Filed 8/30/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S008112
v.
ARTHUR HANS HALVORSEN,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A030670
A jury convicted defendant Arthur Hans Halvorsen of two counts of first
degree murder (Pen. Code, § 187; unless otherwise specified, all statutory
references are to the Penal Code), one count of attempted murder (§§ 187, 664),
and one count of assault with a firearm (§ 245, subd. (a)(2)), a lesser included
offense of the charged offense of attempted murder. The jury found true
allegations that defendant used a firearm in the commission of all of the offenses
(§ 12022.5) and multiple-murder special-circumstance allegations relating to the
first degree murder counts (§ 190.2, subd. (a)(3)). After a penalty phase, the jury
fixed the penalty at confinement in state prison for life without the possibility of
parole for one of the murder counts, but was unable to reach a verdict for the
remaining murder count. The trial court declared a mistrial as to that count. After
retrial on the penalty for that count, a second jury fixed the penalty at death. The
trial court denied defendant’s motion for new trial and application for modification
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of penalty, and sentenced him accordingly.1 This appeal is automatic. (§ 1239,
subd. (b).)
For the reasons that follow, we affirm defendant’s convictions and
noncapital sentences, vacate one of the multiple-murder special-circumstance
findings, and reverse the judgment as to the sentence of death.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Summary
On Sunday, March 31, 1985, defendant, a 43-year-old self-employed
contractor who lived in Long Beach with his wife and two daughters, shot four
men in three separate incidents, killing two of them. The prosecution’s theory was
that defendant premeditated and deliberated the killings. The defense sought to
show that the crimes resulted from the combination of defendant’s mental illness
(bipolar disorder), heavy alcohol consumption, and mounting financial pressure.
1
On the noncapital counts and enhancements, the trial court sentenced
defendant as follows: as to count IV, attempted murder, the upper term of nine
years, plus three years for the intentional infliction of great bodily injury within
the meaning of section 12022.7, plus two years for the personal use of a weapon
under section 12022.5, for a total of 14 years; as to count III, assault with a firearm
in violation of section 245, subdivision (a)(2), one-third of the midterm or one
year in state prison, plus an additional year for the intentional infliction of great
bodily injury under section 12022.7, plus two years, stayed, for the personal use of
a weapon under section 12022.5, for a total of two years, to run consecutively to
the sentence on count IV; as to count I, murder, life without the possibility of
parole, plus two years, stayed, for the finding under section 12022.5, to run
consecutively to the sentences on counts III and IV; all to terminate and be
deemed served when the sentence of death imposed as to count II is actually
executed.
2
2. Shooting of Benjamin Alcala
In the first incident, defendant approached an apartment building on Santa
Fe Avenue in Long Beach where Benjamin Alcala lived with his wife, his sister,
and her husband, Roberto Martinez. Alcala was in the yard, planting flowers and
using a knife to dig in the dirt. Defendant confronted Alcala, who did not know
defendant but had seen him some days earlier, and asked for Martinez. Alcala told
him Martinez was not at home. Defendant walked away, toward the street.
Defendant soon returned, holding a handgun. He told Alcala he wanted to
go into the house to look for Martinez. Alcala assented and walked toward the
door, leaving the knife in the garden. About four feet from the door, defendant
struck Alcala with the gun on the side of his head. As Alcala opened the outer
screen door, defendant fired a shot to one side of him. As Alcala opened the inner
door, defendant—who was nine or 10 feet behind him—fired again, hitting Alcala
near the shoulder on the left side of his back. The bullet exited his right shoulder.
Alcala fell to the ground and lost consciousness, but survived the shooting after
spending seven days in the hospital.
3. Murders of Calvin Ferguson and Vicente Perez
Calvin Ferguson worked in the vacuum truck business in the Signal Hill
area of Los Angeles County, which was known for oil-related businesses. He
owned an 18-wheel truck and leased it to the Hammett Vacuum Service, located at
the intersection of McDonough and I Streets in Wilmington. Between 5:15 p.m.
and 5:30 p.m. on March 31, 1985, Calvin and his brother, Delton Ferguson, went
to the Hammett premises to perform mechanical work on Calvin’s truck in
preparation for a trip to Ventura. About 6:00 p.m., Delton was looking at a map
book in Calvin’s personal vehicle, having parked his own vehicle some 50 feet to
the west of Calvin’s. Defendant drove his yellow pickup truck into the area and
yelled to Calvin, while rolling northbound on McDonough. Calvin walked toward
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defendant’s truck. Within a minute, a shot was fired. Shortly thereafter, Delton
looked up and saw Calvin lying on the ground and defendant’s truck pulling away.
Delton ran to his brother, who was bleeding from the head.
Vicente Perez’s brown car, which had a 12-foot radio antenna and bore a
“911” sticker and a seal with the words “Community Alert Patrol,” pulled up to
the side of defendant’s pickup truck soon thereafter. Both vehicles stopped, and
defendant and Perez were side by side in their respective vehicles. Defendant
leaned out of his truck, extended his arm, and fired his gun.
Delton Ferguson heard the shot and saw Perez’s car proceed southbound on
McDonough through the intersection with I Street and crash into the fence
surrounding a nearby junkyard between I Street and Anaheim Street. The car’s
tires were spinning, and its engine was running fast. As Delton ran to his own
vehicle, defendant’s truck made a U-turn and then turned westbound on I Street,
driving past Delton. Defendant had a “cold” demeanor as he drove by. (Delton
had met defendant twice before the shootings; after viewing a photographic lineup
and concluding defendant’s picture could have been that of the shooter, Delton
identified defendant at the preliminary hearing and at trial. To Delton’s
knowledge, Calvin had never met defendant. Delton testified there was no
hostility between himself and defendant.) Delton parked his vehicle behind Calvin
to block traffic, ran to the telephone in Hammett Vacuum Service’s yard, and
called the police.
An officer responding to the scene found the engine of Perez’s car still
running and turned it off; Perez was slumped dead in the seat with his foot lodged
against the gas pedal. He had suffered a gunshot entry wound on the left side of
his neck with the corresponding exit wound on the right side of his neck. Calvin
Ferguson lay dead in the street, a bullet entry wound above his right upper lip and
the corresponding exit wound on the back of his neck.
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4. Attempted Murder of Eugene Layton
Eugene Layton, a former professional football player, testified that he
became acquainted with defendant in the course of Layton’s roofing and long-haul
trucking businesses. On various occasions, Layton had purchased from defendant
roofing gravel and used refrigerators, as well as discounted soda pop for a youth
football league that Layton coached. Layton had never had any physical
altercations or problems with defendant.
Within a few months before the March 31, 1985, offenses, defendant had
tried to cash a $1,000 check at a bar called Curley’s, which Layton frequented.
The bartender, who did not know defendant, refused to cash the check until
Layton vouched for him. Later, Layton learned defendant’s check had bounced
and, viewing the matter as his responsibility, went to defendant’s house to see that
defendant repaid the money. Defendant gave Layton $400 or $600 in cash that
day, claiming he had money problems, and eventually repaid the remainder. At
the time of the offenses, Layton testified, there was no outstanding debt between
himself and defendant.
On the evening of March 31, 1985, Layton was at his home on Vista Street
in Long Beach with his 13-year-old son and 10-year-old daughter. He was not
expecting any visitors and was in the shower at some point between 7:00 p.m. and
8:00 p.m., when his son told him someone at the door wanted to see him. Layton
got out of the shower, put on shorts and a T-shirt, and headed to the front door,
where defendant was standing. Layton, who had not known that defendant knew
where he lived, was surprised to see him and told him to wait while he dressed.
Layton did not know why defendant had come to his home, but thought perhaps he
wanted to borrow money or arrange a business transaction. Layton walked toward
his bedroom, but then felt “strange” and turned around. Defendant, who had not
said anything, was standing about five to six feet behind him. When Layton asked
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what he was doing, defendant raised a gun and said: “You’re dead, Gene, you’re
dead.” As Layton asked why, defendant shot him in the left side of his upper chest
from a distance of less than three feet. The shot knocked Layton backward two or
three feet into the wall. Layton screamed for his children to leave the house and
was grabbing for defendant when defendant fired a second shot, hitting Layton
near the right nipple. Layton, who was six feet five inches tall and weighed about
270 pounds, pushed defendant backward into a china cabinet in the dining room,
smashing a glass pane. Defendant and Layton lay on the broken glass. Layton
pinned defendant down by the throat and grabbed defendant’s gun with his left
hand. He pulled the trigger two or three times but the gun did not fire, so he let go
of it. Layton grabbed a piece of broken glass and cut defendant’s throat.
Defendant said: “You got me, Gene. I’m dead. I’m dead.”
Believing he had killed defendant, Layton managed to crawl to the front
door of the house, across the lawn, and to the sidewalk, where paramedics treated
him. Layton later was admitted to the hospital and underwent surgery.2
5. Defense Case
a. Defendant’s deterioration before the shootings
The defense called several members of defendant’s family to testify about
how defendant’s behavior had changed in the period preceding the offenses.
Amalia Diaz Halvorsen, defendant’s wife, testified that although defendant drank
alcohol infrequently when they first met, beginning two years before the shootings
his drinking increased. He drank beer, whiskey, and wine and drank every day.
2
Defendant was arrested at the hospital after receiving emergency treatment
in the same rescue unit as Layton, who told officers the man lying next to him was
the person who had shot him.
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He began to use foul language, which he had not done before, and experienced
memory lapses. A few weeks before the shootings, defendant was drinking more
and became drunk nearly every night. Although he was not violent toward Amalia
or their daughters, he would throw things around the house. Defendant was tense,
nervous, and restless and slept little; he worked long hours every day of the week.
Defendant had been deeply upset to learn, a few months before the shootings, that
a cousin had committed suicide because defendant had failed to repay a debt he
owed him. One night, a month or two before the offenses, defendant awoke
screaming that someone was coming to get him. A few weeks before the offenses,
defendant, who had not spanked their daughters since they were young, hit his
stepdaughter Meri in the face with his fist when she “smart-mouthed” him in
response to his questioning about her alcohol-related arrest. On March 22, 1985,
some nine days before the shootings, Amalia and defendant signed papers to
obtain a $16,000 loan from a man named Wendell West, putting up their house
and everything they owned as security. They were obligated to pay West $30,000,
plus 10 percent interest, on April 21, 1985.
Brandy Halvorsen, 22 years old and a senior at California State University,
Long Beach, at the time of trial, testified that in March 1985 she was living at her
parents’ home on Stanton Place. Previously, at the age of 17, she had moved out.
Brandy testified that when she returned to the family home some two months
before the offenses, defendant, her stepfather, was not the same; he seemed to
become angry at anything, his behavior was unpredictable, and he would become
verbally abusive to her and her sister Meri when he drank.
Berdecia (also known as Clara) Diaz, defendant’s mother-in-law, testified
that for eight years she and her husband had lived next door to Amalia and
defendant. Defendant had helped them with household tasks and had lent them
money to buy their house. But in February and March 1985, defendant seemed to
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change; he was nervous, rarely came to visit as he had before, and was not in as
good a mood or as affectionate as he had been before.
Herbert Ellsworth was married to a sister of Amalia Halvorsen. About two
weeks before defendant was arrested, he asked Ellsworth for a loan of $1,500.
Ellsworth was unable to lend the money. Defendant was pleasant, but avoided eye
contact and looked nervous, as if he were under stress.
b. Events of March 31, 1985
Amalia Halvorsen testified that on March 31, defendant left the house at
6:00 a.m., returned at 9:30 a.m., and then left again. She expected him home at
6:00 p.m. that evening for a dinner engagement with Wendell West and his wife.
West called several times that day to see if defendant was home in order to
confirm their dinner plans. Finally West told Amalia to tell defendant they would
get together another day.
William Destro testified that on a Sunday in March 1985, from sometime
between noon and 1:00 p.m. to about 5:00 p.m., he played pool and discussed a
possible business deal with defendant at the Anchor Inn, a bar in Long Beach.
When Destro first saw defendant, defendant’s speech was slurred and he appeared
to have been drinking; defendant drank beer throughout the afternoon. Destro
wanted to buy 100 gold chains from defendant at $400 each and resell them at a
profit. Defendant indicated the chains were on a ship in the harbor. Both
defendant and Destro were to put up substantial deposits to get a sample of 10 to
15 chains, which Destro would have tested the next day. If the chains proved to be
of the quality Destro desired, he would purchase the balance of the 100 chains.
Defendant’s share of the deposit money was in checks, a handful of which Destro
saw, and which defendant asked the bartender at the Anchor Inn to cash. The
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bartender, who was Destro’s wife, told defendant she did not have authority to
cash a $1,500 check and tried to contact the manager for approval.
Over the course of four hours, while waiting for the manager to arrive and
approve the transaction, Destro and defendant played about 10 games of pool,
eventually playing for double or nothing. Destro testified he won all of the games,
and by the end of the afternoon defendant owed him $9,000. Defendant behaved
in an increasingly loud, erratic fashion, slapping his pool cue against the table and
cursing, kicking the pool table, and pushing bar stools. His behavior seemed out
of proportion to the circumstances. People at the bar told defendant to calm down
and warned Destro that defendant “was the kind of fellow that you don’t want to
beat at pool.” Several times Destro told defendant to forget about the wager, but
defendant would insist on playing another game to get even.
As the afternoon wore on, Destro came to believe he had wasted his time
because defendant did not have the money for the deal. Destro left the Anchor Inn
with his wife about 5:30 p.m. or 6:00 p.m. Destro felt bad about beating defendant
at pool because defendant was intoxicated, and he told defendant to forget about
the $9,000 debt. Defendant insisted he would pay Destro when he got his checks
cashed.
Destro was certain defendant was the person he had met at the bar because,
when he returned to the Anchor Inn a couple of days later, the manager showed
him a newspaper article about the shootings.
About 8:00 p.m. or 9:00 p.m. on the evening of the shootings, Amalia
Halvorsen received a telephone call from a doctor, who informed her that
defendant was in the hospital. He had been stabbed in the neck and was in critical
condition.
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c. Toxicologist’s testimony
Ernest Lykissa, Ph.D., chief toxicologist at Long Beach Memorial Medical
Center, testified that defendant’s blood-alcohol level at 7:40 p.m. on March 31,
1985, was .154 percent. A man weighing 150 pounds would have to drink seven
drinks during the two hours before testing to achieve this level. For a man
weighing 180 pounds who had stopped drinking two hours before the test, this
level would require the consumption of 10 drinks.
Dr. Lykissa testified that alcohol consumption affects cognition, social
behavior, and moral values; lowers inhibitions; and has an impact on coordination,
reflexes, and judgment. At a blood-alcohol level of .10 percent, the skills needed
to operate a car are highly impaired. Although the effects of alcohol vary with
each individual, in most instances a blood-alcohol level of .154 percent causes a
grave degree of impairment. A habitual drinker may appear to behave more
normally while intoxicated than a casual drinker because the former has learned
ways to mask his impairment, but his judgment is nevertheless impaired.
d. Psychiatrist’s testimony
William Vicary, M.D., a forensic psychiatrist, interviewed defendant in jail
several times and reviewed numerous records, including reports from a
psychiatrist at the University of California, Los Angeles, and Psychologist
Michael Maloney, in connection with defendant’s case. Dr. Vicary agreed with
the UCLA psychiatrist’s opinion that defendant was suffering from manic
depression, also known as bipolar disorder. Dr. Vicary believed defendant had a
psychotic disorder characterized by paranoia, as well as symptoms of depression.
In Dr. Vicary’s opinion, defendant had been developing this disorder for the two
to four years before the shootings and continued to suffer from it at the time of
trial.
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Dr. Vicary agreed with Dr. Maloney’s conclusion that defendant was
“faking well,” i.e., attempting to portray himself as mentally healthy, and did not
believe defendant was malingering as to his bipolar symptoms. Dr. Vicary
testified that defendant had a significant family history of mental illness, with nine
relatives suffering from serious mental problems. Defendant’s mother had
suffered from a psychotic illness since her twenties, had attempted suicide and had
been hospitalized for mental illness several times, and at the time of trial was
committed to an institution. Defendant’s older brother suffered from a psychotic
mental illness and had been hospitalized. An uncle had committed suicide. A
second cousin also had a psychotic mental illness and had committed suicide.
Two paternal half-brothers had histories of alcohol abuse.
Dr. Vicary testified that defendant’s alcohol use exacerbated his mental
illness. Persons with manic depression often use alcohol to self-medicate by
“mellowing out” their agitation and anxiety, but because alcohol is a central
nervous system depressant, in the long run it makes their symptoms worse. Dr.
Vicary believed defendant was using alcohol in an unconscious effort to calm
himself and, although alcohol did not cause defendant’s psychosis, it made him
more likely to act on the basis of his paranoid ideas.
Dr. Vicary reported that defendant had become extremely interested in
religion while incarcerated. Defendant spent virtually all of his time reading the
Bible, and he tried to convert Dr. Vicary and his trial counsel to his religious
beliefs. At first Dr. Vicary thought defendant’s new interest in religion was that
typical of jail inmates, but then saw that it was of such fervor and conviction, to
the exclusion of virtually everything else, that it seemed to be part of his mental
illness.
Dr. Vicary acknowledged that defendant had lied to him, denying his
involvement in the Perez and Ferguson shootings, although he had previously
11
admitted responsibility to the UCLA psychiatrist. Defendant also lied to Dr.
Vicary in his explanation of the shootings of Alcala and Layton. Dr. Vicary
further acknowledged that financial problems, as well as mental illness, could
cause agitation and that if defendant had been threatened by persons who had lent
him money, he might have a rational rather than a paranoid reason for awakening
with nightmares. Dr. Vicary testified that defendant was psychotic at the time of
the shootings, which he believed were part of his agitation and his mental disorder,
but over defense counsel’s objection, Dr. Vicary acknowledged he did not believe
defendant’s mental illness provided the basis for a psychiatric defense.
e. Defendant’s testimony
Defendant testified he made his living by buying stolen equipment and, he
claimed, “cutting up” the automobiles of people who could not afford to pay for
them. He owned a soda pop distributorship that served as a “front” for his illegal
activities. He drank habitually and increasingly in the years before his arrest. He
had owned the gun he used in the shootings for about a year and normally kept it
fully loaded in his truck at all times. He had known Eugene Layton since 1979
and “was not on good terms with him,” although Layton “might have thought that
he was.” He had sold Layton some $1,500 worth of equipment for which Layton
did not immediately pay in full, claiming lack of funds. Defendant intentionally
wrote the check for which Layton vouched at Curley’s bar on insufficient funds,
testifying he thought getting even with Layton would be fun.
Defendant had been in bankruptcy since 1981, testifying he filed in order to
keep creditors from foreclosing on his house, and the bankruptcy was a “scam to
get the creditors off [his] back.” Defendant had had several dealings with Wendell
West and had no fear of him. In March 1985, defendant had no “major” financial
worries, but testified that “when you have greed in your heart, you always have
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financial worries. [¶] Greed never quits; there is no limit.” About March 22,
1985, West lent defendant $16,500, of which $1,500 was a month’s interest. West
wanted several vehicles and the deed to defendant’s house as security for the loan;
defendant also executed a bill of sale for $500,000 worth of merchandise in
defendant’s three storage yards. If defendant did not repay the loan in full on
April 21, 1985, West could take his house as security. Defendant never told West
that he was in default on his mortgages.
