Moreover,] this nor the fl[| cases. representation capital [n]either Court, has extended the Sixth Amendment right United States Supreme defendant. but Assuming, trial to in the manner suggested by speedy appeals exists, defendant fails to demonstrate that the not that such deciding, right recruits, screens, and inherent in the which California by delay procedures not defendants on appeal, necessary appoints attorneys represent capital for indigent to ensure that is available capital competent representation Moreover, that the delay defendant fails to suggest any impact appellants. of the rendered before that delay could have had on the validity judgment occurred.” that he was in the delay appoint-
Defendant contends prejudiced because this led in turn to a in the settled statement delay ment of counsel above, a number of confer- conference discussed which during unreported claims He that such caused memories to delay ences were reconstructed. This contention is fade and led to inaccuracies in the settled statement. Moreover, discussed, conferences con- as purely speculative. unreported record, on the cerned discussions of matters more treated fully preliminary defendant’s and the failure to hold these on the record did not impair right obtain review. meaningful appellate Disposition
VI. affirm the in its entirety.
We
judgment
constitu-
MOSK,
I dissent.The trial court committed federal
state
J.
error,
error,
it failed to declare a doubt
as
as state
when
statutory
tional
well
trial, in
of its determination that
about defendant’s
to stand
spite
competence
himself.
represent
was incompetent
the trial court ruled defendant incompetent
The
claim that when
majority
or different
it was employing
higher
for purposes
self-representation,
to stand
than that used for determining competence
standard of competence
Rather,
the record reveals
The record below belies this position.
trial.
because he was
denied defendant’s Faretta1 motion principally
the trial court
had a
sense: that defendant
legal
paranoid
in the ordinary
incompetent
the legal system,
connected with
attorneys
everyone
distrust of his own
(Faretta).
(1975) 422
S.Ct.
777 a delusion which rendered him in his own incapable rationally assisting defense. The trial court should have at that declared a doubt about point defendant’s to stand trial and held a to Penal hearing competence pursuant a Code section 1368.2 The failure to do so should lead to reversal find this defendant’s conviction its entirety. Although majority may crimes, conclusion of the of defendant’s it is the disagreeable light gravity that conclusion follows from of established dispassionate application constitutional doctrine facts of this case.
Under the due
clause of the Fourteenth Amendment to the United
process
Constitution,
States
a defendant
not be tried unless he is
may
competent,
389,
2680, 2685,
(Godinez
(1993)
v. Moran
U.S.
S.Ct.
125
509
396 [113
321].)
(1960)
L.Ed.2d
As was
in Dusky
stated
v. United States
Moreover, Moran, the United States Court in Supreme v. supra, Godinez U.S. held that a to stand trial also competent to waive his in a Faretta competent right motion “since representation there is no reason to believe that the decision to waive counsel requires an level of appreciably higher mental than the decision to functioning other (Id. 2686]; waive constitutional rights.” S.Ct. at see p. also People Hightower 1114-1116 Cal.App.4th Cal.Rptr.2d
Defendant contends the evidence to the trial court within presented the context of the Faretta led it to conclude that he was not hearing counsel, that, to waive his competent right reached that having conclusion, it had to declare a doubt about his to stand trial. He competence undesignated statutory
2All further citations are to this code. *68 focuses in on the comments made the trial court at particular following by the conclusion of the Faretta “I find Mr. Welch a defendant hearing: who and, therefore, does not the extent of his own cannot be appreciate disability of the fully aware risk of I find the of Mr. self-representation. disability Welch function in a courtroom. I significantly impairs capacity fl[] further find that one the defendant’s he reasons wishes to with dispense defense is a distrust connected attorney paranoid everyone with the [his] judicial This is further evidence to this court that he the system. lacks mental (Italics added.) waive his to counsel.” capacity truly right conclusion, In its the trial court scrutinized the record reaching carefully for evidence of defendant’s behavior As the court stated: “The pretrial defendant’s mental condition in the Court’s realistic opinion precludes the assessment of need for assistance and risk of counsel. Mr. waiving Welch between the to the In the alleges conspiracy judicial parties system. matter heard before he in these Judge Ballachey, alleges conspiracy proceed- I’ve listed ings. few acts. just Court,
“On October 3rd ... the prosecution, [he claimed] [his] counsel have been in collusion each other. acting
“October 3rd ... Bar Association County] [Alameda [he claimed] him, should be from in a disqualified being involved representing conspiracy.
