Supreme Court of California Justia
Docket No. S095223M
People v. Bloom

Filed 7/13/22 (unmodified opn. attached
Plaintiff and Respondent,
Defendant and Appellant.
Los Angeles County Superior Court
The majority opinion in this matter, filed on April 21,
2022, and appearing at 12 Cal.5th 1008, is modified as follows:
The fifth sentence of the first full paragraph on
page 1033 is modified to read:
There, we held that contemporaneous expert opinion
constituted substantial evidence of incompetence as a matter of
This modification does not affect the judgment.
The petition for rehearing and motion to stay issuance of
the remittitur are denied.

Plaintiff and Respondent,
Defendant and Appellant.
Los Angeles County Superior Court
April 21, 2022 (unmodified opinion
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Groban, Jenkins, and Margulies* concurred.
Associate Justice of the Court of Appeal, First Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

Opinion of the Court by Kruger, J.
After a federal court vacated his earlier conviction and
sentence, defendant Robert Maurice Bloom was retried and
convicted of the first degree murder of his father and the second
degree murders of his stepmother and stepsister. The jury on
retrial also found true a multiple-murder special-circumstance
finding and various firearm- and weapon-use findings. (Pen.
Code, §§ 187, subd. (a), 190.2, subd. (a)(3), 1203.06, subd. (a)(1),
12022, subd. (b), 12022.5, subd. (a).) Bloom was sentenced to
death. This appeal is automatic. (Id., § 1239, subd. (b).
We now affirm the judgment in part and reverse in part.
At trial, defense counsel conceded Bloom’s responsibility for the
deaths of all three victims in an effort to pursue a mental
capacity defense to the murder charges. Bloom, however, was
willing to accept responsibility only for the killing of his father
and expressly objected to admitting responsibility for the deaths
of the other two victims. In conceding responsibility for these
victims against Bloom’s wishes, defense counsel violated
Bloom’s Sixth Amendment right to choose the fundamental
objectives of his defense under McCoy v. Louisiana (2018) 584
U.S. ___ [138 S.Ct. 1500]. The error does not affect Bloom’s
conviction for the murder of his father or the associated firearm-
use finding. But the error requires us to reverse the rest of the
judgment, including the second degree murder convictions
Opinion of the Court by Kruger, J.
relating to the other two victims, the multiple-murder special-
circumstance finding, and ultimately the judgment of death.
The People may retry Bloom on the relevant counts and
associated enhancement and special circumstance allegations if
they so choose.
Bloom was charged with and convicted of the murders of
his father, Robert Bloom, Sr.; his stepmother, Josephine Bloom;
and his eight-year-old stepsister, Sandra Hughes. In an earlier
automatic appeal, we affirmed Bloom’s conviction and death
sentence. (People v. Bloom (1989) 48 Cal.3d 1194.) A federal
court then granted habeas relief on the ground that Bloom’s trial
counsel had rendered ineffective assistance in the investigation
and presentation of mental health evidence. (Bloom v. Calderon
(9th Cir. 1997) 132 F.3d 1267.) This case now returns to us
following Bloom’s retrial for the murders.
On retrial, Bloom entered alternative pleas of not guilty
and not guilty by reason of insanity. The jury found Bloom
guilty of the first degree murder of his father and an associated
firearm allegation but reported that it was unable to reach
verdicts on the remaining counts. The prosecution then
dismissed the allegations in support of first degree murder on
the other two murder counts, and the jury found Bloom guilty of
second degree murder as to each count. It also found true
associated firearm-use and weapon-use allegations and a
multiple-murder special-circumstance allegation.
After the jury returned a guilty verdict, the court held a
sanity trial. The jury found Bloom sane as to the first degree
murder but was unable to reach a verdict as to the two second
degree murders. Defendant then withdrew his plea of not guilty
Opinion of the Court by Kruger, J.
by reason of insanity and proceeded to a penalty trial, at which
he represented himself. The jury returned a death verdict and
the court entered judgment accordingly.
A. Guilt Phase Evidence
1. Prosecution case
In 1982, Robert Bloom, Sr., his wife, Josephine (whose
given name was Lucille), and her eight-year-old daughter,
Sandra Hughes (also known as Sandy), lived in a house on
Sancola Avenue in Sun Valley. Bloom, 18 years old at the time,
stayed at the house off and on.
The murders occurred during the early morning on April
22, 1982. One witness, Dave Hughes, had been asleep with his
girlfriend in a van parked in the driveway of his parents’ house,
which was next door to the Bloom residence. After being
awakened by the sound of a toilet flushing in his parents’ house,
Hughes heard two people arguing outside his van. Looking out
the van’s rear window, he saw Bloom, Sr., on his front lawn and
Bloom standing in the street. Bloom, Sr., was “hollering” at
Bloom in an “angry[,] pleading” voice to “come back.” Bloom,
Sr., then chased after Bloom, who had taken off running down
the street. A few minutes later, Bloom, Sr., and Bloom returned
together. The two men entered the Bloom residence.
Hughes tried to go back to sleep but heard more arguing
outside his van. Looking out again, he saw Bloom heading off
in the opposite direction from the one he had previously taken,
while Bloom, Sr., stood in his yard, again telling Bloom to come
back. A minute or two later, Hughes heard a shot that sounded
like a .22- or .25-caliber gun. Bloom, Sr., clutched his
midsection, started jumping up and down and screaming, and
ran toward his house. Bloom came running, pointing a rifle at
Opinion of the Court by Kruger, J.
Bloom, Sr. Hughes heard two more gunshots, followed by the
sound of glass breaking. Bloom, Sr., fell onto the front porch.
Bloom approached and pointed a rifle at his father. Hughes
heard two more shots.
Bloom ran into the house and Josephine began screaming.
After two gunshots, the screaming stopped. Between 30 seconds
and a minute later, there was another shot. Hughes got out of
the van and entered his parents’ house to call 9-1-1, then went
back to the van to get his girlfriend. As he came around the side
of his parents’ house, he saw Bloom standing in the dining room
window of the Bloom residence “messing” with his rifle. Bloom
put down the gun and stared out the window. Hughes saw
Bloom leave the house, put the rifle in Josephine’s car, and drive
away. Police arrived within five minutes.
Another witness, Moises Gameros, was living on Sancola
Avenue across the street and a few doors up from the Bloom
residence. Gameros woke up in the early morning hours on
April 22 and heard someone repeatedly yelling “Robert.”
Looking out his window, Gameros saw Bloom, Sr., and Bloom
walking down Sancola Avenue. Bloom was holding a rifle.
Standing outside Gameros’s living room window, Bloom, Sr.,
said, “That’s it, I’m gonna call the cops,” and walked back toward
his house. Bloom followed and tried to enter the house after
him. It appeared to Gameros that Bloom, Sr., tried to grab the
rifle from Bloom from within the house. Bloom then ran from
the house, with Bloom, Sr., chasing him, past Gameros’s field of
vision. Gameros heard a shot and heard Bloom, Sr., screaming.
Bloom, Sr., turned and ran toward his house; Bloom shot him
again. Bloom, Sr., reached the front stairs to his house and fell.
From his vantage point, Gameros could no longer see Bloom, Sr.,
but he saw Bloom point the rifle downward and shoot once more.
Opinion of the Court by Kruger, J.
Bloom stood in the doorway for about a minute, manipulating
the rifle, and then entered the house. Gameros heard nothing
further. After about 10 minutes, Bloom emerged from the house
with the rifle, got into a car, and drove away.
Sergeant Joseph Dvorak of the Los Angeles Police
Department was the first to respond to the scene. He found
Bloom, Sr., in the front doorway and Josephine in a hallway or
bedroom. Both were dead. Sandra was found in a different
bedroom, alive but seriously injured. After an ambulance
arrived and took the child, Dvorak secured the crime scene.
Sergeant Michael McKean of the Los Angeles Police Department
arrived about 4:15 a.m. Along with two other police cars, he
drove to the home of Bloom’s girlfriend, accompanied by a
neighbor who knew its location. The neighbor saw Bloom
walking westbound on Nettleton Avenue, two and a half to three
miles from the Sancola residence, and pointed him out. Officers
arrested him. Later that day, McKean located Josephine’s car
parked on the street a mile and a half to two miles from where
Bloom was arrested.
A later autopsy determined that Bloom, Sr., had died of
gunshot wounds to the abdomen, neck, and cheek. Josephine
suffered three fatal gunshot wounds to the head. Sandra
sustained a graze wound to the right shoulder and a gunshot
wound to the head that led to her death after time spent on a
respirator. She also suffered 23 stab and cutting wounds to the
head, neck, right arm, torso, and back, as well as superficial
wounds to the inside of her left wrist and forefinger, all inflicted
by a pointed instrument such as a pair of scissors. From the
nature of the stab wounds, it appeared Sandra was moving
around when they were inflicted; she was shot after being
Opinion of the Court by Kruger, J.
stabbed and cut. Toxicology reports on Bloom, Sr., and
Josephine were both negative for drugs and alcohol.
Various witnesses testified about events occurring in the
days preceding the killings. Martin Medrano, an acquaintance
of Bloom’s who testified at the first trial, was deceased by the
time of the retrial; his prior testimony was read to the retrial
jury. In April 1982, Bloom said he had a contract to kill someone
and offered Medrano $1,200 to get him a gun. Medrano, a drug
addict who was on parole, said he intended to take Bloom’s
money but not give him a gun. Bloom approached Medrano
several more times. Medrano asked if he had the money; Bloom
told Medrano he would get it and that Medrano would read
about the killing. At the time Medrano testified, he was in
custody for armed robbery. He had seen Bloom in jail and
reported his earlier dealings with him to a deputy sheriff. No
promises were made to Medrano in connection with his
Ricardo Avila testified that in 1982 he and his then-
girlfriend, Christine Waller, both 14 years old, were friends of
Bloom’s. They spent time with Bloom at the homes of Waller’s
mother and of Bloom, Sr. According to Avila, Bloom and
Bloom, Sr., argued frequently about everything Bloom did.
Bloom never fought back physically. Two days before the
killings, Avila was watching television with Waller in her
family’s living room when he saw Bloom pass by outside the
window holding a rifle. Avila heard “five or six pops” and went
toward the back of the house, where he saw Bloom entering
through a sliding door, hiding a rifle under his jacket. The day
before the killings, Bloom, Sr., came to Waller’s residence
looking for Bloom, who was not there. Avila went to Bloom’s
workplace and told him his father had come looking for him.
Opinion of the Court by Kruger, J.
Bloom went to a pay phone, called his father, and said, “You’re
running my life now, but you won’t be for long.”
Waller testified at Bloom’s first trial but was unavailable
for the retrial; her prior testimony was read to the retrial jury.
In 1982, Waller had had a very close relationship with Bloom,
who would often come over to her house and sometimes sleep
there. On the evening of April 20, 1982, two days before the
killings, she saw Bloom outside her house carrying a rifle she
recognized as her brother’s toward a vacant field. The following
day, Bloom was again at Waller’s house and was planning to
spend the night; her mother asked her to wake him up the next
day at 5:00 a.m. That evening, Bloom looked pale, quiet, and
tense, the way he did when he was upset; later, however,
Waller’s mother, Norma White, thought he looked normal. On
the morning of April 22, Waller knocked on the door of the
bedroom Bloom occupied but received no response. When she
opened the door, the light was on and the bed looked like it had
been slept in, but Bloom was not there.
Whenever Waller saw Bloom with his father, Bloom, Sr.,
appeared “always angry” at Bloom, who could never seem to
satisfy him. Bloom would sometimes cry after confrontations
with his father. During visits to the Bloom residence, Waller
saw Bloom take good care of his stepsister Sandra, playing with
her and fixing her food to eat.
White’s son, Raul Rosas, testified he was living in White’s
house at the time of the killings and knew Bloom. Rosas owned
a .22-caliber semiautomatic rifle, which he initially kept
unloaded in his bedroom but then kept in the trunk of his car
after some gang members shot at him. He never showed the gun
to Bloom. Rosas was at home on April 21, 1982, the day before
Opinion of the Court by Kruger, J.
the killings, and saw Bloom, who appeared normal. The
following day, after learning of the shootings, Rosas discovered
his gun was missing and notified police.
2. Defense case
Bloom had pleaded not guilty and not guilty by reason of
insanity to all charges. At the guilt phase, the defense presented
evidence to show that Bloom was suffering from severe mental
impairments that prevented him from forming malice. The
defense also presented evidence suggesting that Bloom, Sr., had
abused Bloom and that the killings were committed in the heat
of passion.
Bloom’s mother, Melanie Bostic,1 testified that Bloom, Sr.,
was physically abusive and pushed her down a flight of stairs
while she was pregnant with Bloom. Bloom, Sr., began hitting
and slapping Bloom when he was still a baby. He would also
scream at him, use foul language, and deliberately scare him.
He once ripped apart Bloom’s favorite stuffed animal in front of
him. He would proclaim he was God and that he was going to
kill Bloom. Melanie left the marriage when Bloom was in the
first grade. At the time, he seemed like a normal little boy, but
he did not have any real friends; he instead had an imaginary
friend named Tony.
Robin Bucell was married to Bloom, Sr., for about three
years after Melanie left the family. At the start of the marriage,
Bloom was a small and scrawny 10-year-old and the focus of his
father’s abuse. Bloom, Sr., would slap, beat, and belittle him.
Bloom, Sr., also emotionally manipulated Bloom by telling
To avoid confusion, we will refer to Melanie Bostic and her
son Byron Bostic by their first names. No disrespect is intended.
Opinion of the Court by Kruger, J.
Bloom that he loved him but his mother did not. Melanie,
Bloom’s mother, visited irregularly, and although she was
affectionate toward Bloom, her visits were marked by hostility
and physical violence with Bloom, Sr., which upset Bloom.
Bloom, Sr., would threaten to kill Bucell and members of her
family, a threat she found credible because he claimed to be a
Mafia hit man. Bloom, Sr.’s mother came to live with them for
about a year, during which time he took her Social Security
checks and was mean and rude to her. Bucell had a son, Eric,
with Bloom, Sr. Eventually, in fear for their safety, she left with
Eric and divorced Bloom, Sr. On cross-examination, Bucell
testified that while she was married to Bloom, Sr., Bloom
developed a kidney condition for which he had weekly medical
appointments, but at no time did a doctor raise suspicions of
physical abuse.
Eric Bloom2 testified that his father married Josephine
when he was five or six years old. Bloom, Sr., did not physically
abuse Eric, but he did beat Bloom “all the time,” and Eric heard
Bloom express fear of their father. Bloom, Sr., would dunk
Bloom’s head in the toilet and throw plates at him. After one
beating about a month before the killings, Bloom told Eric he
couldn’t take much more of the pain and didn’t think he would
live to his next birthday. When Bloom, Sr., and Josephine
fought, Bloom would take Eric out of the house. Bloom would
also get between Eric and his father when Bloom, Sr., yelled at
Neuropsychologist Dale G. Watson offered expert
testimony relating to Bloom’s mental state. Dr. Watson
Again, to avoid confusion, we will refer to Eric Bloom by
his first name.
