Supreme Court of California Justia
Citation 45 Cal. 4th 390, 198 P.3d 11, 87 Cal. Rptr. 3d 209

People v. Doolin



Filed 1/5/09



IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

S054489

v.

KEITH ZON DOOLIN,

Fresno

County

Defendant and Appellant.

Super. Ct. No. 554289-9



A jury convicted defendant Keith Zon Doolin of the first degree murders1 of

Inez Espinoza and Peggy Tucker, and the attempted murders2 of Alice Alva,

Debbie Cruz, Marlene Mendibles, and Stephanie Kachman. For each crime, the

jury found that defendant personally used a firearm.3 For each attempted murder,

the jury found defendant personally inflicted great bodily injury on the victim.4

The jury found true the special circumstance allegation of multiple murder,5 and

returned a verdict of death.

1

Penal Code section 187. Statutory references are to the Penal Code unless

otherwise indicated.
2

Sections 187 and 664.

3

Section 12022.5, subdivision (a).

4

Section 12022.7.

5

Section 190.2, subdivision (a)(3).

1




The court denied defendant’s motions for a new trial6 and penalty

modification7 and sentenced defendant to death. The court imposed and stayed a

determinate sentence on the noncapital felony counts and enhancements.

This appeal is automatic.8 We affirm the judgment in full.

I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Overview of Prosecution’s Case

Between November 2, 1994, and September 19, 1995, defendant murdered

two Fresno prostitutes and attempted to murder four others. At trial, each

surviving victim identified defendant as her assailant. One decedent’s boyfriend

saw her enter a car defendant was driving on the night she was murdered.

Ballistics evidence established defendant’s Firestar .45-caliber handgun was used

to kill Espinoza and Tucker. Shell casings found at the Espinoza and Kachman

crime scenes were fired from that same weapon. Defendant’s sister lived with him

during the time the shootings occurred. Her Lorcin .25-caliber pistol “probably”

fired the shell casings found at the Alva crime scene. Tire impressions left at the

Mendibles and Espinoza crime scenes were similar to the tread on defendant’s

truck tires.

Incriminating statements and other evidence linked defendant to the crimes.

The defense consisted of evidence of alibi, mistaken identification, and

third party culpability.

A summary of the evidence adduced at trial follows.

6

Section 1181.

7

Section 190.4, subdivision (e).

8

Section 1239, subdivision (b).

2



a. The Two Murders and Four Attempted Murders

(1) Attempted murder of Alice Alva

On the night of November 2, 1994, Alice Alva was working as a prostitute.

Defendant pulled up next to her in his pickup truck and offered her $30 for sex.

Alva got into the truck, and defendant drove to a nearby cul-de-sac. When Alva

asked for payment, defendant pointed a silver gun at her and said, “I’m going to

fuck you all night.” Frightened, Alva told him, “I’ll do whatever you want, but

before we have sex, I need to use the bathroom.” Defendant agreed, but warned

Alva, “Don’t try anything stupid because you won’t be the first girl I shot and

killed.” Alva left the truck and ran. She heard three or four shots, was shot in the

leg, and fell to the pavement. When she saw defendant approach with the gun in

his hand, she pretended to be dead. Defendant got in the truck and sped off.

The police recovered three .25-caliber shell casings in the roadway near

where Alva had fallen. Dr. Ralph Koo treated Alva, who had a bullet lodged in

her fractured right tibia. Because of the risk of complications, including paralysis,

Dr. Koo did not remove the bullet.

(2) Attempted murder of Debbie Cruz

Around midnight on December 29, 1994, Debbie Cruz was working as a

prostitute when defendant picked her up in his truck and drove to an alley. As

Cruz began to undress, defendant said, “I guess you’re waiting for money.” He

then pulled a small silver gun from his pocket and shot her. Cruz opened the

passenger door, fell out, and crawled away. She collapsed at a nearby house and a

resident called police.

Officer Jack Gordon responded. Based on the size of Cruz’s wound, Gordon

believed she had been shot by a small caliber gun, possibly a .22. A treating

physician determined the bullet entered Cruz’s left hip, passed through her

3



abdomen, and perforated her small intestine. The bullet was left in place

following emergency surgery.

(3) Attempted murder of Marlene Mendibles

Around 1:00 a.m. on July 29, 1995, Marlene Mendibles was working as a

prostitute and accepted defendant’s offer of a ride in his truck. Defendant drove

for a while, pulled over, and ordered her to disrobe, threatening to shoot her if she

did not comply. When defendant pulled out a large silver gun, Mendibles grabbed

her bag, opened the passenger door, and told him she would walk. Standing

beside the truck, Mendibles told defendant, “I bet you remember me,” and he

replied, “I bet you remember me, too.” She then heard a “pop.” Defendant drove

away and Mendibles fell to the ground. She was rendered a paraplegic by the

shooting.

(4) Murder of Inez Espinoza

At 4:20 a.m., the same morning of the Mendibles shooting, Alice Trippel

heard a gunshot. At 4:30 a.m., Carmen Ramos, who lived nearby, heard

screaming. Around 11:00 a.m., Ramos’s daughter, drove to her mother’s home.

As she approached the carport, she saw the dead body of prostitute Inez Espinoza

in an alley near the home.

Detective Robert Schiotis examined Espinoza’s body and saw a gunshot

entry wound in her lower right back with an exit wound several inches below her

navel. He removed a large caliber bullet and a piece of the copper casing from

Espinoza’s clothing. He also recovered a spent .45-caliber shell casing, a condom,

and a torn Trojan brand condom wrapper. He also noted tire tracks and “traction

marks of a car taking off in a hurry.”

The autopsy surgeon observed a gunshot wound above Espinoza’s right hip.

The presence of powder marks near the entry wound indicated the gun had been

4



pressed against her clothing when fired. The bullet had severed a major artery.

She died from internal bleeding.

(5) Attempted murder of Stephanie Kachman

On August 11, 1995, about 3:00 a.m., defendant drove up beside Stephanie

Kachman in a small white truck. She agreed to have sex and got in the truck.

Defendant drove into an alley and stopped. When Kachman asked to be paid, he

pointed a gun at her head and told her to take off her clothes. Kachman told

defendant she needed to get out of the truck because a leg injury made undressing

difficult. They both left the truck.

While Kachman undressed, defendant put on a condom and placed his gun on

the truck seat. They began to have intercourse, but Kachman lost her balance and

stumbled. As she ran out of the alley, she heard defendant’s truck approaching.

She looked back and saw defendant shooting at her through his window.

Kachman was hit twice and fell to the ground. A nearby resident summoned the

police.

Seven shell casings were recovered near the scene. Kachman sustained two

through and through bullet wounds, one in her back and the other in one of her

thoracic vertebrae.

(6) Murder of Peggy Tucker

On the night of September 18, 1995, Peggy Tucker and Rick Arreola left

their motel and walked to an area in West Fresno. Tucker walked ahead with

Arreola trailing at a distance.

Arreola saw a Lincoln Town Car drive up next to Tucker, who spoke to the

driver and then got into the front passenger seat. Arreola watched as the car drove

into an empty lot and out of his sight.

5



As Arreola stood on the center divider waiting for Tucker to return, he saw

the Lincoln drive by. The car’s dome light was turned on and the driver, whom

Arreola identified as defendant, appeared be alone.

On the following morning, Tucker’s body was found in an alley. When told

of Tucker’s death, Arreola spoke with police and described the Lincoln Town Car

by color and license plate number. Defendant’s mother, Donna Doolin Larsen,

owned a similar vehicle.

Tire tracks at the Tucker murder scene reflected an “acceleration mark”

indicating the vehicle left at high speed. Two packages of condoms were

recovered from Tucker’s right hand. There was blood on her back, in her mouth,

and on the ground nearby.

Tucker’s autopsy revealed that she had been shot in the right hip. The gun

was probably fired from two to four inches from the body based on stippling and

soot marks. The perforation of two major blood vessels and the intestines caused

fatal blood loss and shock. Three bullet fragments were recovered from the body.

b. Defendant’s Arrest and Statements to Police

(1) First police interview

On October 18, 1995, defendant was arrested and read his Miranda9 rights.

Defendant said he understood them and was taken to police headquarters. There,

Detectives Robert Schiotis and Albert Murrietta again explained defendant’s

Miranda rights, which he waived.

Defendant told the detectives he was a trucker and recently had been working

for a towing company and a recycling center. He reported he had been a civilian

employee of the Army, Navy, and Marines.

9

Miranda v. Arizona (1966) 384 U.S. 436.

6



Defendant admitting owning a 1984 Toyota pickup. He initially denied

knowing about the prostitute shootings, but then conceded he had heard that

prostitutes were being robbed and shot.

The detectives said they knew defendant owned a gun and that one of the

victims had identified him as her assailant. Defendant said he owned a .45-caliber

Firestar Compact, which was in his house. It was his “personal gun,” which he

alone used. He bought the Firestar for protection because it “shoots with both

hands,” and he was ambidextrous. He had fired the gun about 150 times at an

indoor shooting range but did not carry it.

Defendant had previously owned and sold two rifles. In his safe, he

occasionally kept guns belonging to friends. Currently his safe contained a .44-

caliber automatic and possibly a nine-millimeter Taurus. When asked about a

bulletproof vest found in his house, defendant said he bought it for protection

because he had been robbed at a Walgreens store two years earlier and while

clerking at a 7-Eleven store.

When informed of the charges against him, defendant claimed he was

innocent and asked what he could do to vindicate himself. He told the detectives

he did not leave the house at night, except to go to the store to get away from

“tension at home.” He admitted that a friend of his knew prostitutes. He had seen

prostitutes near a tavern and near the 7-Eleven store where he had worked. He

denied ever having hired a prostitute, although one had approached him once. He

felt Fresno was “flooded” with prostitutes and believed prostitution should be

legalized.

When told a witness had watched him pick up Peggy Tucker in the Lincoln

Town Car the night she was murdered, defendant replied, “I have not picked up a

prostitute in the car.” Defendant had heard on television that the suspect drove a

white truck with red letters on the tailgate and a larger “Cadillac-type vehicle.”

7



Told that the tire track evidence implicated him, defendant responded that he had

put new tires on the Lincoln about two weeks earlier and on his truck in May

1995.

He could not explain why the surviving victims identified him from a photo

lineup. He denied shooting them, using drugs, or drinking alcohol. Asked when

he last had sex, defendant paused a long time, and then replied, “That doesn’t

count.” He explained he had had oral sex with a woman three weeks earlier and

paused because he did not know if oral sex “counted for having sex with a girl.”

Defendant maintained his innocence and again asked what he could do to

vindicate himself. The interview was concluded, and defendant agreed to talk

with detectives again.

(2) Second police interview

Detective Schiotis reinterviewed defendant later that day. Schiotis said a

search of defendant’s house revealed the box for a second .45-caliber Firestar.

This second Firestar would later be proven to have been used in several of the

incidents. Asked why he had not disclosed the existence of the second Firestar,

defendant said, “it just didn’t come up when we were talking,” and claimed the

second gun “hardly ever had been used.” Defendant initially said that the second

Firestar was in the headboard of his bed, and then that he had given the gun to his

cousin, Bill Moses, about three weeks earlier. Upon further questioning,

defendant told the detectives his sister, Shana Doolin, had a .25-caliber handgun.

(3) Third police interview

The next day, defendant was questioned after again hearing and waiving his

Miranda rights. He reported that he had loaned the second Firestar to Bill Moses

three or four weeks earlier, and that no one else had used his gun. When told

another victim had identified him as her assailant, defendant looked at the photo

8



lineup and commented that one of the suspects looked “close enough to be his

brother.” He also said, “We’re going in circles here.”

c. Search of Defendant’s Home and Inspection of Defendant’s

Truck

Defendant’s home was searched on the day of his arrest. Police found a

videotape entitled Pro Sniper, which showed firing positions and types of guns

used by a sniper. They also found photographs of defendant and others with guns.

In defendant’s bedroom, they found body armor, a bulletproof vest with FBI

stenciled on the back, three ski masks, black military clothing, a camouflage shirt,

Soldier of Fortune and Combat Arms magazines, some pornographic magazines,

information on mail-order brides, and two boxes of .45-caliber ammunition. A

fully loaded .45-caliber Firestar in a black waist holster, a loaded magazine, and a

radio scanner were found in the living room.

A gun safe in the garage held a Taurus PT-99 nine-millimeter handgun, three

magazines for that weapon, two empty Firestar gun boxes with consecutive serial

numbers, and two sets of handcuffs. The safe also contained a metal belt buckle

with an opening for a .22-caliber handgun; an Omega taser; paperwork showing

purchases of, and repairs to, guns owned by defendant; an unloaded .44-magnum

handgun; three plastic starter guns; a variety of rifles and shotguns; and several

kinds of ammunition, including over 600 .22-caliber rounds. Three unopened

condoms were recovered from the ashtray in defendant’s truck.

d. Further Investigation

Detective Frank Rose recovered an unloaded .45-caliber Firestar, two empty

magazines, and a nylon holster from Bill Moses. Moses said that he got the gun

from defendant two or three weeks earlier, but he had not fired the weapon.

Detective Todd Fraizer retrieved a Lorcin .25-caliber semiautomatic handgun

from Shana Doolin at her residence in Stockton.

9



e. Defendant’s Purchase of the Firestar Handguns and

Accessories

On March 19, 1995, following the mandatory 15-day waiting period,

defendant had picked up the two Firestar .45-caliber handguns he had purchased.

The registered serial numbers were the same as the numbers on the boxes found at

his home. Defendant also purchased two holsters that could be worn inside pants

and two magazines that allowed for one additional bullet in each magazine. The

store owner testified the Firestar had only been on the market a few months and

“would carry the greatest power — most powerful bullet for its size.” He said that

handgun was designed to be concealable. He also identified bullets seized from

defendant’s residence as containing Federal brand .45-automatic hydroshock

hollowpoint cartridges, designed to expand upon impact.

f. Testimony of Defendant’s Sister, Shana Doolin

Defendant’s sister, Shana Doolin, testified that she, her mother, and her

stepfather were living with defendant when the shootings occurred. She bought

the Lorcin .25-caliber handgun retrieved by police. It jammed occasionally.

Shana gave her gun to defendant in mid-July 1995 because he said “one of

our relatives needed it.” She claimed at trial that defendant returned the gun to her

in mid-August 1995. She admitted that she testified at defendant’s preliminary

hearing that he returned the gun in early September 1995.

g. Ballistics Evidence

Before defendant was arrested, Criminalist Stephen O’Clair examined a .45-

caliber shell casing found near Espinoza’s body and seven shell casings found at

the Kachman crime scene. He concluded they were all fired from the same gun.

O’Clair also concluded these shell casings “most likely” contained Federal brand

hydroshock hollowpoint bullets.

10



O’Clair later compared bullets test-fired from the .45-caliber Firestar

retrieved from Bill Moses (the second Firestar) with rounds recovered from the

Espinoza crime scene and Tucker’s body. Both bullets were fired from the second

Firestar that defendant initially failed to mention to the detectives. O’Clair

determined these bullets were “probably” Federal brand hydroshock hollowpoint

bullets.

O’Clair also test-fired Shana Doolin’s .25-caliber Lorcin and compared the

characteristics of the spent shell casings with the shell casings found at the Alva

crime scene. He concluded the casings recovered from the Alva scene were

“probably” fired from that gun. O’Clair explained that a defect in the Lorcin left

“gross types of marks” rather than “finer striated marks” on spent casings. This

defect precluded a positive match of the shell casings.

Criminalist Charles Morton also examined Shana Doolin’s Lorcin and the

second Firestar. He test-fired each and compared bullets and shell casings from

those weapons with those found at the Espinoza, Kachman, and Alva scenes and

the bullet recovered from Tucker’s body. Morton concluded the shell casings

found at the Espinoza and Kachman scenes were fired by the second Firestar. The

Espinoza and Tucker bullets were also fired from that gun.