“October 4th . . . there’s an accusation of back-room discussion between counsel.
“October 4th . . . Mr. Welch accuses defense attorneys acting [of] collusion with District Office .... Attorney’s
“November 8th .. . between the alleges judge, conspiracy [he] District as well as Attorney, police department, court-appointed lawyers the Public Defender and the . . . police.
“November 8th .. . he ballistic materials falsified alleges [were] sheriff’s department.
“November 8th ... he officials were alleges jail monitoring devices listening throughout interviews with psychologists by placing room.” an defendant asked to
The trial court also referred to
incident which
rather than at the counsel table because
have his
sit in the
box
attorneys
jury
adversal
in the
now. Not
“they’re
my
right
proceedings right
position
[szc]
[sz'c],
of their
. . . .”
*69
adversal
have interests
own
only they’re
they
836,
[(1966)
As we have stated: “Pate v. Robinson
In case we have the unusual situation of the trial court itself present coming forward with substantial evidence of defendant’s mental incompe- evidence, tence in the context of on a Faretta motion. This as ruling above, defendant, reviewed called into whether unmistakably question given delusions, be able to assist in his own defense. rationally would paranoid Indeed, the trial court this evidence substantial to be used sufficiently reason for defendant’s Faretta motion. Although as primary denying of a section 1368 when hearing we referred to Pennington necessity (People defendant comes forward with substantial evidence incompetence case 518), 66 Cal.2d at the fact that in the present v. Pennington, supra, make the only the trial court the substantial evidence would produced itself more “Once substantial hearing case holding competency compelling. of a defendant’s mental incompetence, requirements evidence appears” a section are triggered. 1368 hearing course, Of a failure or refusal of a defendant to with cocounsel cooperate test, not in in a section 1368 itself proof incompetence. “[T]he *70 is not (People Supe proceeding, competency cooperate, cooperation.” (1975) rior Court 464 (Campbell) Cal.App.3d Cal.Rptr. assume, however, If We that the trial court understood this basic distinction. defense the trial court had concluded that defendant’s with his difficulty counsel was a result of a willful refusal to rather than incapacity cooperate, role, to understand counsel’s then that refusal would have weighed favor motion, not defendant’s Faretta because the of nonco of, against, problem him to himself. But the could then be solved operation by allowing represent court, distrust” trial of defendant’s his “disability,” “paranoid which spoke counsel, of his and his lack of mental to waive his right, clearly capacity that defendant more than unwilling seemed to have concluded was simply counsel, rather in some sense unable with but was cooperate psychological Thus, did in the course of to do so. trial court state although summarily on the Faretta motion that he found defendant to stand ruling competent trial, the evidence he that conclusion was inconsistent with unexplained adduced in Faretta motion. denying
Moreover, corroborated the trial court’s at the testimony penalty phase (See defendant’s v. Clark disability. People own of perception Cal.4th 833 P.2d penalty phase Cal.Rptr.2d 561] [review The defense psychia- used to resolve testimony questions competence].) suffered testified at the that defendant trist psychologist penalty phase Dr. described their nature as follows: “I from delusions.” Benson “paranoid to mind what . . . think the delusions that basically paranoid [are] [come] And that is when seen here in the courtroom. how people we’ve happen it, then that causes immediately don’t see a situation as the sees [defendant] I is that are a sort of ... believe his struggle. perception people power him, and I think it’s been certainly him if don’t they agree against the district his attorney, attorneys, demonstrated here. I think that Judge, Pierce, him be as being against Dr. soon will myself perceived probably time” ill for a mentally long Dr. Pierce that defendant had “been opined that on false delusional stance toward life operates and had “a very paranoid an defendant’s delusional thinking . . . .” He as an beliefs gave example court and commented that incident in which “interrupted had stand and that he felt one where attorneys standing they usually weren’t did this than usual. And it was his feeling they slid his chair over further on defend- attack him.” Dr. Pierce also commented so that bailiffs could It is hard “His thinking tangential. ant’s use of legal arguments. apparent make It but it doesn’t good, to follow the of what he’s sounds logic saying. such The no to contest sense.” any prosecution produced psychiatric expert testimony. conduct, the Faretta.motion