Opinion of the Court by Kruger, J.
evaluated Bloom in 1993 and again in 1999 and 2000,
administering comprehensive neuropsychological tests. In
neither test administration did Dr. Watson detect evidence of
neuropsychological impairment” indicative of “very significant
neuropsychological deficits.” The impairment was associated
with both the left and right hemispheres, but primarily the
right. Bloom’s deficits affected his ability to read social cues and
process emotions. He also exhibited significant impairment in
problem solving. Bloom’s verbal IQ was 95 — average being
100 — but his performance IQ was 67, in the very impaired
range; the striking disparity between the two scores suggested
the presence of brain damage or impairment. The 1999 and
2000 testing yielded results consistent with the prior testing,
with a verbal IQ of 112, in the high average range, and a
performance IQ of 65, in the extremely low range, with right
hemisphere impairment still evident. During the evaluation,
Bloom exhibited or related certain compulsive behaviors and
“oddities,” such as reciting the entire sequence of English
monarchs. His developmental anomalies, such as dysmorphic
facial features and the presence of two kidneys on one side of his
body, were consistent with birth defects. Such defects can be
related to fetal alcohol syndrome or fetal Dilantin syndrome, a
consequence of an antiseizure medication now known to affect
fetal health that Dr. Watson testified Bloom’s mother took while
pregnant. Further, according to Dr. Watson, Bloom likely
suffered brain damage in a drowning incident when he was two
years old. Loss of oxygen supply can cause permanent brain
deficits and personality changes. Dr. Watson diagnosed Bloom
as having cognitive disorder not otherwise specified and/or
severe nonverbal neurocognitive dysfunction. His report on his
Opinion of the Court by Kruger, J.
2000 evaluation opined that at the time of the homicides Bloom
was, because of a mental defect, unable to comprehend his duty
to govern his conduct in accordance with the law. Dr. Watson
concluded that Bloom was in a dissociative state from the time
he shot his father until the killings were over. Dr. Watson was
uncertain whether Bloom was dissociating when he and his
father were going up and down the street before the shooting.
Forensic psychiatrist Mark J. Mills also testified for the
defense in the guilt phase. Dr. Mills had become involved in the
case in 1993 when the judge who was then presiding over
Bloom’s federal habeas corpus proceedings consulted him
concerning issues related to Bloom’s mental health. (The retrial
jury was not told the precise nature of those proceedings.) In
1999, trial counsel retained Dr. Mills and provided him with
voluminous records he had not seen at the time of the earlier
consultation. Review of the additional material led Dr. Mills to
revise his earlier opinions. Specifically, he diagnosed Bloom
with Asperger Syndrome, a developmental disorder on the
autism spectrum, and concluded Bloom had suffered extreme
emotional and physical abuse as a child. Abused children often
dissociate — that is, they enter a state of partial consciousness
or partial awareness — as a way of coping with the pain and fear
engendered by the abuse, and Bloom was more prone to
dissociation by virtue of the brain dysfunction Dr. Watson had
identified. Dr. Mills believed Bloom was in a dissociative state
around the time of the killings, a conclusion for which he found
support in the testimony of eyewitnesses Dave Hughes and
Moises Gameros regarding Bloom’s apparently ambivalent and
purposeless actions immediately after the shootings. Bloom was
also often paranoid and tolerated the administration of
antipsychotic medication at levels that would sedate an
Opinion of the Court by Kruger, J.
ordinary person. Dr. Mills acknowledged that although in
general determining a person’s mental state 11 years after the
fact is very difficult, a diagnosis of Asperger Syndrome can be
reliably made at a long remove because it is a lifelong
developmental condition; if it exists currently, it would have
existed in the past. Asperger Syndrome impaired Bloom’s social
and emotional reciprocity and ability to empathize, although he
retained an intellectual appreciation of the effects of his actions.
A third mental health expert, psychiatrist William Vicary,
testified that he had originally been appointed by the trial court
in May 1984 to assess Bloom’s competence for a hearing in a low-
complexity matter.3 Dr. Vicary talked with Bloom in jail,
reviewed his jail medical records, and spoke with sheriff’s
deputies who knew Bloom. At that time, Bloom was paranoid
and to some extent out of touch with reality. Dr. Vicary
concluded that Bloom understood the nature and purpose of the
proceeding. Dr. Vicary also found, though with a lower level of
confidence, that Bloom could rationally participate in the
In 1993, Dr. Vicary reviewed additional records and
interviewed Bloom again. After doing so, he reconsidered his
earlier opinion and concluded Bloom had not been mentally
competent for most of the prior proceedings. Dr. Vicary believed
Bloom suffered from serious mental illness (which he did not
diagnose specifically) and brain dysfunction. The combination
of mental illness and brain dysfunction made Bloom likely to
The retrial jury was not told the earlier hearing was the
original sentencing proceeding in this case.
Opinion of the Court by Kruger, J.
“snap” — to suffer a psychotic break or an “emotional explosion,”
or to dissociate — under stress.
B. Sanity Phase
Following Bloom’s convictions in the guilt phase, the jury
heard the trial of Bloom’s insanity defense.
Psychiatrist Philip E. Wolfson testified for the defense
that he had examined Bloom over a total of about 20 hours
between 1990 and 1992 at the request of Bloom’s then-attorney,
seeking to understand Bloom’s state of mind at the time of the
killings. Bloom had described various versions of events over
the years since the crimes, and to get from him what Dr. Wolfson
termed “the closest approximation of the truth,” the psychiatrist
had to earn his trust and break down his defenses.
Dr. Wolfson concluded that in the year or so before the
killings Bloom began to suffer from significant mental illness,
which he diagnosed as a mixed personality disorder with
borderline and dependent features. Borderline personality
disorder is characterized by a pervasive pattern of instability of
interpersonal relationships, self-image, moods, and emotions, as
well as marked impulsivity, beginning by early adulthood.
Bloom’s interpersonal relationships were poorly developed; he
tended to either idealize people in his life or put them down. He
had an extremely poor and unstable self-image and was often
the butt of others’ derision. His moods and feelings were
variable and unstable. At times Bloom felt extremely depressed
and worthless; at other times he was extremely agitated; and in
some moments he seemed psychotic. His behavior during his
time in high school (classmates described him as weird and
strange) and in the Navy (he failed to follow basic hygiene or
maintain appropriate comportment), as well as his commission
Opinion of the Court by Kruger, J.
of an attempted robbery with a BB gun, all revealed his
impulsivity and lack of control. Fear of abandonment is
characteristic of borderline personality disorder and was a
constant theme in Bloom’s life from his mother’s leaving the
family, to his father’s disappearances and jail time, until shortly
before the killings, when Bloom, Sr., was reportedly about to put
the house up for sale and move, leading Bloom to fear he would
be left behind. The abandonment and traumatic punishment
Bloom experienced contributed to his chronic feelings of
emptiness. In the year before the homicides Bloom also
experienced transient stress-related paranoid ideation and
dissociative symptoms to a degree that sometimes seemed
Bloom also exhibited less fully developed traits of
dependent personality disorder, which is characterized by a
pervasive and excessive need to be taken care of that leads to
submissive and clinging behavior and fears of separation
beginning by early adulthood. Dr. Wolfson attributed Bloom’s
apparent inability to leave his father’s home, despite being
abused and denigrated, to the effects of this disorder.
Dr. Wolfson testified that when Bloom was about to
graduate from high school, his living situation was unstable and
he lacked consistent support. He had no real career path and,
to his distress, was discharged from the Navy as unfit after an
enlistment of less than a month. After Bloom’s discharge, as
Bloom, Sr., was going to jail for fraudulent business activities,
Bloom stayed briefly at his mother’s house until he himself was
jailed for the aforementioned robbery with a BB gun.
Dr. Wolfson related that in connection with that crime, some
five months before the homicides, Dr. Richard Naham had
evaluated Bloom and found him to be paranoid and on the verge
Opinion of the Court by Kruger, J.
of a nervous collapse. Dr. Naham wrote in his report at the time
that without inpatient psychiatric treatment Bloom would
continue to present a danger to others.
Dr. Wolfson further testified that, following his release
from custody, Bloom moved in with Bloom, Sr., who meanwhile
had married Josephine, but he also spent considerable time in
the home of his friend Christine Waller. Bloom idealized
Waller’s mother, Norma White, as the mother he wished he
could have had. Bloom’s relationship with his father continued
to deteriorate, as Bloom, Sr., took Bloom’s money for his own
purposes and tried to get Josephine to sign over her rights to
their house. Bloom, Sr., had engaged in numerous other scams
that Bloom recognized and disapproved of. Bloom’s frustrations
exacerbated his confusion, impulsivity, and irrationality.
Bloom’s morality was split, making him both a person with “a
high moral sense” and someone “who could be a con himself.”
Dr. Wolfson testified that Bloom had long entertained
homicidal thoughts toward his father. Seeing a rifle at White’s
house catalyzed a feeling that he could actually kill Bloom, Sr.
Bloom started preparing a fictitious alibi involving intruders
trying to break into the White residence, but his planning was
poor and unrealistic. He was later seen by members of the
White family practicing with the rifle. On the night of the
killings, he took the rifle and returned to his father’s house
intending to kill Bloom, Sr., but, in Dr. Wolfson’s opinion, he was
not planning to harm Josephine or Sandra. At the moment he
shot Bloom, Sr., Bloom lacked the capacity to conform his
conduct to the requirements of the law because he did not view
shooting his father as unjust. According to Dr. Wolfson, Bloom’s
belief that the only way out of his difficult situation was to shoot
his father, and then his going ahead and doing it, was insane.
Opinion of the Court by Kruger, J.
As Dr. Naham’s evaluation had warned, Bloom’s connection to
reality had loosened and he had become psychotic. When Bloom
shot Josephine and Sandra, he was in an altered state, acting
without a mental process.
Dr. Wolfson acknowledged that Bloom had told many lies
and given different versions of the events at issue over multiple
interviews, and Dr. Wolfson had had to seek corroboration for
Bloom’s statements. In response to the prosecutor’s
hypothetical question, Dr. Wolfson could think of no situation in
which it would be sane and rational for a person who had just
killed his father to murder two eyewitnesses to the killing.
Dr. Wolfson believed it would be irrational to wear a trench coat
to hide the fact one is carrying a rifle, as Bloom did in 1981 in
connection with an incident unrelated to the homicides, the
previously mentioned attempted robbery with a BB gun.
Bloom’s planning of the killing of his father and the continuation
of his goal-directed behavior after the killing similarly, in
Dr. Wolfson’s view, reflected insanity. In his fifth interview
with Dr. Wolfson, Bloom stated: “If things had gone right,
[Bloom, Sr.,] would have gotten hit when he was alone. It’s
tricky because Josephine and Sandra were just witnesses.
They’d still be alive.” The statement did not make sense to
Dr. Wolfson “given the whole construction of the facts,” and he
noted Bloom later retracted it. Dr. Wolfson believed Bloom was
telling the truth when he later claimed he did not know why he
killed Josephine and Sandra because it was while making this
claim, as opposed to the other explanations he had offered in
recounting their killings, that he had the most profound
emotional reaction and remorse.
Dr. Wolfson disagreed with some of the other experts who
had been consulted in the case. He did not agree with Dr. Mills
Opinion of the Court by Kruger, J.
that Bloom had Asperger Syndrome. Nor did he agree with
another doctor who had opined that Bloom was not psychotic, or
a doctor who had opined that Bloom was sane when he killed his
father. Finally, he did not agree with Dr. Watson’s diagnosis of
severe brain impairment.
The prosecution presented no evidence at the sanity
C. Penalty Phase
1. Prosecution case
The prosecution presented victim impact evidence as well
as evidence of Bloom’s involvement in several prior incidents of
violence or threatened violence, including: (1) a November 1981
robbery in which Bloom pulled a BB gun out of a trench coat,
grabbed the purse of a woman attending a Bible study group,
and fled after he was thwarted; (2) a May 1984 incident at the
law library in Men’s Central Jail, in which Bloom was seen
holding a knife and running away from another inmate, who
was bleeding; and (3) Bloom’s February 1982 statement to
Josephine’s uncle, at Josephine’s wedding to Bloom, Sr., that he
wanted to kill Josephine and Sandra because they were “in the
way.” Bloom added that he had “a half brother that’s in the way
and I don’t need two more in the way,” and threatened
Josephine’s uncle that if he got “in the way, I will kill you.”
2. Defense case
Bloom successfully moved to discharge his attorneys and
represent himself at the penalty phase. He presented the
testimony of several inmates and sheriff’s deputies regarding
his character.
Three female witnesses testified that while incarcerated
they had met Bloom on the bus transporting inmates from jail
Opinion of the Court by Kruger, J.
to court. Each testified Bloom was polite and respectful. The
inmate Bloom had stabbed in the law library testified that
Bloom explained he “met a girl who apparently read [about his]
case in the newspaper at the time and [he] wanted to catch a
case to stay down there.” Three sheriff’s deputies testified that
they had interacted with Bloom in the courthouse lockup, the
courtroom, and the jail, respectively, and that he had behaved
in a cooperative and respectful manner.
The defense also called Paul Mones, an attorney, author,
and lecturer who specializes in parricides — that is, cases
involving children, teens, and adults who kill their parents.
After studying Bloom’s case, Mones formed the opinion that at
the root of the homicides was years of abuse Bloom, Sr.,
perpetrated on Bloom.
Bloom’s half brother Byron Bostic testified that since he
was eight or nine years old, he had been visiting Bloom at the
prison, bringing his own family as he grew older. The visits were
always peaceful; there were never any problems, and Bloom was
never violent or threatening. Anna Maria Dean, age 10 and the
daughter of Byron’s partner, testified that she had visited Bloom
at the prison, loved him, and was not afraid of him.
Melanie Bostic, Bloom’s mother, testified about
Bloom, Sr.’s, abusive conduct toward Bloom, first striking him
when he was a month old, beating him when he was a toddler,
and eventually threatening to kill him. Melanie also testified
about her relationship with Bloom, Sr., which was fraught with
arguments and violent abuse. Melanie left her marriage to
Bloom, Sr., when Bloom was in elementary school. When Bloom
visited her after the divorce, Melanie’s boyfriends sometimes
Opinion of the Court by Kruger, J.
abused him, and Bloom also witnessed them committing acts of
violence against her.
Robin Bucell was married to Bloom, Sr., from August 1974
to August 1977. Bloom, Sr., forced her and Bloom to lie for him
in his fraudulent schemes, threatening them with bodily harm
if they refused. She had a child, Eric, with Bloom, Sr.;
eventually, out of concern for her and Eric’s safety, Bucell left
Bloom, Sr.
Superior Court Judge Michael Hoff testified that Bloom’s
case was assigned to his courtroom from July 1998 to September
2000. During that period, Bloom appeared to Judge Hoff to be
competent. On multiple occasions, Bloom unsuccessfully sought
to fire his appointed counsel because he disagreed with the
psychiatric defense they were planning to present; Bloom once
attempted to assert his right to represent himself, although he
later changed his mind. Judge Hoff did not know whether or not
Bloom was sincere in his requests. Some of the things Bloom
said “made sense” and were “very skillful”; others were
“somewhat stupid.”