Morton agreed with O’Clair that a .25-caliber weapon like Shana Doolin’s

was used in the Alva shooting. He explained that the number of guns that could

have been used in this shooting “probably”could be reduced based on irregularities

he observed on the Alva scene shell casings that were caused by imperfections on

the breech face of the gun that fired those casings.

h. Tire Tread Evidence

O’Clair examined, made impressions, and created photographic

transparencies of the tires on defendant’s truck. He compared these transparencies

11



with actual-size photographs of the tire tracks found at the Mendibles and

Espinoza crime scenes. Except for differences in tread wear that could have

resulted from the passage of time, the tire impressions from both crime scenes

were similar to the tread on both front tires and the right rear tire on defendant’s

truck. The left rear tire of defendant’s truck had a different tread design and

appeared to be newer than the other three tires.

O’Clair examined what he described as “fairly new tires” on the Lincoln

belonging to defendant’s mother. The tread on these tires did not match the tire

impressions found at the Tucker murder scene.

2. The Defense Case

a. Defendant’s Testimony

Defendant testified he did not know the two decedents and first saw the

surviving victims when they appeared in court. He claimed that when the Alva

and Cruz assaults occurred, he was in Watsonville and Wasco, respectively.

On he night of the Mendibles and Espinoza shootings, defendant helped his

family pack for an upcoming move. Around 2:45 or 3:00 a.m., he drove to David

Daggs’s house to unload two motorcycles. He left around 4:30 a.m. and returned

home about an hour later after stopping at a gas station. Daggs began his

newspaper delivery route around 4:30 a.m. Defendant could not explain why his

mother wrote in her journal that he left the house that morning around 2:00 a.m.

On the night of August 10, 1995, through the early morning hours of

August 11, 1995, when Kachman was shot, defendant was at home with his

mother and cleaned the house in anticipation of listing it for sale.

During the night of the Tucker murder, he was at his mother’s house. He

did not “remember ever going out or doing anything special.” He confirmed his

mother’s Lincoln was at that residence.

12



He described himself as a gun collector who used ammunition of different

types, including hollowpoints. He described the latter as “made to expand, double

its size” upon impact and more accurate than “a full metal projectile” at short

ranges.

Defendant denied watching the Pro Sniper video found at his home. He

bought matching .45-caliber Firestar handguns because he is ambidextrous. He

could not explain what had happened to 18 hydroshock hollowpoint bullets

missing from a box of Federal brand bullets found at his home. He suggested his

cousin Bill Moses might be responsible for the shootings but acknowledged that

there are “still a lot of unanswered questions, of course, . . . some that are positive

and some that are negative” about Moses’ possible involvement.

b. Defense Psychiatrist Dr. Howard Terrell

Dr. Howard Terrell, a psychiatrist, testified that defense counsel initially had

asked him to evaluate defendant and review the police reports. Dr. Terrell

concluded, “I found a man who showed no evidence that I could see of mental

disorder, either in my examination of him or my review of the [police reports] that

I have available.” The psychiatrist found no evidence of psychosis, manic

depression, drug addiction, personality disorders, or sadism. Dr. Terrell had

evaluated over 100 murderers and probably a dozen serial killers during his career.

In his opinion, defendant did not match any of the “typical profiles”10 he would

expect to see in a murderer, “let alone a serial killer.”

10

The “typical profiles” of murderers that Dr. Terrell considered in his

evaluation of defendant are described in more detail in part II.C.1, below.

13



c. Alibi Witnesses

James Bacon testified that he had known defendant since 1985 or 1986. On

November 2, 1994, the night of the Alva assault, defendant was visiting him in

Freedom, California. Bacon was not certain but thought defendant left for Fresno

on Friday, November 5, 1994. Defendant also stayed with Bacon in late July

1995, and returned to Fresno on the afternoon of July 28, 1995, with two

motorcycles in his truck.

On cross-examination, Bacon admitted he attended the preliminary hearing,

listened to witnesses testify, and took notes. Bacon had compared these notes with

those taken by defendant’s sister, Shana Doolin. He had also looked at notes taken

by defendant’s mother.

David Daggs testified that from December 1994 to September 1995, he dated

Shana Doolin. Around 3:30 a.m. on July 29, 1995,11 the morning of the

Mendibles and Espinoza shootings, defendant came to his residence and unloaded

motorcycles from his truck. Defendant finished before Daggs began his

newspaper route at 5:00 a.m. According to Daggs, Shana told him that defendant

had purchased the Lorcin for her.

Defendant’s mother, Donna Doolin Larsen, testified that defendant watched

television in his bedroom the night of the Kachman shooting, and did not leave the

house. On cross-examination, when pressed on whether she actually remembered

him being at home that evening, Larsen said, “I know he was. I will go to my

death saying that he was at home on that date.”

Regarding the night of the Tucker murder, Larsen testified defendant was

home and left once from about 11:00 p.m. to 11:30 p.m. to buy her ice cream,

11

During his police interview, Daggs said defendant came to his house at

either 4:00 a.m. or 7:00 a.m., but he could not remember which time.

14



cleaning supplies, and gasoline. She and defendant cleaned her house “for hours”

that night, to prepare for a real estate showing.

On cross-examination, Larsen invoked her Fifth Amendment privilege

against self-incrimination when asked several questions about her character for

honesty and whether she had ever falsely represented herself as a registered nurse

or submitted false documents at her place of employment.

Bill Moses testified he received the second Firestar from defendant on

September 1, 1995. He remembered the date because it was his father’s birthday

and he helped pack Shana Doolin’s moving truck that evening. Moses stated he

was mistaken when he told Detective Rose that he had gotten the gun during the

last week of September or the first week of October 1995. He explained he had

been suffering from the side effects of a chemotherapy drug that can cause

amnesia.

Defendant unloaded hollowpoint bullets from the gun before giving it to

Moses, who owned three handguns himself. He acknowledged that Tucker was

murdered on September 19, 1995, and understood the implications of his claim

that he had defendant’s gun on that date.

Moses further testified that he and defendant once took Shana Doolin’s

Lorcin without her knowledge. He had borrowed this handgun from defendant

from the end of July 1995 until August 18, 1995.12

3. Prosecution’s Rebuttal Witnesses

The prosecution presented numerous rebuttal witnesses whose testimony is

discussed in part II.C.2, below.

12

Michelle Moses, Bill Moses’ wife, testified they borrowed Shana’s gun

from the first week of July 1995 until August 18, 1995.

15



B. Penalty Phase

1. The Prosecution Case

Dana Peterson, a registered nurse, assisted in a sexual assault examination of

D. on November 3, 1992. D. had a fresh bruise on her right lower leg, which she

claimed she had sustained in a struggle with defendant.13

Criminalist John Hamman testified as a ballistics expert. Hamman stated a

hollowpoint bullet is designed to “mushroom or expand” upon impact and make

almost twice as large a “wound track” through the body, causing more damage.

Angel C., the 16-year-old daughter of murder victim Inez Espinoza, testified

she and her two half brothers (ages nine and six) and a half sister (age three) all

missed their mother. She testified that in losing her mother, she lost “a big part of

my life.”

Nina Mandrell, the sister of murder victim Peggy Tucker, testified Tucker

was survived by her mother, two sisters, a brother, a husband, and two children

ages five and three. She and Tucker were very close. Tucker’s murder had been

devastating to her.

2. The Defense Case

Allan Hedberg, a clinical psychologist, interviewed and tested defendant for

eight and a half hours the week before the penalty phase began. Dr. Hedberg

found defendant did not fit the profile of a person who is psychotic, mentally ill,

psychopathic, or sociopathic. He described defendant as a “little paranoid” and

having “some unresolved resentment from his childhood that he has not worked

out,” causing him feelings of sadness, mild depression, anxiety, or hostility. Dr.

13

In anticipation of this evidence, David Daggs had testified for the defense

during the guilt phase that his sister D. had been “very untruthful” in the past and
that he had difficulty believing her rape allegation.

16



Hedberg also found defendant to be a person “who has difficulty dealing with

conflict, dealing with threat, dealing with anger, dealing with feelings of

resentment and wants to be seen as favorable by other people, wants to be

accepted by other people. . . .”

Dr. Hedberg stated that defendant’s mother had been married four times and

that defendant, who suffered from a learning disability, had been verbally and

emotionally abused by two of his stepfathers.

Based on his observations, Dr. Hedberg said defendant appeared to have

“adjusted quite well” to the jail environment, interacting positively with guards

and inmates.

II. GUILT PHASE ISSUES

A. Alleged Conflict of Interest Based on Counsel’s Compensation

Agreement

“Representation of a criminal defendant entails certain basic duties.

Counsel’s function is to assist the defendant, and hence counsel owes the client a

duty of loyalty, a duty to avoid conflicts of interest.” (Strickland v. Washington

(1984) 466 U.S. 668, 688 (Strickland.) Fundamental to counsel’s role is “a duty to

make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary.” (Id. at p. 691.)

In this case, defendant contends Fresno County Superior Court’s

compensation agreement created an inherent and irreconcilable conflict of interest

because both counsel’s compensation and the costs for investigative and expert

services were covered by a lump sum fee. Defendant asserts this circumstance

created a financial disincentive for counsel to adequately investigate and prepare

his case. Any such agreement, he argues, creates a conflict requiring reversal

under the judicially declared rule of People v. Barboza (1981) 29 Cal.3d 375

(Barboza).

17



In the alternative, defendant contends the fee agreement violated his state

and federal Constitutional rights to conflict-free counsel as well as his federal

Constitutional rights to equal protection, due process, and a reliable verdict. Each

of defendant’s contentions is without merit.

1. The Terms of Counsel’s Compensation Agreement

At the time of defendant’s trial, Fresno County Superior Court’s policies

for capital cases provided for three categories of compensation depending on the

complexity of the case.14 Appointed counsel were paid a lump sum, as follows:

$40,000 for a noncomplex case with one defendant and one victim; $60,000 for a

case involving multiple victims or defendants, complicated special circumstances,

or complex factual or legal issues; and $80,000 for a case involving multiple

victims or defendants, highly unusual publicity, complicated special

circumstances, or complex factual or legal issues (Category 3 cases). The lump-

14

We have granted defendant’s unopposed motion for judicial notice filed on

October 15, 2007, and have taken judicial notice of the following Fresno County
Superior Court documents: (1) a one-page memorandum entitled “Revised
Special Circumstance Case Policy” dated December 8, 2003, and (2) a 20-page
document entitled “Policy on Special Circumstance Case Appointments Effective
January 1, 2004.” (Evid. Code, §§ 452, subd. (d), 459(a).) In addition, at
respondent’s request, we have taken judicial notice of the following Fresno
County Superior Court policy documents on capital case compensation: (1) a
three-page letter memorandum dated August 4, 1994, from Fresno County
Superior Court addressed to “All Criminal Defense Attorneys,” providing “Notice
of Adoption of a Joint Court Policy on Capital Case Appointments,” (2) a 15-page
document entitled “Fresno County Superior Court/Consolidated Fresno Municipal
Court/Central Valley Municipal Court Joint Policy on Capital Case
Appointments” with attached appendices A through E, and (3) a one-page letter
dated April 14, 1995, from the Court Executive Officer of Fresno County Superior
Court to the “Capital Case Review Committee” regarding attachment appendix F
(statutes of limitations form waiver) to the policy documents. (Evid. Code, §§
452, subd. (d), 459(a).)

18



sum amount covered all attorney fees as well as costs for ancillary services under

section 987.9.15 Under these agreements, appointed counsel received periodic

payments throughout the pendency of the case.16 Upon written justification,

appointed counsel could obtain additional “Category fees” for cases that received

extensive publicity or that involved numerous victims or crimes. As the case

progressed, appointed counsel could request additional funding for expenditures

under section 987.9. The agreement here provided that investigative and expert

costs were included in the authorized Category 3 compensation of $80,000, unless

additional amounts were authorized by the Capital Case Review Committee.

15

At the time of defendant’s trial, section 987.9 provided, in relevant part:

“In the trial of a capital case or a case under subdivision (a) of Section 190.05, the
indigent defendant, through the defendant’s counsel, may request the court for
funds for the specific payment of investigators, experts, and others for the
preparation or presentation of the defense. The application for funds shall be by
affidavit and shall specify that the funds are reasonably necessary for the
preparation or presentation of the defense. The fact that an application has been
made shall be confidential and the contents of the application shall be confidential.
Upon receipt of an application, a judge of the court, other than the trial judge
presiding over the case in question, shall rule on the reasonableness of the request
and shall disburse an appropriate amount of money to the defendant’s attorney.
The ruling on the reasonableness of the request shall be made at an in camera
hearing. In making the ruling, the court shall be guided by the need to provide a
complete and full defense for the defendant.” The quoted text is now designated
subdivision (a) of the same statute.

16

Counsel was paid 15 percent of the total fee at the time of appointment; 25

percent upon completion of the preliminary hearing; 10 percent upon trial
confirmation; 15 percent upon conclusion of the prosecution’s case-in-chief; 15
percent upon conclusion of the trial; and 20 percent after sentencing and
submission of final accounting under section 987.9.

19



Thus, the agreement provided for the express authorization of increased

expenditures.17

Based on the record, it appears the capital case compensation system

operated in the following way. Upon appointment, private counsel would make an

initial evaluation of the case by rating its complexity and projecting the kind and

extent of ancillary services that might be required. Based on this evaluation the

court would determine what category of compensation to authorize. Counsel

17

Defendant contends the following handwritten notations that appear on the

fee agreement nullify the provision that “the above [Penal Code] 987.9 costs are
included in the authorized case compensation, unless additional amounts are
authorized by the [Fresno County Superior Court]”: “Category fees to pay for all
attorney and expert costs” and “All attorney and expert costs included within
Category 3 authorization.” Where, as here, the meaning of counsel’s
compensation agreement does not turn on the credibility of extrinsic evidence,
interpretation is a question of law, and we will independently determine the
agreement’s meaning. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861,
865-866.) “ ‘If contractual language is clear and explicit, it governs.’ ” (Foster-
Gardner, Inc. v. National Union Fire Ins. Co.
(1998) 18 Cal.4th 857, 868.)


Defendant cites nothing in the record to substantiate his claim. Our

interpretation of the agreement is guided by the basic principle that “[a]ny contract
must be construed as a whole, with the various individual provisions interpreted
together so as to give effect to all, if reasonably possible or practicable.” (City of
Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
(1998) 68 Cal.App.4th
445, 473, citing Civ. Code, § 1641; Code Civ. Proc., § 1858.) Courts must
interpret the contractual language to give force and effect to every provision and
avoid an interpretation that “renders some clauses nugatory, inoperative or
meaningless.” (City of Atascadero, at p. 473.) No inconsistency arises by giving
full effect to the provisions quoted above. The category fees did include all
attorney and expert fees. The printed proposal form refers to section 987.9 five
times. In his attachment, counsel refers to that section twice and makes clear that
the potential costs listed are merely estimates of possible “cold dollar amounts.”
The record does not support a conclusion that the parties intended to nullify
defendant’s statutory rights under section 987.9 and preclude counsel from
seeking additional funding if necessary.

20



could then agree, or not, to accept appointment under the court-approved category.

Under both the agreement and section 987.9, counsel could seek additional funds

for ancillary services upon a showing of need.

Here, in connection with his appointment, counsel proposed that

defendant’s case be designated as a Category 3 matter, calling for the highest

compensation rate. He outlined an estimated $60,000 in investigative and expert

costs in a two-page attachment. He made clear his outlined costs were merely

estimates. He stated he could not set out fixed costs “in cold dollar amounts” at so

early a stage of the proceedings and explained why. As discussed in greater detail

below, he identified a number of potential expenditures that ultimately were not

required. After defendant’s trial, counsel submitted a final accounting. According

to that accounting, counsel received $80,000. Of that amount, $8,676.15 was to

cover ancillary costs under section 987.9. The amount of ancillary costs included

a “professional courtesy discount” of $780. It does not include expenditures of

$2272.88 paid to the public defender before he declared a conflict in this case.

