IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Los Angeles County
JAMES NELSON BLAIR,
Super. Ct. No. A-788981
Defendant and Appellant.
A jury convicted defendant James Nelson Blair of the first degree murder
of Dorothy Green (Pen. Code § 187)1 and found true the special circumstance
allegation of murder by the administration of poison. (§ 190.2, subd. (a)(19).) At
the penalty phase of the trial, the jury returned a verdict of death. The trial court
denied defendant’s automatic motion to modify the verdict (§ 190.4, subd. (e)) and
imposed a death sentence.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
All further statutory references are to the Penal Code unless otherwise
I. FACTUAL BACKGROUND
Defendant was convicted of the first degree murder of his neighbor
Dorothy Green by the administration of poison. The prosecution’s evidence
showed that, in 1984, defendant deliberately poisoned Green and Green’s friend,
Rhoda Miller, by placing cyanide in a gin bottle and giving the bottle to Miller to
deliver to Green. The apparent motive was to obtain money that defendant
believed was owed to him by Green. Green drank more of the gin than Miller, fell
into a coma that lasted for several months, and sustained brain damage. Green
survived for almost two years and then died from pneumonia in 1986. Medical
experts testified that the cyanide poisoning caused the brain damage, which then
caused the pneumonia that led to Green’s death.
Defendant was tried and convicted in 1985 for the attempted murder of
Green and Miller. He represented himself and was convicted. After Green died,
he was tried in the present case for the first degree murder of Green with the
special circumstance of murder by the administration of poison. Defendant
insisted on representing himself, as he had in the earlier proceedings. He
attempted, unsuccessfully, to establish that cyandide poisoning was not the cause
of Green’s death. At the penalty phase, the prosecution’s evidence in aggrevation
consisted principally of proof of defendant’s prior convictions, and defendant
presented no witnesses and only a few college transcripts as evidence in
A. Guilt phase
1. The prosecution’s case
In 1984, defendant lived in an apartment complex located at 5542 Sierra
Vista Avenue in Hollywood. Dorothy Green shared apartment 209 in the same
complex with a man named Goretha Murphy. One evening, a man whom Murphy
believed was defendant came to their apartment. After Murphy let the man in,
Murphy overheard the man tell Green that he wanted his money back and was
going to get it. The man then left. On another occasion, the same man
approached Murphy and told him that he had “better do something” about having
Green return the money. Murphy then heard this man tell another person that he
was going to “get” Green and Murphy. This led to a scuffle between Murphy and
the man on the walkway near Green’s apartment.
On September 24, 1984, Rhoda Faye Miller, a former resident of the Sierra
Vista apartment complex, and her eight-year-old son, William, went to visit
Michelle Dubois in apartment 203.2 Defendant was at Dubois’s apartment when
Miller and her son arrived. Defendant had a briefcase with him. After a while,
Miller went to a store and returned with some food, soda, and a pint of rum.
Miller, Dubois, and defendant consumed drinks of rum and cola.
About 40 minutes after Miller returned, defendant asked to speak with her
privately in the kitchen. There, defendant asked Miller to do him a favor by
delivering to Dorothy Green a tall box wrapped in butcher paper and a ribbon,
which he explained contained a bottle of gin. Defendant said he did not want to
deliver the package himself, because Green’s “husband,” Murphy, did not like
them drinking together. Miller agreed and left Dubois’s apartment with the
package, leaving William and defendant with Dubois.
When Miller arrived at Green’s apartment, she told Green that she had
brought a bottle of gin as a gift from defendant. Green said “how nice,” and
invited Miller in for a drink. Once Miller was inside, Green took the bottle out of
Dubois died in 1985, before defendant’s murder trial.
the box. To Miller, the seal on the cap of the bottle appeared to be intact, except
for one spot that was not completely sealed. When Green opened the bottle, it
made a “swish” sound as if it had been sealed. Green poured a six-to-eight-ounce
glass of gin for herself. Miller put about two inches of gin into her own glass and
mixed it with water.
Green then drank her full glass of gin straight down, immediately said the
gin did not “taste right,” and asked where defendant was. Miller took a swallow
from her own glass. Miller thought the gin tasted like kerosene. As Green was
returning from her bedroom, where she had gone to get her slippers, she began to
fall. Miller caught her so she would not hit her head, and then Miller herself
began to feel woozy. Both of them fell to the floor. Green was vomiting, so
Miller turned her on her side to prevent her from choking, then called the
paramedics, and told them she believed she and Green had been poisoned.
Meanwhile, Dubois sent Miller’s young son, William, to Green’s apartment
to look for Miller. William and defendant left Dubois’s apartment at the same
time; as William headed to Green’s apartment, defendant left the complex. When
William arrived at Green’s apartment, he saw Miller on her knees by the telephone
and Green lying on the floor on her side, barely moving. Miller told William to
return to Dubois and tell her that she and Green had been poisoned. Miller then
When Miller regained consciousness, several paramedics were in the
apartment. Miller told one of the paramedics, Robert Miller (who was no
relation), that she and Green had drunk some gin, and that possibly the gin had
been poisoned. It appeared to Robert Miller that Green was in a more serious
condition than Miller. Green was unconscious and “critical.” The paramedics
inserted an “I.V.” into Green’s arm and took her, Miller, and the gin bottle (which
they had found in the apartment) to Hollywood Presbyterian Hospital. At the
hospital, the paramedics gave the gin bottle to the police. Later tests of samples of
gin from the bottle revealed that it contained sodium cyanide, at a quantity of 5
percent of the solid material.
A few days after the poisoning incident, William was playing with some
friends outside the Sierra Vista apartment complex. He saw defendant, who was
carrying the same briefcase that was in his possession on the day of the poisoning.
Defendant asked William where his mother was.
Officer Keith Moreland arrested defendant at the Sierra Vista apartment
complex on October 2, 1984. At the time of his arrest, defendant was carrying a
briefcase. Officer Moreland took defendant to the Hollywood police station and
turned him and the briefcase over to the investigating officer, Detective Richard
Jackson, and his partner, Detective Michael Thrasher.
In an interview room, Detective Jackson searched the briefcase. Inside, he
found an envelope with writing on it. Among such entries as “magic shave,”
“soap” and “Reader’s Digest law book” were the words “get cyanide.” Detective
Jackson also searched defendant’s wallet and found several items, including: (1) a
piece of paper with “Chem Lab Supply” and a telephone number and address
written on it; (2) another piece of paper with “RJM Lab,” “Chem Lab Supplies,”
and corresponding addresses and phone numbers written on it; (3) and a business
card with “Chem Lab” and “Haw” written on it. Detectives Jackson and Thrasher
later visited Chem Lab Supply and RJM Lab in Hawthorne, but no one there
recognized a photo of defendant as someone who had purchased cyanide.
On October 3, 1984, Miller, who had been released from the hospital,
identified defendant from a photo line-up as the person who had handed her the
gin bottle to give to Green.
A police handwriting analyst compared the writing on the envelope found
in defendant’s briefcase with handwriting exemplars taken from defendant on the
day of his arrest in October 1984, in October 1986, and again in April 1989.3 The
analyst was able to state that the writing on the envelope matched that of the first
and third of defendant’s exemplars, but not the second. The analyst testified that
the handwriting in the second exemplar had been “disguised,” that is, the person
giving the exemplar had attempted to change the characteristics of the writing.
c. Green’s illness and death
Meanwhile, Green remained at Hollywood Presbyterian Hospital. When
first admitted she was in a coma and unable to breathe, with a blood pressure
reading as low as 33, indicating shock. This condition had to be reversed
immediately to avoid death. An intratracheal tube was placed in her throat, and a
machine helped her breathe for the first few days. When she regained the ability
to breathe on her own, a tracheotomy was performed so that a tube could be placed
directly in her trachea, bypassing her nose and throat. Without breathing
assistance, she would have died. Toxicology screens performed on Green’s blood
and urine when she was admitted to the hospital revealed the presence of cyanide,
as well as amphetamine and Valium.
Green remained in a coma for approximately three months. She was fed
and medicated through tubes connected to her nose and stomach. During that
time, she developed pneumonia, a common complication for patients in her
condition. When she awakened from the coma briefly, she showed signs of
The original exemplar taken in 1984 was lost during defendant’s trial on the
attempted murder charges.
Dr. Henri Becker, a specialist in the critical care of patients whose lives are
in danger due to heart attack or other trauma, participated in Green’s care at
Hollywood Presbyterian and reviewed her medical records. Dr. Becker explained
that cyanide causes brain damage by binding with hemoglobin to prevent the
transport of oxygen to the brain and other tissues. In Dr. Becker’s opinion,
Green’s ingestion of cyanide caused her coma and the resulting complications.
Green’s daughter, Caron Green, had seen her mother regularly before the
poisoning, when Green was in excellent health. Caron visited Green frequently
while Green was at Hollywood Presbyterian. For about the first three months,
Caron could not speak to Green because of the coma. When Green came out of
the coma, she could not see and did not have control of her bodily functions.
After several months, Green was transferred to Glendale Adventist
Hospital. Caron continued to see her mother regularly. Green was unable to walk,
see, converse, or feed herself. Later, she was moved to a hospital in Michigan,
where her other daughters lived. Her condition steadily deteriorated, and she died
on July 26, 1986.
Dr. Jerry Gray, a pathologist, performed an autopsy on Green. Green died
from another bout of pneumonia attributed to “toxic brain damage” caused by the
cyanide poisoning. The cyanide prevented oxygen from reaching Green’s brain,
thus killing her brain cells. Dr. Gray testified that pneumonia is common after this
type of brain injury because the patient cannot breathe and cough normally and
therefore cannot tolerate secretions in the lungs.
2. The defense case
Acting as his own counsel, defendant re-called Detective Jackson, who
testified that he never had spoken to Green’s daughter Caron. Dell Freeman, a
fingerprint expert, compared defendant’s fingerprints to photographs of
fingerprints taken from the gin bottle, the gift box, and the wrapping paper.
Freeman could not identify the prints on the bottle as defendant’s.
Dr. Mohamad Abdel Latif, the director of the intensive care unit at
Hollywood Presbyterian Hospital, treated Green on September 24, 1984, the day
she was admitted. In Green’s stomach, Dr. Latif found Darvon, the drug Atropine,
and bleach. These three substances could cause brain damage or respiratory arrest
if they reached the bloodstream in significant amounts, but blood tests indicated
they had not. Alcohol at a level of 0.123, as well as valium and amphetamine,
were found in Green’s blood. Dr. Latif testified that theoretically, the combination
of alcohol, amphetamine, Valium, and bleach could cause respiratory arrest and
brain damage. On cross-examination, however, he agreed that the most likely
cause of Green’s condition upon her arrival was cyanide poisoning. The cyanide
level in Green’s blood 16 hours after her admission to the hospital was 20
micrograms per millileter, an “extremely high” amount.
Dr. Hideo Itabashi, a neuropathologist employed by the County of Los
Angeles, without having read any of Green’s medical records or the autopsy
report, testified that theoretically a combination of alcohol, Darvon, and Valium in
significantly high amounts in a person’s blood could cause respiratory arrest
leading to hypoxia and brain damage. Cyanide poisoning also could cause such
hypoxia. Dr. Itabashi testified that a physician examining a patient could not
distinguish between hypoxia caused by cyanide and hypoxia caused by Darvon,
Valium, and alcohol. He was aware that Green had a blood-alcohol level of 0.123,
but was not told the amounts of the other drugs that were present. He could not
say what had caused Green’s death.
3. The prosecution’s rebuttal
Dr. Irving Root, a pathologist who had conducted approximately 20,000
autopsies, reviewed Green’s medical records and autopsy report. In his expert
opinion, Green died from complications of cyanide poisoning ― that is,
pneumonia resulting from brain damage caused by cyanide. The amount of
cyanide in Green’s blood, 20 micrograms per millileter, was an extremely high
level and normally would cause a very quick death, absent immediate
resuscitation. In Green’s case, Dr. Root explained, emergency personnel
resuscitated Green in time to keep her alive, but not soon enough to avoid the
brain damage that eventually caused her death.
B. Penalty phase
1. The prosecution’s case
Defendant was convicted of first degree robbery and assault with a deadly
weapon in Orange County in 1959. In 1963, defendant was convicted of second
degree robbery in San Bernardino County. Defendant was incarcerated for these
offenses. In 1985, defendant was convicted of the attempted murder of Green and
Over defendant’s objection, Emily Maverick, a professor of chemistry at
Los Angeles City College (formerly Los Angeles Community College), testified
concerning an experiment involving cyanide that defendant had conducted when
he was a student in one of her chemistry classes in 1982.
2. The defense case
Still acting as his own counsel, defendant called no penalty phase witnesses
in mitigation. The parties stipulated to the admission in evidence of defendant’s
academic records from Los Angeles City College.
A. Competency and self-representation issues
Defendant contends the trial court erred in permitting him to represent
himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) without,
he asserts, obtaining a knowing and intelligent waiver of his right to the assistance
of counsel under the Sixth Amendment to the United States Constitution.
At his trial for the attempted murder of Green and Miller, defendant moved
for permission to represent himself. The court, Judge Clarence A. Stromwall
presiding, orally quizzed defendant concerning his knowledge of the charges, the
possible penalties, and courtroom procedures, warning defendant of the pitfalls of
self-representation and informing him that he would be “prosecuted by a
professional prosecutor.” The court cautioned defendant: “How would you like to
get into the [boxing] ring with Joe L[ou]is in his h[e]yday? . . . [T]hat’s what
you’re asking to do.”4 Ultimately, the court granted defendant’s request, and
defendant represented himself through trial and in posttrial proceedings following
the guilty verdict.
Shortly after defendant’s conviction was affirmed on appeal in June of
1986,5 Green died, and defendant was charged with her murder. On
The transcript of the trial in the attempted murder case was made part of the
record in this appeal.
We granted respondent’s request for judicial notice of the June 26, 1986,
unpublished opinion of the Second District Court of Appeal in case No. B016044,
affirming defendant’s conviction for the attempted murder of Green and Miller in
the Los Angeles County Superior Court, case No. A-757679. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).)
September 19, 1986, defendant appeared with counsel for arraignment in the
municipal courtroom of Judge Glenette Blackwell. Defendant soon indicated that
he wished to represent himself. The court warned defendant: “Sir, the State is
asking for your life. I think you need all the help you can get. It’s always unwise
to represent yourself. I don’t know if you do your own medical surgery. I don’t
think that would be wise. I read the report on you. I don’t think you have that
type of educational background, but you can think about it, fill out the appropriate
The court then gave defendant a written “Pro. Per. Advisement Form” to
complete. On the form, defendant wrote that he had completed 12 years of
education. Defendant also responded to nine questions asking whether he
understood his rights as a defendant and the responsibilities he would be
undertaking as his own attorney.6 Although the form instructed defendant to place
his initials in the “yes” or “no” column in response to each question, defendant
instead placed an “x” in each box in the “yes” column. Defendant also placed an
Specifically, the form required a yes or no response to the following
questions: “1. Do you understand that you have a right to have a lawyer of your
choice, and that if you cannot afford a lawyer the Court will appoint one to
represent you at no charge to you? 2. Do you understand that that the Public
Defender is a lawyer who must have the same qualifications and education as any
other attorney? 3. Do you know that you will receive no special consideration or
treatment by the Court because you have chosen to represent yourself? 4. Do you
know that the prosecutor is an experienced lawyer and will have an advantage
over you at trial? 5. Do you understand that you will be expected to follow all
rules of evidence and procedure just as if you were an attorney? 6. Do you
understand that there are pre-trial motions that may be filed in your case? 7. Do
you know what things must be proved in Court before you can be found guilty of
the offense charged? 8. Do you know what the legal defenses are to the charge
against you? 9. Do you understand that you cannot later come back to Court and
say ‘I should have had a lawyer’, or ‘I did not do a good job of representing
“x” in the “yes” column next to the question “Understanding all that you have read
here, and all that the Court has told you, do you still wish to give up your right to
have an attorney, and to represent yourself?”
When defendant returned to court with the form, Judge Blackwell stated:
“Sir, let me ask you. I have your pro. per. form filled out here. Do you
understand that in your case that the prosecutor is an experienced lawyer and
possibly may have an advantage over you? Do you understand that?” Defendant
responded in the affirmative and also stated he understood it was unwise to
represent himself. The court then denied defendant’s request for self-
representation on the ground that defendant’s responses on the Pro. Per.
Advisement Form, where he had marked an “x” instead of placing his initials,
indicated he could not read and understand simple English. Although the court
stressed to defendant that this was a special circumstances case in which the state
was asking for his life, defendant refused to waive time. The court then entered a
not guilty plea on defendant’s behalf and set the preliminary hearing for
October 1, 1986.
On October 1, 1986, defendant appeared with a deputy public defender
before another municipal court judge, Judge Xenophon F. Lang. Counsel told the
court that defendant wished to represent himself, explaining that defendant had
represented himself at the earlier trial. Judge Lang stated: “I see that Judge
Blackwell, in Division 30, had Mr. Blair fill out a form and she still denied the
motion; however, I don’t think that those questions are necessary now. They were
several years ago; but in the last several years, if the defendant wants to represent
himself, he has a perfect right to do so. Isn’t that your understanding?” The
prosecutor agreed that defendant had an “absolute right” to represent himself “if
he meets the basic criteria of Faretta,” and reminded the court that defendant had
represented himself in the previous jury trial. The court then stated: “The public
defender is relieved,” and continued the preliminary hearing until October 3, 1986,
to give defendant time to prepare.
Defendant appeared in propria persona for the preliminary hearing in
municipal court on October 3, 1986, before Judge Ronald S. Coen. At the
beginning of the hearing, the following exchange occurred:
“The Court: You are representing yourself?
“The Court: You have been told earlier, I take it, the pain and pitfalls of
self-representation and the warnings about it?
“The Court: Is it still your desire to represent yourself?
“The Court: Very well.”
The court then read defendant a statement of rights, which included the
following: “You have the right to be represented by an attorney at all phases of the
proceedings. At this time you have chosen to represent yourself. You have been
granted that right.” Defendant indicated he understood his rights. Thereafter,
defendant represented himself throughout the preliminary hearing, at the end of
which he was held to answer on the capital murder charges.
Defendant appeared for his arraignment in the superior court before Judge
Aurelio Munoz on October 21, 1986. Judge Munoz stated that he was aware
defendant was representing himself, and asked defendant whether he wanted to be
represented by an attorney, to which defendant answered: “No. No, I don’t, your
honor.” When the court noted that this was a “death case,” the prosecutor stated
that a final decision concerning whether the death penalty would be sought had not
yet been made. The court stated: “I’m not going to let somebody walk into a
death case pro. per. without making very sure that we aren’t going to be trying this
case again.” The prosecutor replied: “We have had three hearings on this already
and I understand the court’s concern.” The court then had defendant fill out
another, more extensive form, entitled “Petition to Proceed in Propria Persona.”
On this form, defendant stated that he could read and write; that he
understood his constitutional rights to a speedy and public jury trial, to
compulsory process, to confrontation and cross-examination, to testify or refuse to
testify, to bail, and to appointed counsel; that he understood that if he was
permitted to represent himself, he would be giving up his right to be represented
by counsel and would have to conduct his own defense; that he was a high school
graduate; that he understood that by representing himself he would be giving up
the right to the assistance of an experienced public defender; that he would have to
“follow all of the many technical rules of substantive law, criminal procedure, and
evidence;” that he would not be entitled to any special consideration from the
court; and that the district attorney would be experienced in both court and jury
trials. Defendant correctly identified the charge against him, stated that the crime
was a specific intent crime, and acknowledged that if he represented himself it
would be necessary for him to handle all pretrial motions, plea negotiations, jury
selection, opening and closing statements, presentation and cross-examination of
witnesses, objections, and motions. Defendant further acknowledged that he
understood he would have to participate in the formulation of jury instructions,
conduct any necessary penalty phase, and prepare and submit posttrial motions.