In 1984 or 1985, defendant worked for about one week as a diesel tractor-
trailer driver for Hammett Vacuum Service. Later, defendant conceived a plan to
dismantle a 130-foot steel tank on the Marlex refinery property in Signal Hill, haul
the steel away, and sell it. The tank held toxic waste, and defendant believed
Hammett would illegally remove the waste for a share of the profit from the
venture. Defendant told Hammett’s dispatcher that he wanted to see Hammett in
order to talk about some business schemes. To get Hammett’s attention, defendant
gave the impression that he was going to extort him, telling the dispatcher that
unless Hammett gave him $10,000, defendant was going to the police. Hammett
“misunderstood” him, defendant testified.
Defendant testified about an incident on March 9, 1985, in which he
accused two men of stealing soda from his truck and told them to return the soda
within an hour or he would “blow [their] fucking head[s] off,” drawing his gun as
he did so. He had seen the men in his yard and believed they took the soda. The
police later came and asked defendant about the incident.
About a week before March 31, 1985, Layton owed one Ray Vasquez
$10,000. Defendant told Vasquez, who was “dissatisfied” with Layton, that he
would “straighten things up.” Defendant learned Layton’s home address by
phoning Layton’s wife, lying to her by stating he was a customer, and asking her
where she wanted the check sent. He did so in order to shoot and kill Layton.
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On March 31, defendant left his house around 7:00 a.m., drove his yellow
pickup truck to a restaurant near the Long Beach Airport, and met with some men
about purchasing stolen equipment. He bought two generators from them,
depositing one at one of his storage yards and taking the other home, where he
stayed for about 45 minutes.
Defendant next went with his wife to a bank, withdrew a couple of hundred
dollars to pay what he owed for the generators, and took his wife back home.
One of defendant’s drinking friends, “John John,” had set up a meeting
between defendant and William Destro, and defendant went to the Anchor Inn to
meet Destro. Defendant was planning to “fence a fortune” in stolen gold that was
somewhere in Long Beach, although defendant did not know where. At the
Anchor Inn, defendant drank quite a bit of whiskey and beer. He and Destro
played pool for money. Defendant beat Destro, who owed him $6,000 before the
last game. Destro won the last game double or nothing, so they were even. Destro
lied, according to defendant, when he testified he beat defendant at pool and when
he said defendant was drunk and sloppy at the bar.
Defendant had about $3,000 in checks with him on March 31, 1985. He
was unable to cash a $1,000 check at the bar because the manager did not have
that much reserve. But the gold deal was never made because Destro did not
produce any cash.
While defendant was at the Anchor Inn, a “dope fiend” named Roberto
Martinez, who worked for defendant as a thief and who, like defendant, had
“larceny in his blood,” came by. Defendant lent him and his friends $25 or $30.
Defendant left the bar about 5:30 p.m. When he stepped outside, he “felt
like [he] had just walked into a refrigerator” and as though he were falling
backwards into the bar. He had an eerie feeling he had never experienced before.
He did not know how much he had had to drink, but he was intoxicated when he
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left the Anchor Inn. Going to his truck, he saw that an air compressor that he had
told Martinez to put there was not in the truck. He decided to go to Martinez’s
house to find out where the compressor was.
Defendant took a gun from his truck and went to Martinez’s nearby
apartment. Defendant knocked at the door, and Benjamin Alcala answered.
Defendant did not recall Alcala holding a knife or an ice pick. Alcala lied when
he testified he had a knife and was working outdoors when defendant arrived.
Alcala stepped out of the door. Defendant confronted Alcala, who spoke in a
“halting, jerky type English” that angered defendant for some reason. Defendant
asked Alcala where Roberto Martinez was. Alcala said he did not know, and
defendant thought he was not being truthful and was shielding or hiding Martinez.
Defendant pointed the gun at Alcala and fired it once at his midsection from about
18 feet away. He did not intentionally pull the trigger and must have done so
accidentally. Alcala’s wife came out of the house, started crying, and went to
assist him. When defendant left, he believed Alcala was only superficially
wounded. Alcala was lying when he testified that defendant shot him in the back
near his shoulder; the police officer who gave similar testimony was misinformed
or lying as well. Defendant did not remember whether he had hit Alcala with the
gun.
After the shooting, defendant thought to drive to Hammett Vacuum
Service, where he had worked for a week as a truck driver. From Alcala’s
residence it took three or four minutes to drive to Hammett’s. Defendant did not
expect the business to be open or anyone to be there.
Defendant had seen Calvin Ferguson around town a couple of times, but
did not know him; he had met Delton Ferguson once or twice. Defendant drove
up to McDonough and I Streets, stopped his truck, and saw Calvin Ferguson.
Calvin walked to within four feet of defendant and said something to him;
15
defendant could not remember what. Defendant pointed his gun at Calvin’s face
from a distance of two to three feet and pulled the trigger, intending to kill him.
Defendant testified he had no explanation for why he shot Ferguson.
After shooting Ferguson, defendant drove forward on McDonough Street
about 50 or 100 feet. Vicente Perez drove toward defendant and pulled up
alongside him, and both men stopped their vehicles. Defendant did not know
Perez, but may have recognized him from the area. Perez partially rolled down his
window and said something to defendant. Defendant pointed his gun at Perez’s
head and pulled the trigger, intending to kill him; he did not know why. Perez
slumped over the steering wheel. His foot hit the accelerator, and the car started
forward at a high speed and crashed into a pole.
After defendant killed Ferguson and Perez, he was “laughing about it.” He
made a U-turn and headed toward the freeway to drive to Layton’s house on Vista
Street in Long Beach. He took a roundabout route in order to avoid the police,
taking 10 to 15 minutes to get there.
Defendant testified that Layton and his associates owed some people about
$500,000, and these people were going to pay defendant to collect it for them. He
went to Layton’s house to tell him it was time to pay up. Defendant further
testified Layton owed one of defendant’s friends $10,000, which he additionally
intended to collect. Defendant also acknowledged he planned to “take care of”
Layton, meaning to kill him. Inconsistently, however, defendant also testified that
when he went to Layton’s door he did not intend to kill him, but wanted to wound
him and cause him pain.
Holding a gun to his side, defendant approached the door and knocked.
Initially no one answered. Then one of Layton’s children answered the door and
let defendant in. Fifteen seconds after defendant entered the house, he shot Layton
in the sternum, saying: “Gene, you’re dead.” Layton came towards defendant and
16
cut his throat twice with glass from a china cabinet. Layton was on top of
defendant, the hole in his chest over defendant’s nose. The only time defendant
feared dying during this incident was when he thought he was going to drown in
Layton’s blood. After Layton got off of him, defendant walked into the kitchen.
Layton followed, so defendant shot him again in the abdomen.
Defendant left Layton’s house through the back door and decided to go
down the street. An ambulance stopped, and the paramedics put defendant into it,
then drove around the block and picked up Layton. Defendant told the jury: “We
were both in the same meat wagon.”
When defendant spoke to the police at the hospital, he was intoxicated and
intentionally babbled incoherently. He did not recall what he said to the officers
who interrogated him, but 90 percent of it was lies. He tried to “con” the police
about having nothing to do with the shootings of Ferguson and Perez, telling them
he went from the scene of the Alcala shooting “to Gene’s place, the other guy’s
house that I had to shoot.” This was true in part, because Layton had been on
defendant’s list of people to shoot, but false in part because it omitted reference to
the two fatal shootings. Defendant also lied to the police about having shot
Layton in self-defense and about not knowing how many times he had shot him.
The day after the shootings, officers from the Long Beach Police Department
interviewed defendant, and he lied in a “blatant” manner about how the killings
happened. He also lied about the Alcala shooting. For about a year after the
offenses, defendant maintained he had nothing to do with the killings. Until the
trial, he lied to everyone other than his wife in claiming that he did not commit the
killings. He lied to Dr. Vicary and to his attorney because he was not willing to
confide in them.
Defendant alluded to his religious beliefs, stating he had tried to read the
Bible to Dr. Vicary and his attorney, but they would not listen. Defendant
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believed his attorney had been “deceived” because he was raised a Catholic. The
prosecutor and the jurors, he said, were also heathens who, like defendant, had
been deceived.
Defendant testified he was glad Layton had survived, but stated, in relation
to Ferguson and Perez, “I don’t weep for the dead, I weep for the living.”
Although he knew murder is wrong, defendant asserted that “[murder] is one of
the minor crimes that I have done.” When asked what was worse than murder,
defendant answered: “Sacrificing honor and virtue is 100 times worse. [¶] There
is one thing that is the worst of all that I can think of and that is to ignore the
Gospel of Jesus Christ.”
6. Rebuttal
Joe Joosten was a mechanic with a small work yard on Cherry Street in
Signal Hill. He had met defendant about a year before he was arrested. Joosten
knew Calvin Ferguson, used to see him in the afternoon at a restaurant that
defendant frequented in the morning, and once directed him to one of defendant’s
storage yards, although Joosten did not know whether Ferguson actually went
there. About two weeks before the shootings, Joosten was in defendant’s yellow
pickup truck with defendant and noticed a list in the dashboard area with at least
12 names and numbers on it.
B. First Penalty Phase
The prosecution presented no additional evidence.
In mitigation, the defense presented the testimony of defendant’s aunt,
father-in-law, and stepdaughter concerning defendant’s upbringing, his good deeds
before the crimes, and his character, respectively. Dr. William Vicary also
testified again on defendant’s behalf.
18
As noted above, the jury returned a verdict of life imprisonment without the
possibility of parole for the murder of Calvin Ferguson. After seven hours of
deliberations, the jury was unable to reach a unanimous verdict for the murder of
Vicente Perez, and the trial court declared a mistrial as to that count.
C. Penalty retrial
1. Prosecution Case
The prosecution presented to the new jury substantially the same evidence
that it had presented during the guilt phase of defendant’s first trial.
2. Defense Case
a. Defendant’s testimony
Defendant testified in his own behalf. He admitted shooting Alcala,
Ferguson, Perez, and Layton and stated he preferred “the gas chamber” to life
imprisonment without the possibility of parole.
Defendant acknowledged that on March 22, 1985, he borrowed about
$15,000 from Wendell West and gave “everything” he had as security if he failed
to repay the loan by April 21. Although in 1985 he sometimes ran short of money,
at the time of his arrest he was functioning and felt “no pain” from his bankruptcy.
He routinely drove his yellow pickup truck with a loaded gun in the glove
compartment. He was addicted to alcohol and habitually deceived and lied to
people.
Testifying about the events of March 31, 1985, defendant stated that on that
day he bought breakfast for some people at a restaurant, returned home and asked
his wife to get money from a bank machine, and unsuccessfully tried to get several
checks cashed, including one for $1,000. He testified he met with William Destro
at the Anchor Inn bar about a possible deal involving gold chains, but Destro had
no money for the deal. The amount of alcohol defendant drank that day was
19
typical for him or perhaps even less than he ordinarily drank. Defendant and
Destro ended up gambling over pool. Defendant denied owing Destro money and
claimed that by 4:00 p.m. Destro owed him $5,000. Defendant claimed he played
the next game for double or nothing and let Destro win. Defendant disagreed with
Destro’s testimony that he was staggering or slamming barstools around; he may
have been “a little bit sloppy,” but he had learned to “maintain a measure of
awareness of [his] actions” and did not consider himself “falling down drunk.”
When he left the Anchor Inn about 5:00 p.m., defendant experienced a
strange sensation, like he was stepping into a refrigerator. Walking to his truck, he
saw that some equipment he expected to be there was not. He had told a man
named Roberto, who earlier had come into the Anchor Inn, to put the equipment
on his truck, but Roberto had not followed his instructions. Defendant decided to
go to Roberto’s apartment, which was across the street from the Anchor Inn, to see
what had happened. Thinking Roberto might be drunk with his “homeboys,”
defendant took his gun out of his glove compartment. He made no effort to
conceal the gun as he approached the apartment. He confronted Benjamin Alcala,
struck him with the gun, and shot him. Defendant testified he had no recollection
of pulling the trigger. He claimed he was eight to 10 feet away from Alcala when
he shot him, although he acknowledged he had testified in the first trial that he was
18 feet away. When confronted with his statement to police that he was two feet
away from Alcala when he shot him, defendant asserted that was a lie.
Leaving the vicinity of Alcala’s apartment, defendant drove down Anaheim
Street toward Wilmington, turning right onto McDonough Street toward I Street.
Around 5:30 p.m., he arrived at Hammett Vacuum Service, where he had briefly
worked as a truck driver the previous year. He did not know his purpose in
driving to that area. Defendant knew of Calvin Ferguson and Vicente Perez, but
did not know them well and had no bad blood with either of them. From the
20
intersection of McDonough and I Streets, defendant saw Delton Ferguson sitting
in a car and Calvin Ferguson standing next to him. Defendant did not recall
yelling at Calvin and thought Calvin had just approached him. He thought Calvin
might have said something to him, although he did not remember what it was. He
admitted shooting Calvin and intending to kill him, stating: “When you put a gun
in someone’s face and pull the trigger, what else could you reasonably expect.”
After shooting Calvin, defendant pulled forward 75 to 100 feet. Another
car approached, and defendant stopped his truck. The car stopped; defendant
leaned out of his window and shot Perez in the neck, intending to kill him. He
laughed after the shooting and watched Perez’s car crash into the fence.
Defendant testified he did not know why he intended to kill Perez, denying he
perceived Perez as a threat or that he killed Perez because he was a witness to the
Ferguson shooting.
Defendant left Hammett Vacuum Service, driving down I Street to the
Terminal Island Freeway. He drove to Eugene Layton’s house in Long Beach. He
had last seen Layton about three weeks earlier, when Layton had come to his yard
about a $1,000 check Layton had vouched for, which had been returned for
insufficient funds. Defendant acknowledged he entered Layton’s house intending
to shoot him, but denied intending to kill him. He admitted he had financial
problems around the time of the offenses, but claimed he felt “no pain” from his
bankruptcy.
b. Defendant’s statement
With the court’s permission, defendant made a two and one-half hour
statement to the jury. He talked about books he had read and songs he had heard
in jail; a violent attack on him by five other inmates; and his moral, religious, and
philosophical views. He repeatedly urged the jurors to repent, extolled the Book
21
of Mormon as the word of God, and referred to the Holocaust as “an indicator of
what happens to people that do not receive God.” The court then allowed the
prosecutor to cross-examine him. Defendant acknowledged his guilt; agreed that
he had addressed the jury in part because he did not want another hung jury; and
stated that if he had to choose between life imprisonment without parole and the
death penalty, he would choose death. When asked whether he was sorry for his
actions, defendant said: “I cry for the living, not the dead.”
c. Psychiatric testimony
Forensic Psychiatrist Kaushal Sharma, M.D., evaluated defendant to
determine whether he was mentally ill and, if so, how his illness related to issues
before the jury in the penalty phase. Dr. Sharma testified that defendant was
psychotic when he interviewed him and in all likelihood was mentally ill before,
during, and after the shootings. He agreed with the UCLA psychiatrist’s diagnosis
of defendant as having bipolar disorder, which is characterized by wide mood
swings. In the high, or manic, phase, one with the disorder cannot sleep; has too
much energy; becomes irritable, angry, and grandiose; and may be religiously
preoccupied. In the low phase, he is depressed and suicidal, may not want to be
bothered by anyone, and may fail to take care of his personal appearance and
hygiene. Defendant’s self-reported wheeling and dealing was typical of the
behavior of a person in the manic phase of the illness. Dr. Sharma testified that
defendant’s habitual alcohol consumption, by removing some of the rational
controls he has over his behavior during a manic phase of his illness, would
further increase his mental impairment.
A transcript of the guilt phase testimony of Toxicologist Ernest Lykissa,
Ph.D. (summarized above) was provided to the jury during its deliberations.
22
d. Other testimony
William Destro testified about his encounter with defendant at the Anchor
Inn on March 31, 1985. His testimony was similar to his testimony at defendant’s
first trial.
Defendant’s wife, Amalia Halvorsen, also testified along the lines of her
testimony at the first trial.
Defendant’s stepdaughter, Meri Halvorsen, age 20, testified that defendant
was the only father she had ever known. She had a good relationship with him,
although it deteriorated somewhat during her teenage years. When she was
younger, defendant had a good disposition and sense of humor, and did not drink
much. In the year before he was arrested, however, he became moody and short-
tempered and lost his sense of humor. He also had started drinking more in 1982
and by 1984 was drinking a lot and working much more than he previously had.
After briefly moving out of her parents’ house around Christmas 1984, Meri
moved back home and tried to improve her behavior, which had been a bit “wild.”
Initially defendant seemed happy, but soon he began drinking and coming home
late, losing his temper, criticizing his daughters, and destroying things around the
house. On March 10, 1985, Meri was arrested for being drunk in public. After
she was released from jail, defendant, who himself had been drinking, began
lecturing her and, when she did not react, hit her in the face with his fist. He had
not used physical discipline with her since she was in elementary school.
Defendant’s uncle and aunt, William and Zella Collier, testified about
defendant’s upbringing in Tennessee and the odd behavior of defendant’s mother,
Zella’s sister, Hazel Halvorsen. William testified that Hazel married Hans
Halvorsen, who was at least 50 years older, when she was in her twenties. Zella
testified that Hazel and Hans had two children together: Roy Harold, born in
1940, and defendant, born in 1942. Zella heard that Hazel neglected her sons’
23
hygiene, and Hazel’s housekeeping was sporadic. After defendant was grown and
left home, Hazel attempted suicide with a shotgun and was committed to a mental
hospital. Later Hazel engaged in other strange acts, including one incident in
which she was found standing over their mother with a knife, and another in which
one of Hazel’s neighbors woke to find Hazel in her apartment, standing over her.
After Zella testified at defendant’s first trial, she briefly visited him in jail. She
saw a great change in him; he seemed solemn and troubled, and although he had
not previously been particularly religious, he seemed completely focused on her
salvation.
II. ANALYSIS
A. Competency Issues
1. Governing Principles
Defendant contends the trial court erred by failing to declare a doubt as to
his competency to stand trial and to conduct proceedings under section 1368, at
various stages of the proceedings.
The applicable legal principles are well settled. “Both the due process
clause of the Fourteenth Amendment to the United States Constitution and state
law require a trial judge to suspend proceedings and conduct a competency
hearing whenever the court is presented with substantial evidence of
incompetence, that is, evidence that raises a reasonable or bona fide doubt
concerning the defendant’s competence to stand trial. (§§ 1367, 1368; Drope v.
Missouri (1975) 420 U.S. 162, 181 [43 L.Ed.2d 103, 95 S.Ct. 896]; Pate v.
Robinson (1966) 383 U.S. 375, 384-386 [15 L.Ed.2d 815, 86 S.Ct. 836]; People v.
Welch (1999) 20 Cal.4th 701, 737-738 [85 Cal.Rptr.2d 203, 976 P.2d 754].)
Failure to declare a doubt and to conduct a competency hearing when there is
substantial evidence of incompetence requires reversal of the judgment. (Ibid.)”
24
(People v. Blair (2005) 36 Cal.4th 686, 711.) Competency under federal law
requires sufficient present ability to consult with one’s lawyer with a reasonable
degree of rational understanding and a rational and factual understanding of the
proceedings against one. (Dusky v. United States (1960) 362 U.S. 402.)
Similarly, under state law a defendant is mentally incompetent to stand trial if, as a
result of mental disorder or developmental disability, he or she is unable to
understand the nature of the criminal proceedings or to assist counsel in the
conduct of the defense in a rational manner. (§ 1367.)