2. Assertedly Invalid Compensation Agreement

Defendant relies primarily on Barboza, supra, 29 Cal.3d 375, in arguing

this judgment should be reversed because counsel’s lump sum compensation

agreement inherently created an irreconcilable conflict of interest. His reliance

fails. In Barboza, two codefendant brothers appealed their assault convictions

claiming ineffective assistance of counsel due to conflict of interest. Both were

represented by the county public defender’s office. Under an agreement with the

county, the public defender’s office was to be paid $104,000 annually. From that

amount, $15,000 was set aside in a reserve account to pay appointed private

counsel if the public defender’s office declared a conflict of interest. On a

monthly basis, any deficiency in the reserve account was deducted from the public

21



defender’s compensation and budget and deposited in the reserve account. (Id. at

p. 378.) At the end of the year, any unexpended funds from the reserve account

were paid to the public defender. If the account was overspent, “the public

defender was liable for any deficiency.” (Id. at p. 379.)

The court held that as a “ ‘judicially declared rule of criminal procedure’ ”

the fee agreement created an inherent and irreconcilable conflict of interest that

required reversal of the codefendants’ convictions. (Barboza, supra, 29 Cal.3d at

p. 381.) The agreement created a “real and insoluble tension” between the public

defender’s duty to investigate and declare a conflict on the one hand and his

interest in maximizing his office budget on the other. (Id at pp. 380-381.) The

fewer conflicts declared, the fewer demands on the reserve account, leaving more

income and operating funds for the public defender.

Notably, the court in Barboza did not reach the question of whether, even

in the absence of the fee agreement, there was an actual conflict of interest

between the codefendants. (Barboza, supra, 29 Cal.3d at p. 381.) Relief was

based on the judicially created procedural rule. In the court’s view, the public

defender’s declaration of a conflict would directly affect the financial interests of

that office. In such a circumstance, the potential for bias was neither remote nor

tenuous. (Id. at p. 380.) The court acknowledged that in order to assure that joint

representation of multiple defendants is conflict free, trial courts rely in large

measure on the ethical obligations of counsel representing multiple defendants to

declare conflicts. (Id. at p. 378, 381.) The agreement in Barboza precluded such

reliance on the public defender’s conflict determinations, however, because, “[n]o

matter how well-intentioned the public defender might [have] be[en],” his

decisions “directly affected” his income and office budget. (Id. at p. 381.)

We emphasize, however, that the agreement in Barboza operated in the

context of multiple representation cases, a situation rife with potential for

22



conflicts. (See People v. Mroczko (1983) 35 Cal.3d 86, 103-104 (Mrozcko).)

Barboza specifically concerned the public defender’s duty to investigate and

declare conflicts between multiple defendants. Even in this context, the court

stressed the unique circumstances of the conflict confronting the public defender.

“Unlike the typical conflict which may arise when single counsel represents

multiple defendants, the initial conflict [in Barboza] arose the moment that the

public defender was appointed to represent the two defendants.” (Barboza, supra,

29 Cal.3d at p. 379, italics added.) He was immediately confronted with

investigating and discovering any conflict existing between defendants as well as

maintaining his salary and office budget. (Ibid.)

This case is clearly distinguishable from Barboza. The agreement

concerned appointed counsel’s representation of defendant alone and thus did not

exacerbate a situation in which conflicts already were inherent. To be sure,

defendant’s complaint ultimately concerns the impact of an asserted financial

disincentive created by the fee agreement on counsel’s performance at trial.

Barboza, however, confronted a very different kind of problem involving the

public defender’s duty to declare conflicts of interest in multiple representation

cases. The county’s compensation agreement with the public defender related to

his salary, office budget, and payment for alternate counsel appointed in conflicts

cases. The court’s chief concern was that the public defender’s determinations

about whether to remove that office from a case were affected by the actual

conflict of interest created by the agreement. (Barboza, supra, 29 Cal.3d at pp.

380-381.) The court’s inability to rely on the public defender’s conflict

determinations could impact its ultimate obligation to assure indigent defendants

conflict-free representation. Nothing in Barboza suggests that there was a

provision for the public defender to apply for augmentation to his budget.

23



Defendant accurately argues that under the agreement his lawyer could

maximize his own compensation by cutting expenses for investigative and expert

services. This theoretical possibility, however, is qualitatively no different from

other flat fee agreements that have been held acceptable. For example, in People

v. Knight (1987) 194 Cal.App.3d 337, 346-348, the Court of Appeal rejected a

contention that the county’s compensation agreement with private attorneys for

representation of indigent defendants contained an inherent conflict of interest

because it paid a flat fee whether the defendant pleaded guilty or went to trial,

permitted attorneys to engage in private practice, and limited the amount of

investigators’ fees. The court declined to hold that the provisions presented a

potential conflict of interest that led to impairment of counsel’s representation.

(Id. at p. 348.) Similarly, in Phillips v. Seely (1974) 43 Cal.App.3d 104, 117, the

Court of Appeal concluded a county’s flat fee agreement with an attorney for daily

representation of indigent defendants that included investigative costs in the

attorney’s monthly fee did not give rise to a conflict of interest.

We have observed that: “ ‘[A]lmost any fee arrangement between attorney

and client may give rise to a “conflict.” An attorney who received a flat fee in

advance would have a “conflicting interest” to dispose of the case as quickly as

possible, to the client’s disadvantage; and an attorney employed at a daily or

hourly rate would have a “conflicting interest” to drag the case on beyond the

point of maximum benefit to the client. [¶] The contingent fee contract so common

in civil litigation creates a “conflict” when either the attorney or the client needs a

quick settlement while the other’s interest would be better served by pressing on in

the hope of a greater recovery. The variants of this kind of “conflict” are infinite.

Fortunately most attorneys serve their clients honorably despite the opportunity to

profit by neglecting or betraying the client’s interest.’ ” (Maxwell v. Superior

Court (1982) 30 Cal.3d 606, 618-619, fn. 8 (Maxwell).)

24



The agreement here permits appointed counsel to responsibly and ethically

carry out professional obligations to clients. As with certain contracts described in

Maxwell, some attorneys might conceivably take advantage of the agreement’s

terms to increase their income at the expense of their clients’ interests. In general,

however, we assume attorneys are not so unethical as to neglect their clients’

interests to advance their own. Any such obvious malfeasance is clearly the

exception not the rule. In any event, a mere possibility for misconduct is

insufficient to invalidate this agreement. (See Phillips v. Seely, supra, 43

Cal.App.3d at p. 117.)

For these reasons, we decline to extend Barboza’s judicially declared rule

of criminal procedure to Fresno County Superior Court’s lump-sum compensation

agreement.18 Accordingly, defendant can prevail on his claim only if he can

demonstrate a violation of his constitutional rights.

3. Asserted Conflict of Interest Under the State and Federal

Constitutions

A criminal defendant is guaranteed the right to the assistance of counsel by

the Sixth Amendment to the United States Constitution and article I, section 15 of

the California Constitution. This constitutional right includes the correlative right

to representation free from any conflict of interest that undermines counsel’s

loyalty to his or her client. (See Glasser v. United States (1942) 315 U.S. 60, 69-

70 (Glasser); People v. Douglas (1964) 61 Cal.2d 430, 436-439.) “It has long

been held that under both Constitutions, a defendant is deprived of his or her

18

We limit our conclusion in this regard to the facts before us. We note that

as of January 1, 2004, Fresno County Superior Court’s policies require that any
unexpended section 987.9 funds be returned to the court upon filing the final
accounting.

25



constitutional right to the assistance of counsel in certain circumstances when,

despite the physical presence of a defense attorney at trial, that attorney labored

under a conflict of interest that compromised his or her loyalty to the defendant.”

(People v. Rundle (2008) 43 Cal.4th 76, 168 (Rundle).) “As a general proposition,

such conflicts ‘embrace all situations in which an attorney’s loyalty to, or efforts

on behalf of, a client are threatened by his responsibilities to another client or a

third person or his own interests. [Citation.]’ ” (People v. Cox (1991) 53 Cal.3d

618, 653 (Cox I), quoting People v. Bonin (1989) 47 Cal.3d 808, 835.) In this

case, defendant claims counsel labored under a financial conflict of interest in

violation of his federal and state constitutional rights.

In Mickens v. Taylor (2002) 535 U.S. 162 (Mickens), the high court

confirmed that claims of Sixth Amendment violation based on conflicts of interest

are a category of ineffective assistance of counsel claims that, under Strickland,

supra, 466 U.S. at page 694, generally require a defendant to show (1) counsel’s

deficient performance, and (2) a reasonable probability that, absent counsel’s

deficiencies, the result of the proceeding would have been different. (Rundle,

supra, 43 Cal.4th at p. 169, citing Mickens, supra, 535 U.S. at p. 166.) In the

context of a conflict of interest claim, deficient performance is demonstrated by a

showing that defense counsel labored under an actual conflict of interest “that

affected counsel’s performance — as opposed to a mere theoretical division of

loyalties.” (Mickens, supra, 535 U.S. at p. 171; Rundle, supra, 43 Cal.4th at p.

169.) “[I]nquiry into actual conflict [does not require] something separate and

apart from adverse effect.” (Mickens, supra, 535 U.S. at p. 172, fn. 5.) “An

‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that

adversely affects counsel’s performance.” (Ibid.)

This court has suggested that a determination of whether counsel’s

performance was “adversely affected” under the federal standard “requires an

26



inquiry into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to

represent defendant as vigorously as he might have, had there been no conflict.

[Citation.] In undertaking such an inquiry, we are . . . bound by the record. But

where a conflict of interest causes an attorney not to do something, the record may

not reflect such an omission. We must therefore examine the record to determine

(i) whether arguments or actions omitted would likely have been made by counsel

who did not have a conflict of interest, and (ii) whether there may have been a

tactical reason (other than the asserted conflict of interest) that might have caused

any such omission.” (People v. Cox (2003) 30 Cal.4th 916, 948-949 (Cox II).)

With regard to the prejudice requirement, the high court has recognized a

presumption of prejudice applies when defense counsel “actively represented

conflicting interests.”19 (Mickens, supra, 535 U.S. at p. 166.) It stressed “the high

probability of prejudice arising from multiple concurrent representation, and the

difficulty of proving that prejudice” justified application of the presumption.20

19

In Glasser, supra, 315 U.S. at page 75, counsel’s “ ‘struggle to serve two

masters’ ” was demonstrated in the record by his failure to develop evidence and
failure to object to arguably inadmissible evidence as a result of his desire to
protect defendant’s codefendant. After identifying this conflict of interest, the
court reversed the defendant’s conviction without a showing of prejudice.
(Mickens, supra, 535 U.S. 172, fn. 5, citing Holloway, supra, 435 U.S. at p. 482.)

20

In dicta, the high court indicated that its jurisprudence does not establish or

support the lower courts’ expansive application of a presumption of prejudice
“ ‘unblinkingly’ to ‘all kinds of alleged attorney ethical conflicts.’ ” (Mickens,
supras
, 535 U.S. at p. 174, quoting Beets v. Scott (5th Cir. 1995) 65 F.3d 1258,
1266 (en banc) (Beets); Mickens, at pp. 174-175 [noting a presumption of
prejudice was applied when the defendant’s representation implicated counsel’s
personal or financial interests, employment with the prosecutor’ office, instruction
to Internal Revenue Service agents, romantic involvement with the prosecutor, or
fear of provoking the trial judge].) The question whether the presumption should
apply to other conflicts remains open. (Mickens, at p. 176.)

27



(Id. at p. 175, citing Cuyler v. Sullivan (1980) 446 U.S. 335, 348-349 (Sullivan);

Holloway v Arkansas (1978) 435 U.S. 475, 490-491 (Holloway).) We have agreed

with the high court that “the presumption of prejudice is a prophylactic measure

established to address ‘situations where Strickland itself is evidently inadequate to

assure vindication of the defendant’s Sixth Amendment right to counsel.’ ”

(Rundle, supra, 43 Cal.4th at p. 173, quoting Mickens, supra, 535 U.S. at p. 176.)

In this case, defendant contends that his Sixth Amendment right to counsel

was violated because counsel labored under an actual conflict of interest arising

from counsel’s compensation agreement. That is, his conflict of interest claim

arose not because of a conflict among clients but between his lawyer’s interest in

maximizing fees and defendant’s interest in full investigation. He urges the

compensation agreement created an actual conflict of interest that divided

counsel’s loyalties and adversely affected his performance. In support, defendant

asserts numerous deficiencies by counsel as part of his federal constitutional

claim, state constitutional claim, or both. As discussed below, we adopt the

federal constitutional standard for evaluating claims of conflict of interest under

our state constitution and thus analyze defendant’s claims under only the federal

standard.

Under our state Constitution, the right to counsel includes the correlative

right to conflict-free representation. (People v. Douglas, supra, 61 Cal.2d at pp.

436-439.) We have formulated a different standard of review of conflict of

interest claims than that employed under federal law to analyze analogous Sixth

Amendment claims. In order to establish a violation of the right to conflict-free

counsel, we require a defendant to (1) show counsel labored under a potential

conflict of interest, and (2) raise an informed speculation that the potential conflict

adversely affected counsel’s performance. (Rundle, supra, 43 Cal.4th at p. 175.)

28



The phrase “ ‘informed speculation’ ” was first employed in People v.

Chacon (1968) 69 Cal.2d 765, 776, footnote 3 (Chacon). We borrowed the

informed speculation concept from Lollar v. United States (D.C.Cir. 1967) 376

F.2d 243 (Lollar), to assess prejudice resulting from a conflict of interest arising

from counsel’s joint representation of codefendants in violation of the state and

federal Constitutions. (Chacon, 9 Cal.2d at p. 776, fn. 3, quoting Lollar, 376 F.2d

at p. 247.) The court wrote: “ ‘[O]nly where “ ‘we can find no basis in the record

for an informed speculation’ that [the defendant]’s rights were prejudicially

affected” can the conviction stand.’ ”21 (Ibid.)

Over the course of the ensuing 40 years, a precise definition of our

informed speculation concept has proven elusive and the concept has been

somewhat variously applied. (Compare Chacon, supra, 69 Cal.2d at p. 776, fn. 3

[equating the concept of informed speculation in assessing prejudice resulting

from a conflict of interest with the reasonable doubt standard under Chapman] and

In re Watson (1972) 6 Cal.3d 831, 845 [finding no “no basis in the record for even

an ‘informed speculation’ that petitioner’s rights were prejudicially affected”; any

conflict based on counsel’s joint representation was harmless beyond a reasonable

doubt]; with People v. Cook (1975) 13 Cal.3d 663, 670 [a denial of the right to

effective assistance of counsel is shown “if the record provides an adequate basis

for an ‘informed speculation’ that there was a potential conflict of interest which

21

In effect, Lollar, supra, 376 F.2d at page 247, had “ ‘adopt[ed] the standard

of “reasonable doubt,” a standard the Supreme Court recently said must govern
whenever the prosecution contends the denial of a constitutional right is merely
harmless error.’ ” (Chacon, supra, 69 Cal.2d at p. 776, fn. 3.) Under that
standard, “before a federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a reasonable doubt.”
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

29



prejudicially affected the defendant’s right to effective counsel”]; Mroczko, supra,

35 Cal.3d at p. 105 [“even a potential conflict may require reversal if the record

supports ‘an informed speculation’ that [defendant]’s right to effective

representation was prejudicially affected”]; People v. Frye (1998) 18 Cal.4th 894,

998 [a violation of the right to effective assistance of counsel is established if “the

record supports an ‘informed speculation’ that the asserted conflict adversely

affected counsel’s performance”]; and Rundle, 43 Cal.4th at p. 175 [“under the

state Constitution we have required only that the record support an ‘informed

speculation’ that a ‘potential conflict of interest’ impaired the defendant’s right to

effective assistance of counsel”].)

Moreover, contrary to defendant’s assertions, although this court has

applied a presumption of prejudice to conflicts of interest arising from an

attorney’s concurrent representation of adverse clients (Rundle, supra, 43 Cal.4th

at p. 172, citing People v. Easley (1988) 46 Cal.3d 712 (Easley); Mroczko, supra,

35 Cal.3d 86; Chacon, supra, 69 Cal.2d 765), we have never eliminated our

general requirement that a defendant demonstrate outcome-determinative

prejudice from a violation of his state constitutional right to conflict-free counsel

in order to obtain relief. “[A]ll trial court error under California law is governed

by article VI, section 13 of the California Constitution: ‘No judgment shall be set

aside, or new trial granted, in any cause, on the ground of misdirection of the jury,

or of the improper admission or rejection of evidence, ... or for any error as to any

matter of procedure, unless, after an examination of the entire cause, including the

evidence, the court shall be of the opinion that the error complained of has resulted

in a miscarriage of justice.’ ” (People v. Crayton (2002) 28 Cal.4th 346, 364.)