On several places on the form defendant correctly noted that the possible penalties
included the death penalty. Finally, defendant acknowledged that the form would
become part of the case file and would be considered by an appellate court in
determining whether he had knowingly and intelligently waived his right to
counsel, and that by acting as his own lawyer he was giving up any possible claim
of ineffective assistance of trial counsel.
When defendant returned to court later in the day, the following exchange
“The Court: Now, the People are deciding if this is a death penalty. Okay.
[¶] Do you understand, of course, that you are not going to get any breaks or any
help simply because you are a layman? You are aware of that?
“[Defendant]: I understand that.
“The Court: And there is a saying in the law ‘that a lawyer who tries his
own case has a fool for a client.’
“[Defendant]: I have heard that.
“The Court: Do you know what it means?
“[Defendant]: I heard that before.
“The Court: Do you know what it means?
“[Defendant]: Do I know what it means?
“The Court: Yes. What it means, you can’t be objective when you are
trying your own case. And a lawyer’s job, above all, is to be objective. And that’s
one of the dangers. [¶] Do you understand that?
Then, after ascertaining that defendant had been represented by lawyers
previously, had had troubled relationships with each, and did not want a lawyer
now, the court stated: “All right. I’ll allow the defendant to proceed in pro. per.
He did fill out the pro. per. petition. Apparently he has represented himself before
in this identical case. So you may arraign the defendant.”
Judge Munoz arraigned defendant a few days later, on November 4, 1986.
When the prosecutor informed the court that the prosecution would be seeking the
death penalty, the following exchange took place:
“The Court: Okay. Mr. Blair, I know you were representing yourself pro.
per. in the previous trials . . . . [¶] Okay. It’s one thing to represent yourself at a
trial. At this point, the stakes have just gone up quite a bit. Now, you are a
layman, and you really need a lawyer. It’s your life. [¶] I’ll guarantee one thing.
The way things are going now, just based upon what I’ve seen and heard this
morning, you’re going to lose that life. Now, I’m not denying you the right to be
your own counsel. I’m not denying you appointed counsel. I’m not denying you
anything. I’m telling you you have the right to have one. [¶] So you’re not going
to be able to go up and say that you were denied counsel. You are not going to be
able to go up and say that you were ineffective. Now, don’t you really think you
ought to reconsider your decision to proceed in pro. per.?
“[Defendant]: No, your honor. I want to go pro. per. It’s my decision.
“The Court: Would you like to have advisory counsel?
“The Court: You realize, of course, you will get no special consideration
from the court. And chances are it’s going to be somebody just like me sentencing
you to death. I’m being realistic. Do you understand, sir?
“[Defendant]: Yes, I understand.”
Later, in the same hearing, Judge Munoz inquired again whether defendant
wanted advisory or associate counsel. When defendant said he did not, the court
stated: “All right. It’s your life. I will state for the record that I think Mr. Blair is
making a conscious choice. He appears to be in full control of his faculties. [¶] I
think it’s probably a game that he’s hoping that even if he does get the death
penalty, that some court is going to look at this and say it isn’t fair.”
Later that same day, defendant indicated that he wished to have Attorney
Ray Newman appointed as “associate counsel.” Newman appeared in the
courtroom, and after ascertaining his availability, Judge Munoz appointed him as
“associate counsel” and “standby counsel.” After it became clear that Newman
would be unable to attend all court sessions during the trial, the trial judge, Judge
Jerold A. Krieger, appointed Lonzo Lucas as defendant’s additional advisory
A criminal defendant has a right, under the Sixth Amendment to the federal
Constitution, to conduct his own defense, provided that he knowingly and
intelligently waives his Sixth Amendment right to the assistance of counsel.
(Faretta, supra, 422 U.S. at pp. 835-836; People v. Bradford (1997) 15 Cal.4th
1229, 1363.) A defendant seeking to represent himself “should be made aware of
the dangers and disadvantages of self-representation, so that the record will
establish that ‘he knows what he is doing and his choice is made with eyes open.’
[Citation].” (Faretta, supra, 422 U.S. at p. 835.) “No particular form of words is
required in admonishing a defendant who seeks to waive counsel and elect self-
representation.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Rather, “the
test is whether the record as a whole demonstrates that the defendant understood
the disadvantages of self-representation, including the risks and complexities of
the particular case.” (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140;
People v. Marshall (1997) 15 Cal.4th 1, 24.)
Here, the record is replete with instances in which defendant was warned of
the dangers and disadvantages of self-representation, both orally and in writing, in
both the municipal and superior courts. For example, defendant was orally warned
that representing himself was unwise, that the prosecutor was an experienced
lawyer who would have an advantage over him, that as an in propria persona
defendant he would receive no special consideration from the court, that he would
be unable to claim ineffective assistance of counsel on appeal, that as his own
attorney it would be difficult to be objective, and that a death penalty case
involved special risks. These oral advisements sufficed to apprise defendant of the
dangers and disadvantages of self-representation.
Further, defendant in writing expressed his understanding, on the “Pro. Per.
Advisement Form” and “Petition to Proceed in Propria Persona,” of the charge
against him and the possible penalties, including death. He further acknowledged,
in writing, that he would have to handle pretrial, trial, and many posttrial matters
himself without the assistance of an attorney, and that he would have to comply
with all substantive and procedural rules, which could be quite technical. He thus
demonstrated an understanding of the risks and complexities of his case.7
That these latter warnings and understanding were expressed only in
writing makes no difference in our determination. (Cf. People v. Marshall, supra,
15 Cal.4th at p. 24.) The Los Angeles County Superior Court’s in propria persona
advisement form (sometimes referred to as a Faretta form) serves as “a means by
which the judge and the defendant seeking self-representation may have a
meaningful dialogue concerning the dangers and responsibilities of self-
representation.” (People v. Silfa (2001) 88 Cal.App.4th 1311, 1322.) The court
might query the defendant orally about his responses on the form, to create a clear
record of the defendant’s knowing and voluntary waiver of counsel. (Cf. People v.
Koontz, supra, 27 Cal.4th at p. 1071.) The failure to do so, however, does not
necessarily invalidate defendant’s waiver, particularly when, as here, we have no
indication that defendant failed to understand what he was reading and signing.
To the contrary, defendant demonstrated his ability to read and write in numerous
Defendant left blank the part of the “Petition to Proceed in Propria Persona”
asking about his awareness of possible defenses. Although the court might have
queried defendant concerning his understanding of potential defenses, the failure
to do so does not invalidate defendant’s waiver.
pro se filings before the court. Defendant also appeared to be of at least normal
intelligence and spoke articulately in court. The last superior court judge who
considered defendant’s request for self-representation, Judge Munoz, found that
defendant was “in full control of his faculties” and was making “a conscious
choice.” We have no reason to question these findings.
In sum, the record as a whole reflects that defendant was familiar both with
the facts and the difficulties of his particular case and with the risks he faced in
representing himself against an experienced prosecutor in a capital case. He
demonstrated considerable legal knowledge, and had represented himself at his
previous trial on the attempted murder charges involving the same underlying
events. These facts support the conclusion that defendant understood the Faretta
warnings. (See People v. Lawley, supra, 27 Cal.4th at p. 142 [relying in part on
the defendant’s experience in prior trials to find his waiver knowing and
intelligent].) Under the circumstances, we have no difficulty in concluding that
defendant’s waiver of counsel was knowing and intelligent.
Defendant contends nonetheless that no judge in either the municipal court
or the superior court conducted the kind of “searching inquiry” that is required to
support a valid waiver of counsel. He claims that no court inquired whether he
understood the nature of the charged offense, including the grave risk arising from
the special circumstance allegation, or the nature of a capital proceeding, including
the possibility of a separate penalty phase. But defendant stated on the “Petition to
Proceed in Propria Persona” that he understood that he was being charged with
special circumstances murder under section 190.2, subdivision (a)(19) (murder by
the administration of poison), that death was a possible penalty, and that if he
continued to represent himself he would be required to handle any separate penalty
phase. Further, both Judge Blackwell and Judge Munoz warned defendant that a
death penalty case requires the expertise of a lawyer. Judge Blackwell told
defendant: “Sir, the State is asking for your life. I think you need all the help you
can get.” And after the prosecution announced its decision to seek the death
penalty, Judge Munoz told defendant: “At this point, the stakes have just gone up
quite a bit. Now, you are a layman, and you really need a lawyer. It’s your life.”
No more was required. (Cf. People v. Lawley, supra, 27 Cal.4th at p. 142
[defendant’s waiver knowing and intelligent even though court did not advise him
regarding the possibility of a second phase of the trial to determine penalty].)
Defendant further argues that the court made no attempt to determine
whether he understood there would be limitations on his ability to investigate
defenses and arrange for the assistance of experts. But again, we have rejected
contentions that such detailed advisements are necessary. (People v. Koontz,
supra, 27 Cal.4th at pp. 1072-1073 [failure to advise defendant regarding
restrictions on library privileges and investigations did not vitiate waiver];
People v. Jenkins (2000) 22 Cal.4th 900, 1042 [noting lack of authority for
defendant’s claim that trial court must advise a defendant seeking in propria
persona status “of each limitation upon his ability to act effectively as counsel that
will flow from security concerns and facility limitations”].) Further, as discussed
more fully below, defendant received library privileges as well as the services of
investigators, a legal “runner,” and experts. Nothing in the record suggests that
defendant’s decision to proceed in propria persona depended on his understanding
of his library privileges or his ability to consult with experts. (See People v.
Koontz, supra, 27 Cal.4th at p. 1073; People v. Jenkins, supra, 22 Cal.4th at p.
2. Trial court’s failure to declare a doubt concerning defendant’s
competence to waive counsel
Defendant contends that his Fifth, Sixth, and Fourteenth Amendment rights
to the assistance of counsel and to due process and a fair trial, as well as his rights
under state statutory law, were violated when, at two points in these proceedings,
the trial court failed to declare a doubt concerning defendant’s competence to
waive his right to counsel and failed to conduct a hearing into defendant’s
competency. First, defendant contends that Judge Henry P. Nelson (who had
presided over his trial in the attempted murder case, and who briefly presided
during pretrial proceedings in the present case) should have declared a doubt
concerning defendant’s competence, based solely on knowledge about defendant
that Judge Nelson had gained during the attempted murder trial. Second,
defendant contends that the judge who presided at the trial under present review,
Judge Jerold A. Krieger, should have declared a doubt when, during proceedings
that occurred between the guilt and penalty phases, defendant’s advisory counsel,
Newman and Lucas, questioned defendant’s competence. As we shall explain, we
reject both contentions.
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; Pate v. Robinson (1966) 383 U.S.
375, 384-386; People v. Welch (1999) 20 Cal.4th 701, 737-738.) Failure to
declare a doubt and to conduct a competency hearing when there is substantial
evidence of incompetence requires reversal of the judgment. (Ibid.)
Whether the question for the trial court is competence to stand trial or
competence to waive counsel and represent oneself, the competence standard is
the same: the defendant must have “ ‘a sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding — and . . . a rational as
well as a factual understanding of the proceedings against him.’ ” (Dusky v.
United States (1964) 362 U.S. 402, 402; see also Godinez v. Moran (1993) 509
U.S. 389, 399-400; People v. Stewart (2004) 33 Cal.4th 425, 513.) The focus of
the inquiry is the defendant’s mental capacity to understand the nature and purpose
of the proceedings against him or her. (Godinez v. Moran, supra, 509 U.S. at
p. 401, fn. 12; People v. Koontz, supra, 27 Cal.4th at p. 1069.) The defendant’s
“ ‘technical legal knowledge’ ” is irrelevant. (People v. Bradford, supra, 15
Cal.4th at p. 1364, quoting Faretta, supra, 422 U.S. at p. 834.)
a. Judge Nelson’s failure during pretrial proceedings to declare a
doubt concerning defendant’s competence and to conduct a
As mentioned above, defendant premises his first claim that the court erred
in failing to declare a doubt about his competence to waive his right to counsel
solely on knowledge concerning defendant that Judge Henry P. Nelson, who
briefly presided over pretrial proceedings in this case long after defendant had
been granted the right to represent himself, had gained during defendant’s earlier
trial on the attempted murder charges.8
Judge Nelson presided over defendant’s 1985 trial for the attempted
murders of Green and Miller. After the jury found defendant guilty on both counts
in that case, but before defendant’s sentencing, Judge Nelson received and
Defendant phrases this claim in terms of Judge Nelson’s failure to “conduct
an inquiry” into defendant’s competence to waive counsel. Any duty under state
or federal law to conduct such an inquiry or a hearing into a defendant’s
competence arises, however, only if the trial court is presented with substantial
evidence raising a reasonable doubt as to the defendant’s competence. (§§ 1367,
1368; Drope v. Missouri, supra, 420 U.S. at p. 181; Pate v. Robinson, supra, 383
U.S. at pp. 384-386; People v. Welch, supra, 20 Cal.4th at pp. 737-738.) We
therefore shall consider defendant’s contention as a claim that Judge Nelson
erroneously failed to declare a doubt and to hold a hearing regarding defendant’s
competence to stand trial.
reviewed a probation report.9 The report discussed defendant’s employment
history (none) and military service (he was discharged for being absent without
leave (AWOL) on an excessive number of occasions), and noted that in 1972 in
Riverside County defendant was “arrested by the sheriff’s office in regards to a
‘sanity hearing.’ ” The probation report also stated: “During that same year
defendant was a patient at Atascadero State Hospital from March until July for
1026 Penal Code — Forgery — Steal car.”10
At the sentencing hearing on August 16, 1985, Judge Nelson remarked that
he believed the maximum available sentence of 14 years and four months was too
lenient for defendant’s crimes. Judge Nelson explained:
“Apparently you are what is called in the trade a psychopath, Mr. Blair. In
other words, you just don’t have any kind of human feelings for anybody else.
That’s apparently your situation now.
“There’s some indication that you’ve had some previous bouts with
psychiatric disability, and that’s not surprising.
“You’re 45 years old, and by your own statement you’ve never held a
permanent job in your life, and apparently you were fooling around doing some
studying on student loans. Apparently did some flitting around at some school.
We granted defendant’s request for judicial notice of the probation report in
the attempted murder case, Los Angeles County Superior Court case
No. A-757679. (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
We have received and reviewed certified copies of both the probation report
and the opinion of the Court of Appeal in the attempted murder case. (See fn. 5,
Section 1026 provides for the confinement in a “state hospital for the care
and treatment of the mentally disordered” of any person who is found legally
insane in a criminal proceeding. (§ 1026, subd. (a).) Atascadero State Hospital is
one such hospital for the care and treatment of mentally disordered criminal
offenders. (See Stats. 1982, ch. 1549, § 37, p. 6045.)
“Apparently the military, the Marine Corps discharged you, and according
to you, for too many [AWOL’s]. So maximum sentence in this case is not enough.
[¶] . . . [¶]
“You, who ruined one woman’s life, put her in a vegetative state, ruined
another woman, the most you can get is 14 years and 4 months . . . .
“But all this is just a joke to you, and I can see that’s true. Because, as I
say, that’s your problem.”
Judge Nelson then imposed the maximum sentence.
Nearly two years later, as a result of defendant’s statutory peremptory
challenge (see Code Civ. Proc., § 170.6) to the judge then presiding, Judge Roger
W. Boren, the present capital case was assigned to Judge Nelson for a brief period
beginning on May 1, 1987. As described in the previous part, defendant had been
representing himself since October 1986, having been questioned and admonished
by various judges regarding his self-representation. In an answer to a challenge
for cause filed against him by defendant, Judge Nelson acknowledged having
expressed “regret” during the attempted murder sentencing “that the sentence
could not have been longer, since the evidence indicated a cold, calculated attempt
to kill one woman, and almost causing the death of another woman through that
attempt. The Defendant’s actions, as well as his demeanor before me (he secreted
an exhibit into the holding tank and flushed it down the drain), indicate a
dangerous psychopath, and I did say so.”
Some time later that summer, Judge Nelson was reassigned to another
department. During the brief period Judge Nelson presided over this case, the
issue of defendant’s competence to waive counsel or to represent himself never
arose. Judge Nelson did not preside over any further proceedings in this case.
Defendant contends that because Judge Nelson had presided over
defendant’s attempted murder trial in 1985, he was aware in 1987 — when he was
assigned to this capital case — of facts that should have raised a bona fide doubt in
his mind whether defendant was competent to waive counsel and represent himself
in the capital trial. Therefore, defendant claims, Judge Nelson erred in failing to
declare a doubt concerning defendant’s competence and to conduct a competency
hearing in 1987. Defendant observes that Judge Nelson was aware, from the
probation report in the attempted murder case, that defendant had been: (1) found
insane in a criminal proceeding in 1972 and confined to Atascadero State Hospital
for several months; (2) unable to hold a job during his adult life; and
(3) discharged from the military for being AWOL on an excessive number of
We disagree that the foregoing amounted to substantial evidence that
defendant was incompetent to waive counsel at the time of the capital trial.
Nothing about defendant’s discharge from the military or his inability to hold a job
indicated that he did not have the mental “ ‘capacity to understand the nature and
object of the proceedings against him.’ ” (See Godinez v. Moran, supra, 509 U.S.
at p. 401, fn. 12; see also People v. Koontz, supra, 27 Cal.4th at p. 1068 [evidence
of defendant’s inability to “ ‘function socially’ ” was not substantial evidence of
defendant’s incompetence to stand trial, to waive counsel, or to represent
Similarly, the evidence of defendant’s possible mental instability did not
amount to substantial evidence of incompetence to waive counsel at the time of
the capital trial. Defendant’s confinement at Atascadero State Hospital in 1972
suggested that he might have been suffering from a mental illness at that time, and
Judge Nelson noted that defendant appeared to have had “previous bouts with
psychiatric disability.” The Atascadero confinement was in 1972, however, 12
years before the present crimes took place, and there was nothing in the record of
this case pertaining to the period between 1972 and 1987 to indicate that defendant
might be mentally ill at the time of the capital trial. (See People v. Stewart, supra,
33 Cal.4th at pp. 516-517.)
Moreover, even a history of serious mental illness does not necessarily
constitute substantial evidence of incompetence that would require a court to
declare a doubt concerning a defendant’s competence and to conduct a hearing on
that issue. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 508 [defendant must
exhibit more than a preexisting psychiatric condition to be entitled to a
competency hearing].) We have found that evidence of more serious mental
disturbances than defendant displayed did not amount to substantial evidence of
incompetence requiring a competency hearing. (See, e.g., People v. Ramos, supra,
34 Cal.4th at pp. 508-511 [defendant’s death wish, history of psychiatric
treatment, planned suicide attempt, propensity for violence, and psychiatric
testimony that defendant was physically abused as a child and suffered from a
paranoid personality disorder did not constitute substantial evidence of
incompetence requiring court to conduct a competency hearing].) Here, the
circumstance that defendant had been found insane in a criminal proceeding and
had been confined to a mental hospital for an unspecified period approximately 15
years prior to the present trial, without more, was insufficient to compel a doubt
whether defendant had the mental capacity to understand the proceedings against
him in the current prosecution.
Nor did Judge Nelson’s 1985 statement that defendant was a “psychopath”
indicate that Judge Nelson entertained or should have entertained a doubt
concerning defendant’s competence in 1987. Defendant notes that one definition
of “psychopath” is “a mentally ill or unstable person.” Thus, he contends, Judge
Nelson must have recognized that defendant was mentally ill.
We disagree. The term “psychopath” (or “sociopath”) commonly is used to
describe individuals with “antisocial personality disorder,” defined as “a pervasive
pattern of disregard for, and violation of, the rights of others.” (See Am.
Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders, (2000
4th rev. ed.) pp. 701-702.) It appears that Judge Nelson intended this meaning
when he used the term “psychopath,” for he immediately explained: “In other
words, you just don’t have any kind of human feelings for anybody else.” He
further explained that it was defendant’s cold and calculated crime and his
destruction of evidence in the attempted murder trial that had prompted him to
label defendant a “dangerous psychopath.” Thus, Judge Nelson’s use of the term
“psychopath” in describing defendant apparently did not indicate a belief, even in
1985, that defendant was psychotic, out of touch with reality, or otherwise unable
to understand the proceedings against him.11
Defendant also contends that the following additional evidence should have
raised a doubt in Judge Nelson’s mind regarding defendant’s competence: (1) at a
time when Judge Stromwall was presiding over the attempted murder case, the
Court of Appeal had issued a pretrial ruling finding good cause for a continuance
Defendant cites People v. Rhinehart (1973) 9 Cal.3d 139, overruled on
other grounds in People v. Bolton (1979) 23 Cal.3d 208, and People v. Teron
(1979) 23 Cal.3d 103, disapproved on other grounds in People v. Chadd (1981) 28
Cal.3d 739, for the proposition that the trial court should have declared a doubt
concerning defendant’s competence to waive counsel. In People v. Rhinehart,
supra, 9 Cal.3d at pages 149-150, we upheld a trial court’s denial of the
defendant’s request to represent himself on the grounds that: (1) the request was
premised upon the defendant’s belief that there were no competent lawyers in the
public defender’s office; and (2) the defendant was on the verge of making
damaging admissions in open court. In People v. Teron, supra, 23 Cal.3d at page
114, we suggested that a court should order a psychiatric examination of a self-
represented defendant if there is any indication that the defendant might be
mentally ill. Both of these cases were decided before the high court in Godinez v.
Moran, supra, 509 U.S. at pages 399-400, clarified the standard of competence
required in order to waive the right to counsel. Rhinehart and Teron thus no
longer accurately reflect the law.
to allow defendant’s counsel to investigate the possibility of an insanity defense;
(2) in the capital case, Judge Blackwell found that defendant could not read and
understand simple English, and Judge Munoz assertedly found he could not
understand the saying, “a lawyer who tries his own case has a fool for a client”;
and (3) defendant told Judge Munoz that he was unable to get along with the
attorneys appointed to represent him. Nothing in the record, however, indicates
that Judge Nelson was or should have been aware of these facts at the time he
presided over pretrial proceedings in the capital case in 1987. They therefore have
no bearing on whether Judge Nelson should have declared a doubt regarding
defendant’s competence. (See People v. Jones (1991) 53 Cal.3d 1115, 1152 [due
process requires a competency hearing if defendant presents substantial evidence
of incompetence]; People v. Castro (2000) 78 Cal.App.4th 1402, 1415 [due
process requires competency hearing when trial court becomes aware of
substantial evidence of incompetence].)
We also note that defendant overstates what is reflected in the record. After
fully exploring a possible insanity defense in the attempted murder case,
defendant’s counsel informed Judge Stromwell that the insanity issue “is no longer
involved in this matter” and stated his belief that there was nothing that would
impair defendant from representing himself. Further, although Judge Blackwell
denied defendant’s request for self-representation on the ground that defendant
could not “read or write simple English” (because he did not follow all the
instructions in filling out the pro. per. advisement form), that finding appears to be
incorrect, in view of defendant’s demonstrated ability, which we already have
noted, in the preparation of numerous pro se filings. Moreover, Judge Munoz did
not find that defendant could not understand the saying about a lawyer trying his
own case being a fool. Accordingly, none of these asserted facts compelled the
expression of a doubt concerning defendant’s competence to waive counsel.
Finally, we note that defendant’s advisory counsel did not advise Judge
Nelson that defendant’s competence might be in issue. In sum, there was no
substantial evidence of incompetence requiring Judge Nelson to declare a doubt
concerning defendant’s competence and to conduct a competency hearing at his
capital trial. (See §§ 1367, 1368.)
b. Judge Krieger’s failure between the guilt and penalty phases to
declare a doubt concerning defendant’s competence and to
conduct a competency hearing
Defendant’s second claim of error is premised upon the failure of the trial
judge, Judge Kreiger, who had observed defendant’s performance at the guilt
phase, to declare a doubt concerning defendant’s competence when defendant’s
advisory counsel raised the issue between the guilt and penalty phases.
At an ex parte hearing on May 8, 1989, after the guilt verdict had been
rendered but before the penalty phase began, defendant’s additional advisory
counsel, Lucas, informed the court that the defense was preparing to have a
psychiatrist interview defendant. Lucas added that he believed defendant might
not be competent to represent himself or to stand trial. The court disagreed:
“Having seen [defendant] in the past month and a half, I don’t find that he’s
incapable of standing trial, at least from a judicial — a psychological lay person’s
point of view. [¶] He’s a lot more competent than most pro. per.’s I’ve seen.”
The court refused to find that defendant’s decision to represent himself was
grounds “per [se] . . . for some type of psychological finding.”
The next court day, May 10, 1989, Lucas again raised the issue of
defendant’s competence to represent himself. Lucas explained that, having
observed defendant through the guilt phase, he did not believe that defendant was
“competent legally to undertake the representation he’s done.” When the court
asked him to clarify this statement, Lucas replied: “I’m talking about his legal
competency . . . I’m not saying that he has a mental problem at this point, and I
haven’t raised that issue.” Newman, however, added: “I would be inclined to say
that a lot of it is mental, too. I don’t think [defendant] — though him and I
disagree on that — is mentally competent to represent himself.” The court again
disagreed with both attorneys, finding defendant possessed a “good grasp of a lot
of legal issues” and appeared “mentally stable.” Newman observed that there had
been “an incarceration of [defendant] at Atascadero State Hospital” and asked the
court, over defendant’s objection, to declare a doubt as to defendant’s competency.
The court replied: “I have no doubt as to his competency, his mental capacity and
his sanity.” Newman then said that over the years he had tried to persuade
defendant to be examined by a psychiatrist, but defendant had refused. When the
court asked defendant whether he was requesting the appointment of a
psychiatrist, defendant stated: “No. I made my position clear . . . to both advisory
counsel, that I am not — I’m not raising an incompetency hearing nor an
insanity — nor an insanity issue.” Defendant reiterated that he wished to represent
himself at the penalty phase as well, and that he understood “the drawbacks” of
that course of action.
Later that day, during an in camera hearing regarding defense strategy held
in the prosecutor’s absence, Newman stated for the record that he and Lucas had
advised defendant to be examined by a psychiatrist, to consider calling family
members or friends as penalty phase witnesses, and to consider introducing his
Atascadero State Hospital records, but that defendant had refused to do so.
Newman told the court that there were “records from Atascadero State Hospital
that I think would have a bearing — I think would have had a bearing also as far
as the guilt phase and the penalty phase.” Newman said he had long believed “that
Mr. Blair might have some mental deficiency that would have been to the benefit
at least as to the guilt phase and definitely of some benefit as to the penalty
phase.” Lucas added that defendant had “spent 95 percent of his time writing
writs, writing and thinking writs. He has spent absolutely no significant time in
preparation of this case.”
Defendant confirmed that he had instructed his advisory attorneys not to
contact his family members or friends, that he did not want to introduce the
Atascadero records, and that he did not want to put on, in his words, a “diminished
capacity or an insanity defense.” When the court asked whether there would be
any mitigating evidence, defendant stated: “I am not sure. I have to do some
research on that, just what is mitigating evidence. It may be my defense will be
that the district attorney shouldn’t be allowed to put on aggravating evidence. I’m
not sure what mitigating evidence would be — there would be. I do know that
the — the insanity or diminished capacity is out, and I do know that — that
compelling my family members to — to attend is out.”
Defendant contends that Judge Krieger had before him substantial evidence
that defendant was unable to consult with his lawyers or to rationally understand
the nature of the proceedings. Defendant asserts that he did “almost nothing” to
prepare for the guilt and penalty phases, prevented his advisory counsel from
investigating and presenting mental health evidence, prevented advisory counsel
from investigating any kind of mitigating evidence, and spent most of his time
researching and writing writs instead of preparing for trial. Defendant contends
that these actions were the product of his mental illness and should have alerted
the trial court to his possible incompetence. But nothing concerning defendant’s
failure to prepare indicated that he did not understand the proceedings against him.
Further, we have rejected the notion that a defendant’s choice not to present a
defense, even at the penalty phase, amounts to substantial evidence of
incompetence. (People v. Bradford, supra, 15 Cal.4th at p. 1373 [defendant’s
choice not to present a defense at the penalty phase did not compel a doubt as to
his competence to stand trial and represent himself].) Defendant further claims the
record demonstrates that he did not understand the nature of mitigating evidence.
Defendant’s technical legal knowledge, however, was irrelevant to the
competency inquiry. (See People v. Bradford, supra, 15 Cal.4th at p. 1364, citing
Faretta, supra, 422 U.S. at p. 834.)
Defendant further contends there were other signs of mental illness, which
included his hospitalization at Atascadero State Hospital, the irrational nature of
the crime, and his insistence on self-representation in this capital case. But we
have rejected the notion that the existence of Atascadero records raised a
reasonable doubt as to defendant’s competence.12 Further, the circumstance that
the crime itself was irrational does not raise a reasonable doubt as to defendant’s
competence; the same could be said of many murders. Moreover, we agree with
the trial judge that the fact that a defendant represents himself or herself cannot be
the basis, in itself, “for some type of psychological finding,” because such a rule
would require a competency hearing in every case in which a defendant exercises
his or her right of self-representation — a standard that neither the high court nor
this court has adopted.
Defendant further observes that his advisory counsel expressed doubts
concerning defendant’s competency. Lucas clarified, however, that he was
questioning only defendant’s “legal” competency, not any possible “mental
problem.” Again, defendant’s legal knowledge was irrelevant to the competency
inquiry. (See People v. Bradford, supra, 15 Cal.4th at p. 1364, citing Faretta,
supra, 422 U.S. at p. 834.) Further, Newman’s general opinion that defendant
Defendant contends the trial court was or should have been aware of an
additional “history of psychiatric commitments,” but we do not find in the record
any evidence of hospitalization other than the Atascadero commitment.
might be incompetent, although relevant, did not compel the court to declare a
doubt or to order a competency hearing. (People v. Welch, supra, 20 Cal.4th at
pp. 738-739, fn. 7; People v. Rodrigues (1994) 8 Cal.4th 1060, 1112; People v.
Howard (1992) 1 Cal.4th 1132, 1164.) Newman did not explain the basis of any
belief on his part in defendant’s possible incompetence other than to highlight the
Atascadero hospitalization, defendant’s refusal to be examined by a psychiatrist,
and defendant’s insistence on remaining in propria persona and filing numerous
motions and writs. As we have explained, those circumstances did not compel a
doubt concerning defendant’s competence. Further, the trial court had ample
opportunity to observe defendant personally. (See People v. Ramos, supra, 34
Cal.4th at p. 509.)
In sum, whether the facts outlined above are considered separately or
cumulatively, “the record in the present case does not indicate that a reasonable
doubt existed [or should have existed] as to defendant’s ability to understand the
proceedings against him.” (People v. Bradford, supra, 15 Cal.4th at p. 1373.)
Defendant further contends that the court erred in allowing him to decide
whether or not to request the appointment of a psychiatrist. Defendant, however,
was acting as his own attorney. Because the court did not find reason to doubt
defendant’s competence, it properly deferred to defendant’s wishes on that score.
Defendant finally contends that the trial court “utterly failed to follow the
requirements” of section 1368 when it failed to appoint counsel for him, to solicit
counsel’s opinion as to his competence, to order a competency hearing, and to
appoint a psychiatrist or psychologist to examine him.13 Those statutory duties
Defendant does not contend that, even if a competency hearing was not
mandatory under section 1368, the trial court abused its discretion in failing to
order such a hearing in the face of the less than substantial evidence casting doubt
(footnote continued on next page)
arise, however, only if the court entertains a doubt as to the defendant’s
competence. (§ 1368, subd. (a) [requiring the trial judge to declare a doubt
concerning the defendant’s competence, appoint counsel if the defendant is
unrepresented, and solicit counsel’s opinion as to competence “[i]f, during the
pendency of an action and prior to judgment, a doubt arises in the mind of the
judge as to the mental competence of the defendant,’ ” italics added]; id., subd. (b)
[requiring the trial judge to order a competency hearing “[i]f counsel [appointed
pursuant to subdivision (a)] informs the court that he or she believes the defendant
is or may be mentally incompetent”]; § 1369 [outlining the procedure for a hearing
ordered under section 1368, including the appointment of a psychiatrist or
psychologist to examine the defendant].) Because the court here never entertained
or declared such a doubt, it was not obligated to appoint counsel or to take the
other steps outlined in sections 1368 and 1369.14
3. Asserted ineffective assistance of advisory counsel
Defendant contends he was deprived of the effective assistance of his
advisory counsel in violation of the Sixth Amendment to the United States
Constitution, and thus that reversal of the guilt and penalty judgments is
(footnote continued from previous page)
on defendant’s mental competence. (Cf. People v. Welch, supra, 20 Cal.4th at
Defendant contends that the trial court’s failure to declare a doubt and order
a competency hearing violated his right to a reliable penalty determination under
the Eighth Amendment to the United States Constitution. Because defendant does
not explain how the analysis of his Eighth Amendment claim differs from his due
process claim, we reject the claim for the same reasons that we rejected the due
As noted above, the master calendar judge, Judge Munoz, appointed Ray
Newman as associate counsel and standby counsel on November 4, 1986.
Thereafter, Newman appeared in court with defendant during all pretrial
proceedings. Between November 1986 and May 1987, defendant, Newman, and
the court occasionally referred to Newman as “associate counsel,” “cocounsel,” or
“auxiliary counsel.” Newman also filed several motions as attorney for defendant.
In early May 1987, defendant’s case was assigned to Judge Nelson. At the
May 4, 1987, hearing, the court made clear that it would not permit defendant and
Newman to share defendant’s representation. On one occasion, when Newman
attempted to object to the prosecution’s argument regarding a requested
continuance, the court cut him off: “First of all, let’s remember your status in the
case. The defendant is acting in pro. per., as I understand.” In response to
Newman’s explanation that he was “associate” counsel, the court stated: “I don’t
see how a pro. per. can be chief counsel and . . . have a lawyer in effect
representing him. . . . I’m not going to permit the defendant to be in pro. per. and
in effect represented before the court by a lawyer. If he’s going to be in pro. per.,
he’s going to be in pro. per. ¶ If the defendant wants to be represented by a
lawyer, he has that right. If the defendant wants to go in pro. per., he has that
right. I see nothing wrong with having a lawyer assist the defendant in a death
penalty case, but I’m not going to have a pro. per. in effect being represented by a
lawyer in these proceedings. ¶ Make the choice. Does he want to be represented
by an attorney? If that’s the case, fine; I’ll appoint you counsel, Mr. Newman, and
you can go ahead and represent the defendant. If he wants to be pro. per., you
may remain as advisory counsel, but you won’t be co-counsel to a pro. per.” After
more discussion, the court addressed defendant: “Now, make a decision, Mr.
Blair. Do you want to represent yourself? If so, fine. You may have an advisory
counsel. If you want to have Mr. Newman represent you, you may not be pro. per.
And we’ll go from there. . . . So let’s make a decision, Mr. Blair. . . . Do you
want to be pro. per., or do you want a lawyer representing you?” Defendant
responded: “I’m pro. per.” The court replied: “All right. Then, Mr. Newman,
you may remain as advisory counsel.” At another hearing a few weeks later,
Judge Nelson reiterated that Newman was not defendant’s attorney, and directed
Newman to “let the defendant represent himself in pro. per., please.”
Judge Nelson remained assigned to this case until some time later that
summer, when another judge was assigned. After that time, the court, the
prosecutor, and the defense resumed occasionally referring to Newman as
“associate counsel.” Subsequently, the case was assigned to Judge Candace
Cooper in January 1988. Judge Cooper initially expressed some confusion
concerning Newman’s status. For example, on February 26, 1988, she said to
Newman: “I’m not sure if it’s cocounsel or advisory counsel [capacity] that you
are working in.” Then again on January 10, 1989, she asked Newman “is it
advisory or cocounsel technically?” Newman responded: “It’s been both. I’m not
sure which one.” At all times, however, Judge Cooper made clear that defendant
was his own attorney. For example, on March 11, 1988, she stated: “Mr. Blair,
you are your own counsel in this matter. You have cocounsel with you.” And
again, on January 10, 1989, she said: “Nonetheless, Mr. Blair is pro. per. I expect
this matter to move along.”
Finally, on March 6, 1989, Judge Cooper denied a further continuance that
defendant had requested based on Newman’s involvement in another trial. In
defendant’s presence, the court addressed Newman: “I understand that. You are,
however, advisory counsel, not trial counsel. Mr. Blair can try this matter. He has
been pro. per. and advisory counsel is not standby counsel. It is not backup
counsel. It is advisory counsel.” When Newman again began to argue in favor of
a continuance, Judge Cooper stated: “Mr. Newman, with all due respect, you keep
talking like you are going to try this case [but] you are advisory counsel.”
Ultimately, the parties appeared for trial on March 17, 1989. Judge Cooper
was unavailable, so the case was assigned to Judge Krieger. Because Newman
was involved in another capital trial, the court agreed to continue the matter for a
few days to allow Newman to locate additional advisory counsel. The court,
however, denied a lengthy continuance, reasoning that defendant, not Newman,
was counsel of record. The court reiterated to defendant, “You’re still pro. per.
status. He [Newman] is only advising.” The court also indicated it would grant a
continuance if defendant gave up his in propria persona status, but defendant
refused. The court explained to defendant: “Well, it seems to me that with your
pro. per. status then you’re not engaged in another trial. If you relinquished your
pro. per. status and Mr. Newman were your attorney of record, then the attorney of
record is engaged in another trial or will be and, therefore, there is that distinction
to be made.”
A few days later, the court appointed Lonzo Lucas as additional advisory
counsel. The court later denied a 60-day continuance to allow Lucas to familiarize
himself with the case, reasoning that defendant, as counsel, was prepared to try the
Jury selection began on March 22, 1989. Thereafter, either Newman or
Lucas, or both, was present in court on each trial day, except during jury
deliberations when counsel were on call. The court ruled that only defendant
would be allowed to address the court when the jury was present, and told
prospective jurors that defendant was representing himself “assisted” by Lucas and
Upon defendant’s request, the court permitted Newman to deliver
defendant’s guilt phase closing argument, but only after defendant expressly
waived “any objection to any change in tactics or emphasis” that Newman might
make. Again upon defendant’s request, and after defendant again waived his right
to object to any change in tactics, defendant’s additional advisory counsel, Lucas,
presented the defense penalty phase closing argument. Lucas also argued the
automatic motion to modify the verdict.
Under the Sixth Amendment, “[d]efendants who have elected self-
representation may not thereafter seek reversal of their convictions on the ground
that their own efforts were inadequate and amounted to a denial of effective
assistance of counsel. [Citation.] This rule applies whether or not the self-
represented defendant has been assisted by an attorney acting as advisory counsel
or in some other limited capacity. [Citations.]” (People v. Bloom (1989) 48
Cal.3d 1194, 1226; accord, People v. Pinholster (1992) 1 Cal.4th 865, 930.)
“While the Sixth Amendment guarantees both the right to self-representation and
the right to representation by counsel . . . a defendant who elects self-
representation ‘does not have a constitutional right to choreograph special
appearances by counsel’ (McKaskle v. Wiggins (1984) 465 U.S. 168, 183 [79
L.Ed.2d 122, 104 S.Ct. 944]). Thus none of the ‘hybrid’ forms of representation,
whether labeled ‘cocounsel,’ ‘advisory counsel,’ or ‘standby counsel,’ is in any
sense constitutionally guaranteed.” (People v. Bloom, supra, 48 Cal.3d at p. 1218;
accord, People v. Stewart, supra, 33 Cal.4th at pp. 518-519; People v. Bradford,
supra, 15 Cal.4th at p. 1368.)