2. Competency During Guilt Phase
Defendant first argues that during the guilt phase, the trial court had before
it evidence suggesting that he lacked a rational understanding of the proceedings
and the ability to assist his counsel, and thus committed reversible error in failing
to declare a doubt and order a hearing as to his competency. Defendant cites the
testimony of several of his family members that his mood and behavior had
changed in the months and weeks before the shootings, including an increase in
his drinking of alcohol, with attendant memory lapses, and nightmares and
unpredictable conduct. Defendant also relies on Dr. Vicary’s testimony that he
suffered from bipolar disorder and was psychotic at the time of the offenses and
continuing until the time of trial. In particular, Dr. Vicary noted that defendant
experienced paranoid delusions and “hyperreligiosity,” i.e., a religious fervor of
such intensity, to the exclusion of virtually any other interest, that it seemed to be
part of his mental illness rather than faith alone. Defendant also, Dr. Vicary
observed, distrusted him and tried to convert him and defense counsel to his
religious beliefs. Defendant also points to his own testimony, which he asserts
was “filled with tangential responses to the questions of counsel and strange,
irrelevant statements, often marked by a seemingly psychosis-induced
25
preoccupation with a newly embraced religion and an obsession with his own and
society’s unworthiness.”3 His testimony, he further notes, frequently undermined
the defense case, contradicted that of other witnesses, and was internally
inconsistent. Defendant even made offensive statements about the victims and
inflammatory comments about religion and race, referring to Benjamin Alcala and
his relatives as “Mexican thieves” and to Eugene Layton as a “gorilla.”
3
To give a few examples: On cross-examination, the prosecutor asked
defendant if Dr. Vicary had expressed concern over his preoccupation with
religion. Defendant answered: “I spoke to [Dr. Vicary] directly. [¶] I always had
a direct manner. [¶] I probably offended him, what I said. [¶] I don’t—when I do
something, I don’t mind talking about it. [¶] For instance, let me mention one
subject to you, so you will understand what I am talking about. [¶] Recently
coming down here on the bus, I noticed this woman. [¶] This woman had to turn
sideways to get down the bus aisle, 300 pounds, in excess. [¶] The men on the bus
called her huba-huba, a fitting term. [¶] Something is wrong with that woman’s
mind, something. [¶] It is obvious her enemy is in control, and she doesn’t
recognize it, just like me, all of 40 years I have been deceived. [¶] I wasn’t in my
right mind. [¶] This first book I was telling you about, called Gospel Principles, it
is about our anti-mortal existence. [¶] We have these brothers and sisters or—
where we came from that rebelled against our Heavenly Father. [¶] It is
obvious—obvious where these spirits are living and perceptively take over worse
and worse.”
When the prosecutor questioned defendant about what he told the police
after the shootings, he replied: “There is three words that I would like to bring to
your attention that I think are important at this time. [¶] The first one is blatant, b-
l-a-t-a-n-t. [¶] I hope everyone will verify the meaning of this word. [¶] It means
offensively obtrusive and other meanings. [¶] There is another word called
obvious, easily discovered, seen or understood, plain to understanding. [¶] Then
one other one called implied, to express by hint or indirectly. [¶] These are
important words to remember, blatant, obvious and implied.”
When the prosecutor questioned defendant about an incident in which he
was alleged to have brandished a gun at two men in the Signal Hill area before the
charged offenses, defendant wanted to read from the Bible. Defendant testified:
“A dog is sometimes used for guarding flocks, but usually held in aversion by the
Israelites being regarded as half wild greedy creatures running about at will
without a master and acting as public scavengers, the name as applied to false
teachers and frequently by Jews to gentiles. [¶] My mother was a dog, also.”
26
As the Attorney General urges, however, defendant’s family members’
testimony regarding his past behavior did not support an inference that defendant
was unable to understand the nature of the criminal proceedings or to assist his
counsel in a rational manner. And “[e]ven supposing defendant is correct that the
various examples of his rambling, marginally relevant speeches cited in his
briefing may constitute evidence of some form of mental illness, the record simply
does not show that he lacked an understanding of the nature of the proceedings or
the ability to assist in his defense.” (People v. Koontz (2002) 27 Cal.4th 1041,
1064.) As we have recognized, “more is required to raise a doubt than mere
bizarre actions [citation] or bizarre statements [citation].” (People v. Laudermilk
(1967) 67 Cal.2d 272, 285.) Nor did Dr. Vicary’s testimony that defendant
suffered from a psychotic mental illness reasonably compel a declaration of a
doubt as to his competency; Dr. Vicary himself, in fact, concluded defendant’s
version of events was in places false and self-serving, and he believed defendant
was competent to testify despite his illness. Accordingly, because there was not
substantial evidence of incompetency, the trial court did not err in failing to hold
proceedings to determine defendant’s competency during the guilt phase of trial.
3. Competency Prior to Start of Penalty Retrial
Next, defendant contends the trial court’s finding, prior to the start of the
penalty retrial, that defendant was unable competently to represent himself in the
retrial should have led the court to declare a doubt as to his competency to proceed
at all. We review the relevant portions of the record.
On August 25, 1987, the first penalty trial ended in a mistrial on the Perez
murder count. The case was continued to September 14, 1987. On the latter date,
defense counsel requested a continuance. The court told defendant that if he
waived time for the penalty retrial, he would be beyond the time period within
27
which he was entitled to be sentenced on the noncapital convictions, and asked if
he wished to be sentenced immediately on those convictions or wait until after the
conclusion of the penalty retrial. Defendant said: “No, no. I refuse that. If they
didn’t give me the death penalty or agree to all the charges at once, I refuse that.”
The court expressed uncertainty whether defendant’s statement constituted a
waiver. It put the matter over without a waiver in the hope that defense counsel
could explain the situation to defendant.
On October 6, 1987, the trial court heard and denied a defense motion to
bar further proceedings on the ground of collateral estoppel. Defendant then
personally addressed the court, asking for “a complete new trial” with “pro per
status” and defense counsel’s assistance. Defendant spoke of, among other things,
alcohol as a drug and sellers of alcohol as “legal drug dealers that you and all the
other judges are receiving money in the form of taxes from.” Defendant accused
the courts of being “liars and hypocrites” and asked to be allowed to represent
himself, saying: “And I will prepare my case to where I have some defense. Not
one word was said in my defense of the reason why I have become a murderer. I
admit to being a murderer. I got in front of this court and gave you an eyewitness
view of what it feels like to be a murderer. A hypocrite can’t reach a decision.
You are a hypocrite, sir.” The court denied defendant’s motion for new trial and
gave him an application to proceed in propria persona. The court stated it would
appoint Dr. Blake Skrdla under Evidence Code section 730 to interview defendant
and report to the court his opinion as to whether defendant had the mental capacity
to represent himself.
At a November 2, 1987, hearing, the court discussed Dr. Skrdla’s report.
Dr. Skrdla described defendant as “an alert, cooperative, loquacious fully oriented
individual who spoke in a loud voice in a noticeably stereotyped tone. Thought
processes were rigid, and he was very critical in attitude, with essentially bland
28
affect. Memory was intact, and intelligence was estimated within the average to
bright normal range, with ability to think abstractly. He tended to ramble
somewhat in conversation, with occasional tangential remarks, and obvious
preoccupation with ethical and philosophical issues. He referred to the [j]udge
before whom he had been appearing as a ‘hypocrite,’ and described the attorneys
involved as ‘an unrighteous gang—in it only for the money.’ He was taking no
medication in custody, and felt he needed none. [¶] There was no evidence of
overt psychosis, and he denied depression or suicidal ideation.” Dr. Skrdla
concluded: “[Defendant] understands the nature and purpose of the proceedings
taken against him, and is currently capable of rational and consistent cooperation
with counsel in the presentation of a defense, if motivated to do so. [¶] This
examiner does not believe that [defendant] has the mental capacity to act as his
own attorney at the present time. Although he has sufficient intelligence to
understand the legal issues, he is so preoccupied with guilt because of his
egocentric, uncaring behavior over the years that it will affect his judgment in the
handling of his case. He tends to perseverate when discussing ethical, religious,
and philosophical issues. Should he persist in this vein during his appearance
before a jury, it is believed that he would unconsciously compromise and sabotage
his case, possibly without intending to do so. Because of the intense emotional
component involved, it is not believed that he is presently capable of being
objective in his defense, especially in view of the seriousness of the charges.
[¶] Hence, it is this examiner’s opinion that [defendant] is not presently
emotionally capable of preparing and conducting his own defense in propria
persona.”
The court denied defendant’s motion for self-representation, reasoning as
follows: “Dr. Skrdla has opined that you do not have the mental capacity to act as
an attorney because of a preoccupation with guilt and because of egocentric,
29
uncaring behavior that affects your judgment. I join in that conclusion, having
observed your testimony during the first trial and having had so much contact with
you during all of the proceedings in this case. I note that when you were testifying
and also in court in response to motions that have been made, your answers were
often tangential to the issues and rambling to the point that they were really
useless. I think that it’s evident to me that your entire demeanor is self-
destructive, and in light of the seriousness of the charges, I feel that I cannot in
good conscience in this particular case for the reasons stated permit you to
represent yourself.” In support of its ruling, the court also cited Dr. Vicary’s guilt
phase testimony. (Dr. Vicary had testified that defendant was psychotic and
suffered from bipolar disorder.) On January 5, 1988, defendant unsuccessfully
renewed his motion before the same judge.
Again on May 2 and May 24, 1988, defendant renewed his motions for
self-representation. In denying the renewed motions, the superior court judges
hearing them relied on the denial of his initial motion and the reasons the court
had advanced in support thereof.
Defendant contends the same evidence that led the trial court to conclude
that he was incapable of representing himself during the penalty retrial due to his
impaired rationality should have led it to declare a doubt as to his competency and
to conduct proceedings under section 1368.4
We disagree. In the course of its November 2, 1987, ruling on defendant’s
self-representation motion, the trial court explicitly declared it had no doubt
4 As
discussed
post, at pages 68-73, defendant alternatively contends that the
trial court erred in applying a different and higher standard of competency in
concluding he was incompetent to represent himself, citing Godinez v. Moran
(1993) 509 U.S. 389, 399.
30
regarding defendant’s competence to stand trial. This conclusion was supported
by the declaration of Dr. Skrdla, who, as noted above, stated defendant understood
the nature and purpose of the proceedings against him and was capable of rational
and consistent cooperation with counsel in the presentation of a defense, if he
chose to do so. As the Attorney General observes, the standard Dr. Skrdla was
applying was the correct one for the determination of competency to stand trial,
and even Dr. Vicary (whose testimony the court alluded to in its ruling) had
concluded defendant was competent to stand trial, notwithstanding his diagnosis
of defendant as psychotic and having bipolar disorder. In denying the motion, the
court cited defendant’s lack of objectivity and the perception that, out of guilt
feelings, he might unconsciously sabotage his own defense. But a lack of
objectivity and a possibly self-destructive emotional approach to self-
representation does not equate to substantial evidence of incompetence to stand
trial. Moreover, as in the guilt phase, the record shows that defendant, despite his
“bizarre actions” and “bizarre statements,” understood the proceedings and could
assist in his defense. (See People v. Koontz, supra, 27 Cal.4th at p. 1064; People
v. Laudermilk, supra, 67 Cal.2d at pp. 283, 285.) The trial court therefore did not
err in failing to declare a doubt and institute proceedings under section 1368.
4. Competency During Penalty Retrial
Third, defendant argues that, irrespective of his level of competence at the
commencement of the penalty retrial, the trial court erred by failing to declare a
doubt as to his competency during the retrial. Specifically, defendant asserts he
acted irrationally in refusing to agree to a continuance sought by his counsel for
his own benefit, pending the ruling of the Court of Appeal on a writ petition
seeking to bar the penalty retrial on double jeopardy grounds; made bizarre
statements during jury selection; gave testimony filled with non sequiturs,
31
rambling and irrelevant responses, and offensive remarks; and delivered a bizarre
and incomprehensible monologue before the jury concerning his study of the
dictionary, his moral and religious beliefs, his preference for the death penalty
over imprisonment for life without parole, and other matters. Defendant
additionally argues the testimony of Psychiatrist Kaushal Sharma showed he was
unable to participate rationally in his own defense: Dr. Sharma, who had
interviewed defendant three times, agreed with Dr. Vicary that defendant was
psychotic and with another psychiatrist who had diagnosed defendant as having
bipolar disorder. Dr. Sharma stated, on cross-examination by the prosecutor, that
he did not think defendant fully understood that others saw him as strange and
crazy when he talked about his religion and similar matters.5 Lay witnesses
testified during the penalty retrial to defendant’s deteriorating behavior before the
commission of the offenses. Defendant also notes that during a conference on jury
instructions, he requested the jury be asked their opinion of the proposition “that
we have a heavenly father and that we cannot be forgiven unless we forgive.”
When the court responded that the jury could not be instructed on religious
matters, but only on the law, defendant said: “That doesn’t sound like the law to
you then, what I had stated to you? . . . I mean, that is the law of the creator of
this world and you and I.” Finally, during his sentencing hearing, defendant gave
another statement filled with references to the dictionary and his religion.
Defendant asserts the foregoing evidence raised a substantial doubt of his
competency to stand trial. We disagree. Nothing in this record suggests that
defendant lacked a rational understanding of the roles of the judge, prosecutor,
5
Dr. Sharma testified he had not been asked to render an opinion on
defendant’s competency to stand trial.
32
defense counsel, or jury in this case, or the purpose of the proceedings. That he
apparently viewed religious and moral questions as most salient in the normative
determination of penalty, and repeatedly sought to bring them to the jury’s
attention, does not reflect incompetency; indeed, such matters are commonly
thought to be relevant and often are presented in the defense case in mitigation.
(See, e.g., People v. Ervin (2000) 22 Cal.4th 48, 67; People v. Ray (1996) 13
Cal.4th 313, 332; People v. Payton (1992) 3 Cal.4th 1050, 1069.) Dr. Sharma’s
testimony regarding defendant’s mental disorders added nothing significant to the
information already before the trial court, which we have concluded failed to
generate a duty to institute competency proceedings. The trial court therefore did
not err in failing to declare a doubt and initiate proceedings under section 1368
during the penalty retrial. And, as we discuss below (see pp. 68-73, post), the
circumstance that the trial court denied defendant’s Faretta motions (see Faretta
v. California (1975) 422 U.S. 806) before the commencement of the penalty retrial
(on the stated basis that he was mentally incapable of preparing and conducting his
defense in a rational manner) does not undermine this conclusion; the court’s
belief that defendant was so preoccupied with guilt feelings that he likely would
sabotage his own defense did not reflect any doubt regarding his competency to
stand trial as defined in Dusky v. United States, supra, 362 U.S. 402, and section
1367.
33
B. Issues Pertaining to Guilt Phase
1. Section 29 Issues
Defendant contends his trial was marred by a series of errors involving
section 29,6 errors that “eviscerated” his mental state defense and deprived him of
a fair trial. Specifically, defendant urges that the prosecutor improperly asked a
defense witness, Forensic Psychiatrist William Vicary, whether he believed there
was sufficient evidence to support a psychiatric defense, eliciting—over defense
objection—Vicary’s opinion that although defendant was psychotic and paranoid
at the time of the offenses, no evidence supporting a psychiatric defense existed.
Defendant further contends the trial court compounded this error by refusing a
defense request for a curative instruction, modeled after section 29, that would
have informed the jury that it alone was to decide whether he harbored the
requisite mental states and that it could not consider expert testimony purporting to
answer that question. These asserted errors, defendant contends, violated several
of his rights under the federal Constitution, as well as state law.7
6
Section 29 provides: “In the guilt phase of a criminal action, any expert
testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.”
7
With respect to this and most of the other claims raised on appeal,
defendant urges that the error or misconduct he is asserting infringed various of
his constitutional rights to a fair and reliable trial. In most instances, insofar as
defendant raised the issue at all in the trial court, he failed to explicitly make some
or all of the constitutional arguments he now advances. In each instance, unless
otherwise indicated, it appears that either (1) the appellate claim is of a kind that
required no trial court action by the defendant to preserve it, or (2) the new
arguments do not invoke facts or legal standards different from those the trial
court itself was asked to apply, but merely assert that the trial court’s act or
(footnote continued on next page)
34
As noted, section 29 provides: “In the guilt phase of a criminal action, any
expert testifying about a defendant’s mental illness, mental disorder, or mental
defect shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.” Thus, neither side may elicit from an expert that a defendant acted
with, or lacked, a particular mental state. (People v. Smithey (1999) 20 Cal.4th
936, 961.) Defendant contends that while Dr. Vicary did not expressly state that
defendant shot the victims with malice aforethought and after premeditation and
deliberation, the jury would have understood his testimony that there were “no
psychiatric defenses” in this case as the functional equivalent of such an express
statement.
Even assuming without deciding, as the concurring and dissenting opinion
argues, that Dr. Vicary’s testimony on cross-examination violated section 29, we
find no prejudice. It is not reasonably probable that the result would have been
more favorable to defendant in the absence of the error. (People v. Watson (1956)
46 Cal.2d 818, 837.) Indeed, we would find any error harmless beyond a
(footnote continued from previous page)
omission, insofar as it was wrong for the reasons actually presented to that court,
had the additional legal consequence of violating the Constitution. To that extent,
defendant’s new constitutional arguments are not forfeited on appeal. (See People
v. Partida (2005) 37 Cal.4th 428, 433-439; see also People v. Cole (2004) 33
Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003) 31 Cal.4th 93, 117.) In the
latter instance, of course, rejection, on the merits, of a claim that the trial court
erred on the issue actually before that court necessarily leads to rejection of the
newly applied constitutional “gloss” as well. No separate constitutional discussion
is required in such cases, and we therefore provide none. (See People v. Boyer
(2006) 38 Cal.4th 412, 441, fn. 17.)
35
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Elsewhere in
his testimony Dr. Vicary repeatedly emphasized that the decision whether
defendant was guilty of murder or manslaughter was not a medical or psychiatric
one, but properly belonged to the jurors, who would know more about the case
than he did.
Moreover, Dr. Vicary’s opinion to the effect that defendant’s primary
reason for the shootings was his psychotic mental state, specifically his paranoia,
was significantly and repeatedly undercut on cross-examination by evidence of
which Dr. Vicary conceded he was unaware. For example, Dr. Vicary relied on
the fact that a month or two before the murders, defendant woke up screaming,
telling his wife to call the police because someone was coming to kill him and his
family. Dr. Vicary was unaware defendant had borrowed large sums of money
from Wendell West that he was unable to repay. After reviewing loan agreements
reflecting an exorbitant interest rate and other financial documents pertaining to
the transactions between West and defendant, documents that defense counsel had
not provided to Dr. Vicary before his testimony on direct examination, Vicary
agreed that the transactions “smack[ed] of loan sharking,” and he acknowledged
that if a person were indebted to another and unable to repay the money, he might
legitimately have nightmares and feel someone was out to get him and his family.8
Dr. Vicary also relied on defendant’s attempt to extort money from the owner of
Hammett Vacuum Service in exchange for not reporting him for dumping toxic
8
Contrary to the implication of the concurring and dissenting opinion, Dr.
Vicary did not condition his changed impression of the rationality of defendant’s
nightmares and fearful behavior on the provable existence of threats of physical
harm to defendant or his family. The transactions with West clearly threatened, in
the broad sense, defendant and his family with the loss of their home and his
business property and vehicles.