“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an

examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it

is reasonably probable that a result more favorable to the appealing party would

30



have been reached in the absence of the error.” (People v. Watson (1956) 46

Cal.2d 818, 836; see Rundle, supra, 43 Cal.4th at pp. 175-176 [defendant failed to

demonstrate under the state constitutional standard that he was prejudiced by the

conflict of interest, which did not impact the presentation of the defense case].)

As noted, post-Strickland, the high court’s analysis of Sixth Amendment

conflict of interest claims has evolved into one of ineffective assistance of counsel,

which requires a defendant to show counsel’s deficient performance and a

reasonable probability that but for counsel’s deficiencies, the result of the

proceeding would have been different. (Rundle, supra, 43 Cal.4th at p. 169, citing

Mickens, supra, 535 U.S. at p. 166.) Upon close examination of the federal

standard and our own, we discern no ultimate substantive difference between the

two. Our elusive and somewhat varied application of our state standard over the

past four decades, moreover, strongly suggests that our informed speculation

formulation is too amorphous to provide meaningful guidance to either the bench

or bar.

We therefore conclude that employing both standards is unnecessary and

confusing. In the final analysis, both standards involve a consideration of

prejudice in the outcome. The federal constitutional approach zealously protects a

criminal defendant’s constitutional right to conflict-free counsel. The federal

articulation of the constitutional requirements is clear and provides a more

meaningful framework for review. Today, we therefore harmonize California

conflict of interest jurisprudence with that of the United States Supreme Court and

adopt the standard set out in Mickens.

Accordingly, we reject defendant’s state conflict of interest claim for the

reasons stated below in our federal analysis. We disapprove those earlier cases to

the extent that they can be read to hold that attorney conflict claims under the

31



California constitution are to be analyzed under a standard different from that

articulated by the United States Supreme Court.22

As a preliminary observation applicable to each of the subclaims below,

counsel’s final accounting shows he spent a total of $8,676.15 in ancillary

expenses. Although the amount does not include funds expended by the public

defender, or take into account the professional discount for services, it is certainly

less than the original $60,000 estimate. Counsel was therefore entitled to retain

$71,323.85 of the $80,000 Category 3 fee. We consider these disparities in the

context of the facts and the asserted deficiencies in counsel’s performance to

determine whether an actual conflict of interest adversely affected counsel’s

representation. (Mickens, supra, 535 U.S. at p. 172, fn. 5.) In any circumstance in

which defendant succeeds in demonstrating an actual conflict affected counsel’s

performance, we will then address the prejudice prong of the federal standard,

applying the standard under Strickland. We note that defendant’s reliance on

these facts is different from a general attack on the contract itself. Rather than

arguing that any lawyer operating under the contract would have an irreconcilable

conflict, defendant argues that these facts show that his lawyer had an actual

conflict of interest that affected his performance.

22

We therefore disapprove to this extent the following cases: Rundle, supra,

43 Cal.4th 76; People v. Zambrano (2007) 41 Cal.4th 1082; People v.
Cornwell
(2005) 37 Cal.4th 50; People v. Dunkle (2005) 36 Cal.4th 861; People v.
Roldan
(2005) 35 Cal.4th 646; Cox II, supra, 30 Cal.4th 916; People v. Frye,
supra,18 Cal.4th 894; People v. Sanchez (1995) 12 Cal.4th 1; People v.
Kirkpatrick
(1994) 7 Cal.4th 988; People v. Clark (1993) 5 Cal.4th 950; Cox I,
supra, 53 Cal.3d 618; Easley, supra, 46 Cal.3d 712; People v. Belmontes (1988)
45 Cal.3d 744; Mroczko, supra, 35 Cal.3d 86; Maxwell, supra, 30 Cal.3d 606;
People v. Cook, supra, 13 Cal.3d 663; In re Watson, supra, 6 Cal.3d 831; and
Chacon, supra, 69 Cal.2d 765.


32



a. Investigator Jeff Gunn and prospective prosecution penalty

phase witnesses

Defendant asserts that defense investigator Jeff Gunn’s invoices show he

worked only 13.5 hours before counsel announced ready for trial; had spoken to

no alibi witnesses except Donna Doolin Larsen by the first day of trial; had not

prepared written reports on alibi witnesses Jim Bacon and David Daggs until two

days before the defense case opened; and never contacted prospective prosecution

penalty phase witnesses D., Denise Hamblen, Faith Ruacho, or Florence April

Chavez.

(1) Alibi witnesses Jim Bacon and David Daggs

Defendant’s complaint is misleading. He fails to mention that Gunn had

originally worked on this case for about two and one-half months as the

investigator for the Fresno County Public Defender and had conducted

approximately 90 hours of investigation before the public defender declared a

conflict. Defendant does not account for this work nor does he establish that Gunn

did not interview Bacon and Daggs when he worked for the public defender.

Moreover, it is certainly possible that Gunn interviewed Bacon and Daggs while

working for the public defender but did not complete his reports of these two

interviews until later. Even considering the disparity between counsel’s estimated

and actual ancillary expenses noted above, defendant has not established that

either Gunn’s performance or counsel’s representation, was affected by the

asserted conflict. He therefore fails to satisfy the deficient performance prong

under Strickland. (Mickens, supra, 535 U.S. at p. 171.)

(2) Prospective prosecution penalty phase witnesses

By statute, before trial begins, the prosecutor must give a capital defendant

notice of any aggravating evidence it may seek to offer during the penalty phase.

(§ 190.3.) The prosecution’s notice included evidence of “aggressive conduct”

33



toward prospective witnesses D., Hamblen, Ruacho, and Chavez. Ruacho did not

testify at all. The other three women were not identified as witnesses for the

prosecutor’s case-in-chief. They testified only at the guilt phase in rebuttal to Dr.

Terrell’s testimony that defendant suffered from no mental disorder and did not

match the “typical profiles” he would have expected to see in a murderer (Evid.

Code, §§ 721, subd. (a), 780), and to impeach defendant’s testimony regarding his

own good character (Evid. Code, § 1101, subd. (c)). D. testified, in part, that

defendant forced her to have sexual intercourse with him. The jury was instructed

at the penalty phase that it could consider this evidence as aggravating other-

crimes evidence under section 190.3, factor (b).

Counsel’s primary “duty is to investigate the facts of his client’s case and to

research the law applicable to those facts.” (People v. Ledesma (1987) 43 Cal.3d

171, 222.) Counsel’s decisions regarding strategy and tactics must be rational and

“ ‘founded upon adequate investigation and preparation.’ ” (In re Thomas (2006)

37 Cal.4th 1249, 1258.)

There is no discernable tactical explanation on the record for counsel’s

failure to investigate the prospective prosecution penalty phase witnesses.

Unconflicted counsel reasonably would investigate the prosecution’s aggravating

evidence both to make informed tactical decisions and to advise defendant about

whether to testify. Our inquiry does not end here, however. Defendant has not

established that counsel’s failure to interview these witnesses was motivated by

his asserted desire to keep for himself funds initially budgeted for this

investigation. It does not follow logically that the absence of an explanation

discernable in the record for the absence of interviews can be attributed only to the

financial conflict defendant urges. Explanations unrelated to counsel’s fee

agreement could account for counsel’s omission. Counsel may have delayed

conducting this investigation until after the guilt phase in anticipation that these

34



witnesses would testify only at the penalty phase. The record shows that, with the

exception of Ruacho who did not testify, the prosecutor called the prospective

witnesses listed on the notice of aggravating evidence only in rebuttal after

defendant presented evidence of his good character. In any event, we do not

conclude that the only explanation for counsel’s failure to investigate the

prospective prosecution rebuttal witnesses is the asserted conflict of interest.

Defendant therefore fails to show the asserted conflict adversely affected counsel’s

performance regarding this investigation.

b. Ballistics analysis

Defendant complains that the defense ballistics expert did not analyze the

evidence until four days before the guilt phase of the trial began. Any delay, for

whatever reason, is immaterial. The analysis was completed before trial. The

defense expert agreed with the two prosecution experts. Defendant’s .45-caliber

Firestar was used to kill Tucker and Espinoza, and shell casings found near

Espinoza and Kachman were fired from that same gun. The casings recovered

from the Alva crime scene could have been fired from Shana Doolin’s Lorcin.

Defendant’s bare assertion fails to satisfy the deficient performance prong under

Strickland.

c. Blood analysis

Defendant claims that defense counsel failed to retain an expert to perform

blood analysis even though he included a blood analysis expert in his initial

estimate of costs. Merely because defense counsel originally believed he might

need expert blood analysis does not establish that he failed to obtain expert

assistance because of the asserted conflict. Further, there is no evidence that

counsel’s performance was in any way substandard. No evidence suggested the

shooter left blood at any of the crime scenes. No blood was found in either

35



defendant’s truck or his mother’s car. The prosecution’s evidence, moreover,

provided overwhelming evidence of defendant’s guilt. Ballistics evidence

confirmed defendant’s gun was used to shoot Tucker, Espinoza, and Kachman.

Each of the four attempted murder victims identified defendant in court as her

assailant. Tucker’s boyfriend identified defendant as the driver who picked up

Tucker shortly before her murder. Defendant’s sister lived with defendant at the

time of the shootings. Her .25-caliber handgun could have been used in the Alva

shooting. Under these circumstances, unconflicted counsel could reasonably have

decided a blood analysis expert would contribute nothing to the defense.

Defendant’s assertions do not show deficient performance under Strickland.

d. DNA analysis

Defendant complains that defense counsel delayed his request for retesting

of DNA evidence obtained from victim Espinoza’s body until after the jury

returned its guilty verdicts, and failed to seek DNA analysis of the vaginal samples

obtained from D., who testified during guilt phase rebuttal about defendant’s

forcible rape.

The record, however, belies any reasonable inference that the compensation

agreement affected counsel’s decision making about DNA analyses. In

responding to defendant’s Marsden motion at the sentencing hearing, defense

counsel explained that DNA analysis of the semen obtained from victim Espinoza

was not relevant. The victims all were working prostitutes. Based on the

testimony of the survivors, they were shot because they refused to have sexual

intercourse with the shooter unless they were paid first. Three of the women

testified there was no act of intercourse with defendant, and during the incident

with victim Kachman, defendant wore a condom. Any DNA obtained at the scene

or from the victims could certainly have belonged to other customers. There is no

36



hint in this logical explanation that counsel was influenced by a desire to

maximize his income. Again, ballistics and identification testimony were strong

evidence of defendant's guilt.23 Faced with these circumstances, reasonable and

unconflicted counsel could legitimately decide that retesting of Espinoza’s DNA

would be pointless.

Vaginal samples were originally obtained from D. following her earlier

police compliant that defendant raped her. The prosecution established that sperm

was present in the vaginal samples. Even though defendant testified that he never

had intercourse with D., he admitted to having an intermittent relationship with her

and told D.’s brother that she had stayed overnight with him around the time of the

alleged rape. At trial, defendant denied he told police during the rape

investigation that “if they had found any semen, it would be because she had saved

it in a cup and poured it on herself.” He explained, “I—I don’t remember that—

that statement. It might have been made. I don’t know. I was very upset of course,

you know somebody making that allegation. . . .” Defendant later testified that he

“might have” made such a statement but had “no idea” because the incident

occurred so long ago. Finally, when D. became pregnant by her former boyfriend,

defendant wanted her to sign a letter he drafted stating, in essence, that he was not

the father of the baby. Any decision by counsel to forgo DNA testing to determine

the identity of the sperm donor thus appears to have been a reasonable, tactical

choice, not one motivated by the asserted conflict of interest. Had testing shown

defendant to have been the donor, his credibility would have suffered a significant

23

No eyewitness testified regarding the circumstances of Espinoza’s murder.

Ballistics evidence established shell casings found at the Espinoza and Kachman
crime scenes were fired from defendant’s Firestar .45-caliber handgun, and
Kachman identified defendant.

37



blow. Evidence of a different donor would have been susceptible of various

explanations and of limited value in light of all the other evidence on this topic.

e. Tire tread analysis

Defendant complains that defense counsel failed to consult with an expert

to analyze the tire tread evidence even though the prosecutor provided him with

reports from his expert before trial. As noted, the prosecution’s evidence pointed

unerringly to defendant’s guilt. The tire tread evidence, in contrast, was neither

conclusive nor crucial on the issue of identity. The People’s own expert could

conclude only that the tire impressions depicted in the photographs were “similar”

to the tire treads on defendant’ truck. Evidence this insubstantial did not require

expert refutation. Sound defense tactics would counsel that the less said about this

evidence the better.

f. Defense experts and background investigation

Defendant complains that psychiatrist Howard Terrell, who testified in the

guilt phase, only spent one hour with him and conducted a four-hour document

review. As a result, the prosecutor exploited the expert’s unfamiliarity with the

contents of police reports of prosecution witnesses and defendant’s uncharged

conduct. Defendant also finds fault with counsel because psychologist Hedberg

did not administer any tests to defendant until a few days before the penalty phase

began. He also claims Dr. Hedberg “did no work” regarding his testimony on the

limitations of eyewitness testimony until the day he testified in the guilt phase.

Defendant does not otherwise explain this assertion. The record shows Dr.

Hedberg had testified as an expert on this subject “several hundred times.”

Defendant alleges counsel delayed asking Dr. Hedberg to conduct his tests hoping

that a favorable guilt phase verdict would obviate the need for a penalty phase.

Finally, defendant asserts that defense counsel never conducted the background

38



investigation and “extensive psychiatric and social study” he estimated might be

necessary at the outset of his involvement in this case.

(1) The defense psychiatrist and psychologist

When counsel was appointed, he indicated an “extensive” psychiatric

evaluation of defendant was necessary because defendant intended to plead not

guilty by reason of insanity. Counsel hired an experienced psychiatrist, Dr.

Terrell, who testified at the guilt phase that he had examined over one hundred

murderers and a dozen serial killers. This defense expert concluded that defendant

was neither psychotic nor the victim of disordered personality, thus undermining

any potential insanity defense as a viable tactic and the need for a more extensive

psychiatric study. Terrell’s conclusion was corroborated by Dr. Hedberg who also

interviewed and tested defendant and testified at the penalty phase.

There is nothing in the record to support even a suspicion that these

experts’ conclusions were in any way influenced by the asserted conflict of

interest. Nor is there a basis in this record from which we can speculate that any

delay in retaining or preparing these experts was attributable to the asserted

conflict.24

24

As a result, we need not consider defendant’s contention that the asserted

delay in retaining Dr. Hedberg’s services rendered counsel “unprepared to
question prospective jurors whether mental issues might impact their penalty
deliberations.” The record shows that defense experts discovered no
psychological condition to support an insanity defense. Throughout the trial
defendant maintained he was innocent. He does not identify what “mental health
issues” counsel would have been better prepared to address during voir dire had
Dr. Hedberg been retained earlier.

39



(2) Background investigation and social study

Defendant contends that counsel failed to conduct a background

investigation and social study of defendant because of the asserted conflict of

interest. Before trial, counsel budgeted $15,000 for “Background (lifetime)

investigation of Defendant for penalty phase social study report” and $10,000 for

engaging the services of a “Psychiatrist and Social Worker.” His final accounting

shows that he spent approximately $4,500 for services provided by the defense

psychiatrist and psychologist.

At the hearing on his motion for a continuance, brought three days before

the penalty phase was scheduled to begin, counsel related he had not contacted

defendant’s 16 potential character witnesses. The prosecutor had complained he

had not received discovery regarding statements of witnesses the defense intended

to call in the penalty phase. Defense counsel responded that he had intentionally

not interviewed those witnesses. In counsel’s view, statements defendant made to

counsel about what the witnesses would say were privileged and not subject to

discovery.