Accordingly, “[t]o prevail on a claim that counsel acting in an advisory or
other limited capacity has rendered ineffective assistance, a self-represented
defendant must show that counsel failed to perform competently within the limited
scope of the duties assigned to or assumed by counsel [citations], and that a more
favorable verdict was reasonably probable in the absence of counsel’s failings
[citations]. A self-represented defendant may not claim ineffective assistance on
account of counsel’s omission to perform an act within the scope of duties the
defendant voluntarily undertook to perform at trial.” (People v. Bloom, supra, 48
Cal.3d at pp. 1226-1227, italics in original.) However, “[a]s to those aspects of
the representation over which counsel retains control, counsel remains responsible
for providing constitutionally effective representation, and the defendant may
assert a claim of ineffective assistance of counsel.” (People v. Mendoza (2000) 24
Cal.4th 130, 157.)
Defendant contends that Newman was effectively “associate counsel” until
the eve of trial when, on March 6, 1989, the court denied the defense request for a
continuance based on Newman’s involvement in another trial. Defendant argues
that forcing him to go to trial without Newman’s assistance was analogous to
removing a represented defendant’s chosen attorney on the eve of trial in violation
of the Sixth Amendment right to counsel. We disagree.
“[T]he powers and responsibilities which attend the representation of a
criminally accused person should never be conferred jointly and equally on the
accused and the attorney. Rather, in all cases of shared or divided representation,
either the accused or the attorney must be in charge. Stated otherwise, at all times
the record should be clear that the accused is either self-represented or represented
by counsel; the accused cannot be both at once.” (People v. Bloom, supra, 48
Cal.3d at pp. 1218-1219; accord, People v. Stewart, supra, 33 Cal.4th at p. 518;
People v. Bradford, supra, 15 Cal.4th at p. 1368.) Responsibility for clarifying the
record in this regard rests with the trial court.
Here, the record unfortunately reflects some initial confusion as to the
scope of Newman’s role when the court first appointed him in November 1986,
because the court used both the term “associate counsel” and the term “standby
counsel.” Any initial confusion was dispelled, however, in May 1987, when Judge
Nelson clarified that the court would not permit defendant and Newman to share
defendant’s legal representation, and that Newman was solely advisory counsel.
The record suggests that defendant understood the limits of advisory counsel’s
role, because in arguing for a continuance based on Newman’s unavailability,
defendant cited People v. Bigelow (1984) 37 Cal.3d 731, in which we explained
that advisory counsel acts as an advisor or consultant only.
Thus, from May 1987 forward, the record reflects no reasonable basis for
defendant to have believed that he would not be expected to try the case himself.
Although various judges may have expressed confusion concerning Newman’s
status, at each point it was made clear that defendant alone was counsel of record.
As early as March 11, 1988, more than a year before the trial began, Judge Cooper
emphasized that defendant was his own counsel and was therefore responsible for
determining which defense motions to bring. On January 10, 1989, she reiterated
that she expected the case to “move along” despite Newman’s possible
unavailability, because “Mr. Blair is pro. per.” And Judge Krieger, who presided
over the actual trial, made it crystal clear that defendant was in charge. Judge
Krieger gave defendant the option of relinquishing his in propria persona status in
exchange for a continuance to allow Newman to assume defendant’s
representation, but defendant refused.
That the court granted several continuances based on Newman’s
unavailability is not inconsistent with a proper understanding of Newman’s limited
role as advisory counsel. Before delivering the guilt phase closing argument,
Newman confirmed that defendant had been in charge of trial strategy all along
and that Newman, as advisory counsel, had not had the power to subpoena
witnesses or to tell defendant which witnesses to call. Thus, there is no merit in
defendant’s contention that he somehow was deprived of appointed counsel at the
Defendant contends that even if Newman was solely advisory counsel, he
performed incompetently “within the limited scope of the duties” he had assumed.
(People v. Bloom, supra, 48 Cal.3d at p. 1226, italics omitted.) Below we address
each of defendant’s contentions that either Newman or defendant’s additional
advisory counsel, Lucas, performed incompetently.
i. Newman’s absence from the trial
Defendant contends that Newman could not possibly have rendered
effective assistance, because he was absent from the courtroom for more than half
of the trial. We disagree. We never have held that advisory counsel must be
present during the entire trial. In any event, here defendant had the assistance of
additional advisory counsel, Lucas, at trial; the court appointed Lucas as additional
advisory counsel specifically to assume Newman’s role in Newman’s absence.
Lucas was present on each of the days that Newman was not, and defendant points
to nothing in Lucas’ representation on those days that was not competent.
Relying upon State v. Parson (Minn. Ct. App. 1990) 457 N.W. 2d 261, 263,
defendant contends that advisory counsel at a minimum should be present in court
during the trial. That case, however, dealt with standby counsel, not advisory
counsel. The two roles are distinct. “Standby counsel” is an attorney appointed
for the benefit of the court whose responsibility is to step in and represent the
defendant if that should become necessary because, for example, the defendant’s
in propria persona status is revoked. (People v. Clark (1992) 3 Cal.4th 41, 149;
People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14.) “Advisory counsel,” by
contrast, is appointed to assist the self-represented defendant if and when the
defendant requests help. (People v. Hamilton, supra, 48 Cal.3d at p. 1164, fn. 14;
see also Littlefield v. Superior Court (1993) 18 Cal.App.4th 856, 858; People v.
Kurbegovic (1982) 138 Cal.App.3d 731, 757.) Here, whatever Newman’s status
when he initially was appointed, the court subsequently made clear that he was
solely advisory counsel. As such, there was no requirement that he be present at
each court session, particularly because additional advisory counsel Lucas was
present when Newman was not.
Defendant next contends that “it was Newman’s job to prepare the defense
experts for trial,” yet Newman did so ineffectively, with the result that “the
defense that was supposed to be asserted, that the cause of death was not the
cyanide but some other intervening cause, was never presented.” In this regard,
defendant observes that Judge Krieger denied defendant’s request to instruct the
jury on “intervening cause,” because there was no evidence presented to support
We first note that nothing in the record supports defendant’s contention that
Newman assumed full responsibility for preparing defense experts. Even
assuming he had done so, defendant’s claim would fail. Defendant contends in
effect that Newman failed to meet in advance with the defense experts — Dr. Latif
and Dr. Itabashi — and failed to provide them with sufficient information to
testify effectively for the defense.
“We have repeatedly stressed ‘that “[if] the record on appeal sheds no light
on why counsel acted or failed to act in the manner challenged[,] . . . unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be
rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) “Because
claims of ineffective assistance are often more appropriately litigated in a habeas
corpus proceeding, the rules generally prohibiting raising an issue on habeas
corpus that was, or could have been, raised on appeal [citations] would not bar an
ineffective assistance claim on habeas corpus.” (Id. at pp. 266-267.)
Here, the record on appeal does not explain why Newman prepared the
experts as he did, and there could be a satisfactory explanation for Newman’s
conduct. For example, Newman’s failure to give Dr. Itabashi any of Green’s
medical records to review before testifying could have been a deliberate defense
strategy to keep Dr. Itabashi in the dark about defendant’s case so that he could
testify only about a hypothetical situation. In any event, defendant does not
demonstrate that he was prejudiced by any failure to prepare the experts. The jury
was instructed that a proximate cause of death is “a cause which, in the natural and
continuous sequence, produces death and without which the death would not have
occurred.” Defendant does not explain how, even had the defense experts been
better prepared, they could have persuaded the jury that the cyanide given to
Green was not a proximate cause of her death.
Defendant also contends that Newman’s absence from the trial made it
impossible for him to give a “coherent” guilt phase closing argument. Because
defendant expressly waived any objection to Newman’s closing argument, we
decline to reach this claim. In any event, we would find the claim meritless. We
note that Newman had available the daily trial transcripts for preparation of his
argument. Although Newman’s argument elicited objections from the prosecution
for misstating evidence, on the whole Newman presented a coherent argument
based upon an effort to persuade the jury to find a reasonable doubt that defendant
could have placed cyanide in a sealed gin bottle or that Green died of cyanide
ii. Newman’s failure to keep confidential the appointment of
Defendant next contends that, in seeking the appointment of Dr. Root as the
defense pathologist, Newman failed to follow the procedures set forth in section
987.9, which allow the defense to apply to the court on a confidential basis for
funds for the payment of experts. Defendant contends that Newman’s failures in
this regard permitted the prosecution to learn of Dr. Root’s unfavorable
conclusions and to call him as a rebuttal witness at the guilt phase, with
At the time of defendant’s trial, section 987.9 provided, as it does today in
subdivision (a), that “the fact that an application [by an indigent defendant for
reasonably necessary funds for the payment of experts] has been made shall be
confidential and the contents of the application shall be confidential.” The
confidentiality provision evidently was intended to prevent the prosecution from
anticipating defense strategy. (People v. Anderson (1987) 43 Cal.3d 1104, 1132.)
Despite the existence of this confidentiality provision, Newman requested
the appointment of Dr. Root in open court in the presence of the prosecutor, who
informed the defense and the court that he knew Dr. Root on a social basis and had
called him as a witness several times. Newman also filed an unsealed, written
motion requesting the appointment of Dr. Root. After the defense had presented
its case-in-chief, however, Newman informed the court that the defense would not
Defendant also complains that Newman apologized to the jury for having
been absent during the trial. We find nothing unreasonable or prejudicial in
Newman’s acknowledging to the jury that he had been absent.
be calling Dr. Root. The prosecutor then stated: “Dr. Root is here. The defense
told Dr. Root to leave. But I had a chance to talk to Dr. Root briefly, and I intend
to call Dr. Root.” Dr. Root then testified in the prosecution’s rebuttal case that,
contrary to the defense position, cyanide poisoning caused the brain damage and
pneumonia that led to Green’s death. Newman later informed the court that he
had advised defendant against calling Dr. Root to testify, but defendant had
subpoenaed him anyway.
The record does not reflect whether Newman had a tactical basis for
declining to keep Dr. Root’s appointment confidential, and it would be proper for
us to reject defendant’s contention on this basis. (People v. Mendoza Tello, supra,
15 Cal.4th at pp. 266-267.)
In any event, defendant fails to establish that the failure to keep Dr. Root’s
appointment confidential prejudiced him. It was defendant’s own choice to
subpoena Dr. Root against Newman’s advice, and it was that subpoena that
brought Dr. Root to court and resulted in the prosecutor’s interview with him.
Moreover, even had the prosecutor never learned of Dr. Root’s opinion concerning
defendant’s case and never called him to testify, it is not reasonably probable that
the outcome of the guilt phase would have been different. (See People v. Bloom,
supra, 48 Cal.3d at pp. 1226-1227.) The prosecution presented the testimony of
Green’s treating physician, Dr. Becker, who testified that cyanide poisoning
caused her brain damage and resulting complications. Dr. Gray, who had
performed the autopsy on Green, testified that Green died of pneumonia, a
complication of the brain damage caused by the cyanide poisoning. The testimony
of defendant’s own experts was not to the contrary. Dr. Latif agreed with Dr.
Becker concerning the cause of Green’s condition, and Dr. Itabashi could not say
what had caused Green’s death. Under these circumstances, it does not appear
that a more favorable result was reasonably probable had Dr. Root not testified
that cyanide poisoning caused Green’s death.16
iii. Lucas’s asserted ignorance about the case
Defendant next contends that Lucas, who was appointed the day before jury
selection began, “knew nothing about the case or the defense.” Defendant points
to various instances in the record in which Lucas professed his ignorance about the
case or acknowledged his lack of preparation. For example, after the guilt verdict
was rendered, Lucas admitted to the court that he was unprepared to handle the
penalty phase because he “came in on this train when it was already moving.”
We decline to presume that Lucas was ineffective merely because he was
appointed as additional advisory counsel one day before jury selection began. To
establish ineffectiveness, defendant must point to specific acts within the scope of
the duties assumed by Lucas that both amounted to deficient performance and
resulted in prejudice to defendant’s case. (People v. Bloom, supra, 48 Cal.3d at
p. 1226.) Defendant does not identify any such specific act or failure to act.
Defendant complains that Lucas did not conduct any penalty phase investigation,
but there is no showing that defendant assigned, or that Lucas assumed,
responsibility for that function. Indeed, the record is to the contrary: defendant
was in charge of strategy at the penalty phase, and defendant prevented his
advisory attorneys from sending the defense investigator to interview defendant’s
family members and other potential mitigation witnesses. Defendant also
Defendant does not claim on appeal that permitting Dr. Root to testify on
behalf of the prosecution violated the work product rule. In any event, any such
claim would appear to have been forfeited due to defendant’s failure to object to
Dr. Root’s testimony on this ground. (See People v. Combs (2004) 34 Cal.4th
complains that Lucas began his penalty phase closing argument by reminding the
jurors that they had not “heard from” him yet, and told the jury that he would not
“beg and plead for mercy and pity and sympathy” for defendant. Because
defendant waived any objection to Lucas’s handling of the closing argument, this
claim is waived. In any event, no prejudicial deficient performance appears to
have taken place. (See People v. Bloom, supra, 48 Cal.3d at pp. 1226-1227.)
iv. Counsel’s failure to present evidence regarding
defendant’s incompetence to stand trial
Defendant next contends that Newman and Lucas both failed to present to
the court evidence in their possession that would have raised a doubt concerning
defendant’s competence to stand trial. As noted above, during hearings held on
May 8 and 10, 1989, outside the presence of the jurors and the prosecutor,
defendant’s advisory counsel Newman and Lucas expressed their belief that
defendant might not be competent to waive counsel or to represent himself, and
mentioned the existence of records from defendant’s confinement at Atascadero
State Hospital in 1972. Nonetheless, neither Newman nor Lucas submitted to the
court any records or other evidence to substantiate these claims.
The record reflects that defendant did not want to be examined by a
psychiatrist and prevented his advisory attorneys from investigating a mental state
defense. Further, in response to the court’s question whether defendant wanted the
court to appoint a psychiatrist to examine him, defendant specifically stated that he
was “not raising [sic] an incompetency hearing.” Assuming for the sake of
argument that it is within advisory counsel’s role to bring to the court’s attention
evidence in support of a finding of incompetence even over a self-represented
defendant’s objection, on the present record we discern no prejudice from advisory
counsel’s failure to do so. The Atascadero records are not before us in the record
on appeal. We thus have no way to determine whether those records would have
caused the trial court to declare a doubt concerning defendant’s competence to
stand trial or to waive counsel. Accordingly, we reject defendant’s contention.
4. Asserted denial of access to ancillary defense resources
Defendant claims a violation of his Fourteenth Amendment right to equal
protection of the laws, his Sixth Amendment right to self-representation, and his
Fifth and Fourteenth Amendment rights to due process of law and a fair trial, due
to the trial court’s alleged denial of reasonable ancillary defense resources such as
investigators, experts, and legal materials.
At defendant’s first appearance in the superior court on October 21, 1986,
he requested $2,500 for an investigator and for travel and supplies. Judge Munoz
denied that request but ordered that defendant be provided with the “normal”
indigent funds and supplies. The court also agreed to appoint an investigator from
the superior court panel, but defendant did not select an investigator at that time.
At defendant’s November 4, 1986, arraignment, Judge Munoz appointed
Donna Brooks as defendant’s legal “runner” — that is, an individual designated to
make deliveries to and from the court on defendant’s behalf. The court also
ordered $40 in in propria persona funds placed in defendant’s inmate account, as
well as $50 for his runner at $5 per visit.
In late January 1987 defendant filed a motion to suppress evidence,
asserting that Detective Jackson’s search of defendant’s briefcase and wallet in
1984 was unreasonable. The hearing on this motion was continued numerous
times until it was finally heard in April 1989. In the meantime, on March 4, 1987,
Judge Roger Boren, to whom the case had been assigned, ordered a reporter’s
transcript of the attempted murder trial delivered to defendant for his use in
preparing for the hearing on the motion to suppress. At an ex parte hearing held in
early April, Judge Boren ordered certain legal and medical books and articles
provided to defendant. On April 24, 1987, defendant’s advisory counsel,
Newman, stated that defendant was having difficulty accessing his in propria
persona and investigation funds. Judge Boren issued an order clarifying that
defendant was to receive a total of $40 for telephone and stamps, payable at $10
per week, as well as “those supplies regularly and normally . . . provided without
cost to other persons who are in propria persona.” The order allowed defendant to
direct any request for additional funds or supplies to the court.
On May 4, 1987, defendant advised Judge Nelson, to whom the case
recently had been transferred, that he recently had received the transcript of the
attempted murder trial. When defendant complained a few days later in the master
calendar court about the $40 limit on in propria persona funds, Judge Munoz
explained that the $40 was intended only to cover incidental expenses, and stated:
“[i]f you need experts, you will get experts, pay them just like we do with other
On June 10, 1987, on defendant’s motion, Judge Munoz appointed Robert
Sabel as defendant’s investigator and issued an order authorizing payment “not to
exceed $3,000 without further order of court.”
Between July 1987 and February 1988, the case was continued several
times and was reassigned to Judge Candace Cooper. During that period, defendant
moved for an order to preserve tissue samples taken from Green’s organs after her
death, for examination by a defense pathologist. The prosecutor agreed to have
the samples sent from Michigan, where Green had died, to the coroner’s office in
Los Angeles. Upon defendant’s request, the court ordered the reporter’s transcript
of the May 31, 1985, proceedings in the attempted murder trial prepared and filed.
The court denied, however, defendant’s request for additional legal books and
At a hearing held on March 11, 1988, Judge Cooper at defendant’s request
appointed Dr. Irving Root as the defense expert pathologist. The court later signed
an order authorizing payment of up to $3,000 for Dr. Root’s services. The court
also promised to look into the matter of the May 31, 1985, transcript, which had
not been prepared as ordered.
In June 1988 the parties agreed to continue the trial until January 1989, in
part because Dr. Root had not yet examined Green’s tissue samples. On July 8,
1988, the parties appeared before Judge Cooper for a hearing on defendant’s
discovery motion. Defendant asked for a copy of any fingerprint analysis
conducted by the prosecution on the gin bottle and the box it came in, and asked
that the bottle and box be released to a defense fingerprint expert. Defendant also
complained that a page was missing from the defense copy of the “murder book”
(the district attorney’s collection of relevant police reports), which had been turned
over to defendant in March of 1987. The missing page documented the death of
Michelle DuBois, the woman Rhoda Miller had visited on the day of the
poisoning. Defendant suggested that the district attorney or his agents might have
taken the page from his cell during a search. Judge Cooper declined to inquire
into the legality of any searches of defendant’s cell, but stated she would order the
prosecutor to deliver to the defense a new copy of the page involving DuBois, as
well as any prosecution fingerprint analysis of the gin bottle and box.
After another continuance, on March 16, 1989, the court set this matter for
trial the next day. Because Judge Cooper was unavailable, the case was
reassigned to Judge Krieger.
On March 17, 1989, before Judge Krieger, the prosecutor agreed to arrange
for the defense expert, Dell Freeman, to examine the gin bottle, the box it came in,
and other relevant items. When defendant complained that he had not received the
missing page from the murder book, the court stated that Judge Cooper’s order
regarding the page was still in effect, and that the prosecutor would turn it over to
defendant if and when it was found.
Jury selection began on March 22, 1989. Later that day, Judge Krieger
appointed Malcolm Everest as defendant’s replacement investigator after
defendant explained that his previous investigator, Robert Sabel, had resigned.
The court’s order provided funds of up to $1,500 for Everest’s services.