Evidence of defendant’s irrational both before trial, made and revealed a defendant at cross- working was subsequently counsel, with his with his counsel over the struggling purposes proper to be defense on numerous occasions his presented, renewing request either a substitution of counsel or relief from counsel This altogether. conflict defendant and counsel’s epitomized by pursuit opposing innocence, defense actual counsel strategies—defendant claiming claiming lack of and deliberation. When defendant did premeditation testify, against advise, counsel’s he did so without consultation with counsel any regarding nature of his When counsel asked the court for a recess testimony. *71 client, to consult his a of which with substitution requested Moreover, counsel “if counsel is not to defendant made my ready proceed.” over 150 on his own the course of the trial. The of objections during picture defendant that at trial is consistent with the view of the trial court emerges and the mental health that he was with counsel experts uncooperative because of his belief that were in collusion with the and they prosecution acted to his own interests.3 adversely
The to our statement in v. Laudermilk 67 majority point People 228), Cal.2d to 431 P.2d that “more is Cal.Rptr. required raise a doubt to than mere bizarre actions or competency] [as [citation] bizarre statements or statements of defense counsel that defendant [citation] is in his defense or incapable cooperating psychiatric testimony [citation] immature, that defendant is or homicidal or such dangerous, psychopathic, with little reference to defendant’s to assist in his diagnosis ability own case, however, defense.” In the both the trial court’s observations present and the conclusions were psychiatrist’s psychologist’s directly pertinent to defendant’s to assist in his own defense.” Nor was this “ability perceived persisted making 3I further note that defendant has a number of motions in this court to trust, essentially despite due to to a lack of replace appellant his current counsel what amounts appellate competent counsel’s more than efforts. statements, but on obser- based on defense counsel’s inability independent vations of defendant’s actions. that because the trial court was
The in essence majority argue apparently a defendant’s under the that the standard for determining misconception different from and higher to himself was competence represent supposedly trial, to then than the standard for stand what determining competence not neces- the trial court said about the former should type competence claim there are reflect on the latter And because the sarily majority type. than the denial of Faretta motion other grounds compe- upholding tence, trial and its failure to hold a on ruling hearing both the court’s Faretta The defendant’s to stand trial should be upheld. problem competency that it little if in the record. A review of any this finds argument support a the record reveals that the trial court have had certain may misconception in the context of a Faretta motion— about meaning competence counsel, that in addition to to to right waive specifically being competent sense, in the the defendant must legal which involves competence ordinary defense.” also the “minimal to ability personal, competent possess present that The United States Court made clear competence Supreme Godinez waive, not was sole competency competence self-representation, Moran, (See supra, concern in on Faretta motion. ruling Godinez above, record, 2686-2687].) U.S. at S.Ct. at But the as cited pp. also reveals that the main focus of the trial court’s in ruling inquiry himself but defendant’s Faretta motion was not on his ability represent sense, rather on his in the to waive ordinary legal right incompetence, extreme, counsel and his belief counsel because of his distrust of paranoid system against were in with the rest of they league judicial words, In the trial court’s regarding interests. other apparent misconception of defendant’s Faretta not central to its determination competency Because it from the record that the to waive counsel. appears incompetence of defendant’s to waive his right trial court’s determination incompetence *72 evidence—i.e., evidence raising counsel was substantial supported by trial court should have taken the reasonable doubt as to his competence—the hearing. next of a section 1368 ordering step that, trial used the term the court although