At the penalty trial, Dr. Hedberg, the clinical psychologist, was the sole

witness called on defendant’s behalf. Dr. Hedberg’s testimony focused on his

psychological testing of defendant and his conclusion that defendant was not

psychotic, psychopathic, sociopathic, or suffering from any mental illness. The

remainder of this expert’s testimony outlined defendant’s family history.

Defendant’s mother had been married four times. Two of defendant’s stepfathers

were verbally and emotionally abusive. Defendant “carries some unresolved

resentment from his childhood that he has not worked out” that may periodically

cause him to unintentionally express hostility or resentment. Counsel also

introduced some of defendant’s school records. Defendant’s mother, sister,

cousin, and several friends had testified during the guilt phase. These friends and

40



relatives were able to provide counsel with information about defendant’s

childhood, relationships, and history.

In preparation for the penalty phase of a capital murder trial, counsel has an

“obligation to conduct a thorough investigation of the defendant’s background.”

(Williams v. Taylor (2000) 529 U.S. 362, 396; see also Wiggins v. Smith (2003)
539 U.S. 510, 522 (Wiggins); In re Lucas (2004) 33 Cal.4th 682, 728.)

“[I]nvestigations into mitigating evidence ‘should comprise efforts to discover all

reasonably available mitigating evidence and evidence to rebut any aggravating

evidence that may be introduced by the prosecutor.’ [Citation.]” (Wiggins, supra,

539 U.S. at p. 524.)

Counsel spoke with defendant’s mother, sister, cousin, and friends. Two

experienced mental health professionals found no evidence defendant manifested

any significant psychological conditions. Defense counsel expressly made a

tactical choice to rely on defendant’s own information about what potential

character witnesses might say in order to evade the discovery procedure by relying

on attorney-client privilege. The court made no ruling with regard to counsel’s

mention of his reliance on the privilege and neither side raises the issue of

privilege on appeal. We do not express an opinion on how the court should have

ruled had the issue of privilege been pressed. Likewise, nothing in this opinion

should be interpreted as the approval of an attempt by either side to suppress

discoverable material. In an abundance of caution, and in order to provide

defendant with the broadest scope of reasonable review, we assume without

deciding that defendant satisfies the deficient performance prong under Strickland.

We now address the prejudice requirement. Preliminarily, defendant

asserts we should apply a presumption of prejudice under Sullivan and reverse his

death judgment. We disagree. In Mickens, the high court suggested that a

presumption of prejudice need not attach to every conflict, but was appropriate for

41



conflicts giving rise to a high probability of prejudice and corresponding difficulty

of demonstrating such prejudice. (Mickens, supra, 535 U.S. at p. 175.) Moreover,

we share the view of the Fifth Circuit Court of Appeals that Strickland provides

the appropriate analytic framework for assessing prejudice arising from attorney

conflicts of interest outside the context of multiple concurrent representation.

(Beets, supra, 65 F.3d at p. 1265.)

In Beets, the court explained that a presumption of prejudice should be

limited to the context of multiple concurrent representation because only in that

context “is the duty of loyalty so plain. Only then is the risk of harm high enough

to employ a near- per se rule of prejudice. While loyalty may be implicated in

other judgments a lawyer makes, in no other category of conflicts is the risk of

prejudice so certain as to justify an automatic presumption. [Citation.] When the

duty of loyalty is challenged by an attorney’s self-interest, the range of possible

breaches. . . .is virtually limitless. Likewise, their consequences on the quality of

representation range from wholly benign to devastating. [Citations.] Applying a

near- per se rule of prejudice to this spectrum of potential ethical problems is a

draconian remedy. [¶] . . . [¶] In stark contrast to multiple representation

situations, there is little meaningful distinction between a lawyer who

inadvertently fails to act and one who for selfish reasons decides not to act. The

‘conflict’ between the lawyer’s self-interest and that of his client is not a real

conflict in the eyes of the law. Rather than being immobilized by conflicting

ethical duties among clients, a lawyer who represents only one client is obliged to

advance the client’s best interest despite his own interest or desires.” (Beets,

supra, 65 F.3d at pp. 1270-1271, fn. omitted.)

Even the dissenting judge in Beets recognized that not every conflict of

interest warrants a presumption of prejudice. (Beets, supra, 65 F.3d at p. 1297

(dis. opn. of King, J.).) “ ‘[I]n a sense, every representation begins with a lawyer-

42



client conflict. If the representation is for a fee, the lawyer’s economic interest will

be to maximize the amount of the fee and the client’s will be to minimize it.’

[Citation.] Conversely, if the representation is for a flat fee, the attorney’s interest

will be to minimize the amount of time spent on the case, and the client’s interest

will be to maximize it. . . . [¶] Thus, the [application of a presumption of

prejudice] would swallow the Strickland rule if it were applied to every case in

which a criminal defendant complains that his lawyer failed to investigate a

witness or a defense, neglected to perform an experiment, did not hire a witness,

or otherwise failed to take action because the attorney decided that it was not

worth the time or the expense. . . . Strickland appropriately governs claims for

failure to investigate and the like, and courts have had little difficulty in treating

such claims under Strickland’s ineffectiveness rubric.” (Ibid., fn. omitted.) We

adopt the reasoning from Beets and therefore conclude that, because the asserted

conflict does not arise from multiple concurrent representation, a presumption of

prejudice is not appropriate in this case. Here, our ability to gauge the impact of

the asserted conflict on the penalty phase defense presented is not hampered by

any concern that the Strickland standard is inadequate “to assure vindication of the

defendant’s Sixth Amendment right to counsel.” (Mickens, supra, 535 U.S. at p.

176.) It is the record that undermines defendant’s claim. He can point to nothing

any witness might have presented by way of mitigation. Nor does he offer any

indication that other witnesses beyond the friends and family members identified

could have assisted him. We note that defendant has the opportunity to expand

upon the record in the context of his right to pursue a writ of habeas corpus.

(Rundle, supra, 43 Cal.4th at p. 174, fn. 48.)

Accordingly, because defendant has not established the asserted conflict of

interest had any effect on either the guilt or the penalty phase verdict, he does not

“demonstrate ‘a reasonable probability that, but for counsel’s unprofessional

43



errors, the result of the proceeding would have been different.’ ” (Mickens, supra,

535 U.S. at p. 166, quoting Strickland, supra, 466 U.S. at p. 694.)

g. Investigation of defense witnesses25

Defendant claims that defense counsel failed to investigate and discover

material relevant to the credibility of defense witnesses, including (1) alibi witness

Bacon’s notes that he claimed corroborated his explanation for remembering

defendant’s visit to him during the weekend of the Alice Alva assault; (2) medical

records of Clara Larsen that contradicted Donna Doolin’s alibi testimony for

defendant on December 28; and (3) Donna Doolin’s employment records

contradicting her claim she was in Fresno during the weekend Alice Alva was

assaulted.

The extent of reasonable investigation into witnesses identified by the

defendant is a very complex question. We assume without deciding that defendant

shows deficient performance under Strickland; that is, the asserted conflict

adversely affected counsel’s performance regarding the investigation of defense

alibi witnesses.

In terms of prejudice, we have concluded a presumption of prejudice is not

applicable to the conflict asserted here. On the merits, defendant fails to

demonstrate a reasonable probability that he would have obtained a more

favorable result in the absence of counsel’s failure to investigate defense alibi

witnesses. He fails to show, for example, what fruitful course of action counsel

would have taken, if any, had he discovered the above material before Donna

Doolin, other family members, and Bacon testified. He does not suggest counsel

25

These assertions do not appear in defendant’s state claim.

44



would have declined to call them. Moreover, both Donna Doolin and Bacon were

impeached regarding other aspects of their alibi testimonies. Donna Doolin’s

credibility was significantly undermined. Bacon admitted he had taken notes

during the preliminary examination testimony of other witnesses and looked at

notes taken by defendant’s sister and mother before testifying.

In sum, defendant’s federal constitutional conflict of interest claim fails.26

4. Alleged Equal Protection Violation

Defendant contends use of the lump sum fee agreement by the Fresno

County Superior Court violated the equal protection clause because it imposed

26

The derivative claim that, because counsel labored under an

unconstitutional conflict of interest, defendant was denied his rights to due process
under the Fourteenth Amendment, confrontation under the Sixth Amendment, and
a reliable determination of guilt and penalty in a capital case under the Eighth and
Fourteenth Amendments also fails. In arguments elsewhere, defendant asserts
violation of his federal constitutional rights to due process under the Fourteenth
Amendment, a fair trial by jury under the Sixth and Fourteenth Amendments,
counsel under the Sixth Amendment, or a reliable determination of guilt and
penalty in a capital case under the Eighth and Fourteenth Amendments. What we
observed in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17, applies: “In
most instances, insofar as defendant raised the issue at all in the trial court, he
failed explicitly to make some or all of the constitutional arguments he now
advances. In each instance, unless otherwise indicated, it appears that either (1) the
appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous
instruction affecting defendant’s substantial rights) that required no trial court
action by the defendant to preserve it, or (2) the new arguments do not invoke
facts or legal standards different from those the trial court itself was asked to
apply, but merely assert that the trial court’s act or omission, insofar as wrong for
the reasons actually presented to that court, had the additional legal consequence
of violating the Constitution. To that extent, defendant’s new constitutional
arguments are not forfeited on appeal. [Citations.] [¶] In the latter instance, of
course, rejection, on the merits, of a claim that the trial court erred on the issue
actually before that court necessarily leads to rejection of the newly applied
constitutional ‘gloss’ as well. No separate constitutional discussion is required in
such cases, and we therefore provide none.”

45



“the burden of financially-conflicted counsel solely on that class of indigent

criminal defendants who could not be represented by the Public Defender.” In

essence, this claim is a repackaging of his argument relying on the judicially

declared rule from Barboza, which we have already rejected. (See ante, pt. 2.)

B. Request for Second Counsel

Defendant contends the trial court abused its discretion in denying his

pretrial request for the appointment of second counsel, thereby depriving him of

due process, the right to counsel, and the right to a reliable guilt and penalty phase

determination.

Defense counsel filed a written pretrial request for the appointment of

second counsel because (1) defendant was facing the death penalty; (2) the charges

involved six victims and six crime scenes; (3) the issues involved ballistics,

possible blood spatter evidence, psychiatric and psychological issues, a possible

insanity defense, and eyewitness identifications; and (4) the trial was scheduled to

begin in three weeks. The trial court denied defendant’s request for “lack of

cause.”

An indigent criminal defendant’s right to a second attorney in a capital case

is statutory, not constitutional. Appointment is permitted in the discretion of the

trial court under section 987, subdivision (d).27 (People v. Roldan, supra, 35

27

Section 987, subdivision (d) provides: “In a capital case, the court may

appoint an additional attorney as a cocounsel upon a written request of the first
attorney appointed. The request shall be supported by an affidavit of the first
attorney setting forth in detail the reasons why a second attorney should be
appointed. Any affidavit filed with the court shall be confidential and privileged.
The court shall appoint a second attorney when it is convinced by the reasons
stated in the affidavit that the appointment is necessary to provide the defendant
with effective representation. If the request is denied, the court shall state on the
record its reasons for denial of the request.”

46



Cal.4th at p. 686; Keenan v. Superior Court (1982) 31 Cal.3d 424, 428-430.) In

ruling on an application for second counsel, the trial court must be guided by the

need to provide a capital defendant with a full and complete defense. (Keenan,

supra, 31 Cal.3d at p. 431.) In exercising its discretion, the trial court must weigh

“the importance this court has attached to pretrial preparation in providing a

criminal defendant effective legal assistance” (ibid.) and “focus on the complexity

of the issues involved, keeping in mind the critical role that pretrial preparation

may play in the eventual outcome of the prosecution” (id. at p. 432). The initial

burden is on the defendant to present a specific factual showing of “genuine need”

for the appointment of second counsel. (Id. at p. 434.) We review the decision

whether to grant a request to appoint second counsel under section 987 for abuse

of discretion. (People v. Roldan, supra, 35 Cal.4th at p. 688.)

We need not decide whether the trial court erred in denying defendant’s

request for second counsel because any error was harmless. Defendant fails to

explain or substantiate his claim that, because Keenan counsel was denied, defense

counsel was unprepared for trial. The extensive evidence of defendant’s guilt

demonstrates that there is no reasonable probability of a more favorable outcome

had Keenan counsel been appointed.28 (People v. Watson, supra, 46 Cal.2d at p.

28

Defendant contends a trial court’s error in denying Keenan counsel is

reversible per se, but he offers no persuasive authority in support. People v.
Bigelow
(1984) 37 Cal.3d 731, 744, on which defendant primarily relies, is
inapposite in that it held a trial court’s failure to exercise its discretion concerning
the appointment of advisory counsel for a self-represented capital defendant in a
capital case is reversible per se. Defendant also argues he should be accorded a
presumption of prejudice under United States v. Cronic (1984) 466 U.S. 648,
based on his assertion that the denial of defense counsel’s request for second
counsel resulted in counsel’s failure to interview a single background witness for
the penalty phase and to subject the prosecution’s case to meaningful adversarial

(footnote continued on next page)

47



836; see People v. Williams (2006) 40 Cal.4th 287, 300-302 [error by the trial

court in revoking the appointment of Keenan counsel is evaluated under the

Watson standard].) Further, although there is some indication in the record that

counsel could have prepared differently for the penalty phase, there is no

indication that counsel’s penalty phase presentation might have differed if he had

the assistance of second counsel. Assuming that the trial court erred in denying

counsel’s request for second counsel and that this state law error impacted the

penalty phase, we conclude there is no reasonable possibility that the jury would

have rendered a different verdict had second counsel been appointed. (See People

v. Jackson, (1996) 13 Cal.4th 1164, 1232.)

C. Evidence of Defendant’s Character

Defendant contends that the trial court permitted improper impeachment of

the defense psychiatrist. He claims the prosecutor’s questions were an improper

attempt to offer specific instances of irrelevant and inadmissible character

evidence to prove conduct on a specific occasion, in violation of Evidence Code

sections 1101, subdivision (a), and 1102, and were more prejudicial than probative

under Evidence Code section 352. In addition, he argues the court also erred by

admitting rebuttal evidence in the form of specific instances of defendant’s bad

character. Defendant urges both errors violated his right to due process under the

Fourteenth Amendment. We reject defendant’s contentions.

Preliminarily, as to both contentions, defendant argues that the items seized

by police from his home on the day he was arrested, including the Pro Sniper

(footnote continued from previous page)

testing at the penalty trial. He supports this contention neither factually nor
legally.

48



videotape, Soldier of Fortune magazine, the .44-magnum handgun and various

rifles and shotguns, pornographic magazines, mail-order bride materials, gun

magazines, a bulletproof vest and other paraphernalia were irrelevant. Defendant

has forfeited this issue because he failed to object to admission of any of the items

except the Pro Sniper videotape. (Evid. Code, § 353.) In any event, on the merits,

we conclude all of the items seized were probative of defendant’s identity as the

assailant, his intent to kill, and his motive for the shootings. (Evid. Code, § 210.)

1. The Prosecution’s Cross-examination of Dr. Terrell

Over objection, the trial court ruled that the testimony of defense

psychiatrist, Dr. Terrell, was admissible character evidence under Evidence Code

section 1102,29 relevant to show defendant was not disposed to commit the

charged offenses.

Dr. Terrell had evaluated more than 100 murderers and a dozen serial

killers. He considered whether defendant matched any of the following typical

profiles that he would expect to see in a murderer: (1) the sadist who enjoys

inflicting pain on others and watching them suffer and die; (2) the sexual sadist

who enjoys inflicting pain during sexual encounters, then beats, rapes, or kills his

partners; (3) the antisocial career criminal; (4) the drug addict or alcoholic who

kills when intoxicated; (5) the individual with no history of murder who kills

because of anger or jealousy; (6) the killer for hire; (7) gang members who kill to

protect their “turf”; (8) the psychotic individual who “hears voices” that command

29

Evidence Code section 1102, subdivision (a), provides that opinion

“evidence of the defendant’s character or a trait of his character” is admissible “to
prove his conduct in conformity with such character or trait of character.” Under
subdivision (b) of the same statute, such evidence is admissible when “[o]ffered
by the prosecution to rebut evidence adduced by the defendant under subdivision
(a).” (Evid. Code, § 1102, subd. (b).)