During jury selection on March 30, Judge Krieger formalized the
appointment of Dell Freeman as defendant’s fingerprint expert. The prosecutor
stated that the gin box and bottle would be available for Freeman to examine at the
Los Angeles Police Department.
At defendant’s request, on April 6, 1989, Judge Krieger relieved Everest as
defendant’s replacement investigator and appointed Malcolm Richards in his
place. The funding limit remained $1,500. On April 7 and 10, 1989, during jury
selection, Lucas informed the court that he had been unable to contact Richards.
Judge Krieger heard and denied defendant’s suppression motion on
April 17, 1989. The parties presented opening statements and the prosecution
began its case in chief that same day. The next day, defendant again complained
that the defense had been unable to contact his replacement investigator, Richards.
The court ordered Richards to appear in court on April 20 to meet with defendant.
The prosecution rested its case-in-chief on April 24, 1989. Dell Freeman
testified for defendant the following day. Ultimately, defendant declined to call
Dr. Root, but the prosecution called him on April 28, 1989, in its rebuttal case.
Dr. Root testified that Green died from cyanide poisoning.
Between October 1987 and July 1988, defendant’s initial investigator,
Robert Sabel, submitted four fee statements seeking reimbursement for a total of
$4,426.57 for 177 hours worked, plus expenses. On each statement, defendant
acknowledged that he had requested all of the services performed. Neither of
defendant’s subsequent two defense investigators (Everest or Richards) submitted
Defendant contends that the equal protection clause of the Fourteenth
Amendment to the United States Constitution demands “parity” between the
ancillary services provided to an indigent defendant who represents himself or
herself and an indigent defendant represented by counsel. Defendant contends that
parity was denied to him and that his Fourteenth Amendment rights therefore were
violated. Defendant asserts that even if parity is not required, the alleged denial of
ancillary services violated his Sixth Amendment right to represent himself and his
Fifth and Fourteenth Amendment rights to due process of law and a fair trial.
Our analysis begins with a discussion of the constitutional and statutory
bases of a criminal defendant’s right to ancillary defense services. “[T]he right to
counsel guaranteed by both the federal and state Constitutions includes, and
indeed presumes, the right to effective counsel [citations], and thus also includes
the right to reasonably necessary defense services. [Citations.]” (Corenevsky v.
Superior Court (1984) 36 Cal.3d 307, 319-320.) Section 987.9 codifies this right
in capital cases. (County of Los Angeles v. Commission on State Mandates (1995)
32 Cal.App.4th 805, 815.) At the relevant time (1987 through 1989), that statute
provided, as it does today, in pertinent part: “In the trial of a capital case . . . the
indigent defendant, through the defendant’s counsel, may request the court for
funds for the specific payment of investigators, experts, and others for the
preparation or presentation of the defense. The application for funds shall be by
affidavit and shall specify that the funds are reasonably necessary for the
preparation or presentation of the defense.” (Former § 987.9, now § 987.9, subd.
As section 987.9 makes clear, the right to ancillary services arises only
when a defendant demonstrates such funds are “reasonably necessary” for his or
her defense by reference to the general lines of inquiry that he or she wishes to
pursue. (Corenevsky v. Superior Court, supra, 36 Cal.3d at p. 320.) This
requirement applies both to indigent defendants represented by counsel and to
those who choose to represent themselves. (See People v. Faxel (1979) 91
Cal.App.3d 327, 330-331 [interpreting the analogous provision for noncapital
cases, section 987.2].) The court held in Faxel that the “necessary parity between
the indigent defendant and others” required by the equal protection clause “is to be
achieved not by permitting the indigent to spend public funds at his whim but
rather by administration” of the reasonable necessity requirement. (Id. at p. 331.)
Assuming the equal protection clause also demands parity between the services
provided to indigent defendants represented by counsel and those provided to
individuals representing themselves, such parity is to be achieved in the same
As for the Sixth Amendment, we have recognized that depriving a self-
represented defendant of “all means of presenting a defense” violates the right of
self-representation. (People v. Jenkins, supra, 22 Cal.4th at p. 1040, citing Milton
v. Morris (9th Cir. 1985) 767 F.2d 1443, 1445-1446.) Thus, “a defendant who is
representing himself or herself may not be placed in the position of presenting a
defense without access to a telephone, law library, runner, investigator, advisory
counsel, or any other means of developing a defense.” (People v. Jenkins, supra,
22 Cal.4th at p. 1040.) Yet, as we have observed, “[i]nstitutional and security
concerns of pretrial detention facilities may be considered in determining what
means will be accorded to the defendant to prepare his or her defense. [Citations.]
When the defendant has a lawyer acting as advisory counsel, his or her rights are
adequately protected. [Citations.]” (Ibid.) In the final analysis, the Sixth
Amendment requires only that a self-represented defendant’s access to the
resources necessary to present a defense be reasonable under all the circumstances.
(See People v. Jenkins, supra, 22 Cal.4th at pp. 1040-1041.)
Thus, the crucial question underlying all of defendant’s constitutional
claims is whether he had reasonable access to the ancillary services that were
reasonably necessary for his defense. A review of the record reveals that he did.
Defendant had advisory counsel Newman and Lucas acting on his behalf, so his
Sixth Amendment rights were adequately protected. (People v. Jenkins, supra, 22
Cal.4th at p. 1040.) Moreover, defendant received the services of several
investigators, a runner, a pathologist, and a fingerprint expert. Although defendant
complains that the services provided were not used effectively, any failure to
utilize those resources better is attributable to defendant who, as his own counsel,
controlled the litigation. Defendant cannot premise a claim of ineffective
assistance of counsel on his own shortcomings. (Faretta, supra, 422 U.S. at
pp. 834-835, fn. 46.) As discussed below, none of defendant’s specific claims
regarding the resources provided to him has merit.
Defendant first complains that he was restricted to a total of $40 for “legal
resources” pursuant to a Los Angeles County Superior Court policy. But as noted
above, the trial court explained that sum was intended only for incidental expenses
such as telephone calls and stamps, and defendant was free to ask for additional
funding for such expenses if he needed it. Defendant also challenges the
sufficiency of the budget of $50 for a “runner” at $5 per visit. He makes no
showing, however, that this budget was inadequate. Further, although defendant
complained occasionally concerning his inability to access the funds in his inmate
account, he makes no showing that the funds were not ultimately made available,
or that he suffered prejudice from any temporary lack of access.
Defendant also asserts he was denied reasonable access to an investigator.
He is incorrect. Although the court initially denied defendant’s October 21, 1986,
request for $2,500 for an investigator and other expenses, it informed defendant at
the time that an investigator would be appointed from the approved panel as soon
as defendant sought one. Defendant did not formally request appointment of an
investigator until June 10, 1987, at which time the court immediately appointed
Robert Sabel.17 Sabel worked a total of 177 hours on defendant’s case and
apparently resigned some time after July 1988, but defendant did not request
appointment of a replacement investigator until March 22, 1989, at which time the
court appointed Malcolm Everest and, thereafter, Malcolm Richards. Although
defendant complains of difficulty in contacting Richards during the trial, as noted
above the record reflects that when defendant brought this matter to the court’s
attention, the court ordered Richards to appear in court to meet with defendant.
There is no indication in the record that this order was not complied with.
Defendant further asserts that Sabel interviewed only one witness during
the entire time he worked for defendant and spent most of his time preparing and
filing writ petitions. This, however, apparently was how defendant chose to use
his investigator. Defendant acknowledged requesting all of the services performed
by Sabel. He cannot premise a claim of error upon his own failings as counsel.
(Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.)
Defendant next complains he was denied access to expert witnesses.
Again, he is mistaken. The court appointed Dr. Irving Root as defendant’s expert
It appears that prior to June 1987 defendant experienced difficulty locating
an investigator willing to work on the case because, although the court had
“allocated” funds, the county had not “released” them. We discern no prejudice
from any delay in the appointment of an investigator.
pathologist immediately upon defendant’s formal request. The prosecution made
Green’s tissue samples available for Dr. Root to examine. That Dr. Root’s
conclusions were not favorable to the defense, and that he ultimately did not
testify on defendant’s behalf, is immaterial; defendant was given access to and
funding for the expert he chose, which is all that the law requires. The court also
appointed Dell Freeman as defendant’s fingerprint expert, and the prosecution
made the gin bottle, box, and wrapping available for Freeman to examine.
Freeman subsequently testified favorably for the defense. Although Freeman may
not have been appointed as expeditiously as defendant would have liked,
defendant has not established prejudice from any delay.
Defendant next contends that his access to documents and discovery
materials was inadequate. He observes that it took more than a year for the
transcript of the attempted murder trial to be delivered to him. Defendant first
requested the transcript on March 4, 1987. The bulk of the transcript was
delivered by May 1987. Although the record does not reflect the precise date on
which defendant received the final portion of the transcript — that portion
reporting the May 31, 1985, proceedings — it is reasonable to assume that he
received that material shortly after his last request for it on March 11, 1988, well
before the start of jury selection in March 1989 and the suppression hearing the
following month. No prejudice appears from any delay in the completion and
delivery of the transcript. Defendant also contends he never received the missing
page from the murder book involving Michelle DuBois. The court did indicate it
would order a copy of that page delivered to defendant, but it apparently never
issued a formal order, and the prosecution later disputed that any order existed.
Even assuming the prosecution should have supplied defendant with a copy of the
missing page, defendant was not prejudiced. The page apparently documented the
fact that DuBois had died, something the prosecution brought out at trial. We fail
to see how such information would have assisted the defense.
Defendant further asserts he was denied access to the courts. Defendant
complained on occasion that he was unable to send or receive legal mail. The
court resolved this problem in part, however, by having defendant’s mail delivered
through the court or through defendant’s advisory counsel. The record does not
support defendant’s further contention that he was unable to file writ petitions with
the appellate courts.
Defendant finally asserts he was denied access to legal resources such as
books and periodicals. The record belies this assertion. On at least one occasion,
the court ordered certain legal and medical books and articles that were not
available in the prison law library delivered to defendant. The court denied
defendant’s request for additional materials, because defendant had access to the
law library, advisory counsel, and a “runner” who could make copies for
defendant of materials that were unavailable in the prison law library. Defendant
thus makes no showing he was denied any reasonably necessary legal resources.
In sum, defendant had access not only to advisory counsel Newman and
Lucas, but also to investigators, experts, a runner, and library and other resources.
To the extent defendant may have been denied access to any resources, the denial
was minimal and defendant has failed to demonstrate any resulting prejudice.
Defendant thus has not established any violation of his Sixth Amendment right to
self-representation or his Fourteenth Amendment right to equal protection of the
Defendant also claims the denial of resources violated his Fifth and
Fourteenth Amendment rights to due process of law and a fair trial. We reject
(footnote continued on next page)
5. Existence of a right to self-representation at the penalty phase
As noted above, after the jury returned its guilt verdict a dispute arose
between defendant and advisory counsel concerning the presentation of evidence
in mitigation. Advisory counsel wanted defendant to be examined by a
psychiatrist, to present available testimony from family members, and to introduce
into evidence available medical, prison, and psychiatric records. Defendant,
however, rejected the advice of his advisory counsel. Ultimately, defendant
presented no penalty phase witnesses and introduced only his transcripts from Los
Angeles City College as evidence in mitigation.
Defendant contends the trial court erred in allowing him to represent
himself at the penalty phase because, defendant asserts, the Sixth Amendment
right to self-representation does not extend to the penalty phase of a capital trial.
He contends the alleged error deprived him of his right to counsel under the Sixth
Amendment to the federal constitution. We consistently have held, however, that
the Sixth Amendment right to self-representation extends to the penalty phase.
(E.g., People v. Koontz, supra, 27 Cal.4th at p. 1074; People v. Bradford, supra,
15 Cal.4th at pp. 1364-65; People v. Clark (1990) 50 Cal.3d 583, 617-618.)
In the alternative, defendant argues that permitting him to preclude any
investigation and presentation of mitigating evidence at the penalty phase violated
his right to a reliable penalty determination under the Eighth Amendment to the
federal Constitution. We have rejected this contention as well. (People v. Bloom,
supra, 48 Cal.3d at pp. 1227-1228.) As we have explained, a rule requiring a pro
se defendant to present mitigating evidence would be unenforceable and self-
(footnote continued from previous page)
these claims for the same reasons we reject his Sixth Amendment and equal
defeating. (Ibid.; see also People v. Koontz, supra, 27 Cal.4th at pp. 1073-1074;
People v. Bradford, supra, 15 Cal.4th at pp. 1364-1365.)
Defendant contends that the United States Supreme Court’s decision in
Martinez v. Superior Court (2000) 528 U.S. 152 (Martinez) undermines these
conclusions. The high court in Martinez addressed whether the right to self-
representation extends to the appeal of a criminal conviction. The high court first
noted that Sixth Amendment rights are trial rights that do not apply to an appeal,
which is not constitutionally compelled but is purely a “creature of statute.”
Accordingly, any right to self-representation on appeal must be grounded in the
due process clause. (Id. at pp. 159-161.) The court in Martinez then proceeded to
reason that because the status of the accused “changes dramatically” after he or
she is found guilty — from a presumptively innocent defendant who is “hailed
into” court by the state, to one found guilty beyond a reasonable doubt who
initiates the appeal to attack the conviction — states are free on appeal to conclude
that the defendant’s autonomy interests no longer outweigh the state’s interests in
the integrity and efficiency of the proceedings. (Id. at pp. 161-163.) Thus, there is
no constitutional right to self-representation on appeal. (Id. at pp. 163-164.)
Defendant contends that the rationale of Martinez compels the conclusion
that there is no right to self-representation at the penalty phase, because: (1) the
penalty phase of a capital trial, like an appeal, is a “creature of statute,” and (2) at
the penalty phase, as on appeal, the defendant has been found guilty beyond a
reasonable doubt and thus his autonomy interests are sufficiently diminished to be
overridden by the state’s interests in a fair and reliable penalty determination.
We are not persuaded. First, as we have explained, for Sixth Amendment
purposes the penalty phase of a capital case is “ ‘merely a stage in a unitary capital
trial.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 194, quoting People v. Hamilton
(1988) 45 Cal.3d 351, 369.) For this reason, Sixth Amendment rights, including
the right to the assistance of counsel, apply at the penalty stage. (See Gardner v.
Florida (1977) 430 U.S. 349, 358; Mempa v. Rhay (1967) 389 U.S. 128, 134,
137.) Accordingly, the correlative right to self-representation applies as well,
regardless of whether the existence of the penalty phase is a statutory creation or is
itself compelled by the federal Constitution. Second, although the decision in
Martinez speaks of the diminution of a defendant’s autonomy interests after
conviction and on appeal, Martinez does not address the level of autonomy interest
enjoyed by a defendant during sentencing. We find nothing in Martinez to
persuade us that a defendant’s autonomy interests are any less compelling at the
penalty phase of a capital trial than at the guilt phase. The defendant at sentencing
is still in the position of being “hailed into court” by the state (see Faretta, supra,
422 U.S. at p. 807), and thus still has an interest in personally presenting his or her
defense. (See id. at p. 819.)
Defendant cites a number of cases from other states holding that Eighth
Amendment reliability interests trump a defendant’s right to control the defense at
the penalty phase of a capital trial.19 We do not find these cases persuasive.
(E.g., Muhammad v. State (Fla. 2001) 782 So.2d 343, 361-365 [trial court
erred by giving “great weight” to advisory jury’s recommendation to impose the
death penalty when that jury had not heard any mitigating evidence; in future
cases in which the defendant does not challenge the imposition of the death
penalty, the trial court must order the preparation of a presentence report
discussing mitigating factors]; Morrison v. State (Ga. 1988) 373 S.E.2d 506, 509
[when defendant insisted on a death sentence and prohibited counsel from
presenting mitigating evidence, the trial court may have had an obligation “to
conduct an independent investigation into the possible existence of evidence in
mitigation”]; State v. Koedatich (N.J. 1988) 548 A.2d 939, 989 [to preserve Eighth
Amendment reliability, a represented defendant may not prevent his attorneys
from presenting available mitigating evidence]; see also Note, The Right of Self-
Representation in the Capital Case (1985) 85 Colum. L.Rev. 130, 152-153
[arguing that the Eighth Amendment interest in reliability overrides the right to
self-representation at the penalty phase of a capital case, and that the state
(footnote continued on next page)
Rather, we adhere to the weight of state and federal authority that concludes,
consistent with our own precedent, that the Sixth Amendment right to self-
representation extends to the penalty phase, and that the Eighth Amendment poses
no barrier to the self-represented defendant’s control of the presentation of
mitigating evidence. (E.g., United States v. Davis (5th Cir. 2002) 285 F.3d 378,
384-385 [the right to self-representation extends to the penalty phase of a capital
case; the appointment of an independent counsel to present mitigating evidence
against the defendant’s wishes violated that right]; Silagy v. Peters (7th Cir. 1990)
905 F.2d 986, 1006-1008 [the right to self-representation applies to the penalty
phase of a capital case even if the defendant chooses to forego the presentation of
mitigating evidence; the Eighth Amendment is no bar to the imposition of
sentence in these circumstances]; People v. Coleman (Ill. 1996) 660 N.E.2d 919,
937-928 [Faretta applies in capital cases]; People v. Silagy (Ill. 1984) 461 N.E. 2d
415, 429-432 [the defendant may waive counsel and seek death at the penalty
phase of a capital case]; Smith v. State (Ind. 1997) 686 N.E.2d 1264, 1274-1276
[appointment of a special counsel to present mitigating evidence over the
defendant’s objection was not warranted]; Bridges v. State (Nev. 2000) 6 P.3d
1000, 1012 [self-represented defendant in a capital case is not required to
introduce mitigating evidence and may seek the death penalty]; People v. Gordon
(N.Y. Sup. Ct. 1999) 179 Misc.2d 940, 942-945, 688 N.Y.S.2d 380, 382-384
(footnote continued from previous page)
therefore should appoint counsel to present and argue mitigating evidence if the
defendant is unable or unwilling to do so].)
[Faretta extends to a capital case]; State v. Reed (S.C. 1998) 503 S.E.2d 747, 750
[capital defendant may waive the right to counsel].)20
Defendant contends that permitting him to represent himself resulted in a
fundamentally unfair trial in violation of his Fourteenth Amendment rights.
Defendant argues that the Sixth Amendment right to self-representation is
subordinate to the “paramount interest in the rendition of just verdicts in criminal
cases” (see Wheat v. United States (1988) 486 U.S. 153, 160), and that when the
right to a fair trial conflicts with a defendant’s subordinate right to self-
representation, the latter right must yield. Here, defendant argues, those rights
were in conflict because of the court’s decision to allow defendant to represent
himself despite his asserted mental illness, and because of the court’s asserted
denial of resources and assistance necessary to make defendant’s right to self-
Putting aside for the moment the question whether defendant’s self-
representation actually denied him a fundamentally fair trial, we question
defendant’s legal premise. Defendant in effect would have us hold that the right to
a fair trial can trump the right of self-representation in particular cases. The high
court, however, has adhered to the principles of Faretta even with the
understanding that self-representation more often than not results in detriment to
the defendant, if not outright unfairness. (See Martinez, supra, 528 U.S. at p. 161
Defendant argues that permitting him to represent himself at the penalty
phase and to prevent the presentation of mitigating evidence violated his federal
constitutional rights to due process of law and a fair trial. Because defendant does
not explain how these claims differ from his Sixth Amendment and Eighth
Amendment claims, we reject these claims for the same reasons that we reject his
claims under the Sixth and Eighth Amendments.
[“Our experience has taught us that ‘a pro se defense is usually a bad defense,
particularly when compared to a defense provided by an experienced criminal
defense attorney’ ” (fn. omitted)]; see also id. at p. 161, fn. 9 [acknowledging the
view of some observers that allowing certain defendants to represent themselves at
trial is akin to allowing them to waive their right to a fair trial]; see also id. at pp.