Finally, Bloom testified on his own behalf and provided his
account of the crimes and incidents described in the prosecution
case. Bloom argued that his father got what he deserved, and
Bloom’s only regret was not killing him when he was 16 or 17,
because then his father would never have been involved with
Josephine and Sandra. Bloom denied ever asking Medrano for
a gun, offering him money for a gun, or telling him he was
planning to kill someone. Bloom confirmed the account of the
jailhouse stabbing and claimed he tried to commit the church
robbery because his father had needed money and told him to
get him some.
Opinion of the Court by Kruger, J.
Bloom testified it was counsel’s idea, not his, to present a
mental capacity defense; he denied he was mentally impaired.
He reviewed the diagnostic criteria for Asperger Syndrome and
argued he met none of them.
A. Pretrial Issues and Issues Affecting the Entire
1. Constitutionality of retrial
The murders in this case occurred in 1982. Bloom was
first convicted in late 1983 and sentenced in 1984. In 1997, a
federal court granted Bloom relief from his conviction and
sentence on the ground that his counsel had rendered
constitutionally ineffective assistance in the investigation,
preparation, and presentation of mental health evidence at trial.
(Bloom v. Calderon, supra, 132 F.3d 1267.) Retrial took place in
2000, more than 18 years after the crimes. By that time, the
two mental health professionals who had examined Bloom
shortly before and after the offense, Dr. Arthur S. Kling and
Dr. Richard Naham, had become unavailable.
Before the retrial, the defense moved to dismiss the
charges, contending the experts’ unavailability deprived Bloom
of a meaningful opportunity to present a complete defense. The
trial court denied the motion, though it also ruled there could be
no mention at the retrial of the verdicts from the first trial. (See
Pen. Code, § 1180.) The defense then filed a supplemental
motion renewing the argument that the murder charges should
be dismissed or, in the alternative, that the court should
preclude charges greater than manslaughter, preclude the
possibility of the death penalty, or provide for other curative
measures to reduce the prejudice from the passage of time and
Opinion of the Court by Kruger, J.
from former trial counsel’s constitutionally inadequate
performance. The court denied the supplemental motion.
Bloom contends the court’s rulings denied him his rights
to due process, to present a defense, and to the effective
assistance of counsel. He argues that the passage of time before
retrial, and the consequent unavailability of the two expert
witnesses, critically undermined his principal defense —
namely, that he lacked the mental state required for murder.
The defense was forced to present experts who had not
personally examined Bloom near the time of the offenses, a point
the prosecution highlighted in cross-examination and closing
We find no error in the trial court’s decision to allow the
retrial to take place, notwithstanding the unavailability of
Drs. Kling and Naham. Bloom relies on a series of cases
concerning the constitutional right to a speedy trial, which
observe that the loss of witnesses and other evidence may be a
cost of pretrial delay. (E.g., Barker v. Wingo (1972) 407 U.S. 514,
532.) But case law also makes clear that following a reversal of
a prior conviction, the prosecution is entitled to retry the
defendant “ ‘in the normal course of events’ ” (People v.
(2012) 54 Cal.4th 395, 413, quoting United States v.
(1966) 383 U.S. 116, 121), and no speedy trial inquiry is
even necessary unless the prosecution engages in undue delay
in proceeding with retrial (see Barker, at p. 530; McDowell, at
pp. 414–415). This is true even where the process of judicial
review results in substantial delays. (See McDowell, at pp. 413–
416 [finding no error where penalty retrial took place 15 years
after initial penalty phase].) Here, Bloom does not argue that
the state unnecessarily delayed retrial after the federal court
granted him habeas relief. The great bulk of the delay of which
Opinion of the Court by Kruger, J.
he complains is instead attributable to the process of appeal and
postconviction review. Where, as here, “defendant has
benefitted from the careful and meticulous process of judicial
review, he cannot now complain that the process ‘which exists
to protect him has violated other of his rights.’ ” (Id. at p. 415.
Even so, Bloom contends that the trial court should have
dismissed the case or taken steps to limit the prejudice caused
by the unavailability of the two expert witnesses. He points to
People v. Sixto (1993) 17 Cal.App.4th 374 (Sixto), which, like this
case, involved a retrial following reversal of a conviction due to
performance — there, failure to have blood samples properly
analyzed to support a drug-related diminished capacity defense.
Also, much as in this case, relevant evidence became
unavailable before the retrial occurred; the blood sample had not
been preserved. The Sixto court addressed the possibility that
the loss of evidence might require curative measures, though it
ultimately concluded that the loss of the defendant’s blood
sample did not require such measures in the defendant’s case.
(Id. at p. 396; see id. at p. 399 [courts have discretion to
determine appropriate admonitions or other measures].) The
court explained that “retrial counsel were able to bring out
significant evidence which was not presented at the first trial.
Thus, the second trial was not rendered a meaningless, futile
replay of the first proceedings, even absent some sort of curative
measures by the trial court.” (Id. at p. 396.
Sixto does not help Bloom’s case. The unavailability of
Bloom’s original experts did not prevent him from putting on a
mental state defense at the retrial; indeed, several experts
testified on his behalf. Nothing in Sixto or any other case Bloom
has cited supports the argument that due process nonetheless
Opinion of the Court by Kruger, J.
required the extreme step of dismissing or limiting the charges
against him. And to the extent Bloom argues that the trial court
erred in failing to instruct the jury not to consider the passage
of time in its evaluation of the evidence, neither Sixto nor any
other cited case supports the argument. (See Sixto, supra, 17
Cal.App.4th at pp. 390–392, 401–402 [upholding trial court’s
refusal to give the defendant’s requested curative instructions].
Here, the requested instructions would have hampered the
jury’s realistic evaluation of the evidence; even defense expert
Dr. Mark Mills acknowledged that the passage of time affected
his ability to discern what Bloom was like when the offenses
were committed (though Dr. Mills still maintained that the
particular Asperger Syndrome diagnosis he had reached was
valid regardless of the passage of time).
Bloom raises various other objections to the conduct of the
retrial. Bloom argues that even though the trial court had
forbidden references to the verdicts from his first trial, the
prosecution improperly injected the prior trial into the retrial by
referring to or relying on the prior testimony of witnesses.4 He
also contends that the prosecution improperly asked questions
that either obliquely referred to, or solicited responses that
referred to, Bloom’s prior incarceration. But contrary to Bloom’s
arguments, none of these references violated either Penal Code
section 1180, which forbids references to former verdicts or
findings, or his due process rights. None of the references to
witnesses’ prior testimony directly revealed the verdict reached
We address below, in part II.B.2., Bloom’s contention that
the unavailability of lay witnesses Christine Waller and Martin
Medrano at the retrial undermined his defense and prevented a
fair trial.
Opinion of the Court by Kruger, J.
in Bloom’s prior trial. Nor did they encourage the jury to draw
inferences that risked “implying prior criminality,” thus
“prejudic[ing] defendant in the eyes of the jury.” (People v.
(1963) 221 Cal.App.2d 187, 192.) It is true that the
references would have led jurors to assume Bloom had
previously been tried and that he had been detained before the
retrial, but as both sides in the case acknowledged, that
information was inevitably going to come out and on its own
raised no unacceptable risk of prejudicing Bloom in the eyes of
the jury.
2. Failure to conduct competency proceedings
Bloom contends the trial court violated his state and
federal constitutional rights by failing to suspend his trial and
institute competency proceedings at various points in the
proceeding as information calling his competence into question
came to its attention. Even if no single piece of evidence
compelled such a response from the trial court, he contends, the
cumulative weight of the information should have led the court
to declare a doubt as to Bloom’s competency and institute
proceedings under Penal Code section 1368.5 We reject the
Penal Code section 1368 provides for suspension of the
criminal proceedings and a hearing on the defendant’s
competence to stand trial whenever a doubt about competence
arises in the trial court. (Pen. Code, § 1368, subds. (a), (b).
Proceedings are suspended until competence is determined, but
the jury remains impaneled and sworn unless the court
determines undue hardship would result if the jurors remained
on call. If the defendant is determined to be incompetent, the
jury is dismissed. (Id., subd. (c).
Opinion of the Court by Kruger, J.
a. General principles
“ ‘Both the due process clause of the Fourteenth
Amendment to the United States Constitution and state law
prohibit the state from trying or convicting a criminal defendant
while he or she is mentally incompetent.’ (People v. Rogers
(2006) 39 Cal.4th 826, 846 [48 Cal.Rptr.3d 1, 141 P.3d 135]; see
[Pen. Code,] § 1367, subd. (a); Drope v. Missouri (1975) 420 U.S.
162, 172 [43 L.Ed.2d 103, 95 S.Ct. 896].) ‘A defendant is
incompetent to stand trial if [he] is unable to consult with [his]
attorney with a reasonable degree of rational understanding or
lacks a rational and factual understanding of the proceedings
against [him].’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 720–
“ ‘The decision whether to order a competency hearing
rests within the trial court’s discretion, and may be disturbed
upon appeal “only where a doubt as to [mental competence] may
be said to appear as a matter of law or where there is an abuse
of discretion.” [Citation.] When the court is presented with
“substantial evidence of present mental incompetence,”
however, the defendant is “entitled to a section 1368 hearing as
a matter of right.” [Citation.] On review, our inquiry is focused
not on the subjective opinion of the trial judge, but rather on
whether there was substantial evidence raising a reasonable
doubt concerning the defendant’s competence to stand trial.
[Citation.] . . . A trial court reversibly errs if it fails to hold a
competency hearing when one is required under the substantial
evidence test.’ ” (People v. Woodruff, supra, 5 Cal.5th at p. 721.
Bloom contends that the trial court should have declared
a doubt and held a competency hearing at each of the three
Opinion of the Court by Kruger, J.
phases of the trial: guilt, sanity, and penalty. We address in
turn Bloom’s competence at the guilt and sanity phases.6
b. Guilt phase
Bloom contends that during the guilt phase of the trial,
various circumstances were made known to the court that
should have prompted it to suspend proceedings. As an initial
matter, when the case was returned to Los Angeles County
Superior Court for retrial in 1998, the court was aware that the
1983 proceedings had included a trial pursuant to Penal Code
section 1368, just before sentencing, in which the jury had found
Bloom competent. The federal court had also vacated Bloom’s
1983 convictions on grounds of ineffective assistance of counsel
for failure to adequately prepare and present a mental disorder
defense. (Bloom v. Calderon, supra, 132 F.3d at pp. 1277–1278.
In September 1998, soon after Bloom was received in county jail
pending retrial, the court received notice that Bloom had been
admitted to a forensic inpatient program under Welfare and
Institutions Code section 5150 on a finding that he was gravely
disabled or a danger to himself or others. Two months later,
Bloom made a Marsden7 motion seeking substitution of counsel.
During a hearing on the motion, Bloom complained that his trial
counsel were insisting on presenting a psychiatric defense
against his wishes because his federal appellate counsel had
instructed them to do so.
Near the beginning of the retrial, in January 1999, Judge
Hoff — to whom the case was initially assigned for retrial —
We need not address Bloom’s competence during the
penalty phase because, as discussed post at page 45, the penalty
verdict must be reversed for other reasons.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Opinion of the Court by Kruger, J.
ordered an evaluation of Bloom’s competence in connection with
his motion for self-representation, but Bloom withdrew his
motion and no evaluation took place.
Before the start of the retrial — in connection with a
motion to exclude the prior testimony of Martin Medrano and
Christine Waller (see pt. II.B.2., post) — the defense presented
the 1993 declarations of five mental health professionals opining
that Bloom had been incompetent at his first trial because of
severe, long-standing mental illness and brain damage. At the
hearing on the motion, defense counsel characterized Bloom’s
present competence as “a fluid issue” that was being assessed
“day to day.” The prosecutor, seeking clarity regarding whether
or when Bloom’s competence would be litigated during the
retrial, suggested that if he was incompetent at the first trial,
there was no reason to believe he was competent for retrial. The
trial court observed a new physical behavior on Bloom’s part (he
was “swaying”), but did not suspend proceedings for a
competence hearing.
On the day before opening statements, the parties and the
court discussed Bloom’s desire to represent himself in the
penalty phase should the case get that far. The discussion
returned to the issue of Bloom’s competence. Defense counsel
Seymour Applebaum said that in his view “Mr. Bloom has
always been skirting the edges of incompetence,” particularly as
to his ability to cooperate with counsel, but pointedly stopped
short of declaring a doubt as to Bloom’s present competence.
Alluding to “the voluminous materials in preparation that arose
out of the various appeals and ultimately the habeas
proceedings and what the lawyers and the various mental
health professionals did, our predecessors did,” counsel
explained that in the posture of this case Bloom’s cooperation in
Opinion of the Court by Kruger, J.
the factual aspects of preparation for trial was unnecessary.
“But as we get closer, he’s again skirting the edges of his ability
to cooperate with counsel, interference in the trial process due
to a mental illness, disease or defect, and I think the court needs
to be aware of this. [¶] It’s something that’s concerned me, it’s
something that’s always troubled me, and if this were a different
type of case in terms of how it came to us, vis-à-vis the
preparation that needed to be done, where I needed to confer
with the client, needed to plan strategy with the client, I would
have declared a [Penal Code section] 1368 doubt eons ago.
[¶] . . . [¶] Quite truthfully, if there is interference where he is
in my view not cooperating with preparation of the case in a
rational way, where he starts interfering with the tactical
process, my view is that I will have to declare a doubt and then
we’ll do what we have to do.” The retrial proceeded without a
hearing on competence under section 1368.
From time to time throughout the retrial proceedings,
Bloom engaged in odd behaviors, calling mental health expert
Dr. Sharma “a Christian spy”; suggesting there were poisoned
ants on cookies provided by the jail; referring to defense counsel
Tonya Deetz as the “consigliere of the principality of Israel,” the
last phrase (the principality of Israel) seemingly referring to
himself; referring to prosecutor Shellie Samuels as “one of [his]
subjects”; and calling Judge Schempp the “lady of the court.”
When Bloom learned that Judge Hoff’s son had been in his high
school class, Bloom sought to question both the judge and his
son under oath and asked for substitution of counsel for failing
to seek the judge’s recusal. At times, Bloom argues, his
discussions about the anticipated penalty phase raised
questions about his understanding of the nature of mitigation.
For example, he expressed glee at the prospect of having Roz
Opinion of the Court by Kruger, J.
Kelly, a former actor whom he had met while in jail, testify on
his behalf.