49



him or her to kill; and (9) the mercy killer who assists in a suicide to alleviate

suffering.

On cross-examination, Dr. Terrell confirmed he had not received police

reports that defendant had raped D. or told her he disliked prostitutes. Dr. Terrell

was also unaware of any reports that defendant was obsessive about cleanliness

when he stayed in motel rooms with his girlfriends; frequently carried a duffel bag

full of guns; led a different life around his family; hid his girlfriends when his

mother came to visit; had advertised in adult magazines; was twice rebuffed by a

prostitute he approached on Fresno streets; consumed alcohol to the point of

intoxication; called a woman a “bitch” when she declined a date with him; and

showed photographs of people he claimed to have killed.

Defendant contends that the trial court abused its discretion by permitting

this cross-examination, in violation of Evidence Code sections 1101, 1102, and

352. He has forfeited this claim by failing to object on these grounds at trial.

(People v. Coddington (2000) 23 Cal.4th 529, 613; People v. Lucero (2000) 23

Cal.4th 692, 715.) The claim is also meritless.

At the outset, we observe that the matters about which Dr. Terrell was

questioned on direct examination were ultimately offered as substantive evidence

of defendant’s character. The cross-examination questions were permitted for the

limited purpose of impeaching the expert’s opinion. An expert witness may be

cross-examined about “the matter upon which his or her opinion is based and the

reasons for his or her opinion.” (Evid. Code, § 721, subd. (a).) The scope of this

inquiry is broad and includes questions about whether the expert sufficiently

considered matters inconsistent with the opinion. (People v. Ledesma (2006) 39

Cal.4th 641, 695.) Thus, an adverse party may bring to the attention of the jury

that an expert did not know or consider information relevant to the issue on which

the expert has offered an opinion. (People v. Bell (1989) 49 Cal.3d 502, 532.)

50



The cross-examination of Dr. Terrell was proper. The incidents were all

relevant to the validity of his opinion that defendant’s character was inconsistent

with that of a murderer.30 The prosecutor’s questions fell within the scope of Dr.

Terrell’s direct testimony. The jury was properly instructed that questions and

answers about the reported incidents could be considered only in determining the

weight to be given to Dr. Terrell’s opinion, and that the questions themselves were

not evidence that the reported incidents were true. (CALJIC No. 2.42.)

2. Prosecution’s Rebuttal Evidence of Defendant’s Bad Character

Defendant testified on direct examination he did not hate women, was not

hostile toward prostitutes, and thought prostitution should be legalized. On cross-

examination, defendant denied ever using the services of a prostitute or telling

anyone that prostitutes were dirty, sleazy, and cheap and should be removed from

the earth. He denied drinking to the point he could not drive, using drugs, talking

about his cocaine use with Justus Swigart, or allowing people to use drugs at his

home. Defendant said he did not treat women differently when he was away from

his family. He denied striking his girlfriend, Hamblen, or being indifferent to pain

she experienced during sex. He denied advertising in an adult magazine, carrying

a bag of guns, calling Sherry Saar a “bitch” because she turned him down for a

30

See, e.g., People v. Panah (2005) 35 Cal.4th 395, 492 [evidence of

defendant’s prior hit-and-run misdemeanor conviction was properly admitted on
cross-examination to impeach the defense expert’s testimony that defendant had
no juvenile or adult convictions, to the extent that this conclusion affected the
expert’s opinion of defendant’s mental state]; People v. Hughes (2002) 27 Cal.4th
287, 334-335 [the prosecutor’s cross-examination regarding the expert
psychologist’s knowledge of the defendant’s prison record was relevant to
impeach expert’s opinion testimony concerning defendant’s work history]; People
v. Hendricks
(1988) 44 Cal.3d 635, 642 [the prosecutor properly impeached the
expert witness’s opinion of the defendant’s mental state with other-crimes
evidence].

51



date, or asking a girlfriend to hide when his mother came to visit. He denied that

D. was his girlfriend, that he had sex with her, or that he had used soap during

intercourse. He explained that he bought a taser, or stun gun, for self-protection

and purchased a set of handcuffs “just to have them.”

Outside the presence of the jury, defense counsel objected to the admission

of proposed rebuttal testimony by Margie Galloway, Sherry Saar, Justus Swigert,

Christina Bills, Hamblen, D., and Chavez. Counsel argued the evidence was

irrelevant and should be excluded under Evidence Code section 352 as unduly

prejudicial and time-consuming. The prosecution urged the defense had opened

the door to impeachment by eliciting character testimony from both defendant and

Dr. Terrell. The trial court ruled that the proffered evidence was proper rebuttal

and denied the motion. It did not expressly expand on its ruling, but the

arguments of counsel indicate the court admitted the proffered evidence under

Evidence Code section 1101, subdivision (c), which provides that the prohibition

against the admission of character evidence to prove a person’s criminal

disposition under that code section does not “affect[] the admissibility of evidence

offered to support or attack the credibility of a witness.”

The prosecution’s rebuttal witnesses testified as follows:

Margie Galloway had seen defendant drink beer and had seen him

intoxicated on two occasions. She frequently observed defendant carrying a gym

bag with guns in it and had heard him comment several times that he did not like

“whores and sluts.”

Sherry Saar recounted that defendant “flew off the handle” and called her a

“bitch” when she declined to date him.

Defendant’s friend, Justus Swigert, usually saw him carrying guns in a

duffel bag. Swigert knew defendant drank alcohol. Once, defendant became so

52



intoxicated he had to spend the night at Swigert’s residence. Defendant told

Swigert he had used cocaine.

Christina Bills attended a party at defendant’s apartment where alcohol and

marijuana were consumed. She often saw defendant carrying guns in a duffel bag.

Defendant told her he was involved with the Mafia.

Hamblen, one of defendant’s former girlfriends, testified the first time she

had sexual intercourse was with defendant, and he covered her mouth when she

screamed in pain. On one occasion, defendant placed ice cubes “on” her vagina

and then had intercourse despite Hamblen’s protests of pain. On another occasion,

when Hamblen acceded to defendant’s request to have intercourse on a bathroom

floor, defendant would not stop the encounter when Hamblen told him her back

was hurting. Defendant put soap on his penis before having sexual intercourse

because “he was told that it would kill sperm.” He did not stop this practice when

told it caused painful burning. He once struck Hamblen on the face. Defendant

put posters of naked women over his headboard during intercourse and said he had

advertised himself in pornography magazines. When Hamblen was diagnosed

with a kidney infection, defendant flushed her medication down the toilet because

his mother had told him the medicine was “no good.”

D. testified she met defendant 10 years earlier, when she was 13 years old.

She eventually became defendant’s girlfriend and described their relationship as

“mostly sexual.” Defendant was obsessed with cleanliness. When they had sex in

motels, he would lay towels on the bed to avoid leaving any stains. D. recalled

that defendant described prostitutes as “dirty and disgusting.” He told her “they

shouldn’t be here,” “they shouldn’t exist,” and “somebody should remove them.”

D. said defendant collected guns and often showed them to her. He bragged that

he had mob connections and could get guns any time he wanted. He showed D.

photographs of people he claimed to have killed. When she was homeless, D.

53



accepted defendant’s invitation to use the shower in his apartment. He then forced

her to have sexual intercourse with him. She reported this incident to police but

received no response to her follow-up inquiries. During this incident and others,

defendant put soap on his penis as a method of birth control.

Prostitute Chavez testified that defendant twice approached her on the street

between July and September 1995 soliciting sex. She declined his proposition

because she felt “funny” about him.

On appeal, defendant argues the trial court erroneously admitted the above

prosecution rebuttal evidence, contending the evidence was irrelevant and

inadmissible under Evidence Code sections 352, 1101, and 1102. We review a

trial court’s evidentiary rulings under these code sections for abuse of discretion.

(People v. Harris (2005) 37 Cal.4th 310, 335; People v. Gray (2005) 37 Cal.4th

168, 202; People v. Cole (2004) 33 Cal.4th 1158, 1195.)

Because defendant objected only that the evidence was irrelevant and

unduly prejudicial under Evidence Code section 352, he has forfeited his claim

that the trial court admitted this evidence in violation of Evidence Code sections

1101 and 1102.31 (People v. Thomas (1992) 2 Cal.4th 489, 520.) This claim is

also without merit.

The prosecution’s rebuttal evidence was properly admitted to attack the

basis of Dr. Terrell’s testimony. (Evid. Code, §§ 721, subd. (a), 780.) It was

relevant to the jury’s determination of the weight and credibility of his opinion.

31

The record does not support defendant’s implied assertion that the trial

court admitted the prosecution’s rebuttal evidence under Evidence Code section
1102, subdivision (b), which permits the admission of evidence of a defendant’s
character only in the form of opinion or reputation evidence and not evidence of
specific acts.

54



(See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 965-966 [the rebuttal

testimony of a prosecution expert critical of forensic psychiatry and of the

opinions of the defense experts was relevant to the weight of those opinions, and

its admission was neither improper nor prejudicial]; People v. Prince (1988) 203

Cal.App.3d 848, 856-858 [the testimony of a prosecution expert was relevant to

the weight and credibility of the defense expert opinions on the defendant’s

competency to stand trial].)

The testimony of the rebuttal witnesses was also properly admitted as direct

impeachment of defendant’s own testimony. Here, “[b]y taking the stand,

defendant put his own credibility in issue and was subject to impeachment in the

same manner as any other witness.” (People v. Gutierrez (2002) 28 Cal.4th 1083,

1139; see Evid. Code, § 1101, subd. (c).)

Defendant further contends the trial court did not adequately weigh the

potential prejudice of the evidence against its probative value under Evidence

Code section 352. He specifically complains the court did not consider the

inflammatory nature of the uncorroborated testimony he raped D. and mistreated

Hamblen. He has forfeited these issues by failing to argue them below. (Evid.

Code, § 353, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 666-667 [a claim of

the erroneous admission of evidence is preserved for appeal if the timely objection

to admission of the evidence alerted the trial court to the nature of the anticipated

evidence and the basis on which exclusion was sought and afforded the opposing

party an opportunity to establish its admissibility]; see also People v. Marks

(2003) 31 Cal.4th 197, 228 [“A general objection to the admission or exclusion of

evidence, or one based on a different ground from that advanced at trial, does not

preserve the claim for appeal”].)

Further, “a court need not expressly weigh prejudice against probative

value or even expressly state that it has done so, if the record as a whole shows the

55



court was aware of and performed its balancing functions under Evidence Code

section 352.” (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Our independent

review of the record shows the trial court carefully considered defendant’s motion

and performed the requisite weighing process under Evidence Code section 352.

The court heard argument from both sides before it ruled on the rebuttal evidence,

finding “under [section] 352, . . .that [its] relevance and materiality …outweighs

[any] prejudicial effect.”

Contrary to defendant’s arguments, none of this testimony was unduly

prejudicial. “ ‘Prejudice’ as contemplated by [Evidence Code] section 352 is not

so sweeping as to include any evidence the opponent finds inconvenient. Evidence

is not prejudicial, as that term is used in a section 352 context, merely because it

undermines the opponent’s position or shores up that of the proponent. The ability

to do so is what makes evidence relevant. The code speaks in terms of undue

prejudice. Unless the dangers of undue prejudice, confusion, or time consumption

‘ “substantially outweigh” ’ the probative value of relevant evidence, a section 352

objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) ‘ “The

‘prejudice’ referred to in Evidence Code section 352 applies to evidence which

uniquely tends to evoke an emotional bias against the defendant as an individual

and which has very little effect on the issues. In applying section 352,

‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis

(1988) 46 Cal.3d 612, 638.) [¶] The prejudice that section 352 ‘ “is designed to

avoid is not the prejudice or damage to a defense that naturally flows from

relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the

word in its etymological sense of ‘prejudging’ a person or cause on the basis of

extraneous factors. [Citation.]” [Citation.]’ (People v. Zapien (1993) 4 Cal.4th

929, 958.) In other words, evidence should be excluded as unduly prejudicial

when it is of such nature as to inflame the emotions of the jury, motivating them to

56



use the information, not to logically evaluate the point upon which it is relevant,

but to reward or punish one side because of the jurors’ emotional reaction. In such

a circumstance, the evidence is unduly prejudicial because of the substantial

likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997)

53 Cal.App.4th 998, 1008-1009.)

The challenged evidence was directly relevant to impeach defendant’s own

testimony and that of his witnesses. Although evidence of D.’s rape and

Hamblen’s mistreatment is unpleasant, it paled in comparison to the testimony

from four witnesses that defendant tried to kill them. The jury was properly

instructed not to be influenced by passion, sympathy, or prejudice and to

conscientiously consider and weigh the evidence in applying the law and reaching

its verdict. (CALJIC No. 1.00.)

In the interest of complete review, we note that even if we were to assume

evidentiary error, any error would be harmless, whether assessed under the federal

constitutional (Chapman, supra, 386 U.S. at p. 24) or state (People v. Watson,

supra, 46 Cal.2d at p. 836) standard of review. There was overwhelming evidence

of defendant’s guilt.

D. Asserted Errors Regarding the Testimony of Defendant’s Mother

and Claims of Prosecutorial Misconduct

Defendant contends that several evidentiary errors and prosecutorial

misconduct cumulatively rendered his trial fundamentally unfair and deprived him

of due process under the Fifth and Fourteenth Amendments to the United States

Constitution. He claims the trial court erred by “forcing” his mother to invoke her

Fifth Amendment right against self-incrimination seven times in front of the jury

and by permitting the prosecutor to impeach her with evidence that she had tried to

steal from her employer. He argues the prosecutor engaged in misconduct by

57



violating the trial court’s order limiting that cross-examination. We reject each

claim. Thus, there was no error to accumulate.

1. Defense Witness Donna Doolin Larsen’s Trial Testimony and

Related Trial Proceedings

Donna Doolin Larsen testified as an alibi witness for her son. On the night

Tucker was murdered, defendant was at home with her, cleaning house, except for

a half-hour when he left to buy ice cream. On the night Kachman was shot,

defendant spent the evening with Larsen at home.

Before Larsen’s cross-examination, the court conducted an in limine

hearing. The prosecutor informed the court that he and defense counsel had

previously discussed Larsen’s potential impeachment. The prosecutor said that if

Larsen were to testify for the defense, he would seek to impeach her with evidence

she had falsely told police and others that she was a registered nurse, that she had

altered her daughter’s nursing license for her own use, and that she had been

suspected of taking a computer from the school where she worked. The

prosecutor argued these specific instances of misconduct were proper

impeachment.

Defense counsel insisted that the prosecutor had said he did not intend to

impeach Larsen with that information at trial and the defense had relied on that

representation in putting Larsen on the stand. The prosecutor asserted no such

promise was given. He stated only that he would raise the issue with the court

when the defense called Larsen to testify. The court ruled it would allow the

impeachment.

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After a brief recess, the court reconvened and read to the parties the

relevant portion of the reporter’s transcript of a related pretrial hearing.32 The

court did not recall any representation by the prosecutor that he would not

impeach Larsen with the specific instances described above. The court reminded

defense counsel that he did not request a hearing before he brought Larsen into the

courtroom and called her as a witness.

Counsel informed the court that Larsen would invoke her Fifth Amendment

right against self-incrimination if the prosecutor’s questions were allowed. He

asked that Larsen be permitted to invoke the Fifth Amendment outside the

presence of the jury. The trial court denied that request, stating: “The Court is

going to deny the motion. You deliberately brought her in here and asked her

questions, and now the District Attorney wants to ask her questions and impeach

her, and now you want it all done outside the presence of the jury.” (Italics

added.)