164-165 (conc. opn. of Breyer, J.); McKaskle v. Wiggins, supra, 465 U.S. at
p. 177, fn. 8 [“the right of self-representation is a right that when exercised usually
increases the likelihood of a trial outcome unfavorable to the defendant”]; Faretta,
supra, 422 U.S. at p. 834 [“It is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by their own
unskilled efforts”]; see also ibid. [“[A]lthough he may conduct his own defense
ultimately to his own detriment, his choice must be honored”]; accord, Godinez v.
Moran, supra, 509 U.S. at p. 400.) Under these circumstances, we are not free to
hold that the government’s interest in ensuring the fairness and integrity of
defendant’s trial outweighed defendant’s right to self-representation.21
In any event, we have examined each of defendant’s contentions of
unfairness and found that none has merit. As we have explained, defendant
knowingly and intelligently waived his right to the assistance of counsel; the trial
court did not err in declining to declare a doubt concerning defendant’s
competence to stand trial or to waive counsel at either the guilt or the penalty
phases; defendant received all of the ancillary resources due him; and defendant
has not demonstrated on this record that his advisory counsel performed
ineffectively. In sum, permitting defendant to represent himself did not result in a
Neither Wheat v. United States, supra, 486 U.S. 153, nor Estes v. Texas
(1964) 381 U.S. 532, upon which defendant relies, involved self-representation.
fundamentally unfair trial. To the extent defendant claims unfairness on some
basis other than these specific alleged grounds, decisions of the United States
Supreme Court, as we have explained, fail to support his position.
1. Jury selection — failure to remove jurors for cause
Defendant contends the trial court violated his right to a fair and impartial
jury under the Sixth and Fourteenth Amendments to the United States Constitution
by refusing to excuse for cause three jurors who asserted they always would vote
for the death penalty for certain forms of murder.
Defendant challenged Jurors L., Q., and V. for cause after each made
conflicting statements concerning whether he or she inevitably would vote for the
death penalty for an intentional, deliberate, or premeditated murder. The trial
court denied each of these challenges. Defendant used a peremptory challenge to
excuse Juror V. from the panel of regular jurors, and used another peremptory
challenge to remove Juror Q. from the panel of alternate jurors. Juror L. was
excused on other grounds. Defendant used all 20 of his available peremptory
challenges to the prospective regular jurors,22 and also exhausted the peremptory
challenges available to him to challenge the prospective alternate jurors.23
At the time of defendant’s trial, each side in a capital case was allotted 20
peremptory challenges to the regular jurors. (Code Civ. Proc., former § 231.)
At the time of defendant’s trial, each side was allotted “as many peremptory
challenges to the alternate jurors as there are alternate jurors called.” (Code Civ.
Proc., former § 234.) Although four alternate jurors were seated, defendant
exercised five peremptory challenges. It thus appears that defendant received, and
exhausted, more peremptory challenges to the prospective alternate jurors than
were due him under state law.
The due process clause of the Fourteenth Amendment requires the
sentencing jury in a capital case to be impartial to the same extent required at the
guilt phase. (Morgan v. Illinois (1992) 504 U.S. 719, 726-728; see also id. at
p. 740 (dis. opn. of Scalia, J.) [clarifying the constitutional basis of the court’s
holding]; People v. Williams (1997) 16 Cal.4th 635, 666.) Article I, section 16 of
the California Constitution provides the same guarantee. (See People v. Williams,
supra, 16 Cal.4th at pp. 666-667; People v. Johnson (1993) 3 Cal.4th 1183, 1210.)
To achieve the constitutional imperative of impartiality, the law permits a
prospective juror to be challenged for cause only if his or her views in favor of or
against capital punishment “would ‘prevent or substantially impair the
performance of his [or her] duties as a juror’ ” in accordance with the court’s
instructions and the juror’s oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424,
quoting Adams v. Texas (1980) 448 U.S. 38, 45; People v. Cunningham (2001) 25
Cal.4th 926, 975; People v. Crittenden (1994) 9 Cal.4th 83, 121.)
Under our state law, a defendant who wishes to preserve a claim of error in
the improper denial of a challenge for cause must: (1) use a peremptory challenge
to remove the juror in question; (2) exhaust his or her peremptory challenges or
justify the failure to do so; and (3) express dissatisfaction with the jury ultimately
selected. (See People v. Weaver (2001) 26 Cal.4th at pp. 910-911; People v.
Williams, supra, 16 Cal.4th at p. 667; People v. Crittenden, supra, 9 Cal.4th at
Here, defendant used peremptory challenges to remove Jurors V. and Q.
and exhausted all of his peremptory challenges in selecting the jurors. He did not,
however, express dissatisfaction with the jury ultimately seated.24 We decline,
Defendant argues that he expressed dissatisfaction with the jury by filing,
on March 29, 1989, in the middle of jury selection, a motion to quash the jury
(footnote continued on next page)
however, to find defendant’s claim forfeited on this basis, because “language in
past cases suggested that counsel’s expression of dissatisfaction with the jury was
not always a necessary prerequisite to challenging on appeal a trial court’s
decision denying a challenge for cause.” (People v. Weaver, supra, 26 Cal.4th at
p. 911; see People v. Crittenden, supra, 9 Cal.4th at p. 121, fn. 4; People v.
Bittaker (1989) 48 Cal.3d 1046, 1087-1088.) This case was tried in early 1989,
before the law was clarified with respect to the preservation of claims involving
the allegedly erroneous denial of challenges for cause. Accordingly, we shall
reach the merits of defendant’s claim. (See People v. Boyette (2002) 29 Cal.4th
381, 416 [declining to find claim of erroneous denial of challenge for cause
forfeited, because “the law was in a state of flux on this point at the time of
defendant’s 1993 trial”].)
To establish that the erroneous inclusion of a juror violated a defendant’s
right to a fair and impartial jury, the defendant must show either that a biased juror
actually sat on the jury that imposed the death sentence, or that the defendant was
deprived of a peremptory challenge that he or she would have used to excuse a
juror who in the end participated in deciding the case. (Ross v. Oklahoma (1988)
487 U.S. 81, 85; People v. Williams, supra, 16 Cal.4th at p. 667; People v.
Crittenden, supra, 9 Cal.4th at p. 121; People v. Bittaker, supra, 48 Cal.3d at
pp. 1087-1088.) Here, defendant used peremptory challenges to remove Jurors Q.
and V. from the panels of prospective regular and alternate jurors, and Juror L.
(footnote continued from previous page)
panel based on its alleged failure to represent a fair cross-section of the
community because none of the prospective jurors resided in the Hollywood
community where the crimes occurred. Because we conclude defendant’s claim
was not forfeited in any event, we decline to address this contention.
was excused for other reasons. Accordingly, none of these jurors sat on the jury
that ultimately decided defendant’s case. Further, defendant does not identify any
sitting juror whom he challenged for cause. (See Ross v. Oklahoma, supra, 487
U.S. at p. 86; People v. Yeoman (2003) 31 Cal.4th 93, 114.) Defendant did file a
motion seeking to quash the entire jury panel on the ground that it did not include
any jurors from the Hollywood area where the crime was committed. But
defendant neither “presses that claim” here, nor “suggests that the absence of
[persons residing in Hollywood] was in any way related to the failure to remove
[Jurors L., Q., and V.] for cause.” (Ross v. Oklahoma, supra, 487 U.S. at p. 86.)
Defendant thus fails to demonstrate that the jury that tried his case was not
impartial. (Ibid.) Finally, defendant fails to identify any juror whom he would
have excused had he not used his peremptory challenges to remove Jurors V. and
Q. (Ross v. Oklahoma, supra, 487 U.S. at p. 88; People v. Boyette, supra, 29
Cal.4th at pp. 418-419; cf. People v. Williams, supra, 16 Cal.4th at p. 668.)
Accordingly, focusing on the 12 jurors who actually decided defendant’s case, as
we must (see Ross v. Oklahoma, supra, 487 U.S. at p. 86), we conclude that
defendant has not established that his right to an impartial jury was violated.
In any event, the trial court properly denied each of defendant’s challenges
for cause. “Applying Wainwright v. Witt, supra, 469 U.S. 412, 424, we have
stated that ‘ “[i]n a capital case, a prospective juror may be excluded if the juror’s
views on capital punishment would ‘prevent or substantially impair’ the
performance of the juror’s duties.” [Citations.] “A prospective juror is properly
excluded if he or she is unable to conscientiously consider all of the sentencing
alternatives, including the death penalty where appropriate.” [Citation.]’
[Citation.] In addition, ‘ “[o]n appeal, we will uphold the trial court’s ruling if it is
fairly supported by the record, accepting as binding the trial court’s determination
as to the prospective juror’s true state of mind when the prospective juror has
made statements that are conflicting or ambiguous.” [Citations.]’ ” (People v.
Jenkins, supra, 22 Cal.4th at p. 987.)
Here, each of the challenged jurors initially expressed some variation of the
view that he or she would vote for the death penalty in all cases of intentional,
deliberate, or premeditated murder. Nonetheless, after the trial court and
sometimes the prosecutor explained that the death penalty was not mandatory if
the defendant was found guilty of murder with special circumstances, but instead
that there would be a separate penalty phase at which the parties would have the
opportunity to present aggravating and mitigating evidence relevant to
punishment, each juror expressed a willingness to consider all of the evidence and
both available penalty options before deciding on the appropriate punishment.
The record thus supports the trial court’s conclusion that none of the challenged
jurors held views that would prevent or substantially impair the performance of the
juror’s duties. (Wainwright v. Witt, supra, 469 U.S. at p. 424; People v. Jenkins,
supra, 22 Cal.4th at p. 987.) At a minimum, because the jurors’ statements were
ambiguous or conflicting, the trial court’s determination of each juror’s true state
of mind is binding on us. (People v. Jenkins, supra, 22 Cal.4th at p. 987.)
Defendant asserts that he “used all of his peremptory challenges to excuse
these jurors, leaving him no peremptory challenges when the final juror was
seated.” To the extent this assertion can be interpreted as a claim that the trial
court arbitrarily deprived defendant of peremptory challenges due him under state
law in violation of his Fourteenth Amendment right to due process of law (see
Hicks v. Oklahoma (1980) 447 U.S. 343), this claim must fail. Defendant received
and exercised the 20 peremptory challenges allotted to him under state law. (See
Code Civ. Proc., § 231.) State law required him to use those peremptories to cure
any erroneous denials of challenges for cause. (People v. Gordon (1990) 50
Cal.3d 1223, 1248, fn. 4, overruled on other grounds in People v. Edwards (1991)
54 Cal.3d 787, 835.) Defendant received all that was due him under state law.
(Ross v. Oklahoma, supra, 487 U.S. at pp. 88-91; People v. Gordon, supra, 50
Cal.3d at p. 1248, fn. 4.)
2. Guilt phase — second degree murder instruction
Defendant contends the trial court erred by refusing a defense-requested
instruction on second degree felony murder.
At a hearing held to determine which jury instructions would be given,
defendant orally requested that the court instruct the jury on second degree felony
murder. Defendant did not, however, submit a written proposed instruction. The
prosecutor opposed defendant’s request, because no underlying felony upon which
to base second degree felony murder was charged. Ultimately, the court refused
the instruction, stating: “I don’t think there’s evidence of second degree in this
situation. It’s — this is or is not [first degree].”
The court instructed the jury by delivering CALJIC Nos. 8.10 (murder
defined), 3.31.5 (murder requires the mental state of malice aforethought), 8.11
(malice aforethought defined), 8.23 (murder by poison), 8.80 (special
circumstances — introductory), and 8.81.19 (special circumstances — murder by
administration of poison). The court further instructed the jury that “poison”
means “any substance introduced into the body by any means which by its
chemical action is capable of causing death. Cyanide is a poison.”
The trial court is obligated to instruct the jury on all general principles of
law relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request. (People v. Breverman (1998) 19 Cal.4th 142, 154 [sua
sponte duty]; People v. Wickersham (1982) 32 Cal.3d 307, 323 [sua sponte duty],
overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201;
People v. Flannel (1979) 25 Cal.3d 668, 684 [duty upon request].) That obligation
encompasses instructions on lesser included offenses if there is evidence that, if
accepted by the trier of fact, would absolve the defendant of guilt of the greater
offense but not of the lesser. (People v. Memro (1995) 11 Cal.4th 786, 871; see
also People v. Breverman, supra, 19 Cal.4th at p. 154.) To justify a lesser
included offense instruction, the evidence supporting the instruction must be
substantial — that is, it must be evidence from which a jury composed of
reasonable persons could conclude that the facts underlying the particular
instruction exist. (People v. Breverman, supra, 19 Cal.4th at p. 162; People v.
Wickersham, supra, 32 Cal.3d at p. 324; People v. Flannel, supra, 25 Cal.3d at
Here, the information charged defendant with the murder of Green by the
administration of poison. “All murder which is perpetrated by means of . . .
poison . . . is murder of the first degree.” (§ 189; see People v. Catlin (2001) 26
Cal.4th 81, 149; People v. Diaz (1992) 3 Cal.4th 495, 568.) This rule applies,
however, only to murders — that is, killings by poison when the killer acts with
either express or implied malice. (People v. Mattison (1971) 4 Cal.3d 177, 182-
184.) To find express malice, the jury must conclude the defendant intended to
kill the victim. To find implied malice, the jury must be satisfied that the
defendant “had full knowledge that his conduct endangered the life of decedent,
but that he nevertheless deliberately administered the poison with conscious
disregard for that life.” (Id. at pp. 183-184.)
If a jury is not satisfied that a defendant acted with either express or implied
malice, it may find the defendant guilty of second degree murder on a felony
murder theory. At the time the poisoning occurred in 1984, section 347 provided
(as it does today) in pertinent part: “Every person who willfully mingles any
poison or harmful substance with any food, drink, medicine, or pharmaceutical
product . . . where the person knows or should have known that the same would be
taken by any human being to his or her injury, is guilty of a felony . . . .” (Stats.
1983, ch. 1172, § 7, p. 4448.) When a person violates section 347 and death
results either accidentally or negligently, he or she may be guilty of second degree
felony murder. (People v. Mattison, supra, 4 Cal.3d at pp. 184-186.) The intent
required to sustain a conviction for second degree felony murder in this context is
not an intent to kill, or a conscious disregard for life, but rather the intent to injure
or intoxicate the victim. (Id. at p. 186.)
Second degree murder is a lesser included offense of first degree murder.
(People v. Bradford, supra, 15 Cal.4th at p. 1344; People v. Cooper (1991) 53
Cal.3d 771, 827.) Thus, even without a written request, defendant was entitled to
an instruction on second degree felony murder if there was evidence from which
reasonable jurors could have concluded that defendant intended only to injure
Green when he poisoned her.
The bulk of the evidence in this case suggests that defendant acted, at a
minimum, with conscious disregard for Green’s life. The evidence established
that defendant believed Green owed him money. Defendant deliberately obtained
cyanide — a highly toxic substance — which he carefully placed in a gin bottle so
that the bottle appeared sealed. Defendant then had Miller deliver the bottle to
Green. Defendant apparently had been Green’s drinking companion and thus
would have known that she liked to drink. This course of conduct, including
deliberately obtaining a highly toxic substance and concealing its presence in the
gin bottle from which he expected Green to drink, evidenced, at a minimum, a
conscious disregard for Green’s life (as well as the lives of any others who might
drink from the gin bottle), if not a specific intent to kill Green.
Defendant contends that there was evidence from which the jury could have
concluded that he intended only to injure Green, pointing to evidence suggesting
that he expected to see Miller and DuBois again after the poisoning. For example,
William Miller testified that when defendant left DuBois’s apartment after giving
the gin bottle to Rhoda Miller, defendant said he would come by to see DuBois in
a day or two. Approximately a week later, the day defendant was arrested,
defendant told William Miller that he had come by the apartment complex to see
DuBois, and he asked where Rhoda Miller was. Further, the circumstances of
defendant’s arrest show that he did not expect to be arrested and did not conceal
his presence. Finally, Miller became sick but did not die from the poisoning. All
of this, defendant argues, suggests he did not expect Green to die.
We disagree that the foregoing constitutes substantial evidence of an intent
merely to injure Green. Defendant’s comments to DuBois and to William Miller
about returning to see DuBois shed little light on defendant’s intent with regard to
Green. Indeed, they suggest either a continuing pattern of concealment or
complete ignorance of what had happened to Green and Miller, rather than an
intent to injure. Defendant’s inquiry regarding Miller’s whereabouts is equally
consistent with an attempt to determine whether or not she was dead as with an
expectation to see her alive. We note that defendant did not inquire about Green.
Further, what happened to Miller after defendant poisoned her sheds little light on
the intent with which he acted.
Defendant contends that the evidence of a motive to kill — consisting
solely of Murphy’s testimony that defendant said he wanted to “get” Green
because of some financial dispute — was weak. He contends that the weak
evidence of motive supports an inference that he did not intend to kill Green. We
disagree. The jury properly was instructed that “[m]otive is not an element of the
crime charged and need not be shown. However, you may consider motive or lack
of motive as a circumstance in this case. Presence of motive may tend to establish
guilt. Absence of motive may tend to establish innocence. You will therefore
give its presence or absence, as the case may be, the weight to which you find it to
be entitled.” Thus, the jury was free to disregard the evidence of motive in
determining defendant’s intent. Further, we conclude that the absence of strong
evidence of motive did not constitute substantial evidence that defendant intended
merely to injure Green. Because there was no substantial evidence that defendant
intended merely to injure Green, the trial court did not err in declining to instruct
the jury as to second degree murder.
Additionally, even if we were to conclude that such an instruction was
required, its omission would have been harmless. “Error in failing to instruct the
jury on a lesser included offense is harmless when the jury necessarily decides the
factual questions posed by the omitted instructions adversely to defendant under
other properly given instructions.” (People v. Lewis (2001) 25 Cal.4th 610, 646,
citing People v. Sedeno (2974) 10 Cal.3d 703, 721.) Here, the court instructed the
jury that to find true the special circumstance of murder by the administration of
poison, it had to find that each of the following facts was proved: “1. The killing
was intentional; and 2. Defendant committed the murder by the administration of
poison.” Thus, in finding the special circumstance of murder by the
administration of poison to be true, the jury necessarily found that defendant
intended to kill Green when he poisoned her. Any failure to properly instruct on
second degree felony murder therefore would have been harmless. (See People v.
Lewis, supra, 25 Cal.4th at p. 646.)
3. Penalty phase — asserted erroneous admission of evidence
Defendant contends that the trial court erred by admitting, at the penalty
phase, the testimony of his former chemistry instructor, Emily Maverick,
assertedly in violation of his rights under state law and to due process of law, a fair
trial, and a reliable penalty phase determination under the Eighth and Fourteenth
Amendments to the United States Constitution.
On April 27, 1989, near the end of the guilt phase of the trial, the
prosecutor informed the court and counsel that he had subpoenaed defendant’s
academic records from Los Angeles City College. The records showed that
defendant had taken chemistry courses there shortly before Green was poisoned.
The prosecutor said he was considering calling a chemistry instructor as a witness
in rebuttal at the guilt phase, but he did not do so.
At a May 8 hearing held between the guilt and the penalty phases, the
prosecutor announced his intention to call Emily Maverick to testify that
defendant had conducted an experiment with cyanide in one of her classes in the
early 1980’s. The prosecutor said he had just identified and spoken with Maverick
the previous Friday. Defendant objected that the testimony was irrelevant and also
that he had not received proper notice of the prosecutor’s intent to present that
evidence. The prosecutor argued that the evidence was relevant to the
circumstances of the both the crime and the special circumstance, in that it showed
that defendant was “familiar with the murder weapon.” The trial court overruled
defendant’s objections, stating: “no notice need be given if [the testimony] is
connected to the current offense.” Because the defense was asking for a
continuance on other grounds, however, the court granted a one-week continuance
“in an overabundance of caution.”