Bloom argues that all this information raised a doubt as
to his competence in the guilt phase. He acknowledges defense
counsel’s assertion that Bloom had not yet crossed the threshold
of incompetence but contends the assertion must be disregarded
because counsel’s understanding of incompetence was at odds
with constitutional standards. That is, he claims, counsel’s
statement that in another case counsel would have declared a
doubt “eons ago” was tantamount to saying that Bloom was
presently incompetent, but in this particular case counsel did
not need him to be otherwise. In any event, he contends,
counsel’s belief did not eliminate the trial court’s independent
obligation to initiate competency proceedings in the face of
substantial evidence objectively raising a reasonable doubt
regarding Bloom’s competence.
We disagree with Bloom that, on these facts, the trial court
was required to declare a doubt under Penal Code section 1368
before or during the guilt phase of the retrial. “To raise a
doubt . . . we require more than ‘mere bizarre actions’ or
statements, or even expert testimony that a defendant is
psychopathic, homicidal, or a danger to him- or herself and
others. [Citations.] . . . [Citation.] Defendant’s trial demeanor
is relevant to, but not dispositive of, the question whether the
trial court should have suspended proceedings under section
1368.” (People v. Mickel (2016) 2 Cal.5th 181, 202.) Although
the trial court was aware that Bloom had a history of mental
illness and although the court observed occasional odd
behaviors, neither fact, without more, gave rise to a duty to
suspend proceedings and conduct a formal evaluation of Bloom’s
ability to understand the proceedings against him and assist
Opinion of the Court by Kruger, J.
rationally in his own defense. (See ibid.; People v. Blair (2005
36 Cal.4th 686, 714.) Nor, contrary to Bloom’s argument, did
the trial court have a duty to inquire into Bloom’s psychiatric
medication, at least absent any evidence that defendant’s
competence hinged on compliance with a medication regimen.
(Cf. People v. Rodas (2018) 6 Cal.5th 219, 235.)8
Bloom relies heavily on the expert declarations presented
in support of the pretrial motion to exclude the Medrano and
Waller testimony, which opined that Bloom had been
incompetent at the original trial. The jury at that trial had
determined otherwise. But in any event, the declarations
opined that Bloom had been incompetent more than a decade
before the retrial; they did not opine on Bloom’s present ability
to understand the proceedings against him or consult rationally
with his attorneys. Notably, several of these same experts
examined Bloom again in advance of retrial to assess the
validity of a possible sanity defense, and none opined that Bloom
was at that time incompetent to stand trial. This case is thus
unlike People v. Wycoff (2021) 12 Cal.5th 58, in which an expert
who was “appointed to address defendant’s competence to
represent himself . . . also addressed, in detail, defendant’s
competence to stand trial,” declaring him to be incompetent. (Id.
at p. 76; see id. at p. 78.) There, we held that contemporaneous
To the extent Bloom may be understood to suggest that
Dr. Mills’s testimony diagnosing him with Asperger Syndrome
obligated the trial court to appoint the director of the regional
center to evaluate him under Penal Code section 1369, he is
mistaken; such an obligation arises only when a doubt regarding
a defendant’s competence exists and the court suspects the
defendant has a developmental disability. (Pen. Code, § 1369,
subd. (a)(3); People v. Sattiewhite (2014) 59 Cal.4th 446, 466.
Opinion of the Court by Kruger, J.
incompetence, such that the court abused its discretion by
failing to suspend proceedings. (Id. at p. 88.) Here, where
several experts evaluated Bloom before the retrial and none
concluded that he was incompetent, we cannot say the court
abused its discretion by failing to suspend proceedings.
Finally, in multiple discussions of the issue, defense
counsel declined to raise a doubt about Bloom’s present
competence, even as counsel acknowledged the issue was close
and that he might raise such a doubt in the future. Bloom
argues that defense counsel may have misunderstood the
relevant standard, at one point suggesting that a doubt would
have been declared “eons ago” in a different case. What counsel
meant by this statement is, in context, ambiguous. Certainly, if
counsel was suggesting that whether to declare a doubt was
affected by the “type of case” or the nature of the work needed
for counsel to prepare a defense, the suggestion was incorrect.
It was Bloom’s ability to assist, not counsel’s need for assistance,
that mattered. (See, e.g., People v. Mickel, supra, 2 Cal.5th at
p. 202 [“[T]he focus of the competence inquiry is on a defendant’s
understanding of the criminal proceedings against him or her
and the ability to consult with counsel or otherwise assist in his
or her defense”].) But counsel did not elaborate on the comment,
leaving its import unclear.9 Counsel did, however, clearly
decline to raise a doubt about Bloom’s present incompetence.
And although counsel raised concerns about the possibility that
We have not been asked to, and do not, evaluate whether
counsel’s potential misapprehension of the standard constituted
ineffective assistance; as we have previously noted, such
questions are best left to resolution on habeas corpus. (See
People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.
Opinion of the Court by Kruger, J.
Bloom would not be able to rationally consult with his attorneys
in the future, counsel also acknowledged those concerns had not
yet been realized. Under those circumstances, the court was not
obligated to suspend proceedings.
c. Sanity phase
Bloom next contends the trial court should have
suspended proceedings during the sanity phase. Bloom had
absented himself from the sanity phase proceedings. On the day
the jury began to deliberate about whether Bloom was insane at
the time of the capital crimes, defense counsel Applebaum told
the court there had been “substantial changes in the last couple
of days with Mr. Bloom” that led him to declare a doubt
regarding his competence to stand trial. At that point, Bloom
contends, the court had before it other substantial evidence
raising a doubt regarding his competence, including his decision
to absent himself from the sanity phase and Dr. Vicary’s guilt
phase testimony to the effect that Bloom was more likely than a
normal person to suffer a breakdown or “snap” under stressful
circumstances such as a criminal trial. Hearing experts testify
he was mentally ill — a proposition he adamantly denied —
might exacerbate the stress.
In response to counsel’s declaration of doubt, the trial
court stated that Bloom’s ability to cooperate with counsel was
unimportant at the time because “[w]e are merely waiting for
the verdict to come in the sanity phase.” Bloom contends the
court’s response was both legally and factually wrong. Bloom
argues that as a matter of law, a doubt about competence can
arise during jury deliberations. And as a factual matter, Bloom
argues, his ability to cooperate with counsel would soon become
crucial when, after seven days of deliberations, the jury was
Opinion of the Court by Kruger, J.
unable to reach a sanity verdict on counts 2 and 3, the killings
of Josephine and Sandra; at that point, his inability to rationally
consult with counsel led him to irrationally withdraw his plea of
not guilty by reason of insanity.
We agree with Bloom that doubt can arise during
deliberations. But the alleged harms Bloom identifies occurred
after deliberations had concluded, at a point when it would have
been clear to all that his competence did in fact matter. The
trial court was under an unquestioned continuing obligation to
suspend proceedings if it harbored a doubt as to Bloom’s
competence — an obligation it surely understood — and yet the
court did not do so. When a court harbors a doubt about the
defendant’s competence, Penal Code section 1368 requires the
court to solicit defense counsel’s opinion on the matter and to
hold a competency hearing if counsel informs the court the
defendant may not be competent. (Pen. Code, § 1368, subds. (a
& (b).) But as we have previously explained, there is no similar
obligation if the court harbors no such doubt; the court is “under
no duty to hold a competency hearing based solely on counsel’s
opinion that defendant might be incompetent.” (People v.
(1994) 8 Cal.4th 1060, 1112.
The court was by this point in the trial quite familiar with
Bloom, who had addressed the court cogently and at length
about sanity phase decisions. Against these opportunities for
observation, defense counsel Applebaum cited no specific
aspects of Bloom’s behavior or communications that prompted
him to declare a doubt, nor did he intimate that in invoking
Penal Code section 1368 he was relying on any new expert
evaluations of his client. Dr. Vicary’s testimony, on which
Bloom now relies, did not constitute an opinion that Bloom was
presently incompetent or would necessarily become so. And to
Opinion of the Court by Kruger, J.
the extent Bloom now relies on his subsequent decision to
withdraw his insanity plea after the sanity phase mistrial, at
the time Bloom gave a facially rational basis for his decision:
that a retrial would require the case be transferred to a different
department, with a different judge. While the insanity plea and
trial may have highlighted tensions between Bloom and his
attorneys, leading to Bloom absenting himself from that phase
of trial, no competency hearing is required when a “defendant’s
lack of cooperation” arises from unwillingness rather than
inability. (People v. Lewis (2008) 43 Cal.4th 415, 526.) In sum,
nothing in the sanity phase presented the court with substantial
evidence of incompetence; in the absence of such evidence, we
cannot conclude the trial court erred in allowing criminal
proceedings to continue despite counsel’s stated doubts about
the recent deterioration of Bloom’s mental state.
B. Guilt Phase Issues
1. Sixth Amendment right of autonomy over the
Bloom willingly conceded that he killed Bloom, Sr. But
before trial, Bloom repeatedly objected to his attorneys’ plan to
concede Bloom also killed Josephine and Sandra, and to pursue
a mental capacity defense as to all three killings. Despite
Bloom’s objections, at trial defense counsel told the jury that
Bloom killed the three victims, but argued Bloom’s mental state
rendered those actions manslaughter, not first degree murder.
Bloom argues that counsel’s concessions violated his Sixth
Amendment right of autonomy over the defense under McCoy v.
, supra, 584 U.S. ___ [138 S.Ct. 1500] (McCoy). We
agree in part: counsel’s decision to concede Bloom killed
Josephine and Sandra, despite Bloom’s insistence to the
contrary, violated Bloom’s right to determine the objectives of
Opinion of the Court by Kruger, J.
the defense and maintain complete innocence as to these counts.
But we disagree as to the killing of Bloom, Sr., for which Bloom
consistently accepted responsibility. Once Bloom agreed to
admit he killed his father, how best to secure acquittal or
conviction of a lesser offense was a tactical matter vested with
Throughout pretrial proceedings, Bloom made known his
discontent with both of his appointed attorneys, moving to
substitute or relieve counsel numerous times under Marsden
and Faretta.10 Bloom’s chief complaint was that he did not want
to present a mental defense, but he also objected to his
attorneys’ plan to concede guilt as part of this strategy. He
repeatedly told the court that he would admit to fatally shooting
his father. But he refused to admit to killing Josephine and
Sandra. He took the view that the prosecution’s evidence was
weak, and he preferred to put the prosecution to its proof.
Bloom did not succeed in either relieving counsel or
altering counsel’s strategy. During opening statement, lead
defense counsel Applebaum told jurors: “The evidence . . . is
going to show you that [Bloom] killed his father, he killed
Josephine and he killed Sandy.” Counsel argued that the
killings were manslaughters because Bloom acted in the heat of
passion when killing his father, who was “a horrible excuse for
a human being.” Bloom then “descended into the depths of
madness” and killed Josephine and Sandra but was incapable of
deliberate thought when he did so. Counsel argued: “We will
prove to you [Bloom] committed manslaughters and he should
be held responsible for what he did.” Returning to the same
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Opinion of the Court by Kruger, J.
theme, counsel told the jurors Bloom should not be convicted of
murdering Josephine and Sandra because “the mental states
required for murder are not there. [¶] Yes, he should be held
responsible for killing them. He did it. Manslaughter, an
intentional killing, he did it.”
During closing argument, defense cocounsel Tonya Deetz
again referenced Bloom’s responsibility for the killings, telling
jurors, “You will find him guilty.” She went on, “You will find
[Bloom] criminally responsible for three homicides. That is a
fact. [¶] He killed three people. It is neither excused nor
justified.” Deetz told jurors they could find Bloom “guilty of
anything [they] want, Josephine and Sand[y] will still be dead.”
“One issue you don’t have to fool around with is did he do it,
didn’t he do it,” Deetz argued, because there was “[t]ons of direct
evidence that he killed these people.” Applebaum later
reiterated, “He is guilty and you will find him guilty. The
question is what is he guilty of. Murder or another type of
homicide?” He also informed jurors that Bloom was “guilty of
something,” and noted “in some ways that takes away from the
presumption of innocence.” Finally, he urged the jury to
conclude Bloom “is guilty of involuntary manslaughter as to
Josephine and Sand[y] because of his mental illness, this
Bloom claims that his attorneys violated his autonomy-
based right to determine the objective of his defense, guaranteed
by the Sixth Amendment to the United States Constitution, by
conceding over his objection that he was responsible for killing
Josephine and Sandra and by presenting a mental state defense
to all three charged crimes. His argument relies on McCoy,
, 138 S.Ct. 1500, which considered “whether it is
unconstitutional to allow defense counsel to concede guilt over
Opinion of the Court by Kruger, J.
the defendant’s intransigent and unambiguous objection” and
answered that question in the affirmative. (Id. at p. 1507.
In McCoy, the defendant shot and killed his estranged
wife’s mother, stepfather, and son in their home. (McCoy, supra,
138 S.Ct. at pp. 1505–1506.) McCoy was indicted on three
counts of first degree murder but maintained he was not
involved in the killings because he was out of state and the
victims were instead killed by corrupt police officers following a
drug deal. (Id. at p. 1506.) In light of “overwhelming” evidence
tying his client to the murders, McCoy’s retained counsel, Larry
English, decided the best strategy to avoid a death sentence was
to concede McCoy’s guilt (ibid.) and appeal to the jury’s mercy
in view of McCoy’s “ ‘serious mental and emotional issues’ ” (id.
at p. 1507). McCoy, however, was “ ‘complet[ely] oppos[ed] to
[his attorney] telling the jury that [he] was guilty of killing the
three victims.’ ” (Id. at p. 1506.) Given English and McCoy’s
differences concerning what strategy to pursue, McCoy sought
to substitute counsel two days before trial. (Ibid.) The court
denied that request and instructed English that it was his role
to “ ‘make the trial decision’ ” about whether to concede his
client’s guilt. (Ibid.) As he had indicated he would, English
conceded McCoy’s guilt of the three murders during the guilt
phase opening statement, telling jurors “there was ‘no way
reasonably possible’ that they could hear the prosecution’s
evidence and reach ‘any other conclusion than Robert McCoy
was the cause of these individuals’ death[s].’ ” (Ibid.) The jury
returned three death verdicts, and the Louisiana Supreme
Court affirmed, concluding defense counsel had authority to
concede guilt over the defendant’s opposition. (Id. at p. 1507.
The United States Supreme Court reversed, holding
English’s concession violated McCoy’s right, grounded in the
Opinion of the Court by Kruger, J.
Sixth Amendment, to “decide that the objective of the defense is
to assert innocence.” (McCoy, supra, 138 S.Ct. at p. 1508.) The
court distinguished for these purposes between the types of
decisions that counsel ordinarily may make unilaterally and
those defendants are entitled to make for themselves. The court
explained: “Trial management is the lawyer’s province:
Counsel provides his or her assistance by making decisions such
as ‘what arguments to pursue, what evidentiary objections to
raise, and what agreements to conclude regarding the admission
of evidence.’ [Citation.] Some decisions, however, are reserved
for the client — notably, whether to plead guilty, waive the right
to a jury trial, testify in one’s own behalf, and forgo an appeal.”