Larsen’s own attorney was present and advised Larsen just before the

cross-examination. Larsen invoked her Fifth Amendment privilege seven times in

response to the prosecutor’s questions whether she had ever purposely tried to

mislead people, been dishonest, submitted false documents to an employer,

submitted a false copy of a nursing license to a school official, altered a nursing

32

At a hearing held on March 18, 1996, defense counsel informed the trial

court that Larsen had been charged with a misdemeanor for misrepresenting
herself as a registered nurse and that if she were asked about the matter while
testifying in defendant’s trial, she would invoke her Fifth Amendment rights.
Counsel then requested a ruling on Larsen’s anticipated impeachment based on
this charge. The prosecutor indicated he would seek a ruling regarding
impeachment if and when defendant called Larsen to testify. The trial court asked
the parties to address all issues related to impeachment at a hearing before Larson
testified.

59



license to add her name, used her daughter’s nursing license with her name typed

on it, or used a business card falsely representing she was a registered nurse.

The prosecutor moved to strike all of Larsen’s testimony. Outside the

presence of the jury, defense counsel again objected that the prosecutor had said

that if Larsen admitted lying he would not question her about specific acts. He

recalled that when the prosecutor asked her whether she lied, Larsen responded:

“Everyone does, I suppose, everyone does.” The court gave counsel an

opportunity to find a hearing transcript that supported his claim. No such

transcript was ever offered.

The court subsequently ruled defense counsel could not question Larsen on

redirect because Larsen’s invocation of her Fifth Amendment rights, in effect,

limited the scope of prosecutor’s cross-examination. The court also denied the

prosecutor’s motion to strike Larsen’s earlier testimony and ruled he could

continue to cross-examine her “on other issues.” The prosecutor concluded his

cross-examination of Larsen the following day.33

2. Larsen’s Assertion of Her Fifth Amendment Privilege Against Self-

Incrimination

Defendant now contends the trial court abused its discretion by compelling

Larsen to assert her Fifth Amendment privilege against self-incrimination before

the jury. We reject this contention.

The jury may not draw any inference from a witness’s invocation of a

privilege. (Evid. Code, § 913, subd. (a); People v. Mincey (1992) 2 Cal.4th 408,

441.) Upon request, the trial court must so instruct jurors. (Evid. Code, § 913,

33

For reasons that do not appear on the record, after the prosecution

completed cross-examination, the trial court permitted defense counsel to briefly
examine Larsen on redirect.

60



subd. (b); People v. Mincey, supra, 2 Cal.4th at p. 441.) “To avoid the potentially

prejudicial impact of having a witness assert the privilege against self-

incrimination before the jury, we have in the past recommended that, in

determining the propriety of the witness’s invocation of the privilege, the trial

court hold a pretestimonial hearing outside the jury’s presence.” (People v.

Mincey, supra, 2 Cal.4th at p. 441, italics added.) Such a procedure makes sense

under the appropriate circumstances. If there is a dispute about whether a witness

may legitimately rely on the Fifth Amendment privilege against self-incrimination

to avoid testifying, that legal question should be resolved by the court . Given the

court’s ruling and the nature of the potential testimony, the witness may not be

privileged to testify at all, or counsel may elect not to call the witness as a matter

of tactics.

Mincey provides a clear example. There, the defendant sought to call

Sandra B. who had also been charged with the murder for which defendant was on

trial. Outside the jury’s presence, Sandra invoked the privilege on advice of

counsel. Defendant sought to compel her to repeat her invocation before the jury.

(People v. Mincey, supra, 2 Cal.4th at pp. 440-441.) We held that allowing her to

do so would invite the jury to speculate that she, not defendant, was the murderer.

Clearly such speculation is improper. (Id. at p. 442; Evid. Code, § 913.)

The situation here is different. Apparently for tactical reasons, the defense

decided not to request a Mincey hearing before calling Larsen to testify. The court

had asked both parties to address Larsen’s impeachment and her assertion of the

privilege before she testified, but defendant did not do so. Thus the defense

knowingly risked Larsen’s impeachment and her invocation of the privilege.

As noted, the jury was properly instructed not to draw any inference from

Larsen’s invocation of her Fifth Amendment privilege. (CALJIC No. 2.25.) We

61



assume they followed that instruction. (People v. Prince (2007) 40 Cal.4th 1179,

1295.)

3. Asserted Trial Court Error in Allowing the Prosecutor to Question

Larsen about the Computer Equipment

The prosecutor also asked Larsen whether she had stolen computer

equipment from Duncan Polytechnical High School. Larsen denied doing so but

confirmed she had been asked by an administrator if she had taken the equipment.

Defendant challenged the propriety of this impeachment.

During the in limine hearing, the prosecutor sought a ruling on the

admissibility of the theft evidence. One night a witness saw Larsen and someone

else take computer equipment from the school and load it into their car. A few

days later the witness saw Larsen return the equipment around 6:00 a.m. The

prosecutor directly addressed Evidence Code section 352 in arguing the question.

The trial court ruled the prosecutor could question Larsen on this issue.

On appeal, defendant acknowledges that, under People v. Wheeler (1992) 4

Cal.4th 284, 292-293, the court has broad discretion to admit acts of moral

turpitude to impeach a witness’s credibility. “[I]mpeachment evidence other than

felony convictions entails problems of proof, unfair surprise, and moral turpitude

evaluation which felony convictions do not present. Hence, [under Evidence Code

section 352,] courts may and should consider with particular care whether the

admission of such evidence might involve undue time, confusion, or prejudice

which outweighs its probative value.” (People v. Wheeler, supra, 4 Cal.4th at pp.

296-297.) A court also may consider issues of “fairness, efficiency, and moral

turpitude” when evidence other than a felony conviction is proffered for

impeachment. (Id. at p. 297, fn.7.) Defendant complains the court failed to weigh

the pertinent Wheeler factors.

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Larsen’s theft was relevant to the issue of her credibility. At the hearing

discussed above, counsel directly addressed Evidence Code section 352 in his

argument. The record makes clear that the trial court was aware of and performed

its duties in that regard.

Further, the trial court instructed the jury as follows: “Evidence has been

introduced for the purpose of showing that a witness engaged in past criminal

conduct amounting to a misdemeanor. Such evidence may be considered by you

only for the purpose of determining the believability of that witness. The fact that

the witness engaged in past criminal conduct amounting to a misdemeanor, if it is

established, does not necessarily destroy or impair a witness’ believability. It is

one of the circumstances that you may take into consideration in weighing the

testimony of such witness.” (CALJIC No. 2.23.1, italics added.) We presume the

jury followed this instruction.

4. Asserted Prosecutorial Misconduct in Questioning Larsen About

Other Instances of Falsely Representing Herself as a Registered
Nurse


The prosecutor asked Larsen, in several ways, whether she had falsely

presented herself as a registered nurse. Larsen asserted her Fifth Amendment

privilege seven times in response to those questions. Larsen’s attorney objected

that the questioning was cumulative. Defendant’s counsel joined in the objection,

which the trial court sustained. The prosecutor then asked Larsen whether she had

written a letter in October 1995 to Gary Kirby, a program coordinator for the

Fresno Unified School District. After the trial court sustained Larsen’s attorney’s

objection on the ground the question was cumulative, the prosecutor asked Larsen

whether she had written a letter to John Lockey, another district employee, in May

1993. Larsen’s attorney objected and asked that similar questions be disallowed in

63



light of the court’s ruling. The court sustained this objection and asked the

prosecutor if he had other questions.

On appeal, defendant contends the prosecutor’s posing of these two questions

was misconduct. “A prosecutor’s conduct violates the Fourteenth Amendment to

the federal Constitution when it infects the trial with such unfairness as to make

the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34,

44; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v.

DeChristoforo (1974) 416 U.S. 637, 643.) Under California law, a prosecutor

who uses deceptive or reprehensible methods of persuasion commits misconduct

even if such actions do not render the trial fundamentally unfair. (People v. Cook

(2006) 39 Cal.4th 566, 606.) Generally, a claim of prosecutorial misconduct is not

cognizable on appeal unless the defendant made a timely objection and requested

an admonition. (Ibid.) Here, although defendant preserved this claim to the extent

he joined in the objections by Larsen’s attorney, defendant failed to request an

admonition. In any event, we conclude the prosecutor did not engage in

misconduct by asking Larsen the above questions.

Each of the prosecutor’s questions related to factually distinct circumstances

in which Larsen allegedly held herself out as a registered nurse. The prosecutor

had not addressed these factual circumstances in any of his previous questions.

Neither question involved the prosecutor’s use of deceptive or reprehensible

methods in an attempt to improperly influence the jury on any material issue.

These questions went unanswered. The jury was instructed that neither statements

nor questions by attorneys constituted evidence and that it should not speculate

about the answer a witness might have given to a question to which an objection

was sustained. We presume the jury followed the court’s instructions and ignored

the above questions. (People v. Prince, supra, 40 Cal.4th at p. 1295.)

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5. Asserted Prosecutorial Misconduct In Closing Argument

During his closing argument, the prosecutor told the jury that “[a] matter of

general or common knowledge is that at the time of final argument [defense

counsel] cries, so when that happens —” The trial court overruled counsel’s

objection to his remark. The prosecutor continued: “When that happens, I want

you to understand that it’s nothing unique to this case.”

Defendant contends that the prosecutor improperly referred to “facts not in

the record” and attacked the integrity of defense counsel by suggesting he “was a

dishonest charlatan, an attorney without integrity, who would resort to theatrical

gestures to sway a jury.”

The prosecutor’s brief remark was harmless, and jurors were instructed that

the statements of counsel were not evidence. They were also instructed that they

must not be influenced by sentiment, sympathy, passion or prejudice. We

presume the jury followed these instructions, ignored the prosecutor’s remark,

along with any displays of “sentiment” and “passion” by counsel, and decided the

case based on the evidence admitted at trial.

6. Cumulative Effect

Having rejected defendant’s claims, we reject his assertion of cumulative

error.

E. Admissibility of DNA Evidence

Defendant contends that the DNA test results on samples from the Espinoza

autopsy were erroneously admitted in violation of the standard enunciated in

People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Under Kelly, the proponent of

evidence derived from a new scientific technique must establish that: (1) the

reliability of the new technique has gained general acceptance in the relevant

scientific community, (2) the expert testifying to that effect is qualified to give an

65



opinion on the subject, and (3) the correct scientific procedures were used. (Id. at

p. 30.)

Defendant concedes that under Kelly, the polymerase chain reaction (PCR)

DQ-Alpha testing method used in this case is generally accepted in the relevant

scientific community. He asserts, however, that the dot-intensity analysis relied

upon by the prosecution’s expert is a separate testing method, and because the trial

court did not separately rule that the dot-intensity method was valid under Kelly,

the DNA test results were inadmissible. We need not determine whether the dot-

intensity analysis was subject to exclusion under Kelly, because its admission was

harmless in any event. We reject defendant’s additional contention that the

prosecution’s population frequency statistics were inadmissible without proof of

the perpetrator’s ethnicity.

1. Procedural Background

a. Kelly hearing

The court held a Kelly hearing to consider the DNA test results. The

prosecution elicited extensive testimony from state Department of Justice (DOJ)

criminalists Rodney Andrus and Edwin Scruggs about the PCR DQ-Alpha method

and its general acceptance in the scientific community. PCR DQ-Alpha testing is

a subtype of PCR DNA testing methods that tests a single genetic marker. (See

also People v. Henderson (2003) 107 Cal.App.4th 769, 777.) Neither of the

prosecution’s experts discussed “dot-intensity analysis” during the Kelly hearing,

but Andrus did give his preliminary conclusion that that defendant was a possible

contributor of the DNA samples obtained from Espinoza.34

34

Andrus explained that his conclusions were considered preliminary and not

final or “verified” by DOJ standards because he had not yet completed the

(footnote continued on next page)

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Counsel argued the results should be excluded under Evidence Code

section 352 on the grounds the PCR DQ-Alpha test method was unreliable and

would confuse the jury because they could not identify an individual as a source of

the DNA tested but could only include an individual in a group of potential

sources.

Relying on People v. Morganti (1996) 43 Cal.App.4th 643, 671, the trial

court found that PCR DQ-Alpha testing is generally accepted in the relevant

scientific community and no significant controversy exists with respect to its

reliability. The court also found the prosecution’s experts “were eminently

qualified” and employed the correct scientific procedures. In rejecting defendant’s

argument under Evidence Code section 352, the court found the probative value of

the method was not so undermined by any limitation that the results should be

excluded.

b. DNA evidence introduced at trial

Again at trial, Andrus gave his qualifications and testified about both blood

and DNA testing. He described the PCR DQ-Alpha method, which tests for the

presence or absence of the six common identifiable alleles at the DQ-Alpha

genetic marker, denominated as 1.1, 1.2, 1.3, 2, 3, and 4. Andrus explained that an

individual’s genotype for the DQ-Alpha marker is composed of a pair of alleles.

The six DQ-Alpha alleles can be paired to form 21 distinct genotypes, meaning the

human population can be divided into 21 population groups. Ultimately, the DQ-

Alpha genotype of the sample is determined by the presence of blue dots on test

(footnote continued from previous page)

required documentation of the tests he conducted. We note that the final test
results Andrus subsequently provided at trial were consistent with the preliminary
test results he provided at the Kelly hearing.

67



strips that indicate an allele of the sample DNA bonded with a specific DNA

sequence or “primer” on the test strip.

The DNA found in the fingernail scrapings and vaginal sample taken from

Espinoza revealed sperm from more than one individual (i.e., mixed sperm

samples). Andrus performed PCR DQ-Alpha tests on these samples as well as on

DNA obtained from defendant’s blood. Because the samples from Espinoza

contained mixed sperm, Andrus used dot-intensity analysis to identify the

genotype of the “primary alleles represented”35 in these samples. Andrus briefly

described dot-intensity analysis as a visual comparison of the “relative dot

intensity” of the blue color that developed on the dots of the test strips with the

mixed DNA sample. A “minor” contributor to the mixed DNA sample, for

example, has “significantly less” color intensity than that of a “major” contributor.

Based on these dot-intensity analyses, Andrus determined that the DQ-

Alpha genotypes of defendant and the primary contributor of each of the mixed

sperm DNA samples were the same. Andrus concluded that defendant could not

be eliminated as a possible contributor of these samples. He eliminated defendant

as the source of the semen extracted from the condom found near Espinoza’s

body.

2. Applicable Law

Whether a new scientific technique has gained general acceptance is a

mixed question of law and fact. (People v. Reilly (1987) 196 Cal.App.3d 1127,

1134.) “[W]e review the trial court’s determination with deference to any and all

supportable findings of ‘historical’ fact or credibility, and then decide as a matter

35

Andrus also referred to the “primary alleles represented” interchangeably as

“primary contributors” to, or “major components” of, the sample DNA.

68



of law, based on those assumptions, whether there has been general acceptance.”

(Id. at p. 1135.) Once a published appellate decision has affirmed admission of a

scientific technique, the technique’s general acceptance are established as a matter

of law. Further hearings on general acceptance is unnecessary “at least until new

evidence is presented reflecting a change in the attitude of the scientific

community.” (Kelly, supra, 17 Cal.3d at p. 32; People v. Bolden (2002) 29

Cal.4th 515, 545.)

The trial court’s determination on the qualifications of an expert is

reviewed for abuse of discretion (Kelly, supra, 17 Cal.3d at p. 39) as is its ruling

on the use of correct scientific procedures in the particular case (People v. Venegas

(1998) 18 Cal.4th 47, 91).

3. Discussion

a. Dot-intensity analysis

Defendant does not dispute that People v. Morganti, supra, 43 Cal.App.4th

at page 669, published just before his trial began, established that the PCR DQ-

Alpha method has gained general acceptance as a reliable technique. (See also

People v. Wright (1998) 62 Cal.App.4th 31, 41.) Instead, he argues that the dot-

intensity analysis that criminalist Andrus used was a new scientific technique,

requiring independent proof of general acceptance.

Defendant did not object to Andrus’s testimony about dot-intensity analysis

at trial and has forfeited his appellate challenge to this evidence. (Evid. Code, §

353 [an objection to the admission of evidence must be timely and clearly specify

the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-

611 [defendant’s failure to timely object to the admissibility of the population

frequency statistics associated with the DNA test results forfeited the issue on

appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [a failure to object at trial to

69



the admission of evidence under Kelly forfeits the claim for appeal]; People v.