Just before Maverick was scheduled to testify, the defense on May 15,
1989, objected to her testimony as outside the scope of section 190.3, factor (a), in
that it did not relate to the “circumstances of the offense.” The court disagreed.
Defendant then offered to stipulate “that he knows the effects of cyanide and that
he knows some of the chemical reactions involving cyanide,” but apparently
defendant did not follow up on this proposal.
Maverick testified that defendant had been a student in two of her
chemistry classes at Los Angeles City College in 1982. In the organic chemistry
class, defendant chose to conduct an experiment that involved dissolving cyanide
in water in order to enlarge an organic molecule by adding a carbon atom.
Maverick tried to discourage defendant from conducting this experiment, because
of the hazardous nature of cyanide, but ultimately she gave her approval. She
explained to defendant that cyanide was extremely toxic and taught him to handle
it safely. In the course of the experiment, defendant weighed, handled, and moved
the cyanide. On cross-examination, Maverick stated that defendant did a “good
job” with the experiment and that he had been a chemistry tutor.
During penalty phase closing arguments, the prosecutor argued that
defendant’s experience in Maverick’s chemistry class made his crime “all the
more heinous” because he had “take[n] that knowledge and ability and do[ne] to
Dorothy Green what was done to her in this case.”
Under section 190.3, factor (a), the trier of fact may consider, in
aggravation, evidence relevant to “the circumstances of the crime of which the
defendant was convicted in the present proceeding and the existence of any special
circumstances found to be true.” The “circumstances of the crime” as used in
section 190.3, factor (a), “does not mean merely the immediate temporal and
spatial circumstances of the crime. Rather it extends to ‘[t]hat which surrounds
materially, morally, or logically’ the crime.” (People v. Edwards, supra, 54
Cal.3d at p. 833, quoting 3 Oxford English Dict. (2d ed. 1989) p. 240 [evidence
that the police had conducted a massive search for defendant for several days after
the killings was relevant and admissible under section 190.3 because it showed
that defendant had the presence of mind to elude capture].)
Defendant contends that Maverick’s testimony should have been excluded
because it was irrelevant to any aggravating circumstance. Specifically, he argues
that the testimony was not admissible under section 190.3, factor (a), as a
circumstance of the crime of which he was convicted or of the special
circumstance which the jury found true. We disagree. Maverick’s testimony was
relevant because it tended to demonstrate that defendant was peculiarly interested
in cyanide and familiar with its dangerous properties. As such, it established both
that defendant could have been the individual who placed the cyanide in the gin
bottle given to Miller and Green, and that defendant was aware that inserting
cyanide into the gin bottle could cause their deaths. The evidence thus came
within the set of facts that “surround[ed] materially, morally, or logically’ the
crime” (People v. Edwards, supra, 54 Cal.3d at p. 833), and was admissible under
section 190.3, factor (a).25
that we have placed limitations on defendants who
seek to introduce, at the penalty phase, evidence relevant to issues of guilt or
innocence, and that parallel limitations should be imposed on prosecution
evidence. Relying on People v. Miller (1990) 50 Cal.3d 954, defendant argues
Relying on Justice Mosk’s concurring and dissenting opinion in People v.
Bacigalupo (1993) 6 Cal.4th 457, at page 492, footnote 2, defendant argues that
we have overruled “sub silentio” Edwards’s expansive interpretation of section
190.3, factor (a). A majority of the court never has endorsed this view, however,
and we decline to do so now. Defendant further argues that Edwards’s expansive
interpretation of factor (a) renders it unconstitutionally vague. We address this
that Maverick’s testimony did not fall within factor (a) of section 190.3, because it
went squarely to defendant’s guilt.
Miller, the defendant was convicted of four counts of first degree murder
and four counts of attempted murder and was sentenced to death. On appeal, the
defendant contended that the trial court had erred in excluding, at the penalty
phase, evidence that one of the attempted murder victims, while under hypnosis,
had identified someone else as his possible attacker. (People v. Miller, supra, 50
Cal.3d at p. 1005.) The defendant claimed the evidence was admissible at the
penalty phase as a mitigating “ ‘circumstance of the offense.’ ” (Ibid.) We
rejected the defendant’s claim, because the trial court already had found the same
evidence unreliable and on that basis had refused to admit it at the guilt phase.
(Ibid.) We stated: “[The victim’s] pretrial statements are not ‘circumstances of the
offense,’ but rather, as defendant would have us find, indicia of innocence. Thus
they bear not on aggravation versus mitigation, but on conviction versus acquittal.
In essence, defendant contends he should have been allowed to relitigate his guilt
during the penalty phase; indeed, he frankly admits that the sole purpose of
introducing the statements at the penalty phase would have been to raise doubts
about his guilt on the . . . attempted murder count. The court, however, had
already found the statements unreliable for that purpose during the guilt phase.
We must uphold such findings when, as here, they are supported by substantial
Subsequent cases have agreed that evidence proffered on the issue of
lingering doubt may be excluded because the evidence in question is otherwise
inadmissible as hearsay or is unreliable. (People v. Kaurish (1990) 52 Cal.3d 648,
704.) Evidence such as prior plea negotiations, or the asserted misconduct of a
prosecutor who interviewed a prosecution witness who did not testify, may be
excluded as not relevant to the defendant’s guilt or innocence. (People v. Zapien
(1993) 4 Cal.4th 929, 989.)
We reject defendant’s reliance upon People v. Miller, supra, 54 Cal.3d 954,
because we do not read that decision as precluding the introduction of any and all
evidence relevant to guilt or innocence at the penalty phase. Indeed, in many
circumstances evidence related to guilt or innocence, and properly designed to
raise a lingering doubt, will be relevant and admissible.26 (See, e.g., People v.
Jones (2003) 30 Cal.4th 1084, 1125; People v. Davenport (1995) 11 Cal.4th 1171,
1193-1194; People v. Hawkins (1995) 10 Cal.4th 920, 966-967, overruled on other
grounds in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Cox (1991) 53
Cal.3d 618, 675-677; People v. Terry (1964) 61 Cal.2d 137, 145-148, overruled on
other grounds in People v. Laino (2004) 32 Cal.4th 878, 893; but see In re Gay
(1998) 19 Cal.4th 771, 814.) Rather, Miller simply held that the trial court
correctly ruled inadmissible at the penalty phase evidence it had found unreliable
at the guilt phase. (People v. Miller, supra, 50 Cal.3d at p. 1005.) Defendant does
not contend that Maverick’s testimony was unreliable. Accordingly, Miller does
not govern the present case.
Here, Maverick’s testimony was not introduced solely to reinforce the
jury’s conclusion that defendant was guilty of murder and that the alleged special
circumstance was true. The evidence established not only defendant’s ability to
handle cyanide and his awareness of its hazardous nature, but also demonstrated
that defendant had misused his educational opportunities for the nefarious purpose
We note that the United States Supreme Court recently granted certiorari in
an Oregon case to decide whether the Eighth Amendment requires that the
defendant be permitted to present evidence related to his or her guilt or innocence
at the penalty phase of a capital case. (State v. Guzek (2004) 336 Or. 424, 86 P.3d
1106, cert. granted Apr. 25, 2005, No. 04-928, ___ U.S. ___ [125 S.Ct. 1929].)
of poisoning Green and Miller. Accordingly, the evidence was relevant not only
to defendant’s guilt, but also to the reprehensibility of his conduct, a
“circumstance of the offense” under factor (a) of section 190.3. Because the
evidence was otherwise admissible under factor (a) to prove a circumstance of the
offense, it was not rendered inadmissible simply because it also tended to prove
Defendant asserts that even if Maverick’s testimony fell within the scope of
factor (a) of section 190.3, the trial court should have excluded it because the
prosecution failed to provide proper notice of its intent to present that evidence.
Section 190.3 requires the prosecution to give notice to the defense of aggravating
evidence it intends to introduce at the penalty phase “within a reasonable period of
time as determined by the court, prior to trial.” (Id., 4th par.) The purpose of the
notice requirement is to allow the defendant sufficient opportunity to prepare a
defense to the aggravating evidence. (People v. Mitcham (1992) 1 Cal.4th 1027,
Assuming the notice requirement applied to Maverick’s testimony (but see
§ 190.3, 4th par. [notice provision inapplicable to “evidence in proof of the offense
or special circumstances which subject a defendant to the death penalty,” italics
added)], the trial court was not required to exclude this evidence. “We have
construed the phrase ‘prior to trial’ [in section 190.3] to mean before the cause is
called to trial. [Citation.] We have also held that where the prosecution learns of
Defendant contends the trial court erred in failing to accept his offer to
stipulate that he knew the effects of cyanide. But it appears that defendant failed
to follow up on this offer after the court gave him an opportunity to do so. In any
event, the trial court would have been justified in rejecting this offer, because it
did not convey the detail and depth of the information contained in Maverick’s
evidence it intends to use in aggravation at the penalty phase for the first time after
trial commenced, exclusion of this evidence under section 190.3 is not necessarily
compelled. [Citation.] Under such circumstances, the defendant is entitled to
prompt notice of the newly discovered evidence, and, if necessary, to a reasonable
continuance to enable him or her to prepare to meet that evidence. If the
prosecution’s delay in affording notice is unreasonable or unexcused, or if the
delay would prejudice the defense, the court must exclude the evidence.
[Citations.]” (People v. Mitcham, supra, 1 Cal.4th at p. 1070.)
Here, it is undisputed that the prosecution did not provide defendant with
notice of its intent to introduce the Maverick testimony “before the cause [was]
called to trial.” Rather, the prosecutor on April 27, 1989, near the end of the guilt
phase, first notified the defense that it might attempt to contact defendant’s
chemistry instructor and first notified the defense ― on May 8, 1989, between the
guilt and penalty phases ― that it intended to call Maverick as a witness. The
prosecutor did, however, give the defense “prompt notice” of the testimony once it
was discovered. At that point, although the court found the testimony was not
subject to section 190.3’s notice requirement, it granted a one-week continuance
of the penalty phase in order to allow the defense additional time to prepare for
other aspects of the penalty phase. Defendant does not contend that this
continuance was insufficient to allow him to prepare a defense to Maverick’s
testimony. Defendant had ample time to have his investigator meet with Maverick
and to prepare his cross-examination. Because defendant does not demonstrate
that he was prejudiced by any delay in giving notice, the trial court’s refusal to
exclude this testimony was not error.28
4. Penalty phase — constitutionality of the death penalty statute
Defendant argues that the California death penalty statute under which his
sentence was imposed violates several provisions of the federal Constitution. As
he acknowledges, we have in the past rejected many of these same arguments, and
we decline to revisit those holdings here. Specifically, we have held that section
190.2 — setting out the special circumstances that, if found true, render a
defendant eligible for the death penalty — adequately narrows the category of
death-eligible defendants in conformity with the requirements of the Eighth and
Fourteenth Amendments (People v. Barnett (1998) 17 Cal.4th 1044, 1179;
People v. Arias (1996) 13 Cal.4th 92, 186-187), and that section 190.3, factor
(a) — designating the circumstances of the crime as a factor the jury may consider
in assessing the appropriate penalty — is not impermissibly vague and does not
allow for arbitrary and capricious sentencing in violation of the Eighth and
Fourteenth Amendments to the United States Constitution (People v. Seaton
(2001) 26 Cal.4th 598, 691, citing Tuilaepa v. California (1994) 512 U.S. 967,
976; People v. Lucero (2000) 23 Cal.4th 692, 727).
Further, we have concluded that California’s death penalty statute is not
lacking in the procedural safeguards necessary to protect against arbitrary and
capricious sentencing under the Eighth and Fourteenth Amendments. Specifically,
neither the cruel and unusual punishment clause of the Eighth Amendment, nor the
due process clause of the Fourteenth Amendment, requires a jury to find beyond a
Because defendant does not explain how his federal constitutional claims
differ from his claim under state law, we reject them for the same reasons we
reject his state law claim.
reasonable doubt that aggravating circumstances exist or that aggravating
circumstances outweigh mitigating circumstances or that death is the appropriate
penalty. (People v. Griffin (2004) 33 Cal.4th 536, 593-594; People v. Rodriguez
(1986) 42 Cal.3d 730, 777-779.) Indeed, the trial court need not and should not
instruct the jury as to any burden of proof or persuasion at the penalty phase.
(People v. Carpenter (1997) 15 Cal.4th 312, 417-418; People v. Holt (1997) 15
Cal.4th 619, 682-684; People v. Hayes (1990) 52 Cal.3d 577, 643.) The Eighth
and Fourteenth Amendments do not require that a jury unanimously find the
existence of aggravating factors or that it make written findings regarding
aggravating factors. (People v. Griffin, supra, 33 Cal.4th at pp. 593-594; People v.
Rodriguez, supra, 42 Cal.3d at pp. 777-779.) There is no requirement under the
Eighth or Fourteenth Amendments that a jury find the existence of unadjudicated
criminal activity under section 190.3, factor (b), unanimously or beyond a
reasonable doubt. (People v. Payton (1992) 3 Cal.4th 1050, 1068; People v.
Gordon, supra, 50 Cal.3d at p. 1273.) Even if there were such a requirement,
defendant would not benefit from it, because no evidence of unadjudicated
criminal acts was presented at the penalty phase of his trial. Nor do the United
States Supreme Court’s recent decisions interpreting the Sixth Amendment’s
guarantee of a jury trial (Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct.
2531]; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530
U.S. 466) compel a different result. (People v. Morrison (2004) 34 Cal.4th
698, 731; People v. Griffin, supra, 33 Cal.4th at pp. 594-595; People v. Prieto
(2003) 30 Cal.4th 226, 262-265; People v. Ochoa (2001) 26 Cal.4th 398, 452-
We further have held that intercase proportionality review is not required
by the due process, equal protection, fair trial, or cruel and unusual punishment
clauses of the federal Constitution. (People v. Anderson (2001) 25 Cal.4th 543,
602.) The use of adjectives such as “extreme” and “substantial” in section 190.3
penalty factors (d) and (g) does not impermissibly restrict the jury’s consideration
of mitigating evidence in violation of the Eighth or Fourteenth Amendments.
(People v. Arias, supra, 13 Cal.4th at pp. 188-189; People v. McPeters (1992) 2
Cal.4th 1148, 1191.) The failure to instruct the jury that some section 190.3
penalty factors (factors (d), (e), (f), (g), (h), and (j)) may be considered only in
mitigation does not violate the Eighth or Fourteenth Amendments. (People v.
Osband (1996) 13 Cal.4th 622, 705; People v. Arias, supra, 13 Cal.4th at pp. 187-
Additionally, as defendant acknowledges, we have rejected the notion that
in view of the availability of certain procedural safeguards such as intercase
proportionality review in noncapital cases, the denial of those same protections in
capital cases violates equal protection principles under the Fourteenth
Amendment. (See People v. Ramos (1997) 15 Cal.4th 1133, 1182; People v. Cox,
supra, 53 Cal.3d at p. 691; People v. Allen (1986) 42 Cal.3d 1222, 1287-1288.)
As we have observed, capital case sentencing involves considerations wholly
different from those involved in ordinary criminal sentencing. (People v.
Danielson (1992) 3 Cal.4th 691, 719-720, overruled on other grounds in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) By parity of reasoning, the
availability of procedural protections such as jury unanimity or written factual
findings in noncapital cases does not signify that California’s death penalty statute
violates equal protection principles.
Defendant finally argues that the use of capital punishment as an assertedly
“regular” form of punishment for substantial numbers of crimes, rather than as an
extraordinary punishment for extraordinary crimes such as treason, violates
international norms of human decency. This in turn, he argues, renders the death
penalty as practiced in the United States violative of the “evolving standards of
decency that mark the progress of a maturing society” (Trop v. Dulles (1958) 356
U.S. 86, 101 (plur. opn.)) under the cruel and unusual punishment clause of the
Eighth Amendment. We disagree. As the United States Supreme Court recently
explained, although international authorities and norms are relevant to the
consideration whether a punishment is cruel and unusual under the Eighth
Amendment, they are not controlling. (Roper v. Simmons (2005) ___ U.S. ___
[125 S.Ct. 1183, 1198]; see also id. at pp. 1215-1216 (dis. opn. of O’Connor, J.).)
Eighth Amendment analysis instead hinges upon whether there is a national
consensus in this country against a particular punishment. (Roper v. Simmons,
supra, ___ U.S. at p. __ [125 S.Ct. at pp. 1191-1194].) Defendant makes no claim
that there exists a national consensus against the use of the death penalty as
Defendant also contends that the death penalty as an assertedly “regular”
form of punishment violates the law of nations and is therefore unconstitutional
“inasmuch as international law is a part of our law.” Defendant does not
demonstrate, however, that the death penalty as applied in California violates
international law. To the contrary, “ ‘[i]nternational law does not prohibit a
sentence of death rendered in accordance with state and federal constitutional and
statutory requirements.’ ” (People v. Brown (2004) 33 Cal.4th 382, 404, quoting
People v. Hillhouse (2002) 27 Cal.4th 469, 511.) Because we find no state or
federal constitutional or statutory defect compelling reversal of defendant’s
conviction or sentence, this claim must fail.
Defendant contends that the delay in processing this appeal, particularly the
eight years between the time that appellate counsel was appointed in 1991 and the
record was certified in 1999, denied him his right to due process of law under the
Fourteenth Amendment. In support of a claimed right to a speedy appeal,
defendant relies primarily on federal lower court decisions. (Harris v. Champion
(10th Cir. 1994) 15 F.3d 1538, 1558; Burkett v. Fulconer (3d Cir. 1991) 951 F.2d
1431, 1445; Coe v. Thurman (9th Cir. 1990) 922 F.2d 528, 530-531; United States
v. Antoine (9th Cir. 1990) 906 F.2d 1379, 1382; Dozie v. Cady (7th Cir. 1970) 430
F.2d 637, 638; Snyder v. Kelly (W.D.N.Y. 1991) 769 F. Supp. 108, 111, affd.
Snyder v. Kelly (2d Cir. 1992) 972 F.2d 1328.) As we have explained in rejecting
similar claims: “None of those decisions address the unique demands of appellate
representation in capital cases. [¶] Neither this court, nor the United States
Supreme Court, has extended the Sixth Amendment right to speedy trial to appeals
in the manner suggested by defendant. Assuming, but not deciding, that such a
right exists, defendant fails to demonstrate that the delay inherent in the
procedures by which California recruits, screens, and appoints attorneys to
represent capital defendants on appeal, is not necessary to ensure that competent
representation is available for indigent capital appellants.” (People v. Holt, supra,
15 Cal.4th at p. 709 [three-year delay in appointment of appellate counsel did not
deny due process]; accord, People v. Welch, supra, 20 Cal.4th at pp. 775-776
[nearly three-year delay in appointment of appellate counsel did not deny due
Defendant asserts that Holt and Welch involved delay in the appointment of
counsel, whereas his claim addresses primarily the eight-year delay in certifying
the appellate record. But we have rejected the contention that delays in record
certification deny due process. (People v. Seaton, supra, 26 Cal.4th at p. 702
[delays in appointment of counsel and in securing an adequate appellate record did
not deny due process in a capital murder case].) “A defendant in a criminal case is
entitled to an appellate record adequate to permit ‘meaningful appellate review.’ ”
(Id. at p. 699, quoting People v. Scott (1997) 15 Cal.4th 1188, 1203.) Defendant
fails to demonstrate that the process by which California certifies the record on
appeal as accurate and complete is not necessary to ensure that each capital
appellant receives a thorough and careful review of his or her claims on appeal.