36
waste. Dr. Vicary had either not noticed or not known that two other individuals
in their statements had acknowledged the company in fact had previously been
cited for dumping toxic waste. After considering this evidence, he acknowledged
he had a “totally different outlook”9 on the extortion scheme. Dr. Vicary also
relied on an alleged March 9, 1985, incident in which defendant drew a gun and
demanded two individuals return property they purportedly had stolen or he would
“blow [their] fucking head[s] off.” Dr. Vicary acknowledged that the police report
concerning this incident, dated after the capital crimes occurred, revealed that
defendant told the police he believed the individuals had stolen property from him.
Dr. Vicary agreed that the credibility issues surrounding the incident did not
“translate into a conclusion that one side of [the] dispute [was] paranoid”; rather,
the incident was simply one “to be measured against all the other circumstances,”
although in the absence of “hard and fast” evidence of actual theft (which, given
defendant’s admitted failure to keep an inventory of his property, would have been
difficult to produce) and the individuals’ expressions of fear and bewilderment at
the incident, Vicary adhered to his belief it reflected paranoia on defendant’s part.
In sum, this powerful cross-examination seems far more significant than the one-
sentence opinion in Dr. Vicary’s 1985 report. We note, too, that both an
instruction (CALJIC No. 2.80) and Dr. Vicary’s testimony informed jurors that it
was their decision alone, not the expert’s, whether defendant had the required
mental states; the prosecutor echoed the point (“Sir, I have no question with the
fact that 12 jurors make the ultimate decision . . .”). Another instruction (CALJIC
9
This conclusion seems to represent Dr. Vicary’s ultimate position on the
issue, for it appears in his cross-examination long after his reference to a “self-
destructive crazy element,” referenced in the concurring and dissenting opinion, in
defendant’s extortion scheme.
37
No. 3.36), moreover, told jurors they could consider, on this question, evidence
that defendant had a mental disorder and was intoxicated. In light of all these
circumstances, the assumed error was harmless.
For the same reason, although the trial court would not have erred in
instructing the jury in the language of section 29, its refusal to do so did not
prejudice defendant.
2. Other Asserted Evidentiary Errors
a. Restriction on redirect examination of defense expert
psychiatric witness
After the prosecutor, in cross-examination of forensic psychiatrist Dr.
Vicary, elicited the witness’s opinion that the evidence in defendant’s case did not
support any psychiatric defenses, including a defense of insanity (see pt. II.B.1.,
ante), defense counsel in redirect examination sought to explore Dr. Vicary’s
understanding of the legal standard for insanity. The trial court sustained the
prosecutor’s objection to the line of questioning. Defendant contends the trial
court violated state evidentiary law (by allowing the introduction of irrelevant and
prejudicial evidence during the prosecutor’s cross-examination), as well as
defendant’s federal constitutional rights (by inconsistently and arbitrarily
restricting his counsel’s redirect examination of Dr. Vicary when it had just
permitted the prosecutor to cross-examine him on the same subject).
The Attorney General contends the cross-examination was relevant and
that, by failing to object on constitutional grounds to the court’s ruling concerning
the scope of redirect examination, defendant has forfeited any constitutional claim
for purposes of this appeal. Citing People v. Yeoman, supra, 31 Cal.4th at pages
117-118, 132-133, defendant contends that by calling the trial court’s attention to
the irrelevancy of the prosecutor’s line of questioning, he preserved the
constitutional claim he now makes.
38
Assuming for argument’s sake defendant preserved the issue, we conclude
the trial court did not err under state or federal law.
The issue arose in the following context: During cross-examination, the
prosecutor asked Dr. Vicary whether the report he had prepared for defendant’s
trial counsel addressed issues other than those relevant to the guilt phase.
Eventually the prosecutor elicited the fact Dr. Vicary had considered and rejected
a plea of not guilty by reason of insanity. At sidebar, defense counsel asserted that
whether Dr. Vicary thought defendant was insane was irrelevant and inadmissible,
and asked what parameters the court would set on such questioning. The court
stated the prosecutor had already covered insanity and inquired whether he
intended to do more than that. The prosecutor responded he did not. Cross-
examination of Dr. Vicary resumed. Defendant complains that despite the
colloquy between court and counsel, the prosecutor continued to question Dr.
Vicary about the defense of insanity, again eliciting that this case involved no
insanity plea.
Defendant contends the prosecutor’s questioning was irrelevant because he
never entered a plea of not guilty by reason of insanity, and the issue of a
defendant’s legal insanity is bifurcated and tried separately from that of guilt in
any event. But as the Attorney General reasons, the prosecutor engaged in the line
of questioning that defendant now challenges not in order to demonstrate that Dr.
Vicary did not believe defendant was legally insane, but to impeach Dr. Vicary’s
testimony on cross-examination that defense counsel would be incompetent if he
did not present a psychiatric defense in the guilt phase, even though Dr. Vicary
believed the facts did not support a psychiatric defense to the charges, and to “put
in perspective” the fact Dr. Vicary similarly felt the facts did not support a plea of
not guilty by reason of insanity. In other words, the prosecutor explored the
inconsistency between the defense’s presentation of a psychiatric defense and its
39
nonpresentation of an insanity defense, despite Dr. Vicary’s disavowal of the
validity of both defenses on the facts of this case. The trial court acted within its
discretion in precluding defense counsel from questioning Dr. Vicary on redirect
examination concerning his understanding of the legal definition of insanity, due
to the risk of undue consumption of time and confusion of the issues. (Evid. Code,
§ 352.) Nevertheless, we note the court permitted defense counsel to suggest to
the jury a possible distinction between the psychiatric defense actually presented
and the insanity defense not presented, by eliciting Dr. Vicary’s acknowledgment,
on redirect examination, that when a defendant proffers an insanity defense, he
bears the burden of persuading the jury he is insane. Defense counsel also elicited
from Dr. Vicary testimony reinforcing the principle that the determination whether
defendant had the mental state required for the charged offenses was to be made
by the jury, not the forensic psychiatrist. We see no possibility that the decision
not to allow defense counsel to explore Dr. Vicary’s understanding of the legal
definition of insanity, coupled with the admission of Dr. Vicary’s opinion
regarding the viability of an insanity defense, would have misled the jury to
conclude Dr. Vicary was asserting defendant suffered from no mental disease or
disorder, or otherwise prejudiced defendant. We conclude the trial court did not
violate defendant’s constitutional rights by imposing “asymmetrical” evidentiary
standards on the parties.
b. Restriction on direct examination of defense expert
toxicological witness
Defendant argues the trial court erred under state evidentiary law by
arbitrarily preventing his trial counsel from asking a defense expert witness,
Toxicologist Ernest Lykissa, Ph.D., a hypothetical question that assertedly was not
supported by the evidence, while permitting the prosecutor (over defense
objection) to ask the same witness a different hypothetical question that was
40
similarly unsupported by the evidence. The Attorney General argues this
contention was not preserved by a sufficiently specific objection below. Although
defendant did not cite any specific ground for his objection to the prosecutor’s
hypothetical, his objection clearly related back to the earlier discussion the parties
had about the propriety of the hypothetical questions the defense had tried to ask
Dr. Lykissa, and we are satisfied defendant has preserved the state evidentiary
claim for appeal.
Defendant’s argument, however, lacks merit, for the prosecutor’s question,
unlike defense counsel’s, did not assume a fact not in evidence. The defense
called Dr. Lykissa, chief toxicologist at Long Beach Memorial Medical Center, to
testify about the effect of alcohol consumption on blood-alcohol levels and
behavior, in order to suggest that defendant had committed the charged offenses
with a diminished mental state. Dr. Lykissa testified that at 7:40 p.m. the night of
the shootings, defendant gave a blood sample that contained .154 percent alcohol.
Based on a theoretical model male weighing 150 pounds, Lykissa testified it
would take in excess of seven drinks consumed over a two-hour period before
testing for the model male to register .154 percent. Defense counsel asked Dr.
Lykissa: “Let’s say we are talking about a male in his mid-forties who weighs
approximately—between 180 and 190 pounds in weight, do you have any opinion
as—in assuming that he had—he had his last drink approximately an hour and a
half to two hours before a test was run on him, would you have any opinion as to
the blood level at that point?” The prosecutor then objected on the ground that no
evidence supported the hypothetical. At a sidebar conference, the court said:
“The part that bothers me is unless [defendant] testifies—I don’t know how you
are going to get into the record when he had his last drink. [¶] That’s a part of
your hypothetical.” Defense counsel responded that he would be presenting
circumstantial evidence of when defendant had his last drink and that defendant
41
had had nothing to drink from about 10 minutes to 7:00 p.m. until the time his
blood was tested at 7:40 p.m. The prosecutor objected that no such evidence had
yet been presented, adding: “In fact, there is not necessarily any reason to believe
there was any drinking until after the first two killings. [¶] . . . He could have had
everything after the killings, but before he shot Layton, and . . . unless we get
some evidence in this record, this hypothetical is unwarranted.” The court ruled:
“You [defense counsel] can always bring him [Lykissa] back, if necessary, but I’ll
sustain the objection at this time to the hypothetical.”
Defendant acknowledges he failed to recall Dr. Lykissa to the stand. This
circumstance suffices to defeat his claim of evidentiary error. Defendant argues,
to the contrary, that recalling Dr. Lykissa “would not have alleviated the harm the
trial court had already caused by allowing the prosecutor to pose to the expert a
hypothetical question that was not supported by the evidence, even after all the
evidence had been presented.” As will appear, the premise underlying this
argument is flawed, as the prosecutor’s hypothetical question, unlike defense
counsel’s, was based on facts shown by the evidence. (See People v. Ward (2005)
36 Cal.4th 186, 209 [expert may render opinion testimony based on facts given in
hypothetical questions, but such questions must be rooted in facts shown by the
evidence].)
To return to the examination of Dr. Lykissa: After the expert testified that
defendant’s blood-alcohol level was .154 percent at 7:40 p.m., the prosecutor
asked: “What, if anything, can you think of [that] is inconsistent with the
following hypothesis? [¶] That the individual whose blood alcohol reading was
.154 at 7:40 did not have anything to drink until after 6:15 or 18:15?” The court
overruled a defense objection, and Dr. Lykissa, after making some calculations on
paper, responded: “Nothing.”
42
As the Attorney General reasons, the prosecutor’s question embraced facts
already in evidence (the time of defendant’s blood test and his blood-alcohol level)
and simply asked Dr. Lykissa if those known facts were inconsistent with the
possibility (or hypothesis) that the individual in question had nothing to drink until
after 6:15 p.m. In contrast, the defense question to which the court sustained the
prosecutor’s objection asked Dr. Lykissa to assume a fact not yet in evidence, i.e.,
that defendant had nothing to drink after 10 minutes to 7:00 p.m. Therefore, the
trial court properly excluded defendant’s hypothetical and allowed the
prosecutor’s; hence, no differential treatment appears.
Defendant further argues the restriction on his counsel’s direct examination
of Dr. Lykissa violated his Sixth and Fourteenth Amendment rights to present a
defense and to due process, as well as the Eighth Amendment’s requirement of a
reliable determination of penalty. The Attorney General contends defendant
forfeited these constitutional issues for purposes of this appeal by failing to
articulate these grounds at trial. We concluded above that defendant preserved his
related claim of state evidentiary error, but because the constitutional claims
defendant now asserts do not simply restate his evidentiary claim on alternative
legal principles, but instead require consideration of different circumstances—
namely, the court’s assertedly “asymmetrical” treatment of the parties’ use of
hypothetical questions—he has forfeited the constitutional arguments for appeal.
(See ante, fn. 7.) In any event, for the reasons discussed above, the trial court did
not err in its rulings concerning the scope of the parties’ examination of Dr.
Lykissa.
43
3. Asserted Instructional Errors
a. Failure to instruct on involuntary manslaughter as a lesser
included offense of murder
Defendant contends the trial court erred in failing to instruct the jury on
involuntary manslaughter as a lesser included offense of murder. (See People v.
Ochoa (1998) 19 Cal.4th 353, 422.) A trial court must instruct the jury on a lesser
included offense, whether or not the defendant so requests,10 whenever evidence
that the defendant is guilty of only the lesser offense is substantial enough to merit
consideration by the jury. (People v. Breverman (1998) 19 Cal.4th 142, 154-155,
162.) Substantial evidence in this context is that which a reasonable jury could
find persuasive. (Id. at p. 162.)
Section 192, subdivision (b) defines involuntary manslaughter as “the
unlawful killing of a human being without malice” during “the commission of an
unlawful act, not amounting to felony; or in the commission of a lawful act which
might produce death, in an unlawful manner, or without due caution and
circumspection.” As defendant observes, if, in a murder case, evidence of mental
illness or intoxication raises a reasonable doubt the defendant premeditated or
deliberated, but establishes he did harbor malice aforethought, then he is guilty of
second degree murder; if such evidence negates malice aforethought, the only
supportable verdict is involuntary manslaughter or acquittal. (People v. Saille
(1991) 54 Cal.3d 1103, 1117.) Defendant contends he presented substantial
evidence that he was mentally ill and intoxicated at the time of the shootings,
10
Because a guilt phase jury instruction conference was not reported, the
record is not entirely clear as to whether the defense requested an instruction on
involuntary manslaughter as a lesser included offense of murder. The list of
requested instructions submitted by defense counsel does include instructions on
voluntary and involuntary manslaughter.
44
which could have led a reasonable jury to conclude he lacked malice aforethought.
He points to the evidence, recited above, of his deteriorating mental state prior to
the crimes and his consumption of alcohol on the day of the offenses, and argues
the trial court therefore was required to instruct on involuntary manslaughter.
Contrary to defendant’s contention, the evidence—including defendant’s
own testimony that he intentionally killed the victims and the manner in which
they were shot—abundantly established that he intended to kill Ferguson and
Perez, and nothing in the record suggested that intoxication or mental illness
negated that intent. Nor was there any evidence that defendant was committing
only a misdemeanor, or that he was committing a lawful act in an unlawful
manner or without due caution. Moreover, in closing argument the defense
essentially conceded the element of malice. Consequently, the court did not err in
failing to instruct on involuntary manslaughter as a lesser included offense of
murder.
b. Instruction on mental disorder and voluntary intoxication
Defendant contends the trial court erred in instructing the jury, pursuant to
CALJIC No. 3.36, that it could consider defendant’s evidence of mental illness
and voluntary intoxication in deciding whether he had formed any mental state or
intent required by the charged offenses.11 He argues that, having failed to instruct
11
Following an unreported jury instruction conference (see ante, fn. 10), the
court, on its own motion, gave an instruction that combined the versions of
CALJIC Nos. 3.36 and 4.21 in effect at the time of defendant’s trial, as follows:
“Evidence has been received that the defendant had a mental disorder and was
voluntarily intoxicated at the time of the commission of the alleged offenses.
[¶] You may consider each of these factors alone or in combination on the issue of
whether or not he actually formed the required mental state or intent which is an
element of any offense charged. [¶] If, from all the evidence, you have a
reasonable doubt that the defendant had the required mental state or intent which
(footnote continued on next page)
45
on involuntary manslaughter as a lesser included offense of murder, apparently
because it had determined that defendant’s evidence was insufficient as a matter of
law to raise a reasonable doubt as to whether defendant had acted with malice (see
pt. II.B.3.a., ante), the trial court should have modified the instruction to make
clear that the defense evidence of intoxication and mental disorder was relevant to
whether he premeditated and deliberated the killings, but not to whether he acted
with express or implied malice, and that the failure to do so rendered the
instructions confusing and contradictory. Defendant argues the prosecutor
prejudicially exploited this asserted error in his closing argument by suggesting to
the jury there was no reason why the evidence would affect defendant’s ability to
premeditate and deliberate, yet not affect his ability to form malice. Defendant
asserts the instruction, exacerbated by the prosecutor’s closing argument, violated
the federal Constitution, as well as state law, because it so infected the entire trial
that the resulting conviction violated due process (Estelle v. McGuire (1991) 502
U.S. 62, 72) and deprived him of a reliable guilt phase verdict as a proper basis for
the imposition of the death sentence.
The Attorney General first contends that by expressly assenting to the
giving of the instruction and failing to request clarification, defendant failed to
preserve the claimed error. (People v. Lewis (2001) 26 Cal.4th 334, 380.)
Defendant asserts the record does not demonstrate that his counsel acquiesced in
the instruction, and even if it did, the trial court nevertheless had a duty to instruct
(footnote continued from previous page)
is an element of any offense charged, you must give the defendant the benefit of
that doubt and find that he did not have such mental state or intent as to such
offense or offenses.”
46
the jury correctly (see People v. Castillo (1997) 16 Cal.4th 1009, 1015), a duty
that could be negated only if counsel invited the error, which he did not do here.
Assuming for the sake of argument the claim of instructional error is
preserved for appeal, it nevertheless lacks merit. The essence of defendant’s
argument is not so much that the instruction itself was erroneous, but that, in view
of the trial court’s refusal to instruct on voluntary and involuntary manslaughter,
the instruction might have confused the jury. We see no such potential for
confusion. The modified instruction clearly did not preclude the jury from
considering defendant’s evidence of mental disorder and intoxication on the
question whether he acted with premeditation and deliberation, the “mental
states,” in the language of the instruction, to which the defense had directed its
presentation of such evidence. Nor did it prevent defense counsel from arguing
the jury should consider such evidence only on that question (in closing argument
defense counsel did tie the evidence to the issue of premeditation and deliberation,
while essentially conceding malice), or from responding to the prosecutor’s
argument that the evidence logically would have the same effect on malice
aforethought as on premeditation and deliberation. And, as the Attorney General
further contends, by failing to object to the prosecutor’s argument and request an
admonition, defendant forfeited any claim the argument was misleading. In sum,
the instruction violated neither state law nor the federal Constitution.
c. Refusal to instruct on unconsciousness
Defendant contends the trial court erred in refusing his request for
instructions on unconsciousness as a complete defense to all charges.12
12
Defendant unsuccessfully sought to have the jury instructed with the then
extant versions of CALJIC Nos. 4.30 and 4.31 (4th ed. 1979). Thus, defendant
requested the jury be instructed as follows: “A person who commits an act while
(footnote continued on next page)
47
Unconsciousness, if not induced by voluntary intoxication, is a complete defense
to a criminal charge. (§ 26, subd. Four; People v. Coogler (1969) 71 Cal.2d 153,
170; People v. Newton (1970) 8 Cal.App.3d 359, 376; see also § 20 [to constitute a
crime there must exist a joint operation of act and intent].) To constitute a
defense, unconsciousness need not rise to the level of coma or inability to walk or
perform manual movements; it can exist “where the subject physically acts but is
not, at the time, conscious of acting.” (Newton, at p. 376.) If the defense presents
substantial evidence of unconsciousness, the trial court errs in refusing to instruct
on its effect as a complete defense. (Id. at p. 377, citing People v. Wilson (1967)
66 Cal.2d 749, 764.)
(footnote continued from previous page)
unconscious is not guilty of a crime. [¶] This rule of law applies to persons who
are not conscious of acting but who perform acts while asleep or while suffering
from a delirium or fever, or because of an attack of epilepsy, a blow on the head,
the involuntary taking of drugs or the involuntary consumption of intoxicating
liquor, or any similar cause. [¶] Unconsciousness does not require that a person be
incapable of movement. [¶] Evidence has been received which may tend to show
that the defendant was unconscious at the time and place of the commission of the
alleged offense for which he is here on trial. If, after a consideration of all the
evidence, you have a reasonable doubt that the defendant was conscious at the
time the crime was committed, he must be found not guilty.”