(Ibid.) The court concluded that “[a]utonomy to decide that the
objective of the defense is to assert innocence belongs in this
latter category”: “Just as a defendant may steadfastly refuse to
plead guilty in the face of overwhelming evidence against
her, . . . so may she insist on maintaining her innocence at the
guilt phase of a capital trial.” (Ibid.) Put differently: “When a
client expressly asserts that the objective of ‘his defence’ is to
maintain innocence of the charged criminal acts, his lawyer
must abide by that objective and may not override it by
conceding guilt.” (Id. at p. 1509.
Bloom argues this case is controlled by McCoy. We agree
with respect to the counts arising from the deaths of Josephine
and Sandra. Defense counsel conceded, over Bloom’s objection,
both that Bloom killed Josephine and Sandra and that Bloom
should be held criminally liable for the killings. Counsel’s
decision to concede Bloom’s guilt on these counts cannot be
squared with a rule that gives the criminal defendant the right
to “oppos[e] . . . any admission of guilt” (McCoy, supra, 138 S.Ct.
Opinion of the Court by Kruger, J.
at p. 1507) and instead “pursue acquittal” as the object of the
representation (id. at p. 1506).
It is true that counsel here argued Bloom should be held
liable only for lesser offenses than the first degree murder
charges he faced. Counsel undoubtedly had sound reasons for
making these concessions; in view of the evidence, counsel may
well have concluded the best possible outcome of the proceedings
was one that would reduce the severity of Bloom’s likely
punishment. But even so, counsel’s concessions were
incompatible with Bloom’s objective to instead maintain
innocence and pursue acquittal. And as McCoy instructs, the
decision about what objective to pursue was Bloom’s to make.
Indeed, the McCoy opinion addressed this very scenario,
citing with approval a number of state cases holding that
counsel may not unilaterally pursue a strategy of “concession of
the defendant’s commission of criminal acts and pursuit of
diminished capacity, mental illness, or lack of premeditation
defenses.” (McCoy, supra, 138 S.Ct. at p. 1510.)11 These cases,
as the high court described them, “were not strategic disputes
about whether to concede an element of a charged offense,
[citation]; they were intractable disagreements about the
fundamental objective of the defendant’s representation.”
(McCoy, at p. 1510.) This was so because the unavoidable
For example, in People v. Bergerud (Colo. 2010) 223 P.3d
686, cited with approval by McCoy, supra, 138 S.Ct. at
page 1510, the Colorado Supreme Court considered whether
defense counsel had, “by focusing on [defendant’s] mental state,
. . . effectively pled him guilty to lesser homicide crimes against
his wishes,” conduct that in its view “would have overstepped
their bounds and appropriated fundamental choices committed
to the defendant’s decision alone.” (Bergerud, at p. 697.
Opinion of the Court by Kruger, J.
consequence of counsel’s strategy in those cases was to abandon
the defendant’s wish to pursue acquittal in favor of a strategy
that would concede criminal responsibility of a lesser crime in
order to seek lesser punishment. In characterizing this choice
as going to the fundamental objective of the defendant’s
representation, McCoy makes clear that the decision whether to
concede the defendant should be found guilty of a crime — even
a lesser crime than the one the prosecution charged — is a
decision that necessarily belongs to the defendant. (See also
People v. Flores (2019) 34 Cal.App.5th 270, 273, 275 [finding
McCoy error where counsel conceded killing and argued absence
of premeditation over the defendant’s objection];12 People v.
(2019) 33 Cal.App.5th 472, 477 [finding McCoy error
where counsel conceded guilt of manslaughter over client’s
objection]; State v. Horn (La. 2018) 251 So.3d 1069, 1072–1074
[finding McCoy error where counsel conceded capital defendant
was guilty of second degree murder or manslaughter over
defendant’s objection].
The Attorney General does not dispute that McCoy forbids
counsel from conceding guilt of the charged offense or lesser
included offenses despite the client’s wish to maintain
innocence. He instead argues McCoy is inapplicable because the
core of Bloom’s objection was not, in fact, a wish to maintain
innocence, but instead a wish to avoid a mental capacity defense
and a wish to test gaps in the prosecution’s evidence that he
killed Josephine and Sandra. Given the nature of Bloom’s
This case raises no question about the application of the
Sixth Amendment to other types of concessions falling short of
a concession of guilt, such as concession of certain elements of a
charged offense. (See People v. Flores, supra, 34 Cal.App.5th at
pp. 280–283.) We express no views on the subject.
Opinion of the Court by Kruger, J.
objection, the Attorney General contends that counsel’s decision
to concede guilt was the sort of strategic judgment that falls
within counsel’s prerogative under McCoy.
With regard to Josephine and Sandra, the record belies
the premise of the argument: Bloom clearly objected to
admitting responsibility for the two victims’ deaths. It is true
that he was not always adamant on this point; in an initial
Marsden hearing, for example, he seemed to suggest that he
ought to be entitled to reduce his convictions from first degree
murder because he did not premeditate the murders, without
mentioning that he either believed himself to be innocent or that
he wished for his counsel to maintain his innocence on retrial.
But Bloom would later inform the court and counsel, in
unmistakable terms, that he did not want to admit to killing
Josephine or Sandra. He said: “[Defense counsel], over my
objection and against my express wishes, is going to concede
guilt in this case and I find that to be intolerable and
outrageous.” Even considering these statements in the broader
context of Bloom’s opposition to the mental defense strategy,
there is nothing genuinely ambiguous about his expressed
desire to maintain innocence in the deaths of Josephine and
Sandra.13 Counsel nonetheless conceded that Bloom was
factually responsible for the deaths of Josephine and Sandra,
The Attorney General notes that at the first trial, Bloom
disputed that he killed Josephine, but did not dispute that he
killed Sandra. The Attorney General does not suggest, however,
that Bloom affirmatively admitted to killing Sandra. (Cf. People
v. Bloom, supra, 48 Cal.3d at p. 1207 [Bloom testified at trial
that he saw Sandra after shooting Bloom, Sr., pulled the trigger
on the rifle, and “ ‘the next thing that happened’ was that he was
arrested while walking”].
Opinion of the Court by Kruger, J.
and while he did not commit first degree murder, he should still
be held criminally liable for their deaths. This decision was
certainly understandable as a matter of trial strategy. But
under McCoy, Bloom’s clearly expressed objection should have
We agree with the Attorney General, however, that there
was no McCoy violation in connection with the Bloom, Sr.,
murder charge, as to which Bloom conceded his responsibility.
And although Bloom cursorily argues otherwise, counsel’s
presentation of a mental capacity defense on this count, in the
absence of a clearly objected-to admission of criminal liability,
did not give rise to a Sixth Amendment violation. McCoy
explained the point as follows: “If, after consultations with
English concerning the management of the defense, McCoy
disagreed with English’s proposal to concede McCoy committed
three murders, it was not open to English to override McCoy’s
objection. English could not interfere with McCoy’s telling the
jury ‘I was not the murderer,’ although counsel could, if
consistent with providing effective assistance, focus his own
collaboration on urging that McCoy’s mental state weighed
against conviction.” (McCoy, supra, 138 S.Ct. at p. 1509.) Here,
the case was retried precisely because the Ninth Circuit found
Bloom’s counsel at his first trial ineffective for failing to
effectively develop a mental state defense. (Bloom v. Calderon,
supra, 132 F.3d at pp. 1271–1278.) The decision to pursue a
defense strategy focused on the role Bloom’s mental health
played in the crimes was strongly indicated, if not outright
compelled, by the Ninth Circuit’s decision. So here, where
Bloom did not contest his responsibility for killing his father,
Bloom, Sr., at the retrial, counsel did not violate the Sixth
Amendment by presenting a mental state defense to first degree
Opinion of the Court by Kruger, J.
murder, even though Bloom did not wish for counsel to present
the defense.14
Having found error as to two of the murder counts, we
consider the appropriate remedy. In McCoy, the court reversed
the judgment without an inquiry into harmlessness. It
concluded that the autonomy rights violated by counsel’s
unilateral decision to concede his client’s guilt of first degree
murder fell within that category of rights that are “so basic to a
fair trial that their infraction can never be treated as harmless
error.” (Chapman v. California (1967) 386 U.S. 18, 23
(Chapman).) The court likened the violation in the case to a
violation of a defendant’s right of self-representation, explaining
“ ‘[t]he right is either respected or denied; its deprivation cannot
be harmless.’ ” (McCoy, supra, 138 S.Ct. at p. 1511.) Like the
deprivation of that right, the court concluded counsel’s
erroneous concession of guilt of first degree murder was a
“structural” error that could be corrected only by holding a new
trial. (Id. at p. 1512.) Bloom argues that here, too, the error is
structural and requires us to reverse the judgment in its
We agree that the McCoy error requires reversal of the
affected counts and associated allegations but disagree that it
We note that the decision whether to present a mental
capacity defense differs from the decision whether to present a
defense of not guilty by reason of insanity. While a mental
capacity defense may mitigate criminal culpability, an insanity
defense could result in indefinite commitment to a mental
institution. For this reason, under long-standing California law,
a presently sane defendant must be permitted to make the
decision whether to mount an insanity defense. (People v. Gauze
(1975) 15 Cal.3d 709, 717–718.
Opinion of the Court by Kruger, J.
requires reversing the judgment in its entirety. In McCoy, it
made sense to reverse the judgment on all counts because the
error affected the entire defense: McCoy wished to maintain his
innocence of all three murder counts, and counsel conceded his
guilt on all three counts. Here, by contrast, Bloom wished to
maintain his innocence on only two of the three counts. As
noted, throughout the proceedings, Bloom acknowledged that he
shot his father to death and clearly told the court and counsel
that he had no objection to saying so. There is no reasonable
possibility that counsel’s erroneous concessions with respect to
the other counts affected the jury’s consideration of the count
concerning the murder of Bloom, Sr. There is, therefore, no
reason why the jury’s verdict with respect to the murder of
Bloom, Sr., should not stand. (See, e.g., People v. Reese (2017) 2
Cal.5th 660, 671.
By contrast, counsel’s decision to concede Bloom’s criminal
responsibility for the deaths of Josephine and Sandra over
Bloom’s objection is error of the sort that, as McCoy instructs,
defies harmlessness review. As the McCoy court explained:
“Such an admission blocks the defendant’s right to make the
fundamental choices about his own defense. And the effects of
the admission would be immeasurable, because a jury would
almost certainly be swayed by a lawyer’s concession of his
client’s guilt.” (McCoy, supra, 138 S.Ct. at p. 1511.) Bloom
“must therefore be accorded a new trial” on the affected counts
“without any need first to show prejudice.” (Ibid.
This conclusion requires us to reverse Bloom’s convictions
on counts 2 and 3, concerning the murders of Josephine and
Sandra, as well as the associated firearm- and weapon-use
allegations. The reversal of two of the three charged murder
convictions also requires us to reverse the jury’s true finding on
Opinion of the Court by Kruger, J.
the only special circumstance alleged here, multiple murder.
And this, finally, requires us to reverse the death judgment,
which cannot stand in the absence of a valid special
circumstance finding. (See People v. Trujeque (2015) 61 Cal.4th
227, 253.
2. Admission of witnesses’ former testimony
Witnesses Martin Medrano and Christine Waller testified
at Bloom’s first trial but were unavailable on retrial. The trial
court allowed the prosecution to introduce their former
testimony under Evidence Code section 1291.15 Bloom contends
this was error that violated both the Evidence Code and his
federal constitutional rights. We reject the argument.
In his testimony as read to the jury on retrial, Medrano
testified that in April 1982, three or four days before the
homicides, Bloom asked Medrano to get him a handgun, offering
Evidence Code section 1291 provides: “(a) Evidence of
former testimony is not made inadmissible by the hearsay rule
if the declarant is unavailable as a witness and: [¶] (1) The
former testimony is offered against a person who offered it in
evidence in his own behalf on the former occasion or against the
successor in interest of such person; or [¶] (2) The party against
whom the former testimony is offered was a party to the action
or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an
interest and motive similar to that which he has at the hearing.
[¶] (b) The admissibility of former testimony under this section
is subject to the same limitations and objections as though the
declarant were testifying at the hearing, except that former
testimony offered under this section is not subject to: [¶]
(1) Objections to the form of the question which were not made
at the time the former testimony was given. [¶] (2) Objections
based on competency or privilege which did not exist at the time
the former testimony was given.”
Opinion of the Court by Kruger, J.
$1,200 and mentioning he had a contract to kill someone. A few
days later, Bloom told Medrano he would read about the killing,
but never produced any money to buy a gun. When Medrano
heard about the crime, he did not immediately come forward
because he was in violation of his parole. At the time of his
testimony, he was in custody for armed robbery, but testified he
had not been promised anything for his testimony.
Waller was 14 years old in April 1982 and 16 when she
testified at Bloom’s first trial. At the time of the killings, she
had known Bloom for about two years. They had a close
relationship, and he would often stay overnight at her house.
Sometime in April, Bloom told her there had been an attempted
break-in at Waller’s house and that he would stay at the home
to protect the family. Two nights before the killings, Bloom told
her to stay indoors, and she saw him outside the house carrying
her brother’s rifle. On the day before the killings, Bloom was
again staying at her house. When Waller went to wake him at
5:00 the next morning, he was not in his room. Waller also
testified to Bloom’s antagonistic relationship with his father,
who was always angry at him, and his caring relationship with
his stepsister Sandra.
The defense sought to exclude this testimony from being
presented in the retrial. The defense contended that the prior
testimony was inadmissible under Evidence Code section 1291
because Bloom had not had “the right and opportunity to cross-
examine the declarant[s] with an interest and motive similar to
that which” he now had at the retrial, as section 1291 requires.
(Evid. Code, § 1291, subd. (a)(2).) He contended this was so for
several reasons: Because his former counsel missed important
points in their cross-examination of the two witnesses, failing to
probe Medrano’s motivations to lie as well as Waller’s
Opinion of the Court by Kruger, J.
observations of Bloom’s mental illness and relationships with
family members; because former counsel had been found
constitutionally ineffective; and because Bloom was
incompetent at the time of the first trial. To support this last
point, counsel relied on evidence developed in federal habeas
corpus proceedings, including a neurological assessment and jail
records evidencing Bloom’s bizarre behavior, delusions and
hallucinations, and a suicide attempt, as well as various expert
reports. Dr. Hyman Weiland, who had testified at the first trial
that Bloom was incompetent, reviewed the additional evidence
and gave a declaration stating he adhered to his previously
expressed views. Dr. William Vicary, who had testified at the
first trial that Bloom was competent, declared he now believed
Bloom had been incompetent at the first trial based on
reviewing additional materials and interviewing Bloom again.
Drs. Julian Kivowitz, David Lisak, and Donald Verin also
submitted declarations agreeing that Bloom had not been
competent during his previous trial. Based on this evidence,
counsel argued that a retrospective competency hearing was
needed to determine whether the prior testimony of Medrano
and Waller was admissible. (See People v. Lightsey (2012
54 Cal.4th 668, 703–711 [discussing nature and feasibility of
retrospective competency proceedings].