Even were we to assume that the delay in this appeal was somehow
“inordinate” (see Harris v. Champion, supra, 15 F.3d at pp. 1599-1600) for a case
of this nature, defendant concedes that on the record before this court, “prejudice
is indeed difficult to specify.” As the Ninth Circuit Court of Appeals has observed
in litigation involving this same defendant, a court evaluating a claimed denial of
due process due to appellate delay must determine what effect, if any, the delay in
processing the defendant’s appeal may have had on efforts to overturn his
conviction or sentence. (Blair v. Woodford (9th Cir. 2003) 319 F.3d 1087, 1088.)
Defendant contends that during his incarceration on death row, his mental health
has deteriorated to the point that he is unable to assist appellate or habeas corpus
counsel and will be unfit to stand trial should a retrial be ordered. With respect to
the appeal, however, which is the only proceeding that concerns us at this juncture,
defendant has failed to connect his alleged mental deficiency to any inability of his
appellate counsel to present his claims on appeal.29 (Cf. People v. Kelly (1992) 1
Cal.4th 495, 546 [because the issues on appeal are limited to the appellate record,
the appeal may proceed despite defendant’s incompetence].) Accordingly,
Defendant asserts he will offer additional evidence of the prejudice
resulting from the delay, in his yet-to-be-filed petition for writ of habeas corpus,
and requests that we consider the issue of appellate delay in conjunction with that
evidence. Pursuant to our established policy, we decline to do so. We shall
consider the issue raised on appeal based solely upon the appellate record.
defendant has failed to demonstrate that any delay prejudiced his ability to obtain
meaningful appellate review.30
For the foregoing reasons, we affirm the judgment in its entirety.
Defendant also contends that the delay violated his right to equal protection
of the laws under the Fourteenth Amendment. Because defendant does not
explain how the analysis of this claim differs from his due process claim, this
claim must fail for the same reasons.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Blair
Original Appeal XXX
Opinion No. S011636
Date Filed: July 28, 2005
County: Los Angeles
Judge: Jerold A. Krieger
Attorneys for Appellant:
David A. Nickerson, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanka, Assistant Attorney General, Sharlene A. Honnaka and Marc J. Nolan, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David A. Nickerson
454 Las Gallinas Ave., Suite 183
San Rafael, CA 94903
Marc J. Nolan
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
April Rylaarsdam, Deputy Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA
|2||The People (Respondent)|
Represented by Marc J. Nolan
Attorney General's Office
300 South Spring St.
Los Angeles, CA
|3||Blair, James Nelson (Appellant)|
Represented by David A. Nickerson
Attorney At Law
454 Las Gallinas Ave., Suite 183
San Rafael, CA
|Jul 28 2005||Opinion: Affirmed|
|Aug 9 1989||Judgment of death|
|Aug 21 1989||Filed certified copy of Judgment of Death Rendered|
|Sep 15 1989||Application for Extension of Time filed|
By Primary Court Reporter Charlotte Freeman to Complete R.T.
|Sep 15 1989||Extension of Time application Granted|
To Court Reporters To 10-30-89 To Complete R.T.
|Jul 3 1991||Counsel appointment order filed|
appointing Gregor D. Guy-Smith, Esq. to represent appellant on his automatic appeal, including any related habeas proceedings.
|Sep 16 1991||Application for Extension of Time filed|
By Applt to request correction of Record.
|Sep 17 1991||Extension of Time application Granted|
To Applt To 11-18-91 To request Corr. of Record.
|Nov 8 1991||Application for Extension of Time filed|
By Applt to request correction of Record.
|Nov 12 1991||Extension of Time application Granted|
To Applt To 1-17-92 To request Corr. of Record.
|Jan 16 1992||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jan 17 1992||Extension of Time application Granted|
To Applt To 3-17-92 To request Corr. of Record.
|Sep 30 1992||Compensation awarded counsel|
|Aug 11 1997||Filed:|
pro se request (confidential).
|Sep 8 1997||Filed:|
Applt's request for correction of the Record (11 Pp.)
|Sep 17 1997||Filed:|
Suppl Proof of Service of request for Eot.
|Oct 3 1997||Filed:|
Resp's response to motion Seeking correction of Record (12 Pp.)
|Oct 23 1997||Filed:|
Applt's reply to People's response to motion Seeking correction of the Record on Appeal
|Feb 3 1998||Order filed:|
Applt's "Request for Correction of Record" Is granted in part and denied in part as specified herein. 1. The Los Angeles County Superior Court is hereby directed to cause the transcript of the attempted murder trial (Los Angeles County Superior Court Case No. A757679) to become part of the appellate record, to the extent that transcript was "filed or lodged in the. . .superior court files" in this case. (Cal. Rules of Court, rule 39.51(a)(1); see Reporter's Transcript at p. 66 [indicating that the superior court ordered a third copy of the transcript for the "court's file"].) 2. Applt's request to have the transcripts from the attempted murder trial for proceedings on July 16, 1985, and July 18, 1985 (referred to at p. 134 of the Reporter's Transcript), included in the appellate record is denied without prejudice to his bringing a new and different request, accompanied by a copy of the superior court's ruling refusing to include these transcripts, and a showing that the transcripts were filed or lodged in the superior court files in this case. 3. Applt's request to have the Penal Code section 987.9 order (mentioned at p. 161 of the Reporter's Transcript) added to the appellate record is denied without prejudice to his bringing a new and different request, accompanied by a copy of the superior court's ruling refusing to include this order, and a showing that the order was filed or lodged in the superior court files in this case. In all other respects, applt's request for correction of the record is denied.
|Feb 18 1998||Order filed:|
re: pro se request filed 8-11-97 (confidential).
|Jun 15 1999||Record on appeal filed|
C-29 (6,730 Pp.) and R-19 (4,446 Pp.); Clerk's Transcript includes 2,025 pages of Juror Questionnaires.
|Jun 15 1999||Appellant's opening brief letter sent, due:|
|Jul 13 1999||Motion filed|
By Applt to appoint Associate Counsel; request for Ext. of time to file Aob.
|Jul 15 1999||Extension of Time application Granted|
To 9-24-99 To file AOB
|Jul 28 1999||Counsel appointment order filed|
David A. Nickerson is hereby appointed as associate counsel to represent applt James Nelson Blair for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
|Sep 24 1999||Application for Extension of Time filed|
To file Aob.
|Sep 28 1999||Extension of Time application Granted|
To 11/23/99 To file Aob.
|Nov 23 1999||Application for Extension of Time filed|
To file Aob.
|Nov 30 1999||Extension of Time application Granted|
To 1/24/2000 To file Aob.
|Jan 24 2000||Application for Extension of Time filed|
To file Aob.
|Jan 26 2000||Extension of Time application Granted|
To 3/24/2000 To file Aob.
|Mar 24 2000||Application for Extension of Time filed|
To file Aob.
|Mar 28 2000||Extension of Time application Granted|
To 5/23/2000 To file Aob.
|May 31 2000||Application for Extension of Time filed|
To file Aob.
|Jun 1 2000||Extension of Time application Granted|
To 7/24/2000 To file Aob.
|Jul 25 2000||Motion filed|
by attorney David Nickerson for appointment of new counsel for appellant (to replace Gregor Guy-Smith and David Nickerson).
|Jul 28 2000||Filed letter from:|
Counsel for Respondent responding to letter of counsel for Appellant's withdrawal letter.
|Sep 26 2000||Counsel's status report received (confidential)|
from atty Nickerson.
|Oct 12 2000||Motion filed|
by atty Gregor Guy-Smith for appointment of new counsel for applt (to replace Gregor Guy-Smith and David Nickerson)
|Oct 25 2000||Order filed:|
The separate applications of appointed lead and assoc. counsel for permission to withdraw as attys of record for applt James Nelson Blair, filed 10/12/2000, and 7/25/2000, respectively, are each denied without prejudice, subject to the filing of new and different applications that separately comply with the Supreme Court's Policies Regarding Cases Arising From Judgments of Death, policy 2 ("Withdrawal of counsel").
|Jan 10 2001||Letter sent to:|
applt's counsel advising that court expects counsel to file an applic. for extension of time to file the AOB on or before 1-26-2001.
|Jan 26 2001||Application for Extension of Time filed|
To file AOB. (7th request)
|Feb 26 2001||Extension of Time application Granted|
To 3/27/2001 to file AOB.
|Mar 5 2001||Counsel's status report received (confidential)|
from atty Nickerson.
|Mar 5 2001||Motion to withdraw as counsel filed|
Application to permit lead counsel Gregor Guy-Smith to withdraw as counsel of record and to designate associate counsel David A. Nickerson as lead counsel.
|Mar 28 2001||Withdrawal of counsel allowed by order|
and order for reimbursement (two orders). FIRST ORDER: Good cause appearing, the application of appointed lead counsel for permission to withdraw as attorney of record for appellant James Nelson Blair, filed March 5, 2001, is granted. The order appointing Gregor D. Guy-Smith as counsel of record for appellant James Nelson Blair, filed July 3, 1991, is hereby vacated. Pending further order of this court, associate counsel of record David A. Nickerson is hereby designated as lead attorney of record for appellant James Nelson Blair for the direct appeal and related state habeas corpus/executive clemency proceedings, in the above automatic appeal now pending in this court. Gregor D. Guy-Smith is directed to deliver to David A. Nickerson, within 30 days from the filing of this order, the record on appeal in People v. Blair and all transcript notes, appellate and habeas corpus "issues" lists, and all other appellate work product and habeas corpus investigation work product, as well as all case related files and documents. SECOND ORDER: In conjunction with the order filed this day permitting Gregor D. Guy-Smith to withdraw as lead counsel of record for appellant James Nelson Blair for the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court, Guy-Smith is ordered to reimburse this court the sum of $3,000. (See Payment Guidelines for Appointed Counsel Representing Indigent Criminal Appellants in the Cal. Supreme Ct., guideline V, subpart B ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"].)
|Apr 5 2001||Application for Extension of Time filed|
To file AOB. (8th request)
|Apr 12 2001||Extension of Time application Granted|
To 5/29/2001 to file AOB.
|May 16 2001||Compensation awarded counsel|
|Jun 11 2001||Application for Extension of Time filed|
To file AOB. (9th request)
|Jun 18 2001||Filed:|
Suppl. declaration in support of extension of time to file AOB.
|Jun 22 2001||Extension of Time application Granted|
to 7-30-2001 to file AOB.
|Aug 1 2001||Application for Extension of Time filed|
To file AOB. (10th request)
|Aug 6 2001||Extension of Time application Granted|
To 9/28/2001 to file AOB.
|Oct 1 2001||Application for Extension of Time filed|
To file AOB. (11th request)
|Oct 16 2001||Filed:|
Suppl. declaration in support of applt.'s eleventh request for extension of time to file AOB.
|Oct 17 2001||Extension of time granted|
To 11/27/2001 to file AOB, based upon counsel's representation that he anticipates filing the brief by 1-31-2002. Only one further extension of time is contemplated.
|Dec 31 2001||Request for extension of time filed|
To file AOB. (12th request) (Called counsel to request an application for relief from default)
|Jan 30 2002||Counsel's status report received (confidential)|
|Jan 30 2002||Filed:|
Supplemental declaration in support of application for extension of time to file AOB.
|Jan 30 2002||Request for extension of time filed|
To file A0B. (13th request)
|Feb 1 2002||Order filed|
Good cause appearing, relief from default is granted. Extension of time is granted to 3/11/2002 to file AOB. Counsel anticipates filing the brief by that date. No further extension is contemplated.
|Mar 11 2002||Request for extension of time filed|
To file AOB. (14th request)
|Mar 18 2002||Extension of time granted|
to 4/15/2002 to file AOB. Counsel anticipates filing the brief by 4/15/2002. After that date, no further extension is contemplated.
|Apr 15 2002||Appellant's opening brief filed|
|Apr 17 2002||Filed:|
Declaration of atty. David A. Nickerson pursuant to Penal Code section 1241 (confidential).
|Apr 19 2002||Counsel's status report received (confidential)|
|Apr 29 2002||Compensation awarded counsel|
|May 8 2002||Request for extension of time filed|
to file resp.'s brief. (1st request)
|May 10 2002||Extension of time granted|
To 7/15/2002 to file resp.'s brief.
|Jul 8 2002||Request for extension of time filed|
to file resp's brief. (2nd request)
|Jul 15 2002||Extension of time granted|
To 9/13/2002 to file resp.'s brief. Supv. Dep. Atty. General Nolan anticipates filing that brief by 11/12/2002. One further extension totaling 60 additional days is contemplated.
|Jul 24 2002||Motion for access to sealed record filed|
Respondent's motion for copy of sealed transcripts.
|Aug 1 2002||Letter sent to:|
to applt inviting response to respondent's "Motion for Copy of Sealed Transcripts," on or before 8-9-2002.
|Aug 5 2002||Filed letter from:|
Atty. Nickerson, dated 8/2/2002, advising the court he does not oppose resp.'s motion for sealed reporter's transcript.
|Aug 21 2002||Record ordered unsealed|
Respondent's "Motion for Copy of Sealed Transcripts" is granted. The clerk is directed to provide respondent with a copy of "Reporters' Transcript on Appeal[:] May 10, 1989." On the court's own motion, the clerk is further directed to unseal the original of "Reporters' Transcript on Appeal[:] May 10, 1989."
|Aug 26 2002||Respondent's brief filed|
|Aug 26 2002||Request for judicial notice filed (in AA proceeding)|
|Sep 25 2002||Request for extension of time filed|
To file appellant's reply brief. (1st request)
|Sep 25 2002||Extension of time granted|
To 10/31/2002 to file appellant's reply brief.
|Oct 31 2002||Request for extension of time filed|
To file appellant's reply brief. (2nd request)
|Nov 4 2002||Extension of time granted|
To 12/2/2002 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel David Nickerson's representation that he anticipates filing that brief by 11/30/2002.
|Dec 5 2002||Request for extension of time filed|
To file appellant's reply brief. (3rd request)
|Dec 9 2002||Compensation awarded counsel|
|Dec 11 2002||Extension of time granted|
to 1/3/2003 to file appellant's reply brief. Extension is granted based upon counsel David A. Nickerson's representation that he anticipates filing that brief by 1/3/2003. After that date, no further extension will be granted.
|Jan 2 2003||Appellant's reply brief filed|
|Jan 2 2003||Filed:|
Appellant's response to request for judicial notice made by respondent, and further request for judicial notice.
|Jan 16 2003||Counsel's status report received (confidential)|
|Jan 22 2003||Compensation awarded counsel|
|May 20 2003||Counsel's status report received (confidential)|
|Dec 5 2003||Filed:|
"Declaration Pursuant to Penal Code Section 1241 and Concerning Progress Payment," (confidential).
|Dec 9 2003||Filed:|
"Supplemental Declaration to Penal Code Section 1241 and Concerning Progress Payment (v)," (confidential).
|Dec 9 2003||Counsel's status report received (confidential)|
|Dec 29 2003||Compensation awarded counsel|
|Mar 10 2004||Habeas funds request filed (confidential)|
|Mar 10 2004||Compensation awarded counsel|
|Apr 14 2004||Order filed re habeas funds request (confidential)|
|Mar 23 2005||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 23, 2005, in San Francisco. 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.
|May 3 2005||Case ordered on calendar|
5/25/05, 1:30pm, S.F.
|May 12 2005||Filed letter from:|
respondent, dated 5-11-2005, re: focus issues.
|May 19 2005||Request for judicial notice granted|
The request for judicial notice filed by the respondent in the above-entitled matter on August 26, 2002, is granted. The request for judicial notice filed by the appellant in the above-entitled matter on January 2, 2003, is granted.
|May 19 2005||Filed:|
letter from appellant, dated 5-17-2005, with focus issues. (2 pp.)
|May 23 2005||Filed:|
supplemental proof of service of appellant's focus issues letter.
|May 25 2005||Cause argued and submitted|
|Jul 28 2005||Opinion filed: Judgment affirmed in full|
Majority Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin & Moreno, JJ.
|Aug 2 2005||Motion filed (AA)|
Motion to determine appellant's competency. (1 volume - 91 pp.)
|Aug 2 2005||Exhibit(s) filed (AA)|
in support of motion to determine appellant's competency. (4 volumes - 1069 pp.)
|Aug 2 2005||Filed:|
proof of service of motion to determine appellant's competency and exhibits in support of motion.
|Aug 9 2005||Letter sent to:|
counsel: The court requests that respondent file a response to the "Motion to Determine Appellant's Competency," filed on August 2, 2005. That response is due on or before August 17, 2005. Any reply by appellant must be filed on or before August 24, 2005.
|Aug 16 2005||Opposition filed|
by respondent to appellant's motion to determine competency. (2 pp.)
|Aug 18 2005||Order filed|
Finality of the opinion in this case is hereby extended to and including 9/23/2005.
|Aug 24 2005||Filed:|
"Appellant's Reply In support of Motion to Determine Competency." (in response to court's letter of 8/9/2005)
|Sep 7 2005||Motion denied|
The "Motion to Determine Appellant's Competency" filed on August 2, 2005, is denied without prejudice to renewal in conjunction with, or following, the filing of a petition for writ of habeas corpus by counsel. (People v. Kelly (1992) 1 Cal.4th 495, 545-547.)
|Sep 26 2005||Remittitur issued (AA)|
|Sep 29 2005||Order filed (150 day statement)|
|Oct 3 2005||Received:|
acknowledgment of receipt of remittitur.
|Jan 26 2006||Received:|
letter from U.S.S.C., dated 1-23-2006, advising cert petition was filed on 10-24-2005 and placed on the docket 1-23-2006 as No. 05-8743.
|Apr 3 2006||Counsel's status report received (confidential)|
|May 1 2006||Certiorari denied by U.S. Supreme Court|
|Jul 3 2006||Related habeas corpus petition filed (post-judgment)|
|Jul 18 2006||Filed:|
Declaration of attorney David A. Nickerson pursuant to Penal Code Section 1241 (confidential).
|Oct 5 2006||Compensation awarded counsel|
|Nov 29 2006||Compensation awarded counsel|
|Jan 9 2007||Application filed to:|
application of appellant (by Federal Public Defender, L.A.) for release of files, records and any confidential materials.
|Jan 31 2007||Filed:|
appellant's supplemental proof of service of application for relesase of files, records and any confidential materials.
|Mar 14 2007||Received:|
letter from Federal Public Defender regarding application for release of files filed on January 9, 2007.
|Mar 14 2007||Motion for access to sealed record granted|
The "Application for release of files, records, and any confidential documents," filed by the Federal Public Defender on January 9, 2007, is granted. The Federal Public Defender is granted access to the confidential materials contained in the records in People v. James Nelson Blair (S011636) and In re Blair on Habeas Corpus (S144759). The Federal Public Defender must supply the personnel and equipment necessary to undertake this examination and copying of the records, which must occur on the premises of the court. The Federal Defender is directed to comply with the provisions of rule 8.160(g), which provides in pertinent part, "A record filed publicly in the reviewing court must not disclose material contained in a record that is sealed."
|Mar 19 2007||Order filed|
The order filed on March 14, 2007, granting access to the sealed record is amended to read, it its entirety; "The 'Application for release of files, records, and any confidential documents,' filed by the Federal Public Defender on January 9, 2007, is granted. The Federal Public Defender is granted access to the confidential materials contained in the records in People v. James Nelson Blair (S011636) and In re Blair on Habeas Corpus (S144759). The Federal Public Defender must supply the personnel and equipment necessary to undertake the examination and copying of the confidential materials, which must occur on the premises of the court. To the extent the parties quote, disclose or describe such materials in court papers, those papers must themselves be filed or lodged under seal. The confidential materials will remain under seal.
|Apr 15 2002||Appellant's opening brief filed|
|Aug 26 2002||Respondent's brief filed|
|Jan 2 2003||Appellant's reply brief filed|