In addition, defendant requested the jury be instructed: “If the evidence
establishes beyond a reasonable doubt that at the time of the commission of the
alleged offense the defendant acted as if he were conscious, you should find that
he was in fact conscious at the time of the alleged offense. [¶] If the evidence
raises a reasonable doubt that he was conscious, unless from all the evidence you
have a reasonable doubt that he was in fact conscious, you must find that he was
then unconscious.”
These instructions apparently were requested and refused during an
unreported jury instruction colloquy held on August 13, 1987. The settled
statement for this proceeding does not indicate why the trial court refused the
instructions.
48
In support of his contention that the evidence warranted the giving of
instructions on unconsciousness, defendant relies on Dr. Vicary’s testimony that,
at the time of the offenses, defendant suffered from bipolar disorder, with
symptoms including psychosis and agitation, exacerbated by intoxication, as well
as his own testimony that immediately before the shootings he experienced strange
sensations, which he asserts were suggestive of an altered state of consciousness.
Defendant also points to his testimony that he did not consciously or intentionally
pull the trigger in shooting Alcala, as well as to certain inaccuracies and internal
contradictions in his testimony and “gaps in his knowledge of events.”
Specifically, defendant cites his testimony professing unawareness as to why he
drove from the Alcala scene to the Hammett Vacuum Services location, why he
shot Ferguson and Perez, what route he took from the Hammett location to Eugene
Layton’s house, and his lack of memory of what Ferguson and Perez said to him
before he shot them. Defendant also relies on certain contradictions between his
own testimony and that of Alcala and Layton, contradictions that he now asserts
did not serve his legal interests. Defendant argues his testimony “raised the
question of whether he actually recalled the shootings or whether he instead had
filled gaps in his memory with information gleaned from other sources,” and that
“the jury may have concluded [defendant] was truthful with Dr. Vicary prior to
trial when he told the doctor that he had no recollection of the homicides, and that
his testimony to the contrary was a confabulation.”
The trial court properly refused the requested instructions. Defendant’s
own testimony makes clear that he did not lack awareness of his actions during the
course of the offenses. The complicated and purposive nature of his conduct in
driving from place to place, aiming at his victims, and shooting them in vital areas
of the body suggests the same. That he did not, by the time of trial, accurately
recall certain details of the shootings does not support an inference he was
49
unconscious when he committed them. The cases on which defendant relies are
distinguishable: In People v. Wilson, supra, 66 Cal.2d at page 762, the defendant
testified he did not recall shooting the victims, which was consistent with his
statement to police at the time of his arrest. In People v. Bridgehouse (1956) 47
Cal.2d 406, 410, likewise, the defendant testified his recollection of speaking with
the victim just before the shooting was “very hazy,” he had a “very vague
memory” of the victim springing from the couch, and the next thing he
remembered was pulling the trigger of his gun on empty cartridges; he
characterized his action as “distorted by a haze of mental void.” He had made
similar statements to the police when he was arrested. (Ibid.) Thus, in both
Wilson and Bridgehouse, the defendants testified to a mental state consistent with
unconsciousness and with prior statements to police. In contrast, defendant in this
case testified in sharp detail regarding the shootings. That he earlier had told Dr.
Vicary he did not remember them does not, without more, suggest his testimony
about the crimes was mere confabulation. In sum, because defendant presented no
substantial evidence he was unconscious when he committed the offenses, the trial
court did not err in refusing the instructions on unconsciousness as a complete
defense. (See People v. Stitely (2005) 35 Cal.4th 514, 551 [trial court need not
give instructions absent substantial evidence to support them].)
Even if the trial court acted properly in denying his request for an
instruction that unconsciousness is a complete defense, defendant further argues
the trial court erred in failing to instruct sua sponte on involuntary manslaughter
based on unconsciousness. (CALJIC No. 8.47; see § 22; People v. Breverman,
supra, 19 Cal.4th at p. 155; People v. Graham (1969) 71 Cal.2d 303, 316-317.)
Such an instruction is required when there is evidence deserving of consideration
that the defendant was unconscious due to voluntary intoxication. Defendant
rehearses at length the evidence that around the time of the offenses, he daily and
50
habitually drank to excess with resultant memory losses, and that on the day of the
shootings he spent the afternoon drinking at the Anchor Inn bar, producing a
blood-alcohol level that measured .154 percent at the time of his arrest some two
hours after the shootings (and might, according to the testimony of Dr. Lykissa,
have approached .20 percent at the time of the shootings).
As discussed above, the record is lacking in substantial evidence that
defendant was not conscious of his criminal actions within the meaning of section
26, subdivision Four. Accordingly, the trial court did not err in failing to instruct
on involuntary manslaughter on a theory of unconsciousness due to voluntary
intoxication.
4. Sufficiency of Evidence of Murder
Defendant contends the evidence in this case does not support the jury’s
findings that the Ferguson and Perez homicides were committed with
premeditation and deliberation, and that his first degree murder convictions
therefore violate section 189 and his state and federal constitutional rights and
must be reversed. For the reasons set forth below, we disagree.
“In reviewing a criminal conviction challenged as lacking evidentiary
support, ‘ “the court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’ (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)” (People
v. Combs (2004) 34 Cal.4th 821, 849; see Jackson v. Virginia (1979) 443 U.S.
307, 319.) “An appellate court must accept logical inferences that the jury might
have drawn from the evidence even if the court would have concluded otherwise.
(People v. Rodriguez (1999) 20 Cal.4th 1, 11.)” (Combs, at p. 849.)
51
“A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful
weighing of considerations in forming a course of action; ‘premeditation’ means
thought over in advance. [Citations.] ‘The process of premeditation does not
require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly. . . .”
[Citations.]’ ” (People v. Koontz, supra, 27 Cal.4th at p. 1080.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, this court reviewed
earlier decisions and developed guidelines to aid reviewing courts in assessing the
sufficiency of evidence to sustain findings of premeditation and deliberation.
(People v. Young (2005) 34 Cal.4th 1149, 1183.) We described three categories of
evidence recurring in those cases: planning, motive, and manner of killing.
(People v. Perez (1992) 2 Cal.4th 1117, 1125; Anderson, at p. 27.) The Anderson
decision stated: “Analysis of the cases will show that this court sustains verdicts
of first degree murder typically when there is evidence of all three types and
otherwise requires at least extremely strong evidence of [planning] or evidence of
[motive] in conjunction with [evidence of] either [planning] or [manner of
killing].” (Anderson, at p. 27; see Perez, at p. 1125.) Since Anderson, we have
emphasized that its guidelines are descriptive and neither normative nor
exhaustive, and that reviewing courts need not accord them any particular weight.
(Young, at p. 1183; Perez, at p. 1125.)
Defendant contends there was no evidence he planned to kill Ferguson and
Perez or that he had any motive to do so. He argues the killings were the product
of his mental illness, intoxication, and unconsidered impulse rather than of a
deliberate judgment or plan carried out according to a preconceived design.
52
Defendant first asserts he did not know that either Ferguson or Perez, or
anyone else, would be in the area of the Hammett Vacuum Service at McDonough
and I Streets when he arrived there, outside business hours, on the evening of
Sunday, March 31, 1985, at a time for which he had previously made dinner plans
with his wife and another couple. The record, he notes, suggests the killings
occurred less than 10 minutes after he shot Benjamin Alcala; impliedly, he claims
the interval was too short for him to have planned the fatal shootings. The
Ferguson brothers were about 30 to 40 feet from the intersection where defendant
stopped his truck, and the evidence stood in conflict on the question whether
defendant called out to Calvin Ferguson, or whether Ferguson walked over to
defendant of his own accord; in any event, defendant shot Ferguson within
seconds of his approaching defendant’s truck. Apparently without significant
delay, defendant then drove ahead some 50 to 70 feet and stopped his truck in
front of Vernon Lovelace’s gate on McDonough Street. Lovelace testified that
Perez’s car, coming from the opposite direction, pulled alongside defendant’s
truck. Perez’s driver’s side window was rolled halfway up. Defendant testified
Perez said something to him, although he could not remember what; defendant
then stuck his hand out of the window of his truck and fired the gun at Perez. This
sequence of events, defendant urges, fails to support an inference of any planning
activity and instead suggests he did not plan to kill either victim.
Other evidence, defendant asserts, showed that he had no motive for killing
Perez or Ferguson. Delton Ferguson testified he knew of no bad blood between
his brother and defendant and that to his knowledge they had never even met.
Defendant testified he previously had seen Perez in the area, but did not know
him. He testified he did not know why he shot Ferguson and Perez. Nothing in
these circumstances, defendant argues, supports an inference that he had a motive
to kill the victims.
53
Defendant also contends that nothing about the manner in which he killed
each victim—a single gunshot, without reloading his gun or taking any further
steps to ensure either victim had been killed—shows he had a preconceived design
to take their lives.
Finally, defendant relies on Dr. Vicary’s testimony he was psychotic,
paranoid, agitated, and acting impulsively at the time of the shootings, and Dr.
Lykissa’s testimony that the level of intoxication defendant was experiencing at
that time would impair his thought processes and alter his social judgment, in
support of his argument that the evidence was insufficient to support the first
degree murder verdicts.
We conclude the evidence supports the jury’s finding of premeditation and
deliberation. Defendant’s purposive actions in driving to seek out various persons
and then killing them, viewed in a light favorable to the judgment, indicate
defendant had some motive for his killings—a method to his madness—and that is
enough. The record suggests the motive may have been related to defendant’s
feelings about his desperate financial state, as each of the locations where
defendant committed the shootings—the yard outside the home of defendant’s
business associate, Roberto Martinez, where defendant shot Benjamin Alcala; the
street near the premises of the Hammett Vacuum Service, from whose owner
defendant had attempted to extort money, where defendant killed Calvin Ferguson
and Vincent Perez; and the home of Eugene Layton, with whom defendant had
engaged in business dealings and whom he tried to kill there—conceivably had
some connection, in defendant’s mind, to his financial troubles. With respect to
the murders, neither Ferguson nor Perez in any way provoked the shooting or
struggled with defendant, whose demeanor at the time was described as “cold.”
(See People v. Marks (2003) 31 Cal.4th 197, 232 [“calm,” “cool,” and “focused”
manner of shooting supported finding of premeditation and deliberation].) The
54
jury was free to accept Delton Ferguson’s testimony that defendant “hollered”
from the intersection, which suggested defendant had some purpose in drawing
Calvin Ferguson toward him, and within moments fatally shot him. In any event,
as the Attorney General observes, this court has “ ‘never required the prosecution
to prove a specific motive before affirming a judgment, even one of first degree
murder. A senseless, random, but premeditated, killing supports a verdict of first
degree murder.’ [Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 519.) The
evidence of defendant’s planning activity and evident deliberation in the Layton
shooting could support an inference that his mental illness did not interfere with
his ability to deliberate less than an hour earlier, when he killed Ferguson and
Perez. Moreover, Ferguson and Perez were shot in the head or neck from within a
few feet, a method of killing sufficiently “ ‘particular and exacting’ ” to permit an
inference that defendant was “acting according to a preconceived design” (People
v. Caro (1988) 46 Cal.3d 1035, 1050; see also People v. Morris (1988) 46 Cal.3d
1, 23), and defendant’s testimony showed he was well aware that shooting a
person in the face or neck would kill him. We conclude the jury’s verdict of first
degree murder is supported by sufficient evidence.
5. Cumulative Error
Defendant contends the cumulative effect of the errors assertedly
committed during the guilt phase of his trial rendered the trial fundamentally
unfair and the first degree murder verdicts constitutionally unreliable. (See
generally Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; Beck v. Alabama
(1980) 447 U.S. 625, 637-638.) But we have found no error in this phase of the
trial, and as to the assumed error in the admission of Dr. Vicary’s opinion
concerning defendant’s mental state, we concluded any possible error did not
affect the verdict. Hence, defendant’s contention must fail.
55
6. Superfluous Multiple-murder Special-circumstance Finding
Defendant correctly notes that two multiple-murder special-circumstance
allegations were erroneously charged and found true in this case. (People v.
Avena (1996) 13 Cal.4th 394, 425; People v. Rodriguez (1986) 42 Cal.3d 730,
787; People v. Harris (1984) 36 Cal.3d 36, 67.) In numerous cases involving the
same kind of error, we have stricken the superfluous finding and concluded the
defendant suffered no prejudice. (See, e.g., Avena, at p. 425; People v. Jones
(1991) 53 Cal.3d 1115, 1149.) We do so again here. (See also Brown v. Sanders
(2006) 546 U.S. 212, 220-221 [163 L.Ed.2d 723, 733] [invalidated special
circumstance produces constitutional error only when the jury could not have
given aggravating weight to the same facts and circumstances under the rubric of
some other, valid sentencing factor].)
C. Issues Pertaining to First Penalty Trial and Proceedings Prior to
Penalty Retrial
1. Propriety of Mistrial Declaration
Defendant contends the trial court abused its discretion when it failed to
make sufficient inquiry into whether there existed legal necessity to declare a
mistrial after the jury reached an impasse during the first penalty phase, and
further erred in concluding the jury was deadlocked. Defendant additionally
contends he did not consent to the mistrial, thereby rendering the penalty retrial a
violation of his state and federal constitutional protections against double
jeopardy. The Attorney General argues the defense impliedly consented to the
mistrial and that, in any event, the trial court acted within its discretion in
declaring the mistrial. As will appear, we agree legal necessity supported the trial
court’s action.
The issue arose in the following context. About 2:00 p.m. on Friday,
August 21, 1987, after closing arguments by counsel and instructions by Judge
56
Sterry Fagan, who had presided over the evidentiary portion of the trial, the jury
retired to deliberate as to the penalty. At 3:30 p.m., Judge Fagan excused the jury
for the weekend, directing it to return the following Monday, August 24. The jury
resumed deliberations that Monday morning, with Judge Eugene Long rather than
Judge Fagan presiding. The jury took lunch from 12:00 p.m. to 1:45 p.m. and then
resumed deliberations. At 4:00 p.m., the jury indicated it had reached a partial
verdict; apparently without notifying counsel, Judge Long ordered the partial
verdict sealed, excused the jury, and directed it to return the following morning.
Jury deliberations resumed on Tuesday, August 25, with Judge Long again
presiding. Sometime that morning, the foreperson of the jury sent the court a note
advising that the jury was “unable to reach a unanimous decision regarding the
penalty of life in prison or death in Count II.” After receiving the note, Judge
Long called counsel for both sides into his chambers and asked for suggestions on
how to proceed. Defense counsel suggested the court bring the jurors into the
courtroom and ask them individually if any further deliberations would be
productive. Mr. Carbaugh, a deputy district attorney standing in for the trial
prosecutor questioned whether, given the length and complexity of the case, any
inquiry was necessary at that point. Defense counsel reiterated his suggestion that
the court determine whether the jury was deadlocked or whether further
deliberations would be productive and proposed that, if the foreperson indicated
they would not be productive, the jurors be polled on that point. Carbaugh agreed
and suggested the jury additionally be asked about the number of ballots taken and
the numeric breakdown of the various ballots. Defense counsel assented. Judge
Long then asked: “Assuming that you are satisfied after inquiry that they have
taken enough polls and that they all unanimously agree that they are deadlocked
and no further deliberations or assistance of the court by way of any further
instructions or re-reading of the testimony, then what do you suggest, taking the
57
verdict on [count] I and declare a mistrial as to [count] II?” Carbaugh said he
would “probably want to be heard . . . . [¶] I’ll simply wait and ask to approach
side bar on that issue.” The court noted it would be glad to hear what Carbaugh
had to say, adding: “Assuming we all agree that no further—” Carbaugh spoke:
“Then the procedure the court suggested is proper.” The court clarified: “Take
the verdict on Count I and declare a mistrial on Count II and excuse the jury?”
Defense counsel and Carbaugh each assented.
The court then called the jury into the courtroom, read aloud the jury’s
note, and asked whether the jury felt the court could do anything to assist it in
further deliberations toward arriving at a verdict on count II. The foreperson
answered in the negative. The court polled the jurors individually, asking whether
each felt that with further deliberations they might arrive at a verdict on count II.
All said no. Noting that the jury had been deliberating since Friday afternoon, the
court asked how many ballots had been taken as to count II. The foreperson
answered: “[B]etween eight and ten.” The court asked: “Without telling me as to
guilty or not guilty [sic], just the numerical count, has it changed much?” The
foreperson responded: “No, it hasn’t.” The court probed further: “What is it,
again, without telling me the penalty, whichever way it was, the death or life, the
numerical count, without telling me which was which, is it 6/6, 11/1, 10/2?” The
foreperson responded: “It was 10/2 in one instance and . . . 8/4.” The court asked:
“Which was which, as you concluded? [¶] Where do you stand?” The foreperson
replied: “The first, 10/2, was with regards to death; the 8/4 was regards to life.”
The court and counsel then conferred at sidebar. Carbaugh observed that
the foreperson had not really answered the court’s question as to where the jury
stood as of the last ballot and suggested they get an answer to that question. The
court said: “I gather it stayed pretty much the same. . . . He said, apparently, they
voted 10 to 2 for death—we don’t know which way—and 8 to 4 for life.”
58
Carbaugh argued: “I don’t care about death or life. I’m concerned about which
way, away from the 8 to 4 or away from the 10 to 2, and I think that’s probably
counsel’s inquiry.” Defense counsel agreed. The court asked what purpose
further inquiry would serve. Carbaugh responded: “To find out if there is some
movement.” The court said: “They said, ‘No.’ They have had eight to ten
ballots.” Carbaugh alluded to the interest in conserving judicial resources by
avoiding another two-month trial if possible, and noted: “[A]pparently, there has
been some movement. [¶] Again, we don’t know which way, away from a verdict
or towards a verdict.” After the court again noted the balloting “hasn’t changed
much, 10 to 2, 8 to 4,” Carbaugh observed: “Two votes. That’s actually a fair
change, considering the short period of time.” Defense counsel said: “One gets
the impression they were 10 to 2 for death at one point and now 8 to 4 for life.”
The court noted: “I’m just concerned about what may come blurting out. [¶] I get
the impression they are deadlocked.” Nevertheless, the court expressed
willingness to send the jury back for further deliberations. Carbaugh said: “That’s
agreeable.” Defense counsel said: “It’s not agreeable with me, but that’s why you
are a judge and I’m an advocate. [¶] . . . I think they are hung and they are not
going any place.” At defense counsel’s suggestion, the court then asked the
foreperson to elaborate on the numerical splits in the balloting that he previously
had referred to. He responded: “We went through the procedure and we carried
on the discussion regarding the death penalty decision and were working with the
death penalty decision by itself and took several ballots in regards to the death
penalty, and I would say it was approximately six or eight ballots in that regard,
and the numbers came out approximately the same.” The court interjected: “What
you told me was 10 to 2.” The foreperson continued: “Then we decided, ‘Well,
maybe it would be of some benefit to discuss life imprisonment,’ and we took
other ballots after more deliberations in that regard, and the ballots regarding that
59
penalty came out approximately the same, 8 to 4. [¶] It was 7 to 5 at one time, 8 to
4—the numbers were along those lines, yes, and the 8 to 4—the last two ballots, as
a matter of fact.” The court asked: “And the 10 to 2 was the last ballot on the
several balloting as to death?” The foreperson replied: “That was about the last
two or three, yes.” The court then declared itself satisfied that further
deliberations could not possibly lead to a verdict on count II. Accordingly, it took
the verdict on count I, polled the jury as to that count, declared a mistrial as to
count II, and discharged the jury.