The prosecutor opposed the motion. She noted that when
the Ninth Circuit found Bloom had received ineffective
assistance of counsel at his first trial, the court did not fault
former counsel’s handling of the lay witnesses, instead reserving
its criticism for his investigation and presentation of the expert
mental health witnesses. She also asserted that prior counsel
may have had tactical reasons for handling the lay witnesses as
he did, such as to avoid emphasizing that Medrano knew Bloom
Opinion of the Court by Kruger, J.
from jail. Agreeing with the prosecutor, the trial court declined
to exclude the challenged testimony of Medrano and Waller.
We affirm the relevant rulings. The possibility that
current counsel would have cross-examined a witness
differently or more searchingly does not, in itself, render the
prior testimony inadmissible under Evidence Code section 1291.
(People v. Zapien (1993) 4 Cal.4th 929, 975 [“As long as
defendant was given the opportunity for effective cross-
examination, the statutory requirements were satisfied; the
admissibility of this evidence did not depend on whether
defendant availed himself fully of that opportunity”].
It is true that former defense counsel’s ineffective
assistance can, in some circumstances, be grounds for excluding
an unavailable witness’s prior testimony on constitutional
grounds. In past cases, we have looked to “the circumstances
surrounding the prior testimony and how it was used in the
subsequent trial[] to determine whether the evidence at issue is
attributable to counsel’s ineffective assistance and whether its
use denied the defendant a fair trial in the subsequent
proceeding.” (People v. Ledesma (2006) 39 Cal.4th 641, 686–687;
see also Crawford v. Washington (2004) 541 U.S. 36, 57 [for
purposes of the confrontation clause, former testimony is
admissible if the defendant had an adequate opportunity to
examine the witness at the prior hearing], citing, inter alia,
Mancusi v. Stubbs (1972) 408 U.S. 204, 215 [confrontation
clause did not bar use of a witness’s prior testimony on retrial
following reversal of a conviction for ineffective assistance of
former counsel where the defense proffered no “new and
significantly material line of cross-examination that was not at
least touched upon in the first trial”].
Opinion of the Court by Kruger, J.
Here, however, Bloom makes no persuasive showing that
the trial court should have excluded the Medrano and Waller
testimony due to deficiencies in prior counsel’s cross-
examination. As for Medrano, the prosecutor elicited on direct
examination the facts of Medrano’s criminal record and heroin
addiction and that he had been promised nothing for his
testimony. Trial counsel then cross-examined him regarding
the effects of his drug use and the reasons for his delay in
reporting his encounters with Bloom. The cross-examination
gave the jury ample basis to question Medrano’s veracity.
Bloom’s argument that further cross-examination would have
provided the jury with additional reasons to doubt his testimony
is not sufficient reason to bar the introduction of Medrano’s
testimony on retrial. (See People v. Carter (2005) 36 Cal.4th
1114, 1174 [as long as the defendant was given the opportunity
for cross-examination, admission of preliminary hearing
testimony under Evid. Code, § 1291 does not violate the
confrontation clause “ ‘simply because the defendant did not
conduct a particular form of cross-examination that in hindsight
might have been more effective,’ ” quoting People v. Samayoa
(1997) 15 Cal.4th 795, 851].) As for Waller, defense counsel
elicited on cross-examination her belief that Bloom, Sr., bullied
Bloom, her characterization of Bloom’s good relationships with
Josephine and Sandra, her observations of Bloom, Sr., losing his
temper at Bloom, and her recollection of Bloom’s demeanor on
the night of the offenses. The suggestion that former trial
counsel, if sufficiently prepared, could have elicited from this
teenage witness further information significantly bearing on
Bloom’s mental state at the time of the offenses is speculative at
best. While it is always possible to conceive of additional
questions that could have been asked, former trial counsel’s
Opinion of the Court by Kruger, J.
cross-examination of Medrano and Waller was not so deficient
that fairness required excluding their former testimony at
Bloom’s retrial.
As noted, Bloom alternatively sought exclusion of the
Medrano and Waller testimony based on information developed
in his federal habeas corpus proceedings that suggested he was
incompetent during his prior trial. He contends that because he
was incompetent, he did not have the adequate opportunity to
cross-examine the witnesses that the Constitution requires.
Bloom’s argument relies on Stevenson v. Superior Court
(1979) 91 Cal.App.3d 925, 929–931. There, the defendant was
held to answer following a preliminary hearing. It was later
determined that the defendant was incompetent at the time of
the hearing. After the defendant was restored to competency, a
second preliminary hearing was held. At that hearing, the
prosecution presented, over defense objection, the prior
testimony of the now-unavailable victim, and the defendant was
again held to answer. (Id. at pp. 927–928.) The Court of Appeal
ordered the information set aside for lack of supporting
evidence. The court concluded the victim’s prior testimony was
inadmissible because the defendant lacked an adequate
opportunity to cross-examine the victim by reason of his
incompetence during the initial preliminary hearing. (Id. at
pp. 930–931.) Although the defendant had been represented by
counsel at the time, the appellate court nonetheless declined to
presume the incompetent defendant enjoyed a meaningful
opportunity for cross-examination. (Id. at p. 930.
The Attorney General urges us not to follow Stevenson,
contending that Bloom’s asserted incompetence at his first trial
should not affect admissibility of the prior testimony unless it
Opinion of the Court by Kruger, J.
demonstrably impaired the defense cross-examination of the
witnesses at the first trial. But we need not decide here whether
to adopt the reasoning of Stevenson, since the premise of the
holding in that case is absent: Unlike the defendant in
Stevenson, Bloom was never found to be incompetent at the time
the witnesses were examined at the first trial. As noted above,
the issue of Bloom’s competency was raised and litigated at the
first trial, and Bloom was found competent. The issue arose
around the time of sentencing, after he had been granted self-
representation under Faretta, supra, 422 U.S. 806. While
preparing for his sentencing, Bloom stabbed a fellow jail inmate.
The trial court revoked his self-representation status,
reappointed counsel, and ordered psychiatric evaluations and a
competency hearing before a jury, which found him competent.
(People v. Bloom, supra, 48 Cal.3d at p. 1217.) The trial court
then restored his self-representation status and sentenced him
to death. In reversing Bloom’s conviction and sentence, the
federal court did not address any questions relating to his
competency. (See Bloom v. Calderon, supra, 132 F.3d 1267.
On appeal, Bloom contends this was error; he maintains
that the court should have held a retrospective competency
hearing before ruling on the admissibility of Medrano’s and
Waller’s former testimony. We conclude that the trial court did
not err. While Bloom did amass additional evidence to support
his argument that he was incompetent at the first trial, the
court could reasonably weigh the retrospective opinions of
medical professionals — rendered some nine years after trial —
against the contemporaneous opinions of the professionals who
had taken the view that Bloom was competent. As our cases
have explained, there are often substantial obstacles to holding
retrospective competency hearings — at which the defendant
Opinion of the Court by Kruger, J.
bears the burden of proving incompetence — even in cases in
which competence to stand trial is directly at issue. (See, e.g.,
People v. Wycoff, supra, 12 Cal.5th at pp. 93–96.) Here, the trial
court did not err in declining to hold a retrospective competency
hearing for the limited purpose of determining whether to admit
the prior testimony of two witnesses who were, as explained
above, effectively examined at the first trial.16
The trial court did not, in short, err in overruling Bloom’s
evidentiary objection.
3. Cross-examination of Dr. Watson
Bloom contends the trial court violated his rights under
the state and federal Constitutions by allowing cross-
examination of the defense neuropsychological expert
concerning Bloom’s behavior and demeanor in the courtroom.
We are unpersuaded.
The issue arose in the following context. Dr. Watson twice
conducted neuropsychological testing of Bloom, first in 1993 and
again from 1999 to 2000. Dr. Watson testified as to what the
testing revealed about Bloom’s cognitive capacities, deficits, and
functioning and how they may have affected the commission of
the crimes. On cross-examination, over a defense objection,
Dr. Watson acknowledged that his report stated Bloom
appeared to meet one of the criteria (Category A) for Asperger
Syndrome as detailed in the Diagnostic and Statistical Manual
of Mental Disorders: “marked impairment in the use of multiple
nonverbal behaviors such as eye to eye gaze, facial expression,
This is true regardless of whether the trial court was
bound by, or simply considered, the outcome of the competency
proceedings at the first trial.
Opinion of the Court by Kruger, J.
body postures, and gestures to regulate social interaction.” The
prosecutor then asked, “Hypothetically, if the defendant were to
sit in the courtroom and make good eye contact with his defense
attorneys and their assistant, and to watch the witnesses
testify, and to then talk to his attorney, and then go back to
watching the witness testify, would that tend to not be part of
the Criteria A?” Defense counsel objected that the question was
an improper hypothetical and lacked foundation, but the
prosecutor said she had been watching and “it is absolutely
true,” and that her expert had been in the courtroom for three
days and would testify it was true. The court noted it had
“observed eye-to-eye contact” and “numerous facial
expressions,” and concluded the question was therefore proper.
Defense counsel moved for a mistrial, arguing that comment on
communication between Bloom and his defense team violated
the attorney-client privilege. The court denied the motion. The
prosecutor resumed cross-examining Dr. Watson, asking,
“Hypothetically, if the defendant is sitting next to the . . .
woman that’s sitting next to him making eye contact, smiling,
gesturing with his hands, nodding up and down, speaking to her,
she is speaking back to him, does that tend to tell you that we
haven’t met” the Asperger criterion? Dr. Watson conceded,
“That would tend to argue against that.”
Bloom contends that his demeanor during the guilt phase
of trial was legally irrelevant and not a proper subject for cross-
examination, since Dr. Watson had never diagnosed him with
Asperger Syndrome, and Dr. Mills, who had, did not explicitly
determine whether the disputed criterion applied. He contends
the prosecutor’s questions were improper for the additional
reason that testimony or comment about the demeanor and
behavior of Bloom and defense counsel during their courtroom
Opinion of the Court by Kruger, J.
interactions invited improper speculation about privileged
The trial court did not abuse its discretion in permitting
the questioning. As a general matter, a nontestifying
defendant’s courtroom demeanor in the guilt phase of a capital
trial is legally irrelevant and the prosecutor may not comment
on it. (People v. Heishman (1988) 45 Cal.3d 147, 197 [“In
criminal trials of guilt, prosecutorial references to a
nontestifying defendant’s demeanor or behavior in the
courtroom have been held improper” on various grounds,
including that “[c]onsideration of the defendant’s behavior or
demeanor while off the stand violates the rule that criminal
conduct cannot be inferred from bad character”].) But by
offering expert opinion on Bloom’s neuropsychiatric condition,
the defense put in issue aspects of his behavior that shed light
on the existence of that condition. (See ibid. [rejecting claim of
error on the basis that the prosecutor’s references to the
defendant’s demeanor were made during the penalty phase of a
trial in which the defendant had placed his own character in
issue].) Dr. Watson acknowledged stating in his report that
Bloom appeared to meet a diagnostic criterion for Asperger
Syndrome, and the prosecutor could properly probe the basis for
that opinion. (People v. Hawthorne (2009) 46 Cal.4th 67, 93–
94.)17 The challenged questioning did not implicate the concerns
underlying the general rule against using a defendant’s
courtroom demeanor as impermissible bad character evidence.
In reaching this limited conclusion here, we are not
suggesting that the prosecution is free to comment on a
defendant’s courtroom behavior or demeanor anytime the
defense places a defendant’s mental state in issue.
Opinion of the Court by Kruger, J.
Nor, in view of the absence of any revelation of the content of
communications between Bloom and his defense team, did the
questioning infringe the attorney-client privilege or violate his
right to privacy.
4. Prosecutorial misconduct
Bloom asserts the prosecutor engaged in several instances
of improper argument and cross-examination during the guilt
phase. He argues these instances of misconduct violated his
federal and state constitutional rights, as well as Penal Code
section 1180, and require reversal of the judgment.
“Prosecutorial misconduct requires reversal when it ‘so infect[s]
a trial with unfairness [as to] create a denial of due process.
[Citations.] Conduct by a prosecutor that does not reach that
level nevertheless constitutes misconduct under state law, but
only if it involves the use of deceptive or reprehensible methods
to persuade the court or jury.’ ” (People v. Armstrong (2019) 6
Cal.5th 735, 795.) We find no reversible misconduct here.
a. Use in opening statement of Bloom’s remarks in
closing argument at his first trial
Before trial, the prosecution asked the court to permit it
to introduce Bloom’s penalty phase closing argument from his
first trial, in which he described thinking about killing his father
weeks before the murder occurred. The defense objected, citing
Penal Code section 1180, which states that “[t]he granting of a
new trial places the parties in the same position as if no trial
had been had,” and “[a]ll the testimony must be produced anew.”
(Pen. Code, § 1180.) Notwithstanding the objection, Judge Hoff
ruled the prosecution could use excerpts from the closing
argument. As discussed below, however, the parties dispute
whether Judge Hoff’s admissibility ruling was limited to use in
Opinion of the Court by Kruger, J.
cross-examination of defense experts or included use in the
prosecution’s case-in-chief. Prosecutor Samuels had made clear
her desire to introduce Bloom’s closing argument in the
prosecution’s case-in-chief, but the rest of the admissibility
discussion focused on the use of the argument in cross-
examination. Specifically, Samuels argued that precluding her
from using the argument excerpts would hamper her ability to
“properly cross-examine” experts. The court agreed, rhetorically
asking how “a court [could] preclude another party from cross-
examining a witness,” and noting that the impact of having
Bloom’s prior statement read is “precisely why [the prosecutor]
wants to use it, . . . and I think the law provides for it,” albeit
with “some redaction.”
Judge Hoff later recused himself and Judge Schempp took
over the case. At a hearing shortly before trial, defense counsel
asked Judge Schempp to admonish the prosecution “not to bring
up in their opening statement any issues that are still
contested,” including “the penalty argument from the first trial
by Mr. Bloom.” The court stated: “She is certainly not going to
get into that in the opening statement.” The prosecutor
asserted, “It doesn’t matter, it’s not contested; it’s all been ruled
on. Everything she’s mentioned has already been ruled on.”
Defense counsel disagreed as to the scope of Judge Hoff’s prior
ruling. The court responded, “I’m not going to hear any more of
this. These things have all been ruled on and Ms. Samuels
knows how to make a proper opening statement on what she
expects to prove.”
During her guilt-phase opening statement, the prosecutor
explained that she would prove that “rather than being mentally
deficient, the defendant in this case was capable of formulating
and did formulate a rather sophisticated plan to kill his father.”
Opinion of the Court by Kruger, J.
Without telling the jury the context in which Bloom made the
statement, the prosecutor then quoted from Bloom’s closing
penalty phase argument at the first trial, at which he
represented himself and asked the jury to return a death
verdict: “ ‘This man was going to die. Weeks before this, sure,
thoughts went through my head, “I’m going to kill the old man,”
sure. The difference is putting it into action. Eventually this
man was going to die and eventually he was going to die by my
hand. He just speeded up the results.’ ”
Defense counsel did not object at the time. Six days later,
however, in a hearing outside the presence of the jury, the
parties addressed defense objections under Penal Code section
1180 to the admissibility of other portions of the closing
argument. At that hearing, Judge Schempp expressed
discomfort with the prosecutor’s having introduced Bloom’s
argument to the jury in the earlier trial as if it were a party
admission under Evidence Code section 1220. Judge Schempp
ruled, however, that the prosecutor could use the argument in
cross-examining psychiatric experts.