The also majority suggest motion, meant the Faretta what it was really when denying “incompetence” but rather the ability lacked not se per that the defendant competence of to counsel. This right argument and waiver voluntary make a knowing that, addition to did indeed make clear in merit. The court is without Godinez and waiver must be intelligent of a knowing a determination competence, (God bemay validly granted. a motion for self-representation before given Moran, at But the at 400 S.Ct. p. 509 U.S. supra, p. v. [113 inez
783 and waiver court clarified the difference between competency Godinez the defendant’s mental “The focus of a is competency inquiry requirements. he has the to understand ability is whether question capacity; The of the and ‘knowing voluntary’ inquiry, purpose proceedings. [Citation.] contrast, the defendant does understand actually is to determine whether by decision and whether the and of significance consequences particular at 835 California, supra, decision is uncoerced. See Faretta v. [422 U.S.] [95 (defendant counsel must be ‘made of the S.Ct. at aware waiving p. 2541] so that the record will and dangers disadvantages self-representation, that “he he and his choice is made with eyes establish knows what is doing [238,] ’)...; [(1989)] Alabama U.S. 244 S.Ct. Boykin v. open” [89 1709, 1712-1713, (defendant 23 L.Ed.2d must have ‘a guilty pleading 274] full of what the connotes and of its understanding plea consequence’).” Moran, (Godinez U.S. at fn. 12 v. S.Ct. supra, pp. [113 2687-2688], italics original.)
As the and the and Boykin above remarks references Faretta v. Alabama clear, (1989) U.S. 238 S.Ct. 23 L.Ed.2d make inquiry 274] into whether a waiver is and is not an into knowing voluntary inquiry defendant’s mental but rather into the of the capacity, largely sufficiency trial court’s effort to warn defendant of the of the adequately consequences (See, waiver. e.g., Lopez 573-574 People Cal.App.3d and before [warning Cal.Rptr. required, specific warnings suggested, 36] case, motion].) Faretta In the the trial court did not granting present attempt waiver, to inform defendant of the and so there is no consequences of defendant’s information furnished question failing comprehend specific Rather, to him the trial court. the trial court’s Faretta was ruling in the that defendant lacked the mental grounded judgment capacity waive, of the regardless warnings to his delusional given, owing chiefly is, short, It outlook. clear from record that the trial court’s denial of the Faretta motion based on the rather than the competency prong, “knowing waiver” Faretta voluntary prong, inquiry.
I of the I I not hold that narrowness would emphasize holding propose. motion, time a court denies a Faretta it must hold a any hearing. competency There be other than such a motion. may grounds denying competence Nor would I hold that a is each time it becomes hearing competency required Nor, that a in conflict his counsel. manifest defendant mistrusts course, do I that defendant in case was in fact conclude this incompetent when, here, to stand trial. All I would hold is that as evidence of a *73 defendant’s mental and mental incompetence incapacity cooperate counsel is substantial so as to serve as the reason sufficiently validly primary motion, a defendant’s Faretta then it is incumbent on the trial denying under the defendant’s to stand trial
court to hold a hearing competence section 1368. se. declare a doubt as to is reversible per An error in failing competence “ Stankewitz, ‘Nor, 94.) 32 Cal.3d at as the United States
(People supra, [(1966) 383 U.S. Court held in Pate v. Robinson Supreme specifically , . . . the error be cured may S.Ct. 15 L.Ed.2d 815]] of defendant’s mental competence during determination retrospective ” Thus, (Ibid.) entirety. trial.’ I would reverse the its judgment Kennard, J., concurred. 18,1999. Mosk, J., for a was denied rehearing August
Appellant’s petition J., Kennard, of the that the should be granted. were opinion petition