The federal and state Constitutions protect persons against being twice
placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Benton v.
Maryland (1969) 395 U.S. 784, 794 [applying 5th Amend. to states through 14th
Amend. due process clause]; Cal. Const., art. I, § 15.) Retrial after discharge of a
jury without “manifest” (in federal terminology) or “legal” necessity violates the
protections afforded under both charters. Jury deadlock constitutes necessity for
declaration of a mistrial and permits retrial of the defendant. (United States v.
Perez (1824) 22 U.S. (9 Wheat.) 579, 580; Paulson v. Superior Court (1962) 58
Cal.2d 1, 5.) This principle is codified in section 1140, which prohibits discharge
of the jury after the case is submitted to it until it has rendered a verdict, unless by
consent of both parties or it appears there is no reasonable probability the jury can
agree, and section 1141, which permits retrial under such circumstances. (See
People v. Fields (1996) 13 Cal.4th 289, 300; see also § 1160 [permitting the jury,
in a trial of multiple charges, to return a verdict on the charge or charges on which
they agree and permitting retrial of the charges on which they do not agree].) The
determination whether there is a reasonable probability of agreement rests in the
sound discretion of the trial court, based on consideration of all the factors before
it. (People v. Rojas (1975) 15 Cal.3d 540, 546.)
60
The trial court here did not abuse its discretion in finding no reasonable
possibility the jury could reach a verdict on count II. The jury so advised the trial
court by written note; in open court, the foreperson confirmed that the jurors had
considered and rejected the possibility that rereading of testimony or further
instructions could assist them in reaching a verdict; after eight to 10 ballots taken
over the course of some seven hours 40 minutes’ deliberation spanning three days,
the jury remained divided as to the penalty on count II; and each juror, when
individually polled, expressed the view that further deliberations would not enable
the jury to come to a verdict on that count. The record simply does not support an
inference that a reasonable possibility existed that the jury could have arrived at a
verdict if told to deliberate further.
Defendant contends that because the duration of the jury’s deliberations
was not long for a capital case involving complex issues, and because some jurors
apparently changed their votes during the course of the deliberations, the trial
court had an obligation to question the jury further regarding the evident
movement of the votes before declaring a mistrial. Defendant also observes that
during the more than seven hours of deliberations preceding the mistrial
declaration, the jury presumably discussed and reached a verdict on count I, the
Ferguson murder count; thus, precisely how much time it spent discussing count
II, the Perez murder count, is unknown. While defendant acknowledges the period
of deliberations is not determinative (In re Chapman (1976) 64 Cal.App.3d 806,
816), he argues the trial court erred in concluding that the jury had deliberated
sufficiently on count II.
We disagree. Although apparently some members of the jury—precisely
how many was unclear—had changed their votes over the course of deliberations,
none indicated in response to the court’s questioning that there was any prospect
of achieving a unanimous verdict. Each affirmed there was nothing the court
61
could do to assist them in arriving at a verdict. Under these circumstances, that an
order to deliberate further would have resulted in a verdict is sheer speculation,
and the trial court did not abuse its discretion in declaring a mistrial.
In light of this conclusion, we need not address the Attorney General’s
argument that defense counsel impliedly consented to the mistrial declaration.
2. Constitutionality of Section 1053 and Propriety of Substitution of
Trial Judge
As noted, for reasons not disclosed on the record, Judge Fagan, who had
presided over defendant’s trial, was absent from court on Monday and Tuesday,
August 24 and 25, 1987, while the first jury was deliberating on penalty. Without
objection from either side, Judge Long substituted for Judge Fagan during those
two days. On Monday, August 24, the jury returned a partial verdict, which Judge
Long ordered sealed; he then excused the jury and directed it to return the
following day at 9:30 a.m.
Jury deliberations resumed the next day, August 25, with Judge Long
presiding. That morning, after the jury announced itself unable to reach a verdict
regarding the penalty for the Perez murder, and following discussion with counsel
and questioning of the foreman and other jurors, Judge Long declared a mistrial on
the Perez count and entered the jury’s verdict of life imprisonment on the
Ferguson count. Judge Long then set the matter of the Perez count for pretrial
conference and trial setting on September 14, 1987.
On the latter date, Judge Fagan resumed presiding over the proceedings.
Defendant contends that section 1053, which permits the midtrial
substitution of judges in criminal cases,13 violates his federal constitutional right
13
Section 1053 provides in relevant part: “If after the commencement of the
trial of a criminal action or proceeding in any court the judge or justice presiding
(footnote continued on next page)
62
to a fair trial, and that the retrial of penalty, following the assertedly improper
substitution and Judge Long’s declaration of a mistrial, violated his right not to be
placed twice in jeopardy for the same offense. Defendant also contends that the
substitution of Judge Long violated section 1053 in any event because no showing
was made that Judge Fagan was unable to proceed, as required by the statute. We
conclude that defendant failed to preserve these contentions, but even if we were
to address their merits, he has not established entitlement to relief.
By way of background, we explained in People v. Espinoza (1992) 3
Cal.4th 806, 828, that “[t]he notion that the federal right to jury trial is violated by
the midtrial substitution of a judge has its origin in a 1915 federal case, Freeman
v. United States (2d Cir. 1915) 227 Fed. 732. That case held that the Sixth
Amendment right to a trial by jury entitled a criminal defendant to 12 jurors, as
well as a judge, ‘all of whom must remain identical from the beginning [of trial] to
the end.’ (Id., at p. 759.) Recently, in People v. Gonzalez (1990) 51 Cal.3d 1179,
1211 [275 Cal.Rptr. 729, 800 P.2d 1159], we mentioned Freeman and more recent
authorities (Randal v. Beto (5th Cir. 1965) 354 F.2d 496, 500 and fn. 5; 2 Wright,
Federal Practice & Procedure: Criminal 2d (1982) § 392, pp. 402-403) as
providing ‘abstract support’ for the proposition that the right to jury trial includes
a trial before a single trial judge.” But we concluded in Espinoza that the
“essential purpose” of the Sixth Amendment jury trial guarantee—preventing
“ ‘oppression by the Government’ ”—is served by “ ‘the interposition between the
accused and his accuser of the commonsense judgment’ of laypersons [citations]
(footnote continued from previous page)
at the trial shall die, become ill, or for any other reason be unable to proceed with
the trial, any other judge or justice of the court in which the trial is proceeding
may proceed with and finish the trial . . . .”
63
at a trial presided over by a neutral judicial officer” (Espinoza, at p. 829) and was
not implicated by the midtrial substitution of another superior court judge for the
original trial judge, which was compelled by the latter’s serious illness and
inability to continue with the trial. (Ibid.)
Defendant acknowledges our holding in People v. Espinoza, supra, 3
Cal.4th at page 829, that midtrial substitution of judges does not implicate the
right to jury trial, but he contends section 1053 is nevertheless unconstitutional
because it lacks certain procedural safeguards to protect his right to a fair trial.
Specifically, he argues it violates the fair trial guarantee by failing to permit
substitution only in extraordinary circumstances involving the judge’s genuine
inability to preside, and only after the substituting judge has certified on the record
that he or she has familiarized himself or herself with the prior proceedings.
According to defendant, and not controverted by the Attorney General, California
is the only jurisdiction, state or federal, that permits midtrial substitution of judges
without the consent of the defendant and without such safeguards. Defendant
notes that in Espinoza, the record established both that the original judge was
unable (due to serious illness) to proceed with the trial and that the substitute judge
familiarized himself with the record of proceedings; hence, he argues, Espinoza
cannot be read as dispensing with those conditions. Defendant further urges that
the asserted constitutional violation is a structural error, reversible per se (see
Arizona v. Fulminante (1991) 499 U.S. 279, 310), but that if we determine a
harmless error standard applies, he was prejudiced by Judge Long’s erroneous
declaration of a mistrial and his subsequent reprosecution.
At the threshold, the Attorney General argues defendant forfeited the
contention by failing to challenge the constitutionality of section 1053 below.
Defendant responds that we may entertain a constitutional challenge to a statute
for the first time on appeal and should do so here because “the enforcement of a
64
penal statute is involved [citation], the asserted error fundamentally affects the
validity of the judgment [citation], or important issues of public policy are at issue
[citation].” (Hale v. Morgan (1978) 22 Cal.3d 388, 394; see also People v. Blanco
(1992) 10 Cal.App.4th 1167, 1172-1173 [whether to address the constitutionality
of a statute for the first time on appeal is a discretionary determination for the
reviewing court].)
We need not address defendant’s constitutional challenge here. Contrary to
defendant’s argument, the improper substitution of a judge, unlike a biased
adjudicator, does not appear to be the type of error that cannot be “qualitatively
assessed in the context of other evidence presented in order to determine whether
its admission was harmless beyond a reasonable doubt.” (Arizona v. Fulminante,
supra, 499 U.S. at pp. 308-309.) Accordingly, under the applicable harmless error
standard (see Chapman v. California, supra, 386 U.S. 18), defendant would not be
entitled to relief because any possible error in the substitution of Judge Long was
harmless beyond a reasonable doubt. Judge Long made no evidentiary or
instructional rulings that would have required familiarity with the particulars of
the case and, contrary to defendant’s argument, we have found no error in his
declaration of a mistrial on penalty as to the Perez murder count.
Turning to defendant’s contention that the substitution of Judge Long for
Judge Fagan violated section 1053 because the record does not reflect that Judge
Fagan was unable to preside (see People v. Truman (1992) 6 Cal.App.4th 1816,
1825-1827 [error to substitute another judge so that presiding judge could attend to
“supervisorial duties”]), we conclude defendant forfeited the contention by not
objecting below. (People v. Burgener (2003) 29 Cal.4th 833, 886.) This case
perfectly exemplifies the basis for the forfeiture doctrine, for, had defendant
objected, either the record would reflect why Judge Fagan was unable to preside or
Judge Fagan would in fact have presided. Were the rule otherwise, defendants
65
“would be discouraged from making timely objections since, if the ultimate
judgment were unfavorable, the defendant ‘would receive a second “bite at the
apple”. . . .’ [Citation.]” (Id. at p. 887.) We therefore need not address the
question of what kind of “inability” to preside satisfies section 1053. Even had the
contention been preserved for appeal, for the reasons discussed above in
connection with defendant’s related constitutional claim, any possible error was
nonprejudicial.
3. Effect of Separate Penalty Verdicts for Each Murder Victim
Defendant contends that the trial court committed reversible error in
allowing the prosecutor to seek separate penalty verdicts for each of the two
murder victims, Ferguson and Perez, and that retrial of the penalty phase as to the
Perez count undermined the reliability of the death verdict and violated the state
and federal constitutional prohibitions against double jeopardy.
A brief procedural recitation will place this claim in perspective. Before
the start of the first trial, defendant unsuccessfully moved to strike one of the two
multiple-murder special-circumstance allegations (the only such allegations
against defendant), citing People v. Harris, supra, 36 Cal.3d at page 67, which
held that only one such special circumstance is properly alleged when multiple
murders are charged; he also asked that the jury be directed to render only one
penalty verdict, asserting that two penalty verdicts would, in effect, punish him
twice for one capital offense, in violation of the state and federal Constitutions.
During the guilt phase jury instruction conference, defendant reiterated his
argument that only one multiple-murder special-circumstance allegation was
proper, and he unsuccessfully objected to the court’s giving the jury two special
circumstance verdict forms. During the penalty phase jury instruction conference,
defendant unsuccessfully renewed his objection to giving the jury penalty verdict
66
forms for each murder conviction. After the trial court declared a mistrial when
the jury was unable to reach a verdict as to the penalty for the Perez murder
conviction, defendant entered a plea of once in jeopardy and unsuccessfully
moved to bar retrial on the ground that relitigation of the issue of penalty would
violate the doctrine of collateral estoppel. Defendant then sought a writ of
prohibition in the Court of Appeal, claiming that a penalty retrial was barred by
the federal and state Constitutions because the trial court had erred in allowing
multiple special circumstances and multiple penalty verdicts. The Court of Appeal
denied the writ, and this court denied review.
Although he acknowledges we previously have approved the use of
multiple penalty verdicts in cases involving only the multiple-murder special
circumstance (see, e.g., People v. Sandoval (1992) 4 Cal.4th 155, 197), defendant
first contends that because he could be given only a single sentence of either life
without parole or death for “a single multiple-murder capital offense,” only one
verdict was proper in his case. Defendant’s premise is faulty: His two murder
convictions constituted two capital offenses, not one, regardless of the
circumstance that only one multiple-murder special-circumstance finding may be
had. Contrary to defendant’s argument, Williams v. Superior Court (1984) 36
Cal.3d 441 does not hold otherwise. In that case, the defendant contended the trial
court erred in denying severance of two murder charges, and this court, on a
petition for writ of mandate, held the possibility of prejudice inherent in joinder of
the charges warranted severance. Defendant relies on our comment in Williams
that “since one of the charged offenses is a capital offense,” we had to analyze the
severance issue with a greater degree of scrutiny than is normally applicable in a
noncapital case. (Id. at p. 454.) Defendant reads too much into the comment,
which appears simply to have been an allusion to one of the factors courts consider
in analyzing severance claims (see id. at p. 452), but in any event cannot
67
reasonably be interpreted as signifying that two charged murders together
constitute one capital murder for which only one death verdict may be had. Nor is
this court’s disapproval in People v. Harris, supra, 36 Cal.3d at page 67, of the
practice of alleging two multiple-murder special-circumstances in a double murder
case (on the basis that doing so would “improperly inflate[] the risk that the jury
will arbitrarily impose the death penalty”) inconsistent with permitting separate
penalty verdicts for each of the murders. The language of section 190.2 further
supports the use of separate verdicts in this situation: The statute provides that the
multiple-murder special circumstance applies to multiple murders, even if one is
only in the second degree, yet the death penalty can be imposed only for a first
degree murder conviction. Thus, the two murders do not “merge” into one capital
crime, as defendant seems to argue. In sum, defendant’s argument lacks merit.
Because we reject defendant’s premise that his two murder convictions
together constituted but one capital crime, it follows the retrial of the penalty
phase for the Perez murder conviction, after the first jury was unable to reach a
verdict, did not violate principles of double jeopardy under either the state or the
federal Constitution. Defendant’s additional contention, that the penalty retrial
violated the doctrine of collateral estoppel because the first jury’s determination
that life imprisonment was the appropriate verdict, likewise lacks merit because
the first jury did not reach a determination as to the penalty for the Perez murder
conviction.
4. Denial of Defendant’s Requests for Self-representation
After the first trial ended and before the penalty retrial began, defendant
made four unsuccessful motions for self-representation under Faretta v.
California, supra, 422 U.S. 806. On appeal, he contends the denial of the motions
68
constituted reversible error. The Attorney General argues the motions were
untimely and therefore were properly denied.
Some procedural detail will place the Faretta issue in context. On
August 25, 1987, after the jury returned a verdict of life without the possibility of
parole for the murder of Calvin Ferguson, the trial court declared a mistrial when
the jury was unable to reach a penalty verdict for the murder of Vicente Perez.
Defendant’s case was continued to September 14, 1987. On September 14,
defense counsel requested a continuance, and, after some unresolved discussion of
whether defendant was willing to wait until the conclusion of the penalty retrial to
be sentenced on the noncapital counts, the matter was put over. On October 6,
1987, the trial court (Judge Fagan) heard and denied defendant’s motion to bar
proceedings on the ground of collateral estoppel, after which defense counsel
stated that defendant wished to address the court. Defendant asked for “a new
trial, a complete new trial. That would require a pro per status. And I would like
to ask for Mr. Torelli’s assistance as counsel.” Defendant asserted, among other
things: “I will prepare my case to where I have some defense. Not one word was
said in my defense of the reason why I have become a murderer.” Judge Fagan
denied defendant’s request for a new trial, indicated he would give defendant a
written petition to proceed in propria persona to fill out, and stated he would
appoint Dr. Blake Skrdla under Evidence Code section 730 to interview defendant
and report on whether he had the mental capacity to represent himself. The judge
then continued the matter. On November 2, 1987, Judge Fagan resumed
proceedings on defendant’s request for self-representation, noting he had received
a letter from Dr. Skrdla that expressed the opinion that, although defendant
understood the nature and purpose of the criminal proceedings and could
cooperate with counsel if he chose to do so, his mental problems would prevent
him from preparing and conducting his defense in a rational manner. Judge Fagan
69
again continued the matter pending research on the legal standard applicable to
Faretta motions.14 On November 24, 1987, after considering the authority cited
by the prosecutor, Judge Fagan denied the motion, concluding defendant lacked
the mental capacity to represent himself and was self-destructive.
Defendant made a second motion to represent himself in a hearing before
Judge Fagan on January 5, 1988. When the judge asked if he had any new
circumstances on which to base the motion, defendant cited “equal protection
principles,” called his attorney “a court-appointed puppet who fails the legal
requirements of counsel, but who is really a wash-out, living on welfare payments
from the court disguised as legal fees,” and complained about a “snitch,” who he
contended had been monitoring his movements in jail for the last two years.
Defense counsel commented that the prosecutor had acknowledged a jailhouse
informant had been previously involved in the case but would not be used at trial.
Judge Fagan denied the motion for the reasons he had cited in denying the first
motion.
Defendant made a third motion for self-representation in a hearing before
Judge Sheldon on May 2, 1988. Noting Judge Fagan had previously denied a
14
The prosecutor noted that Dr. Skrdla had not found defendant incompetent
to stand trial and interpreted his letter as saying, in essence, that defendant was
merely making an unwise choice in seeking to represent himself. The judge
disagreed, saying he understood Dr. Skrdla to be saying that because of mental
problems defendant was incapable of preparing and conducting his defense in a
rational manner. Defense counsel suggested the matter be put over to allow the
parties to research whether the legal standard for competency to stand trial was the
same as that for self-representation. The prosecutor expressed confidence the
standards were the same under California law, finding support in People v.
Kurbegovic (1982) 138 Cal.App.3d 731, 755-756 (involving the same prosecutor).
70
Faretta motion by defendant, Judge Sheldon denied the motion without prejudice
to a renewed motion showing a change of circumstances.
Finally, defendant made a fourth motion for self-representation in a hearing
on May 24, 1988, before Judge Nott, who ultimately presided over defendant’s
penalty retrial. Judge Nott asked defendant if he would be ready to start the trial
that day; defendant answered affirmatively. Asked if he had anything to add,
defendant discoursed on morality and the meaning of “priestcraft” and “carpe
diem.” Judge Nott denied defendant’s motion for self-representation, noting that
two other judges had already heard and denied the motion, and independently
finding defendant incompetent to represent himself based on Dr. Skrdla’s report
and defendant’s pro. per. petition.
As noted, defendant contends the denial of his motions for self-
representation violated his rights under Faretta. “. . . Faretta holds that the Sixth
Amendment grants an accused personally the right to present a defense and thus to
represent himself upon a timely and unequivocal request. (People v. Marshall
[(1997)] 15 Cal.4th [1,] 20-21.) The right to self-representation obtains in capital
cases as in other criminal cases (People v. Clark (1990) 50 Cal.3d 583, 617 [268
Cal.Rptr. 399, 789 P.2d 127), and may be asserted by any defendant competent to
stand trial—one’s technical legal knowledge, as such, being irrelevant to the
question whether he knowingly and voluntarily exercises the right (Godinez v.