On appeal, the parties dispute the scope of Judge Hoff’s
admissibility ruling as it was rendered, and which Judge
Shempp had declined to reconsider before trial. Bloom contends
the ruling allowed use of his prior penalty argument only to
probe the basis for the defense experts’ opinions when they
testified, while the Attorney General asserts Judge Hoff’s ruling
“appeared to contemplate the admission of appellant’s
statements during the prosecution’s case in chief,” presumably
as a party admission under Evidence Code section 1220.
Assuming without deciding that the prosecutor’s use of
Bloom’s admission in her opening statement was misconduct,
Opinion of the Court by Kruger, J.
we perceive no prejudice under any standard. The quote was
brief, and the jury was instructed that the remarks of counsel
are not evidence. Aside from the use of this quote, the record
reflects overwhelming evidence that Bloom premeditated the
killing of his father: Bloom spent the days leading up to the
murder obtaining a gun, planning to stay at Waller’s home and
fabricating a break-in at that home to do so, and telephoning his
father to tell him, “You’re running my life now, but you won’t be
for long.”
b. Cross-examination of defense expert regarding
informant statements; argument concerning
their reliability

Bloom contends the prosecutor engaged in misconduct
when cross-examining defense expert Dr. Mark Mills with the
testimony of two jailhouse informants and making a related
argument to the jury. Dr. Mills testified on direct examination
that Bloom dissociated during the offenses and suffered from
brain damage and Asperger Syndrome. In preparing to testify,
Dr. Mills had reviewed the 1982 preliminary hearing testimony
of Rodney Catsiff and Mariano Alatorre to the effect that Bloom
had told them about the crime, his reasons for committing
murder, the weapon he used, and the number of times he
stabbed Sandra. During federal habeas corpus proceedings,
however, both these informants had recanted their testimony in
whole or in part, and the prosecutor noted that her office’s
policies would not permit her to call Catsiff and Alatorre as
witnesses in the present trial. But because their testimony had
been provided to Dr. Mills, the court ruled he could be
questioned concerning his reliance on it.
On cross-examination, Dr. Mills disclaimed reliance on
the informants’ preliminary hearing testimony because of their
Opinion of the Court by Kruger, J.
later recantations. The prosecutor then asked questions
apparently aimed at bolstering the credibility of the informants’
preliminary hearing testimony. The prosecutor asked, for
example, how Catsiff could have known how many times Sandra
was stabbed unless Bloom had told him, and whether Catsiff’s
having written notes of his conversation with Bloom suggested
that he had in fact testified truthfully about it.
Bloom argues that by engaging in this line of questioning,
the prosecutor improperly sought to vouch for the truth of the
later-recanted informant testimony. Moreover, he contends, the
prosecutor reinforced these themes in her closing argument
when she asked the jury rhetorically, “[D]o you think it is
reasonable that the detective in this case took these jailhouse
snitches, put them on the stand and they were lying?” The
Attorney General, for his part, contends the prosecutor’s
questions and argument complied with the trial court’s ruling
that Dr. Mills could be cross-examined on the topic; that the rule
against vouching was not implicated here because Catsiff and
Alatorre were not witnesses in the retrial; and that in any event
no improper vouching occurred because the prosecutor’s
statements and inferences regarding their testimony were all
based on matters of record.
Bloom’s claim as to the prosecutor’s rhetorical question in
closing is forfeited by his failure to make a contemporaneous
objection. (People v. Hill (1998) 17 Cal.4th 800, 820.) But even
if Bloom’s claims of error were all preserved for appeal, we
conclude that neither the prosecutor’s questioning nor her
argument constituted improper vouching. “The general rule is
that improper vouching for the strength of the prosecution’s case
‘ “involves an attempt to bolster a witness by reference to facts
outside the record,” ’ ” such as the prosecutor’s personal
Opinion of the Court by Kruger, J.
experience. (People v. Huggins (2006) 38 Cal.4th 175, 206.
Unlike our recent decision in People v. Rodriguez (2020) 9
Cal.5th 474, 481, in which we concluded that a prosecutor
impermissibly vouched for testifying officers by asserting they
“would not lie because each would not put his ‘entire career on
the line’ or ‘at risk,’ ” here — as the Attorney General correctly
observes — “[a]ll of the prosecutor’s questions to Dr. Mills were
based on the record or on reasonable inferences that could be
drawn from the record.” Nor do we find the prosecutor’s
remarks during closing argument constitute improper vouching.
In context, the rhetorical question about the witnesses lying was
part of a broader theme — that to accept the defense theory
about Bloom’s mental state, the jury would have to ignore
significant evidence, as had the defense expert. Dr. Mills, the
prosecutor argued, had “disregard[ed] what doesn’t fit into his
diagnosis. Just that simple. The pile of stuff in this case that
you have to ignore if you want to believe the defense just keeps
getting bigger and bigger.” “It is not . . . misconduct to ask the
jury to believe the prosecution’s version of events as drawn from
the evidence.” (Huggins, at p. 207.
c. Cross-examination of defense experts and
argument regarding mental states (Pen. Code,
§ 29)

Bloom contends the prosecutor improperly asked defense
experts to render an opinion on Bloom’s mental state during the
Penal Code section 29 provides that “[i]n the guilt phase
of a criminal action, any expert testifying about a defendant’s
mental illness, mental disorder, or mental defect shall not
testify as to whether the defendant had or did not have the
required mental states . . . for the crimes charged. The question
Opinion of the Court by Kruger, J.
as to whether the defendant had or did not have the required
mental states shall be decided by the trier of fact.” “[S]ections
28 and 29 . . . exclude expert testimony regarding a defendant’s
capacity to form a required mental state and expert testimony
stating a conclusion that a defendant did or did not have a
required mental state.” (People v. DeHoyos (2013) 57 Cal.4th 79,
117.)18 “On the other hand, . . . questions concerning how
defendant could perform certain acts without intending to do
them, and whether defendant’s actions indicated that he had
impaired judgment, [are] not inappropriate.” (People v. Smithey
(1999) 20 Cal.4th 936, 961.
Dr. Watson testified on direct examination concerning the
results of neuropsychological testing he administered to Bloom,
which in the expert’s view showed long-standing brain damage
resulting in “generally severe” impairment affecting his ability
to process information and emotional reactions, react to new
situations, and make decisions and judgments in a considered
On cross-examination, the prosecutor probed matters
Dr. Watson had mentioned in his report to determine whether
he relied on them and if not, why not. These matters included
Bloom’s statement to another expert that, after the crimes, he
Penal Code section 28, subdivision (a), provides:
“Evidence of mental disease, mental defect, or mental disorder
shall not be admitted to show or negate the capacity to form any
mental state, including, but not limited to, purpose, intent,
knowledge, premeditation, deliberation, or malice aforethought,
with which the accused committed the act. Evidence of mental
disease, mental defect, or mental disorder is admissible solely
on the issue of whether or not the accused actually formed a
required specific intent, premeditated, deliberated, or harbored
malice aforethought, when a specific intent crime is charged.”
Opinion of the Court by Kruger, J.
attempted “to get rid of the evidence and leave a cold trail,” as
well as the fact that Josephine had been killed with three
gunshots to her head and Sandra by multiple stab wounds as
well as a gunshot to the face. Of the planning evidence, the
prosecutor asked Dr. Watson, “Doesn’t that reflect not only his
ability to make that plan, but the fact that he in fact carried it
out?” Of the three shots that killed Josephine, the prosecutor
asked whether they “show that the defendant knew exactly
what he was doing when he killed her, that he was intending to
kill her,” eliciting Dr. Watson’s answer that “I think it probably
does.” And of the mode of Sandra’s killing, presented in a
hypothetical question, the prosecutor asked Dr. Watson,
“Doctor, is this person trying to kill Sandra Hughes or not?” The
prosecutor continued: “And what I’m asking you is: If every one
of his behaviors starting weeks before the murder in the
planning of the killings — weeks before the killings with
planning and ending shortly after the murder almost finishing
the plan, you are saying that the only part of that period where
his mental impairments kicked in because of the emotional
components is during that short period of time from when he
first shot his father until when he finished killing Sandra?”
Dr. Watson agreed.
Contrary to Bloom’s arguments, none of this questioning
violated the restrictions in Penal Code section 29. The
prosecutor was entitled to test on cross-examination
Dr. Watson’s opinion that brain damage precluded Bloom from
forming and carrying out plans in a disruptive emotional
situation, including by highlighting possible inconsistencies
between this opinion and Bloom’s characterization of his own
conduct in an interview with another expert, which the witness
admittedly had considered in conducting his evaluation.
Opinion of the Court by Kruger, J.
Moreover, during cross-examination, the prosecutor, without
objection from defense counsel, gave Dr. Watson latitude to
articulate what he believed the evidence showed about Bloom’s
mental state, a line of inquiry the defense followed up on in
redirect examination, thus minimizing any conceivable
prejudice from how the prosecutor framed her questions. Bloom
has not shown prejudicial misconduct in this regard.19
d. Asserted Griffin error
Griffin v. California (1965) 380 U.S. 609 (Griffin) holds
that the Fifth Amendment “forbids either comment by the
prosecution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.” (Id. at p. 615.) Bloom
contends the prosecutor improperly commented in various ways
on his invocation of the right to be silent, resulting in a violation
of the rule announced in Griffin.
First, Dr. William Vicary, a defense expert witness who
testified on direct that Bloom was likely to “snap” under
Defendant also contends the prosecutor’s questioning was
at times rude, sarcastic, or disparaging, as when she alluded to
neurological deficits and Asperger Syndrome “rearing their ugly
heads” or to defendant’s being “too whacked-out to know what
he was doing.” Although a prosecutor’s intemperate behavior
violates the federal Constitution if it infects the trial with such
unfairness as to make the conviction a denial of due process
(People v. Samayoa, supra, 15 Cal.4th at p. 841), and
prosecutorial conduct that does not render a criminal trial
fundamentally unfair violates state law if it involves the use of
deceptive or reprehensible methods as a means to persuade the
court or the jury (People v. Penunuri (2018) 5 Cal.5th 126, 149),
the complained-of comments were mild and too fleeting to have
adversely affected the fairness of the proceedings. Nor, for the
same reason, did they amount to a prejudicial state-law
Opinion of the Court by Kruger, J.
stressful situations, acknowledged on cross-examination (over
defense objection) that being on trial for murder and hearing the
percipient and expert witnesses would be a stressful situation
for Bloom, suggesting, according to Bloom, “that the jury could
infer from the absence of conduct communicating appellant’s
distress in the courtroom that he did not break down in stressful
situations.” Bloom contends this questioning thus permitted the
jury, improperly, “to infer facts about appellant’s mental state
during the crime from” his lack of assertive courtroom conduct,
which Bloom would apparently treat as silence for Griffin
purposes. But the prosecutor’s question merely invited the
jurors to make an inference from their observations of Bloom’s
courtroom demeanor; it did not constitute comment on his
failure to testify or any other conduct that could reasonably be
interpreted as a refusal to speak about the charged crimes.
Next, Bloom contends the prosecutor twice committed
Griffin error during closing argument. In describing Bloom’s
interaction with Bloom, Sr., in front of the Sancola Avenue
residence, the prosecutor argued, “We will never know what
they were talking about out there.” Then, in reviewing the
evidence concerning Sandra’s murder, the prosecutor suggested
that after inflicting nonfatal stab wounds on the young girl,
Bloom retrieved a live round and shot her. “And that explains
why he only shot her once and left her breathing because he just
was having trouble with that gun and he managed to find a live
round, whether it was in that room or he went into another
room, but he loaded the gun again and he shot her in the face.
[¶] Now, does he go into the kitchen to try to fix the gun so he
can find another live round to shoot her again? Is that what he
was doing at the kitchen window? We will never know that. It
is certainly a reasonable interpretation of what was going on in
Opinion of the Court by Kruger, J.
that house that night.” Defense counsel objected to both sets of
comments, citing Griffin, and moved for a mistrial. The court
overruled the objection and denied the motion.
We agree with the trial court in part and disagree in part.
The prosecutor’s comment that “we will never know what
[Bloom and his father] were talking about out there” in front of
the Sancola Avenue residence, in a conversation as to which only
Bloom evidently could have testified, appears impermissible
under Griffin. While a prosecutor does not violate the Griffin
rule by commenting on the absence of certain evidence, a Griffin
error does occur when the only possible source of such evidence
would have been the defendant. (See, e.g., People v. Johnson
(1992) 3 Cal.4th 1183, 1229 [prosecutor errs by referring to
evidence as “ ‘uncontradicted’ ” or “ ‘unrefuted’ ” only when the
defendant, who elects not to testify, is the only person who could
have refuted it].) The comment, however, was brief and did not
overtly call attention to Bloom’s failure to take the stand at the
guilt phase to explain what had occurred. We are satisfied
beyond a reasonable doubt that the prosecutor’s fleeting remark
could not have prejudiced Bloom. (Chapman, supra, 386 U.S. at
pp. 25–26.) By contrast, the prosecutor’s statement that
Bloom’s entering the kitchen of the Sancola Avenue residence
during the crimes may have been part of a search for a live round
to shoot at Sandra constituted fair comment on the evidence.
The prosecutor cautioned jurors that “we will never know that,”
while urging that it was “a reasonable interpretation” of the
evidence. In context, the prosecutor was not drawing attention
to the absence of direct testimony on the issue but advising the
jury it was being asked to make an inference from the facts in
Opinion of the Court by Kruger, J.
e. Asserted reliance on facts not in evidence
In her guilt phase closing argument, the prosecutor sought
to persuade jurors against returning a voluntary manslaughter
verdict by reminding them “there is some evidence in this case
that [Bloom, Sr.,] wasn’t always a tyrant and there is some
evidence in this case that he loved his son. You heard the
telegrams . . . when [Bloom] was in the Navy and they were
loving.” As Bloom points out, the telegrams to which the
prosecutor referred, sent by Bloom, Sr., to Bloom during the
latter’s brief stint in the Navy, were not admitted into evidence.
Rather, the prosecutor called Bloom’s mother, Melanie, to testify
in rebuttal about language in the telegrams that expressed love
for Bloom, contrary to Melanie’s earlier testimony that she had
never heard Bloom, Sr., do so.
The argument may well have been improper. The court
allowed the prosecutor to question Melanie about the telegrams
only in order to impeach her prior testimony that she had never
heard Bloom, Sr., express love to Bloom, not as positive evidence
that Bloom, Sr., had expressed love for Bloom. On the latter
point, Melanie’s testimony about the telegrams was hearsay for
which the Attorney General posits no exception. The
prosecutor’s misuse of the testimony in argument did not render
Bloom’s trial unfair but could be characterized as deceptive, or
at least misleading, conduct. We see no conceivable prejudice
from the error, however, whether considered individually or in
combination with the other asserted instances of prosecutorial
Opinion of the Court by Kruger, J.