Moran[, supra,] 509 U.S. [at pp.] 399-400 . . . ; People v. Joseph (1983) 34 Cal.3d
936, 943-944 [196 Cal.Rptr. 339, 671 P.2d 843]).” (People v. Dunkle (2005) 36
Cal.4th 861, 908.) The stated basis for the trial court’s denial of defendant’s
motion for self-representation—his supposed mental incapacity not amounting to
incompetency to stand trial—therefore was invalid.
71
This conclusion does not end the matter, however, because the timeliness of
one’s assertion of Faretta rights is critical.15 “In People v. Windham (1977) 19
Cal.3d 121 [137 Cal.Rptr. 8, 560 P.2d 1187], this court held that, ‘in order to
invoke the constitutionally mandated unconditional right of self-representation a
defendant in a criminal trial should make an unequivocal assertion of that right
within a reasonable time prior to the commencement of trial.’ (Id. at pp. 127-128.)
‘However, once a defendant has chosen to proceed to trial represented by counsel,
demands by such defendant that he be permitted to discharge his attorney and
assume the defense himself shall be addressed to the sound discretion of the
court.’ (Id. at p. 128; People v. Bloom (1989) 48 Cal.3d 1194, 1220 [259
Cal.Rptr. 669, 774 P.2d 698.)” (People v. Hardy (1992) 2 Cal.4th 86, 193-194.)
Because the phases of a capital trial are stages of a unitary trial, not distinct
trials, we have held a motion made after the guilt phase verdicts have been
returned is untimely. (People v. Hardy, supra, 2 Cal.4th at pp. 194-195; see also
People v. Kirkpatrick (1994) 7 Cal.4th 988, 1006-1007.) None of the cases in
which we have considered a motion for self-representation made between the guilt
and penalty phases of a unitary capital trial, however, involved a motion made
after the guilt phase had ended in a mistrial, when the retrial would take place
before a different jury. The rationale behind the rule giving the trial court the
discretion to deny an untimely Faretta motion—to avoid disruption of an ongoing
trial—thus is not implicated in this case. Jury selection in the penalty retrial did
not actually commence until seven months after defendant’s first motion for self-
15
Even when the trial court does not state it is denying a Faretta motion on
the ground of untimeliness, we independently review the record to determine
whether the motion would properly have been denied on this ground. (People v.
Dent (2003) 30 Cal.4th 213, 218, 222.)
72
representation. Under these circumstances, defendant’s motion was timely, and
the trial court had no discretion to deny it. We therefore must reverse the penalty
judgment. This conclusion renders it unnecessary to address defendant’s further
argument that the trial court had no discretion to deny his second, third and fourth
motions for self-representation.
In light of this conclusion, we need not address defendant’s remaining
claims pertaining to his penalty retrial.
III. DISPOSITION
We affirm the judgment as to guilt, vacate one of the two multiple-murder
special-circumstance findings, and reverse the judgment as to the sentence of
death.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
73
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I agree with the majority’s reversal of the judgment of death because of the
trial court’s error in denying defendant’s motion for self-representation at the
penalty phase of the trial; and I agree with vacating as duplicative one of the two
multiple-murder special-circumstance findings. I disagree, however, with the
majority’s affirmance of the judgment as to guilt, and in particular with the
affirmance of the two convictions for murder in the first degree and the remaining
multiple-murder special-circumstance finding. I would vacate those convictions
and that finding because of the trial court’s prejudicial error in allowing the
prosecutor to ask a defense expert witness, Dr. William Vicary, a forensic
psychiatrist, whether he thought there was substantial evidence to support a
“psychiatric defense” to the charges in this case. Dr. Vicary’s opinion was
inadmissible under Penal Code section 29, and its admission resulted in substantial
prejudice to defendant on the first degree murder charges and the associated
special circumstance allegation, requiring reversal.
I
On March 31, 1985, in three separate incidents spanning less than two
hours, defendant shot four men, killing two of them. Defendant was then 43 years
old, and he was self-employed doing construction work, distributing soft drinks
through vending machines, and buying and selling various items.
1
Defendant spent the afternoon immediately before the shootings at a bar in
Long Beach, where he unsuccessfully attempted to cash some checks and to sell a
number of gold chains that he said were then on a ship in the harbor. Throughout
the afternoon, defendant drank heavily.
In the first incident, defendant went to an apartment building in Long
Beach around 6:00 p.m. looking for Roberto Martinez, whom defendant suspected
of stealing some equipment from him. Benjamin Alcala, who had seen defendant
once before but had never met him, told defendant that Martinez was not home.
Defendant retrieved a gun from his car and shot Alcala in the upper back. Alcala
survived.
Defendant then drove his pickup truck about a mile to an industrial area in
Wilmington where he had briefly worked the year before for a business called
Hammett Vacuum Service. There he found Calvin Ferguson, who was working on
his own truck. Defendant yelled to Ferguson, who walked toward defendant’s
truck. Within a minute, defendant shot Ferguson in the head, killing him.
Defendant drove forward around 100 feet and stopped. Vicente Perez
pulled his car alongside defendant’s truck. The vehicles were facing in opposite
directions with the two driver’s side doors next to each other. Defendant leaned
out of his truck, extended his arm, and shot Perez through the neck, killing him.
Shortly after 7:00 p.m., defendant arrived at the door of Eugene Layton’s
home in Long Beach. Layton had purchased roofing gravel, used refrigerators,
and soft drinks from defendant. Layton’s 13-year-old son answered the door and
called Layton, who invited defendant in. As they were walking through the house,
defendant pulled a gun and said, “You’re dead, Gene, you’re dead.” Defendant
fired, hitting Layton twice in the chest. Layton pushed defendant into a china
cabinet, smashing the glass, and he managed to take defendant’s gun away and to
cut defendant’s throat with a piece of broken glass. Paramedics arrived and took
2
both Layton and defendant to the hospital. At 7:40 p.m., immediately after the
shootings, defendant’s blood-alcohol level was 0.154 percent, a level that would
cause serious impairment of mental functioning.
Testifying in his own behalf at the guilt phase of the trial, defendant
admitted shooting all four victims. He said he shot Alcala because he believed
Alcala was lying when he told defendant that Roberto Martinez was not at their
residence. Defendant did not explain why he shot Calvin Ferguson, and he
claimed not to remember what Ferguson said to him. Defendant admitted that he
intended to kill Vicente Perez, but he testified he did not know why he did it.
Defendant said he went to Layton’s house to collect money from him on behalf of
some people to whom Layton allegedly owed $500,000.
II
Penal Code section 29 provides: “In the guilt phase of a criminal action,
any expert testifying about a defendant’s mental illness, mental disorder, or mental
defect shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.”
Here, during the guilt phase of defendant’s capital trial, defense witness Dr.
William Vicary testified as an expert witness about defendant’s mental illness.
Specifically, he testified on direct examination that at the time of the shootings
defendant was suffering from bipolar disorder, a chronic and severe mental illness
that produced both psychosis, which Dr. Vicary explained is “where you lose your
grip on reality,” and paranoia, which Dr. Vicary described as “an idea or series of
ideas that’s not based on reality.” Other symptoms included depression,
restlessness, frustration, despair, and impulsiveness.
3
Over defense objection, the trial court permitted the prosecutor on cross-
examination to ask Dr. Vicary whether he had advised defendant’s attorney “that
there just was insufficient evidence to present a psychiatric defense,” and
Dr. Vicary affirmed that he had expressed that opinion and still held it. He agreed
with the prosecutor that a psychiatric defense is “where, as a result of whatever the
psychiatric evidence is, the defense may be able to raise a reasonable doubt as to
whether or not the required mental states were there.” On further cross-
examination, he testified that he did not think “there was sufficient evidence to
support what we call a diminished intent defense . . . to knock it down from
murder one to murder two . . .” and “that there was insufficient evidence to even
raise a reasonable doubt.”
That testimony was inadmissible under Penal Code section 29. The only
reasonable interpretation of Dr. Vicary’s testimony that there was “insufficient
evidence to present a psychiatric defense,” insufficient evidence “to knock it down
from murder one to murder two,” and “insufficient evidence to even raise a
reasonable doubt” was that, in his opinion, during the fatal shootings of Calvin
Ferguson and Vicente Perez defendant had the mental state necessary for first
degree murder. Penal Code section 29 prohibits such testimony.
The majority does not deny that the trial court erred in permitting the
prosecutor to ask defense expert witness Vicary whether, in his opinion, there was
sufficient evidence to support a psychiatric defense. Rather, the majority
concludes that the admission of that testimony did not prejudice defendant. (Maj.
opn., ante, at p. 35.) No prejudice resulted, the majority reasons, because “Dr.
Vicary repeatedly emphasized that the decision whether defendant was guilty of
murder or manslaughter was not a medical or psychiatric one, but properly
belonged to the jurors, who would know more about the case than he did” and also
because his opinion about defendant’s mental illness and its symptoms “was
4
significantly and repeatedly undercut on cross-examination by evidence of which
Dr. Vicary conceded he was unaware.” (Id. at p. 36.) I examine both of these
reasons.
The majority is correct that Dr. Vicary testified that “[t]he ultimate issue as
to whether somebody is . . . to be found guilty of first degree murder as opposed to
second degree murder or manslaughter is not a psychiatric decision” or “a medical
decision” but instead “a decision that properly belongs to the jurors.” But the
main effect of the trial court’s error was to lead the jury to discredit Dr. Vicary’s
testimony on direct examination describing defendant’s serious mental illness and
its symptoms. There is a reasonably probability that, had the prosecutor’s cross-
examination of Dr. Vicary been properly limited as required by Penal Code
section 29, the jury would have entertained a reasonable doubt that defendant
acted with premeditation and deliberation when he killed Calvin Ferguson and
Vicente Perez.
The prosecution’s only theory of first degree murder for the fatal shootings
of Calvin Ferguson and Vicente Perez was murder with premeditation and
deliberation. “In this context, ‘premeditated’ means ‘considered beforehand,’ and
‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of
action.’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 767; accord, People v.
Jurado (2006) 38 Cal.4th 72, 118.) Thus, “[a]n intentional killing is premeditated
and deliberate if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th
514, 543.)
In some situations, a defendant’s conduct in shooting a series of people
within a short space of time may strongly indicate that each of the shootings was
deliberate and premeditated. If, for example, the victims are complete strangers
5
and the defendant shoots each of them immediately upon encountering them, one
may infer a preexisting intent to murder strangers selected either randomly or
because of some obvious shared characteristic (such as race, ethnicity, gender,
age, clothing style, etc.). Or, if the victims are all persons the defendant regarded
as enemies, one may infer a preexisting intent to murder all such persons. Here,
however, the four individuals that defendant shot were not strangers selected at
random or because of a shared characteristic, nor were they persons that defendant
regarded as enemies. Defendant’s victims included both complete strangers and
persons with whom defendant had prior dealings, and the victims did not share any
apparent characteristic that could have caused defendant to preselect them as
victims. In this situation, it is far from obvious that each shooting occurred as a
result of some preexisting homicidal plan.
“A reviewing court normally considers three kinds of evidence to determine
whether a finding of premeditation and deliberation is adequately supported—
preexisting motive, planning activity, and manner of killing—but ‘[t]hese factors
need not be present in any particular combination to find substantial evidence of
premeditation and deliberation.’ ” (People v. Jurado, supra, 38 Cal.4th at pp. 118-
119.)
The prosecution here presented no evidence that defendant had a
preexisting motive to kill either Calvin Ferguson or Vicente Perez. The majority
asserts that “[d]efendant’s purposive actions in driving to seek out various persons
and then killing them, viewed in a light favorable to the judgment, indicate
defendant had some motive for his killings—a method to his madness.” (Maj.
opn., ante, at p. 54.) But there is no evidence that defendant sought out either
Ferguson or Perez, or even that he knew they would be in the area where he
encountered them. The majority also speculates that the motive for each shooting
“may have been related to defendant’s feelings about his desperate financial state”
6
(ibid.), but there is no evidence in any way linking either Ferguson or Perez to
defendant’s financial difficulties. Thus, I conclude there is no evidence of a
preexisting motive to kill either Ferguson or Perez.
Nor was there evidence of planning activity with respect to the fatal
shootings of Calvin Ferguson or Vicente Perez. The majority asserts that
eyewitness testimony that defendant shouted to Ferguson “suggested defendant
had some purpose in drawing Calvin Ferguson toward him.” (Maj. opn., ante, at
p. 55.) Perhaps so, but the purpose could have been something other than to kill
him. Defendant may have intended to ask Ferguson a question, and then suddenly
formed a rash impulse to kill him based on Ferguson’s response or on something
in his manner.
Finally, the manner of killing—a sudden gunshot to the head or neck at
close range—although strongly indicating an intent to kill, does not clearly
indicate premeditation or deliberation and is entirely consistent with killings
occurring as a result of an unconsidered or rash impulse. Thus, the jury here was
presented with very little, if any, of the three kinds of evidence that this court has
relied upon to measure the sufficiency of the evidence of premeditation and
deliberation, making the existence of premeditation and deliberation as to the
killings of Calvin Ferguson and Vicente Perez close issues.
Had the trial court’s error not led the jury to discredit it, the testimony of
defense expert Dr. Vicary about the nature and symptoms of defendant’s mental
illness could have persuaded a reasonable juror to conclude that defendant did not
premeditate or deliberate the murders of Calvin Ferguson and Vicente Perez, and
that those murders were therefore of the second rather than the first degree. Dr.
Vicary testified to his opinion that at the time of the fatal shootings defendant was
suffering from a chronic and severe mental illness—bipolar disorder—that caused
him to lose his grip on reality (psychosis) and to misinterpret harmless behavior as
7
threatening (paranoia). He also testified that the symptoms of defendant’s illness
included restlessness, frustration, and impulsiveness, suggesting that when faced
with a perceived threat, defendant would be easily frustrated and likely to act
without thinking. Finally, he testified that alcohol intoxication made defendant’s
symptoms worse. Taken together, Dr. Vicary’s testimony provided strong support
for the defense theory that the killings of Ferguson and Perez were the product of
unconsidered and rash impulse, rather than preexisting thought and reflection, and
that, as to each victim, defendant was therefore guilty of second rather than first
degree murder.
The majority asserts, however, that the opinions about defendant’s mental
illness and its symptoms that defense expert Dr. Vicary expressed on direct
examination were “significantly and repeatedly undercut on cross-examination by
evidence of which Dr. Vicary conceded he was unaware.” (Maj. opn., ante, at
p. 36.) The majority gives three examples as support for this assertion.
In the first example, the majority observes that “Dr. Vicary relied [on direct
examination] on the fact that a month or two before the murders, defendant woke
up screaming, telling his wife to call the police because someone was coming to
kill him and his family.” On cross-examination, Dr. Vicary conceded he was
unaware that defendant had borrowed large sums of money from Wendell West on
terms that suggested loan-sharking and that defendant may have been unable to
repay the debt. According to the majority, this new information caused Dr. Vicary
to concede that “if a person were indebted to another and unable to repay the
money, he might legitimately have nightmares and feel someone was out to get
him and his family.” (Maj. opn., ante, at p. 36, fn. omitted.) In fact, Dr. Vicary
did not testify that merely being unable to repay a debt could cause a normal
person to have the kind of nightmare that defendant reportedly had experienced.
Rather, he testified on cross-examination that “[i]t’s possible if a loan shark had
8
been threatening him and threatening the family that that would have be [sic] a
realistic basis for such a nightmare and a reaction, and if that is true, then that
would not be paranoia.” (Italics added.) But no evidence was ever presented that
Wendell West or anyone else had ever threatened defendant or his family.
Accordingly, this cross-examination did not undercut Dr. Vicary’s testimony.
The majority describes the second example this way: “Dr. Vicary also
relied on defendant’s attempt to extort money from the owner of Hammett
Vacuum Service in exchange for not reporting him for dumping toxic waste.
Dr. Vicary had either not noticed or not known that two other individuals in their
statements had acknowledged the company in fact had previously been cited for
dumping toxic waste. After considering this evidence, he acknowledged he had a
‘totally different outlook’ on the extortion scheme.” (Maj. opn., ante, at pp. 36-37,
fn. omitted.) On direct examination by the defense, Dr. Vicary noted that
defendant had been calling this company “several times a day for a week,” had
identified himself by name, was never able to speak to the company’s owner, and
had made his extortion demands to “a number of his employees and underlings.”
The reports and statements furnished to Dr. Vicary indicated that defendant
persisted in making the demands even after an employee told him the company
had already been cited for toxic dumping. Dr. Vicary remained of the view that
defendant’s conduct during this incident reflected mental illness: “There is a self-
destructive crazy element to this man’s persistence by calling this owner and
trying to extort this $10,000 for a citation that the guy had already been given.”
This is the majority’s description of the third example: “Dr. Vicary also
relied on an alleged March 9, 1985, incident in which defendant drew a gun and
demanded two individuals return property they purportedly had stolen or he would
‘blow [their] fucking head[s] off.’ Dr. Vicary acknowledged that the police report
concerning this incident, dated after the capital crimes occurred, revealed that
9
defendant told the police he believed the individuals had stolen property from him.
Dr. Vicary agreed that the credibility issues surrounding the incident did not
‘translate into a conclusion that one side of [the] dispute [was] paranoid’; rather,
the incident was simply one ‘to be measured against all the other circumstances.’ ”
(Maj. opn., ante, at p. 37.)
Here again, the majority provides something less than the full picture.
Although defendant told an investigating officer that he believed the two
individuals had stolen from him, defendant “couldn’t prove it . . . he just had a
feeling that they had stolen from him.” Defendant could not even identify the
property he believed had been stolen. Although Dr. Vicary conceded that the
individuals might have stolen from defendant, Vicary remained of the view that, in
the absence of any rational ground for defendant’s belief, the incident was
evidence of defendant’s paranoid thinking. On cross-examination by the
prosecutor, Dr. Vicary put it this way: “Now, if you come up [with] the proof—
you come up with it or the detective come up with it or the investigator for the
lawyer comes up with it, I’ll be happy to change my mind, but until you do, this
piece of evidence suggests this element of paranoia and it kind of fits in with all
the other pieces.” No evidence that the two individuals had actually stolen from
defendant was ever produced at defendant’s trial.
To sum up: Defendant shot and killed Calvin Ferguson and Vicente Perez,
with whom defendant had little or no prior acquaintance, for no apparent reason
during a chance encounter. The evidence of premeditation and deliberation was
weak. Defense witness Dr. Vicary testified to his opinion that during the
shootings defendant suffered from a mental illness that produced paranoia and
impulsive behavior, and that alcohol intoxication magnified those symptoms.
There is a reasonable probability that this testimony could have persuaded the jury
to return verdicts of second rather than first degree murder for the two fatal
10
shootings. The trial court’s error in admitting testimony barred by Penal Code
section 29, however, likely caused the jury to completely discount Dr. Vicary’s
entire testimony about the existence and nature of defendant’s mental illness.
Apart from the erroneously admitted evidence, Dr. Vicary’s testimony describing
defendant’s mental illness and its symptoms was not substantially undercut by the
prosecution’s cross-examination. After the prosecutor called Dr. Vicary’s
attention to some information of which Dr. Vicary was previously unaware,
Dr. Vicary maintained his opinion that defendant suffered from a chronic and
serious mental illness and that “[t]he primary reason for these unprovoked attacks
is [defendant’s] psychotic mental state, specifically his paranoia.”