5. Instructional error
a. Conduct evidencing guilt
Bloom contends the trial court erred in instructing the
jury with CALJIC Nos. 2.06 and 2.52, concerning suppression of
evidence and flight, respectively, as demonstrating
consciousness of guilt. He argues they were unnecessary,
misleading, and argumentative, allowed the jury to draw
irrational inferences against him, and denied him his Sixth,
Eighth, and Fourteenth Amendment rights to due process, a fair
trial, a jury trial, equal protection, and reliable jury
determinations of guilt and special circumstances.
As Bloom acknowledges, we have previously rejected these
contentions (e.g., People v. Streeter (2012) 54 Cal.4th 205, 253–
254 [CALJIC No. 2.52]; People v. Dement (2011) 53 Cal.4th 1,
52–53 [CALJIC No. 2.06]), and he advances no persuasive
reason why we should reconsider our conclusions.
b. Instructions assertedly undermining
requirement of proof beyond reasonable doubt
Bloom contends the trial court erred in reading the jury a
series of instructions on the consideration of circumstantial and
other evidence (CALJIC Nos. 2.01, 2.02, 2.21.2, 2.22, 2.27, and
8.20), which he contends diluted the reasonable doubt standard.
Contrary to Bloom’s claims, and as we have previously held,
CALJIC Nos. 2.01 and 2.02 did not direct the jury to convict him
of murder if he “ ‘reasonably appeared’ ” guilty, even if jurors
still entertained a reasonable doubt of his guilt (People v.
(2003) 30 Cal.4th 705, 714), and CALJIC Nos. 2.21.2,
2.22, 2.27, and 8.20 did not urge the jury to decide material
issues by determining which side had presented relatively
stronger evidence (People v. Casares (2016) 62 Cal.4th 808, 831–
Opinion of the Court by Kruger, J.
832). “Because defendant advances no persuasive reason to
depart from our precedents, we adhere to them here.” (Id. at
p. 831.
C. Sanity Phase Issues
1. Refusal to allow Bloom to represent himself at the
sanity phase
As explained above, Bloom argues that the trial court
erred in failing to suspend proceedings to adjudicate his
competency during the sanity phase, an argument we have
rejected. (See ante, pt. II.A.2.c.) Bloom argues in the alternative
that the court should have permitted him to represent himself
in that portion of the trial. We reject that contention as well.
Bloom advised the court he wished to represent himself for
the sanity phase after the jury had been instructed and just
before closing arguments in the guilt phase. As the reason for
his request, he referred to the court’s decision to instruct the
jury on voluntary manslaughter only as to the charge relating
to Bloom, Sr. He also mentioned there was an unspecified issue
relating to penalty that, if resolved as he preferred, would cause
him to withdraw his request to represent himself in the sanity
phase. Bloom acknowledged his lack of familiarity with the
intricacies of the applicable law while nevertheless expressing
confidence that he could handle the trial of the sanity phase.
Referring to prosecutor Samuels’s previous comment that she
had never conducted a sanity trial, Bloom commented, “So we
can just do it for the first time together.” The court declined to
rule at that time.
The court revisited the issue five days later during the
jury’s guilt deliberations. After confirming that Bloom still
wished to represent himself, the court denied the request.
Opinion of the Court by Kruger, J.
Preliminarily, the court observed that the request was untimely,
having been made after the start of trial, and it therefore had
discretion whether to grant the request. The court cited two
bases for denial: the complexity of the case and the likelihood
the proceedings would be disrupted by delays, given the
difficulties Bloom would encounter in trying to schedule
psychiatric expert witnesses from jail. That prosecutor Samuels
had never previously conducted a sanity trial was not, the court
noted, a good reason for Bloom to represent himself. The court
also expressed concern that allowing Bloom to represent himself
might lead the jury to assume the court believed Bloom
“competent and competent enough to represent [himself] at a
very serious stage in the trial.”
As Bloom acknowledges, People v. Windham (1977
19 Cal.3d 121 (Windham) holds that to invoke the unconditional
Sixth Amendment right to self-representation recognized in
Faretta, supra, 422 U.S. 806, a defendant must do so “within a
reasonable time prior to the commencement of trial.”
(Windham, at p. 128.) Bloom argues that nothing in Faretta
supports such a limitation, and even a belated request must be
granted unless it would entail undue delay or interfere with the
orderly administration of justice.
The argument is without merit. Faretta itself recognized
a constitutional right to self-representation in the context of a
request made “weeks before trial.” (Faretta, supra, 422 U.S. at
p. 835.) In the years since, this court and others have concluded
that that right is not absolute if not exercised until the eve of, or
after the onset of, trial. (People v. Wright (2021) 12 Cal.5th 419,
440 [collecting cases]; see, e.g., U.S. v. Tucker (10th Cir. 2006
451 F.3d 1176, 1180–1182; U.S. v. Betancourt-Arretuche (1st
Cir. 1991) 933 F.2d 89, 96; cf. generally Martinez v. Court of
Opinion of the Court by Kruger, J.
Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162
[noting that “most courts” require that Faretta rights be
exercised in a timely manner].) We adhere to our previously
expressed view that an untimely Faretta request is a matter
entrusted to the court’s discretion. In evaluating an untimely
motion, a court may consider not only “the potential for delay
and disruption” but also “whether the potential disruption is
likely to be aggravated, mitigated, or justified by the
surrounding circumstances, including the quality of counsel’s
representation to that point, the reasons the defendant gives for
the request, and the defendant’s proclivity for substituting
counsel.” (People v. Buenrostro (2018) 6 Cal.5th 367, 426.
We see no abuse of discretion in the court’s declining to
permit Bloom to represent himself in the sanity phase. The
court properly considered the possibility of unintended delay
resulting from difficulties Bloom might encounter in attempting
to schedule his expert witnesses from jail. Any such delay had
the obvious potential to negatively affect trial administration,
as two jurors had commitments that restricted their future
availability. Given the complexity of a sanity phase trial in a
capital case, the trial court could also reasonably find a real risk
of delay from problems Bloom might have producing and
organizing the defense evidence. Nor was the court required to
spontaneously offer suggestions regarding potential ways to
mitigate this risk.
Bloom argues the trial court abused its discretion by not
“inquir[ing] sua sponte into the specific factors underlying the
request thereby ensuring a meaningful record in the event that
appellate review is later required.” (Windham, supra, 19 Cal.3d
at p. 128.) But while such an inquiry may be helpful to create
an adequate record for our review (see ibid.), we conclude the
Opinion of the Court by Kruger, J.
record here is sufficient to find the trial court’s denial of Bloom’s
Faretta request was not an abuse of its discretion. As noted, one
of the reasons the court cited — the complexity of the case and
the attendant risk of delay — finds support in the record and
affords a sound basis for the court’s exercise of discretion in
denying Bloom’s Faretta request. Consequently, we need not
address the validity of the other reason the court mentioned in
making its ruling, its concern over inferences the jury might
draw about the court’s view of Bloom’s competence.
2. Allowing Bloom to absent himself
Bloom contends the trial court erred under Penal Code
sections 977 and 1043, which generally call for the defendant’s
presence at a trial on felony charges, and violated his state and
federal constitutional rights to confrontation and due process,
by allowing him to absent himself during the taking of evidence
in the sanity phase and failing to ensure that his purported
waiver of presence was knowing and intelligent. (U.S. Const.,
5th, 6th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Johnson
v. Zerbst
(1938) 304 U.S. 458, 464 [waiver standard].) We find
no prejudicial error.
On the first day of the sanity phase, defense counsel
informed the court that Bloom did not want to be present.
Outside the presence of the jury, the court informed Bloom he
had a right to be present and asked him what he wished to do.
Bloom replied that he did not want to be present to hear the
testimony in the sanity phase, though he wanted to be present
for the reading of the verdict. In Bloom’s absence, the court told
the jury that “Mr. Bloom has chosen not to be present during
this second phase of the sanity proceedings which he has a right
to make that choice.”
Opinion of the Court by Kruger, J.
After evidence was presented and both sides rested in the
sanity trial, the court asked if Bloom wished to be present;
defense counsel indicated that Bloom wanted to be present when
the verdicts were read and also wished to be brought into court
to address his Faretta motion while the jury was deliberating.
After the jury had begun deliberating, Bloom was brought into
the courtroom and was present for the ensuing proceedings.
Penal Code section 1043 provides in relevant part that the
defendant need not be present at trial in a felony case if the
defendant persists in disrupting the trial and in “[a]ny
prosecution for an offense which is not punishable by death in
which the defendant is voluntarily absent.” (Id., subd. (b)(2).
We have held that Penal Code sections 977 and 1043, read
together, preclude a nondisruptive capital defendant from
waiving his or her presence during the taking of evidence before
the trier of fact. (People v. Weaver (2001) 26 Cal.4th 876, 967–
968.) Proceeding with the sanity trial in Bloom’s absence was,
therefore, error under state law (People v. Young (2005
34 Cal.4th 1149, 1214), a point the Attorney General does not
contest. Bloom argues this state law error was prejudicial under
People v. Watson (1956) 46 Cal.2d 818, 836, because the jury
deliberated at length before reaching its verdict on sanity on
count 1 and was deadlocked on counts 2 and 3. But nothing in
his argument, or in the record, suggests it is “reasonably
probable that a result more favorable” (ibid.) to Bloom would
have occurred had he been present during the presentation of
sanity-phase evidence (see People v. Mendoza (2016) 62 Cal.4th
856, 902–903 [absence of capital defendant during receipt of
evidence held harmless under the reasonable probability
Opinion of the Court by Kruger, J.
A criminal defendant also has the right, under the Sixth
Amendment’s confrontation clause and under the due process
guarantee of the Fifth and Fourteenth Amendments, “to be
present at any stage of the criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of
the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745;
People v. Jackson (1996) 13 Cal.4th 1164, 1209.) But a
defendant may waive his or her federal constitutional right of
presence, provided the waiver is voluntary, knowing, and
intelligent. (Johnson v. Zerbst, supra, 304 U.S. at p. 464.
Bloom contends the trial court failed to ensure that his
waiver met the constitutional standard by not adequately
ensuring he understood the importance of the sanity phase and
not inquiring into his reasons for absenting himself. He
contends the record reflects he based his decision to absent
himself from the sanity phase on an erroneous understanding of
the significance of the sanity proceedings with respect to his
death eligibility.
We see no constitutional deficiency in the waiver
procedure employed here. We have not required that a trial
court question the defendant regarding why he wishes to absent
himself or admonish him concerning the importance of his
decision. (People v. Weaver, supra, 26 Cal.4th at p. 967.) Here,
as in Weaver, “[d]efendant was represented by counsel, and he
himself chose, for his own reasons, to leave the courtroom.”
(Ibid.) To the extent Bloom argues the court’s inquiry was
“minimal” or “perfunctory,” we note that even brief colloquies
during which the trial court simply confirms a defendant’s wish
to waive his presence (People v. Moon (2005) 37 Cal.4th 1, 20–
21) or informs him of his right to be present (People v. Young,
Opinion of the Court by Kruger, J.
supra, 34 Cal.4th at pp. 1212–1213) have been deemed, as we
deem this one, constitutionally adequate.
Bloom contends his choice to absent himself was
influenced by a mistaken belief that the case would proceed to a
penalty phase regardless of the outcome of the sanity phase,
given the court’s affirmative response to his earlier inquiry
whether “the [guilt] verdicts by this jury trigger a penalty
phase.” But when the court responded in this manner, the jury
had just reached its guilt verdicts and whether there would even
be a sanity phase was uncertain. In the ensuing discussion,
Bloom made clear that although he had not changed his mind
regarding the dubious validity of the mental defense, the jury’s
rejection of first degree murder verdicts on counts 2 and 3 had
convinced him to proceed with the sanity phase. He told the
court: “I am not going to speak to you as a defendant right now,
I am going to speak to you as a convict, okay? [¶] We always
look for a way out, okay? And if I got a way out, I am going to
take it. [¶] So let’s go ahead and have the sanity phase, but let’s
be very clear about something. . . . [¶] So me having the sanity
phase, I am not changing my mind on that. I am just saying
that maybe I have a way out so I am going to take it.” Bloom
thus seemed to understand that if the jury were to find him not
guilty by reason of insanity, he would be spared a death
sentence, and for that reason he chose to go forward with the
sanity phase. His decision to absent himself from it was not
predicated on a mistaken belief that the outcome was of no
consequence to the penalty he faced.
We conclude the trial court’s acceptance of Bloom’s
decision to absent himself did not deprive Bloom of his federal
constitutional rights.
Opinion of the Court by Kruger, J.
D. Cumulative Error
As explained above, we conclude that a violation of the
rule of McCoy, supra, 138 S.Ct. 1500, requires the reversal of
Bloom’s two second degree murder convictions and associated
enhancement and special circumstance findings. Bloom
contends that even if no other error in his trial was so prejudicial
that it separately warrants relief, the combined impact of other
errors requires reversal of the judgment in its entirety. We have
found or assumed the prosecutor engaged in misconduct (1) in
her guilt phase opening statement, when she quoted from
Bloom’s argument to the jury in the prior trial, and (2) during
her guilt phase closing argument, when she made comments
that may have called the jury’s attention to Bloom’s failure to
testify and that invited the jury to consider for its truth
testimony that had been admitted for a nonhearsay purpose
only. We have also found the trial court erred in permitting
Bloom to absent himself from the sanity trial. In each such
instance, we concluded prejudice was lacking. Now, considering
the cumulative effect of all these errors, we reach the same
conclusion. We accordingly reject Bloom’s argument that the
errors, taken together, require us to reverse the judgment in its
We reverse the convictions for second degree murder on
counts 2 and 3 and the associated firearm-use and weapon-use
findings, as well as the multiple-murder special-circumstance
finding and the judgment of death. We affirm the judgment in
all other respects.
Opinion of the Court by Kruger, J.
We Concur:
Associate Justice of the Court of Appeal, First Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Bloom

Procedural Posture
(see XX below
Original Appeal XX
Original Proceeding
Review Granted
Review Granted (unpublished)
Rehearing Granted
Opinion No.
Date Filed: April 21, 2022

County: Los Angeles
Judge: Darlene E. Schempp

Michael J. Hersek, State Public Defender, Jeannie R. Sternberg,
Deputy State Public Defender; and William T. Lowe, under
appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Dane R. Gillette and Lance E. Winters, Chief Assistant Attorneys
General, Susan Sullivan Pithey, Assistant Attorney General, Michael
R. Johnsen and Jaime L. Fuster, Deputy Attorneys General, for
Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
William T. Lowe
Attorney at Law
P.O. Box 871
El Cerrito, CA 94530
(510) 230-4285
Michael R. Johnsen
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 269-6090
Opinion Information
Date:Docket Number:
Thu, 07/14/2022S095223M