For these reasons, I conclude that the trial court’s error was prejudicial and
requires that defendant’s first degree murder convictions be either reversed or
reduced to second degree murder, and that the multiple-murder special
circumstance finding be vacated. I therefore dissent from the majority’s
affirmance of the judgment as to guilt.
KENNARD,
J.
11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Halvorsen
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S008112
Date Filed: August 30, 2007
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Michael G. Nott
__________________________________________________________________________________
Attorneys for Appellant:
Lisa M. Romo, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, Lawrence M. Daniels and
Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lisa M. Romo
2342 Shattuck Avenue
PMB 112
Berkeley, CA 94704
(510) 644-2621
Steven D. Matthews
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2367
Opinion Information
| Date: | Docket Number: |
| Thu, 08/30/2007 | S008112 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Lawrence M. Daniels, Deputy Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| 2 | The People (Respondent) Represented by Steven D. Matthews Office of the Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| 3 | Halvorsen, Arthur Hans (Appellant) Represented by Habeas Corpus Resource Center 50 Fremont Street, Suite 1800 50 Fremont Street, Suite 1800 San Francisco, CA |
| 4 | Halvorsen, Arthur Hans (Appellant) Represented by Lisa M. Romo Attorney at Law 2342 Shattuck Avenue, PMB 112 Berkeley, CA |
| Disposition | |
| Aug 30 2007 | Opinion: Conviction & specials aff., penalty rev. |
| Dockets | |
| Nov 18 1988 | Judgment of death |
| Dec 5 1988 | Filed certified copy of Judgment of Death Rendered 11-18-88. |
| Jun 5 1990 | Counsel appointment order filed Gregory Bowman, Esq. |
| Oct 10 1990 | Compensation awarded counsel |
| Oct 19 1990 | Application for Extension of Time filed By Applt to request correction of Record. |
| Oct 25 1990 | Extension of Time application Granted To Applt To 11-16-90 To request Corr. of Record. |
| Nov 14 1990 | Application for Extension of Time filed By Applt to request correction of Record. |
| Nov 16 1990 | Extension of Time application Granted To Applt To 1-15-91 To request Corr. of Record. |
| Jan 7 1991 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jan 11 1991 | Extension of Time application Granted To Applt To 3-18-91 To request Corr. of Record. |
| Feb 20 1991 | Compensation awarded counsel |
| Mar 7 1991 | Application for Extension of Time filed By Applt to request correction of Record. |
| Mar 15 1991 | Extension of Time application Granted To Applt To 4-17-91 To request Corr. of Record. |
| Apr 17 1991 | Received: Copy of Applt's request for correction of Transcripts (filed in the Trial Court). |
| Jul 24 1991 | Compensation awarded counsel |
| Nov 20 1991 | Compensation awarded counsel |
| Jun 30 1992 | Compensation awarded counsel |
| Sep 30 1992 | Compensation awarded counsel |
| Oct 30 1992 | Compensation awarded counsel |
| Nov 18 1992 | Compensation awarded counsel |
| Oct 30 1996 | Compensation awarded counsel |
| Dec 23 1997 | Compensation awarded counsel |
| Jan 14 1998 | Compensation awarded counsel |
| Mar 11 1998 | Compensation awarded counsel |
| Mar 27 1998 | Change of Address filed for: Atty Gregory Bowman. |
| Apr 17 1998 | Filed: Suppl Proof of Service of change of Address. |
| Jun 24 1998 | Compensation awarded counsel |
| Jul 29 1998 | Compensation awarded counsel |
| Dec 2 1998 | Compensation awarded counsel |
| Feb 18 1999 | Compensation awarded counsel |
| Apr 16 1999 | Motion filed By Gregory Bowman to withdraw as Counsel of Record; motion to appoint New Appellate and Habeas Corpus Counsel. |
| Jun 4 1999 | Filed: Motion for appointment as direct Appeal Only Counsel by Atty Lisa Romo |
| Jun 16 1999 | Order filed: The Application of appointed Counsel for permission to withdraw as Atty of Record for Applt Arthur Hans Halvorsen, filed April 16,1999, Is Granted as to the direct Appeal now Pending in this Court,But denied without Prejudice as to the Related Habeas Corpus/Executive Clemency Proceedings,Subject to the filing of A New and Different Application that Complies with Supreme Court Policies Regarding Cases Arising from Judgments of Death,Policy 2("Withdrawal of Counsel")and Addresses Payment Guideline V ("Court Action Upon Nonperformance of Work and Reimburse- Ment of Fees Upon Authorized Withdrawal of appointed Counsel")as to appointed Counsel's Appellate and Habeas Corpus representation. the Order appointing Gregory Bowman as Counsel of Record for Applt Arthur Hans Halvorsen, filed June 5,1990, Is Hereby Vacated with Respect to Applt's Capital Appeal.Gregory Bowman Shall Remain as Counsel of Record to represent Applt for State Habeas Corpus/Executive Clemency Proceedings Related to the Above Automatic Appeal now Pending in this Court and Shall Continue to be Responsible for all Habeas Corpus/Executive Clemency Duties Specified in Supreme Court Policies Regarding Cases Arising from Judgments of Death, Policy 3, Standards 1-1 and 2-1. Lisa M. Romo Is Hereby Appointed as Appellate Counsel of Record in Place of Gregory Bowman,and has the Responsibility for all Appellate Duties Specified in Supreme Court Policies Regarding Cases Arising from Judgments of Death Policy 3,Standards 1-1 and 2-1. Gregory Bowman Is directed to Deliver to Lisa Romo,within 20 Days from the filing of this Order, copies or the Original of the Entire case file Relating to Halvorsen's Capital Appeal Currently in Bowman's Possession,Including,But not Limited To,Reporter's and Clerk's Transcripts,all case Files and Documents Obtained from Applt's Trial Counsel,and All other Documents filed in this Court. |
| Jun 16 1999 | Order filed: In Conjunction with the Order filed this Day Permitting Gregory Bowman to withdraw as Counsel of Record for Death Row Inmate Arthur Hans Halvorsen with Respect to the Automatic Appeal now Pending in this Court,Bowman Is Ordered to Reimburse this Court the Sum of $35,000.this Order Is without Prejudice to Bowman's Ability to Seek -- Upon Adequate Demonstration-- Credit for direct Appeal Work Already Performed by Bowman "that Is Determined by the Court to be of Value to the Court."(Payment Guideline V,Subpart B["Crt. Action Upon Nonperformance of Work,and Reimbursement of Fees Upon Withdrawal of appointed Counsel"].) |
| Jun 16 1999 | Compensation awarded counsel Counsel Romo |
| Feb 2 2000 | Order filed: Good Cause appearing, the Appl. of appointed Counsel for permission to withdraw as Habeas Corpus/Executive Clemency Atty of Record for Applt Filed 1/10/2000, Is Granted. the Order appointing Gregory Bowman as Counsel of Record for Applt Arthur Hans Halvorsen, Filed 6/5/90, Is Hereby Vacated with Respect to the Investigation And/or Initiation of Habeas Corpus/Executive Clemency Proceedings Related to Applt's Capital Appeal. the Habeas Corpus Resource Center Is Hereby appointed as Habeas Corpus/Executive Clemency Counsel in Place of Gregory Bowman, and has Responsibility For all Habeas Corpus/Executive Clemency Duties Specified in Supreme Court Policies Regarding Cases Arising from Judgment of Death, Policy 3, Standards 1-1 and 2-1. Mr. Bowman Is directed to Deliver to the Habeas Corpus Resource Center, within 30 Days from the filing of this Order, A Copy of the Entire case file Relating to Halvorsen's Capital Appeal and Related Habeas Corpus Proceedings Currently in His Possession, Including, But not Limited To, the Reporter's and Clerk's Transcripts, all case Files and Documents Obtained from Applt's Trial Counsel, all case Reports from Investigators, Legal Assistants and Paralegals, and copies of all other Documents filed in this Court. |
| Feb 2 2000 | Order filed appointing H.C. Resource Center (see text of order below; this docket entry made for purpose of tracking appointments.) |
| Feb 16 2000 | Compensation awarded counsel Atty Bowman |
| Feb 28 2000 | Change of Address filed for: Atty Lisa M. Romo |
| Jul 11 2000 | Counsel's status report received (confidential) from atty Lisa Romo. |
| Aug 2 2000 | Counsel's status report received (confidential) from HCRC. |
| Aug 30 2000 | Received: Copy of applt's supplemental mtn to correct and augment the record on appeal (51 pages) |
| Aug 31 2000 | Compensation awarded counsel Atty Romo |
| Sep 21 2000 | Counsel's status report received (confidential) from atty Romo. |
| Sep 29 2000 | Counsel's status report received (confidential) from HCRC. |
| Nov 27 2000 | Counsel's status report received (confidential) from atty Romo. |
| Dec 1 2000 | Counsel's status report received (confidential) from HCRC. |
| Jan 25 2001 | Counsel's status report received (confidential) from atty Romo. |
| Jan 26 2001 | Counsel's status report received (confidential) from HCRC. |
| Mar 27 2001 | Counsel's status report received (confidential) from atty Romo. |
| Mar 29 2001 | Counsel's status report received (confidential) from HCRC. |
| May 24 2001 | Counsel's status report received (confidential) from atty Romo. |
| May 29 2001 | Counsel's status report received (confidential) from HCRC. |
| Jun 12 2001 | Record on appeal filed C-31 (7433 Pp.) and R-66 (11282 Pp.) including material under seal and juror quest. of 2728 Pp. |
| Jun 12 2001 | Appellant's opening brief letter sent, due: July 23, 2001 |
| Jun 27 2001 | Compensation awarded counsel Atty Romo |
| Jul 17 2001 | Extension of Time application Granted To 9/21/2001 to file AOB. |
| Jul 17 2001 | Application for Extension of Time filed To file AOB. (1st request) |
| Jul 27 2001 | Counsel's status report received (confidential) from HCRC. |
| Jul 27 2001 | Counsel's status report received (confidential) from atty Romo. |
| Sep 17 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Sep 18 2001 | Extension of Time application Granted To 11/20/2001 to file AOB. |
| Sep 25 2001 | Counsel's status report received (confidential) from HCRC. |
| Oct 10 2001 | Counsel's status report received (confidential) from atty Romo. |
| Nov 15 2001 | Request for extension of time filed To file AOB. (3rd request) |
| Nov 16 2001 | Extension of Time application Granted To 1/22/2002 to file AOB. |
| Jan 14 2002 | Counsel's status report received (confidential) from atty Romo. |
| Jan 14 2002 | Request for extension of time filed To file AOB. (4th request) |
| Jan 15 2002 | Extension of time granted To 3/25/2002 to file AOB. |
| Jan 23 2002 | Counsel's status report received (confidential) (supplemental) from HCRC. |
| Mar 19 2002 | Counsel's status report received (confidential) from atty Romo. |
| Mar 19 2002 | Request for extension of time filed To file AOB. (5th request) |
| Mar 21 2002 | Extension of time granted To 5/24/2002 to file AOB. Counsel anticipates filing the brief between August-October 2002. Only two further extensions totaling 120 days are contemplated. |
| Mar 22 2002 | Counsel's status report received (confidential) from HCRC. |
| May 20 2002 | Counsel's status report received (confidential) from atty Romo. |
| May 20 2002 | Request for extension of time filed To file AOB. (6th request) |
| May 22 2002 | Extension of time granted To 7/23/2002 to file AOB. Counsel anticipates filing that brief by 9/23/2002. Only one further extension for 60 additional days is contemplated. |
| May 23 2002 | Counsel's status report received (confidential) from HCRC. |
| Jun 20 2002 | Compensation awarded counsel Atty Romo |
| Jul 22 2002 | Counsel's status report received (confidential) from atty Romo. |
| Jul 22 2002 | Counsel's status report received (confidential) from HCRC. |
| Jul 22 2002 | Request for extension of time filed To file AOB. (7th request) |
| Jul 24 2002 | Extension of time granted To 9/23/2002 to file AOB. Counsel anticipates filing that brief by 9/23/2002. No further extension is contemplated. |
| Sep 17 2002 | Counsel's status report received (confidential) from atty Romo. |
| Sep 17 2002 | Request for extension of time filed To file appellant's opening brief. (8th request) |
| Sep 19 2002 | Extension of time granted To 11/22/2002 to file appellant's opening brief. Extension is granted based upon counsel Lisa M. Romo's representation that she anticipates filing that brief by 11/22/2002. After that date, no further extension will be granted. |
| Sep 23 2002 | Counsel's status report received (confidential) from HCRC. |
| Nov 18 2002 | Counsel's status report received (confidential) from atty Romo. |
| Nov 18 2002 | Request for extension of time filed To file appellant's opening brief. (9th request) |
| Nov 19 2002 | Extension of time granted To 1/21/2003 to file appellant's opening brief. Extension is granted in light of unforseen circumstances affecting counsel's assisting entity, and based upon counsel Lisa M. Romo's representation that she anticipates filing that brief by 1/21/2003. After that date, no further extension will be granted. |
| Nov 20 2002 | Counsel's status report received (confidential) from HCRC. |
| Dec 3 2002 | Filed: declaration of Michele Oken, Supv. of Transcript Services for Los Angeles County Superior Court, re: missing R.T. page 4532. |
| Dec 9 2002 | Compensation awarded counsel Atty Romo |
| Jan 13 2003 | Counsel's status report received (confidential) from atty Romo. |
| Jan 13 2003 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Jan 15 2003 | Extension of time granted to 3/24/2003 to file appellant's opening brief. Extension is granted based upon counsel Lisa M. Romo's representation that she anticiaptes filing that brief by 3/24/2003. After that date, no further extension will be granted. |
| Jan 21 2003 | Counsel's status report received (confidential) from HCRC. |
| Mar 20 2003 | Counsel's status report received (confidential) from HCRC. |
| Mar 24 2003 | Application to file over-length brief filed (539 pp. appellant's opening brief submitted under separate cover). |
| Mar 24 2003 | Appellant's opening brief filed (539 pp.) |
| Apr 17 2003 | Request for extension of time filed to file respondent's brief. (1st. request) |
| Apr 21 2003 | Extension of time granted to 6/23/2003 to file respondent's brief. |
| May 5 2003 | Filed: Notice of personal service of appellant's opening brief on appellant. |
| May 19 2003 | Counsel's status report received (confidential) from HCRC. |
| Jun 17 2003 | Request for extension of time filed to file respondent's brief. (2nd. request) |
| Jun 24 2003 | Extension of time granted to 8/22/2003 to file respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Lawrence M. Daniels's representation that he anticipates filing that brief by 10/24/2003. |
| Jul 18 2003 | Counsel's status report received (confidential) from HCRC. |
| Aug 18 2003 | Request for extension of time filed to file respondent's brief. (3rd. request) |
| Aug 19 2003 | Compensation awarded counsel Atty Romo |
| Aug 22 2003 | Compensation awarded counsel Atty Romo |
| Aug 25 2003 | Extension of time granted to 10/24/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Lawrence M. Daniels's representation that he anticipates filing that brief by 10/24/2003. After that date, no further extension will be granted. |
| Sep 19 2003 | Counsel's status report received (confidential) from HCRC. |
| Oct 24 2003 | Respondent's brief filed (247 pp.) |
| Nov 12 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Nov 17 2003 | Counsel's status report received (confidential) from HCRC. |
| Nov 17 2003 | Extension of time granted to 1/12/2004 to file appellant's reply brief. |
| Jan 7 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Jan 13 2004 | Extension of time granted to 3/12/2004 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Lisa M. Romo's representation that she anticipates filing that brief by 5/142004. |
| Jan 13 2004 | Counsel's status report received (confidential) from HCRC. |
| Mar 8 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Mar 12 2004 | Extension of time granted to 5/11/2004 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Mar 15 2004 | Counsel's status report received (confidential) from HCRC. |
| May 4 2004 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| May 7 2004 | Extension of time granted to 6-15-2004 to file reply brief. After that date, no further extension is contemplated. Extension granted based upon counsel Lisa M. Romo's representation that she anticipates filing the brief by 6-15-2004. |
| May 12 2004 | Counsel's status report received (confidential) from HCRC. |
| Jun 14 2004 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Jun 15 2004 | Extension of time granted to 7/6/2004 to file appellant's reply brief. Extension is granted based upon counsel Lisa M. Romo's representation that she anticipates filing that brief by 7/6/2004. After that date, no further extension will be granted. |
| Jun 29 2004 | Filed: appellant's application for leave to file oversize reply brief. (Brief submitted under separate cover; word count included in the application to file.) |
| Jun 29 2004 | Order filed Appellant's "Application for leave to file oversize reply brief" is granted. |
| Jun 29 2004 | Appellant's reply brief filed (64,935 words - 226 pp.) |
| Jun 30 2004 | Filed: Supplemental declaration of service of applcation for leave to file oversize reply brief. |
| Jun 30 2004 | Compensation awarded counsel Atty Romo |
| Jul 9 2004 | Counsel's status report received (confidential) from HCRC. |
| Sep 10 2004 | Counsel's status report received (confidential) from HCRC. |
| Nov 8 2004 | Counsel's status report received (confidential) from HCRC. |
| Jan 3 2005 | Related habeas corpus petition filed (concurrent) No. S130342 |
| Jan 24 2007 | Letter sent to: counsel advising that the court is considering whether to unseal, on its own motion, pages 696-699 of the Clerk's Transcript in this case (report of Dr. Blake Skrlda, M.D.). Counsel are invited to serve and file a response, if they wish, on or before February 14, 2007, addressing whether the document in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 8.160(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 2.550(d).) |
| Feb 15 2007 | Filed: letter from appellant, dated February 14, 2007, in response to court's January 24, 2007, letter. |
| Feb 16 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 2, 2007, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Feb 26 2007 | Received: letter from atty Lisa Romo, dated February 22, 2007, requesting that the court consider scheduling oral argument for either April 2 or 3, 2007. |
| Mar 21 2007 | Motion for access to sealed record granted On the court's own motion, good cause appearing after consideration of the matters addressed in California Rules of Court, rule 2.550(c)-(e), pages 696 to 699 of the clerk's transcript, consisting of the report of Dr. Blake Skrdla, M.D., dated October 23, 1987, are unsealed. |
| May 2 2007 | Case ordered on calendar to be argued on Tuesday, June 5, at 2:00 p.m., in Los Angeles |
| May 15 2007 | Filed letter from: Deputy Attorney General Steven Matthews, dated May 15, 2007, re focus issues for oral argument. |
| May 18 2007 | Filed letter from: attorney Lisa M. Romo, dated May 11, 2007, re appellant's focus issues for oral argument. |
| Jun 5 2007 | Cause argued and submitted |
| Jun 20 2007 | Compensation awarded counsel Atty Romo |
| Aug 29 2007 | Notice of forthcoming opinion posted |
| Aug 30 2007 | Opinion filed: Conviction & specials aff., penalty reversed We affirm the judgment as to guilt, vacate one of the two multiple-murder special-circumstance findings, and reverse the judgment as to the sentence of death. Opinion by Werdegar J. ----- joined by George, C.J., Baxter, Chin, Moreno, Corrigan, JJ. Concurring and Dissenting Opinion by Kennard J. |
| Oct 1 2007 | Remittitur issued (AA) |
| Oct 12 2007 | Received: receipt for remittitur acknowledged by superior court. |
| Briefs | |
| Mar 24 2003 | Appellant's opening brief filed |
| Oct 24 2003 | Respondent's brief filed |
| Jun 29 2004 | Appellant's reply brief filed |