Coleman (1988) 46 Cal.3d 749, 776-778 [an objection to the expert’s selection of

the test used to analyze semen samples did not preserve defendant’s challenge to

the expert’s conclusions concerning the statistical significance of the test results].)

Whether “dot-intensity analysis” is a novel technique requiring its own

proof of general acceptance has not been addressed in a California published

opinion.36 Assuming, without deciding, the results of the dot-intensity analysis

were erroneously admitted in this case, the error would have been harmless in light

of the overwhelming and uncontradicted evidence of defendant’s guilt. In

particular, with regard to the Espinoza murder, undisputed ballistics evidence

established the victim was killed by a bullet shot from defendant’s gun. There is

no reasonable probability the verdict would have been more favorable to

defendant had the DNA evidence been excluded. (People v. Watson, supra, 46

Cal.2d at p. 836.)

b. Population statistics

Andrus also testified that, based on the relevant population frequency

statistics for the primary contributor to the mixed samples in this case, the donor

could have come from 7 percent of the African-American population, 10 percent

of the Caucasian population, including defendant, or 20 percent of the Hispanic

population. (See People v. Venegas, supra, 18 Cal.4th at p. 63 [identification as a

possible source of the sample DNA “places the suspect within a class of persons

36

The Court of Appeal, in dicta, has recognized criticism of dot-intensity

analysis. (People v. Pizarro (2003) 110 Cal.App.4th 530, 618-620, quoting State
v. Harvey
(1997) 151 N.J. 117 [699 A.2d 596] (dis. opn. of Handler, J.)
[questioning the validity of dot-intensity analysis as a scientific method],
disapproved on another ground by People v. Wilson (2006) 38 Cal.4th 1237, 1250-
1251.).

70



from whom the sample could have originated”].) Andrus explained the number of

possible DNA contributors could be reduced by excluding the percentage of

females in each group, as well as adult males not present in Fresno at the time of

Espinoza’s murder, and prepubescent males.

Defendant first complains the statistics were inadmissible because Andrus

presented statistics for only the genotype of the primary alleles represented in the

mixed samples rather than all alleles in the samples. But this claim, in essence, is

premised upon the argument that the dot-intensity technique improperly focused

only on the primary contributor in the mixed samples. As noted, defendant

forfeited any such argument by failing to raise the issue at trial, and any assumed

error was harmless.

Second, defendant contends that, even if Andrus correctly identified the

DQ-Alpha genotype of the primary contributor, the DNA evidence should have

been excluded because the population frequency statistics were irrelevant without

proof of the perpetrator’s ethnicity. Again, defendant failed to object on this

ground at trial and has forfeited this issue for appeal. (Evid. Code, § 353; People

v. Geier, supra, 41 Cal.4th at pp. 610-611.) The claim is also meritless. The

prosecution in this case presented DNA frequency statistics for the African-

American, Caucasian, and Hispanic population groups. Since defendant’s trial, we

have concluded that expert testimony on DNA profiling frequencies for these

specific population groups is admissible even in the absence of independent

evidence the perpetrator’s ethnicity. (People v. Wilson, supra, 38 Cal.4th at pp.

1249-1250, disapproving to the extent inconsistent People v. Pizarro, supra, 110

Cal.App.4th 530.) Even assuming the population frequency statistics were

erroneously admitted, any error was harmless in light of the other weighty

evidence of defendant’s guilt. (See People v. Venegas, supra, 18 Cal.4th at p. 93,

71



citing People v. Watson, supra, 46 Cal.2d at p. 836; People v. Pizarro, supra, 110

Cal.App.4th at p. 634.)

III. PENALTY PHASE ISSUES

A. Denial of Request for Continuance

The jury returned its guilty verdicts on Tuesday, May 7, 1996. The penalty

phase was to begin on Thursday, May 16, 1996. The parties had until Friday, May

10, 1996, to complete penalty phase discovery.

On Monday, May 13, 1996, defense counsel moved for the release of DNA

evidence for retesting and for a 48-day continuance under section 1050. Counsel

claimed retesting was necessary because it might eliminate defendant as a source.

Counsel estimated the testing alone would take about four weeks. The

continuance would permit counsel time to interview the prosecution penalty phase

witnesses. Counsel admitted he had not contacted any of defendant’s 16 potential

character witnesses but would obtain their telephone numbers and might contact

them. Counsel was concerned that these individuals might not testify as defendant

anticipated and that he would have to consult with defendant before calling them

to testify. The trial court denied both motions.

On appeal, defendant claims the trial court abused its discretion in denying

his motion to continue and thereby deprived him of due process, effective

assistance of counsel, and a reliable penalty verdict under the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the federal Constitution. We disagree.

A continuance in a criminal case may be granted only for good cause. (§

1050, subd. (e).) Whether good cause exists is a question for the trial court’s

discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court must

consider “ ‘ “not only the benefit which the moving party anticipates but also the

likelihood that such benefit will result, the burden on other witnesses, jurors and

72



the court and, above all, whether substantial justice will be accomplished or

defeated by a granting of the motion.” ’ ” (Ibid.) While a showing of good cause

requires that both counsel and the defendant demonstrate they have prepared for

trial with due diligence (ibid.), the trial court may not exercise its discretion “so as

to deprive the defendant or his attorney of a reasonable opportunity to prepare.”

(People v. Sakarias (2000) 22 Cal.4th 596, 646.)

A reviewing court considers the circumstances of each case and the reasons

presented for the request to determine whether a trial court’s denial of a

continuance was so arbitrary as to deny due process. (People v. Frye, supra, 18

Cal.4th at p. 1013.) Absent a showing of an abuse of discretion and prejudice, the

trial court’s denial does not warrant reversal. (People v. Barnett (1998) 17 Cal.4th

1044, 1126.)

Here, there was no abuse of discretion. Defendant’s request rested, in

large part, on his claim that new test results might provide exculpatory evidence.

Retesting DNA would not have been beneficial to defendant, however, in light of

the extensive evidence linking him to each crime and, specifically, uncontroverted

ballistics evidence establishing Espinoza was killed by a bullet fired from

defendant’s gun. Defendant had long been on notice of the existence of the DNA

evidence and the district attorney’s intent to use it. In addition, the evidence

showed that defendant actually engaged in intercourse with only one of his six

victims. During that encounter, he wore a condom. Even if he were excluded as

one of the multiple semen donors, the evidence would have little impact.

Although the prosecutor did present DNA evidence, he ultimately invited the jury

to reject it if they were in doubt as to its significance because the remaining

evidence pointed convincingly to defendant’s guilt. Under these circumstances,

the 48-day continuance requested by defendant was both untimely and unlikely to

73



affect the outcome of the proceedings. The trial court did not abuse its discretion

in denying the continuance.

With respect to defendant’s requested continuance to interview prospective

witnesses, defendant made only a general assertion in his written motion that he

needed more time to prepare a defense to the prosecution’s case in aggravation.

Counsel provided no explanation why he could not prepare such a defense or

interview the prosecution’s prospective witnesses in the six days leading up to the

penalty phase.37 As previously discussed, defense counsel had given a tactical

reason to delay interviews of defendant’s potential character witnesses. In

addition, for the first time on appeal, defendant speculates that a continuance

might have allowed him time to develop childhood abuse issues that Dr. Hedberg

mentioned in testifying on his behalf at the penalty phase. But he made no

showing that he could produce specific, relevant mitigating evidence within a

reasonable time. (People v. Jenkins, supra, 22 Cal.4th at p. 1038.) Certainly

defendant and his defense team were aware of whether such evidence existed.

They were in contact with defendant’s close relatives. The defense provided no

insight into why any such extant evidence had not been shared with Dr. Hedberg.

In sum, defendant’s vague and speculative reasons for the continuance failed to

support a showing of good cause. The court was within its discretion in refusing

to grant a continuance.

37

Four witnesses testified for the prosecution at the penalty phase: the nurse

who examined D. following her alleged rape; a criminalist who testified about the
hydroshock hollowpoint bullets used in the shootings; the daughter of murder
victim Inez Espinoza; and the sister of murder victim Peggy Tucker.

74



B. Faretta Motion

On May 21, 1996, the jury returned a death verdict. Defendant contends that

the trial court erroneously denied his request for self-representation under Faretta

v. California (1975) 422 U.S. 806, made at his sentencing hearing on June 18,

1996. The motion was untimely.

1. Procedural background

On the day scheduled for sentencing, June 18, 1996, defendant moved for the

substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, and for

a two-week continuance.38 Immediately after both motions were denied,

defendant asked to represent himself and to also have “an assistant to prepare a

motion for new trial, motion for reduction of sentence.” The court responded: “In

effect what you’re asking is to represent yourself and have this Court do exactly

what it denied you already, that is, a Marsden motion to relieve your attorney and

appoint a new attorney. You’re not going to come in the back door.” When

defendant repeated his request to relieve defense counsel and have an assistant

appointed to prepare motions, the trial court denied his requests.

The court then asked defendant if he knew what a motion for new trial was.

Defendant answered it was a motion to point out “differences that should have

been dealt with differently and [to] bring [those] to the attention of the court and

also try to enter any new evidence that might open the court’s eyes and allow for a

new trial.” When the trial court questioned whether defendant had any new

evidence, defendant said, “Not at this exact moment, but maybe in a period of

38

The trial court had denied defendant’s two previous attempts to substitute

counsel under Marsden, one made during the guilt phase trial, on April 3, 1996,
and the other on the day the penalty phase began, May 16, 1996. He does not
challenge these rulings on appeal.

75



time, yes.” The court asked if defendant could find any new evidence over the

next two weeks, and defendant responded, “I can assure the Court that, yes, there

are still things that need to be done that could be presented to the Court in fact of,

yes, new evidence.”

The court asked defendant about his education and learned that defendant

dropped out of high school and had obtained a high school general education

development (GED) certificate while in custody. The court additionally noted

“there is some evidence that you were a slow learner” and defendant agreed.

The court also inquired about how defendant would address a motion for new

trial and motion for reduction of penalty. Defendant essentially stated he would

first address the jury’s “conduct” and then present evidence that he had never been

in trouble with the law, had always held a job, and had obtained letters of

recommendation from employers when applying to new jobs. Defendant added he

would submit letters from his family and friends providing their impressions of

him.

The court then advised defendant that if his motion were granted, he could

not complain on appeal that he was inadequate to represent himself. Defendant

said he understood and was asking for an “assistant” to “draw up that way

different timelines . . . to propose to the Court” for his motions. The court

informed defendant that if it permitted him to represent himself, it did not have to

grant a continuance and asked whether defendant was ready to proceed that day.

Defendant said he was not ready and needed a continuance to “draw up the proper

papers and also present the Court with my findings. . . .”

The court then ruled as follows: “Well, the Court is very concerned and

going to deny your Faretta motion to permit you to represent yourself on the basis

that the Court feels that you are not adequate to represent yourself, that is, the

evidence during the course of the trial was that you did not finish high school, that

76



— and that by itself is not the reason, but you were described as being a slow

learner and that you had problems in school. And the Court is not going to grant

you a continuance in order for you to prepare to represent yourself. Therefore, the

Court is going to deny your motion to represent yourself.” (Italics added.)

2. Discussion

A criminal defendant has a constitutional right to counsel at all critical stages

of a criminal prosecution, including sentencing. (Mempa v. Rhay (1967) 389 U.S.

128, 134-137; People v. Dunkle, supra, 36 Cal.4th at p. 930.) The right to counsel

may be waived by a criminal defendant who elects to represent himself at trial.

(Faretta v. California, supra, 422 U.S. at pp. 807, 834-835.) The right of self-

representation is absolute, but only if knowingly and voluntarily made and if

asserted a reasonable time before trial begins. Otherwise, requests for self-

representation are addressed to the trial court’s sound discretion. (People v.

Windham (1977) 19 Cal.3d 121, 127-129.) Moreover, whether timely or untimely,

a request for self-representation must be unequivocal. (People v. Marshall (1997)

15 Cal.4th 1, 22-23.)

On appeal, a reviewing court independently examines the entire record to

determine whether the defendant knowingly and intelligently invoked his right to

self-representation. (People v. Stanley (2006) 39 Cal.4th 913, 932.)

As a preliminary matter, we agree with the parties that the trial court

incorrectly referred to defendant’s educational background and evidence that he

was a “slow learner” in denying defendant’s request for self-representation.

Following United States Supreme Court precedent in Godinez v. Moran (1993)
509 U.S. 389, 399-400, we have held that a trial court may not measure a

defendant’s competence to waive his right counsel by evaluating the defendant’s

“technical legal knowledge” (People v. Dunkle, supra, 36 Cal.4th at p. 908) or his

77



ability to represent himself (People v. Welch (1999) 20 Cal.4th 701, 733). The

right to self-representation may be invoked by any defendant competent to stand

trial. (People v. Dunkle, supra, 36 Cal.4th at p. 908.)

The trial court’s remarks, however, also touch on its legitimate concern that

defendant’s request was untimely and would needlessly delay the proceedings.

The timeliness requirement “serves to prevent a defendant from misusing the

motion to delay unjustifiably the trial or to obstruct the orderly administration of

justice.” (People v. Horton (1995) 11 Cal.4th 1068, 1110.) Here, defendant argues

that his motion was timely because defense counsel’s performance was inadequate

throughout trial, the two-week continuance he requested was not unreasonable,

and granting self-representation for sentencing would not inconvenience the jury.

“We have held that, for purposes of assessing the timeliness of a motion for

self-representation, the guilt and penalty phases in a capital prosecution are not

separate trials but parts of a single trial, and a motion made between the guilt and

penalty phases is thus untimely and subject to the trial court’s discretion.” (People

v. Mayfield (1997) 14 Cal.4th 668, 810; People v. Hardy (1992) 2 Cal.4th 86, 193-

195; see People v. Halvorsen (2007) 42 Cal.4th 379, 434 [capital defendant’s

motion for self-representation brought seven months before jury selection in the

penalty retrial was timely].) We have not addressed, however, the timeliness of a

request for self-representation made after the penalty phase verdict. (See

Mayfield, supra, 14 Cal.4th at p. 810 [declining to decide whether a post-penalty-

phase Faretta motion would be timely if made “a ‘reasonable time’ before

sentencing”].) We need not do so here.

Defendant’s request was manifestly untimely. He never requested self-

representation during the guilt or penalty phase. He appeared on the day set for

sentencing and sought, not to act as his own counsel, but to replace his appointed

lawyer with a new one and to secure a continuance. Only when this approach

78



failed did defendant seek self-representation, and only then with the appointment

of an assistant to actually draft his moving papers. Defendant had no new

evidence to support the motion for new trial he intended to file. When pressed on

the question of new evidence, defendant answered vaguely that “there are still

things that need to be done that could be presented to the Court.” Defendant

provided no specific information about any new evidence he expected to find,

when he expected to find it, or how long he might need to prepare his motions. He

was not prepared to proceed and could not provide a reasonable estimate of when

he would be ready. The trial court’s ruling was well within the scope of its

discretion.39

39

The circumstances of defendant’s posttrial request for self-representation

are in stark contrast to a recent Court of Appeal decision that held such a motion in
a noncapital case is timely if made “a reasonable time prior to commencement of
the sentencing hearing.” (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.)
In Miller, the defendant moved for self-representation after the jury rendered its
verdict and a new trial motion was made and denied, but more than two months
before the scheduled sentencing hearing. At the time he made his motion, the
defendant indicated to the court he planned to conduct his own investigation and
that he would be prepared on the date the court had set. (Id. at pp. 1020, 1024.) In
holding the trial court erred by denying the defendant’s motion as untimely, the
court observed that concerns about trial delay or disruption do not apply to
separate sentencing hearings. (Id. at p. 1024.) Because the defendant’s request
was timely, he “had an absolute right to represent himself at sentencing and the
trial court was required to grant his request for self-representation, which was
unequivocal, as long as he was mentally competent and the request was made
‘knowingly and intelligently, having been apprised of the dangers of self-
representation.’ ” (Ibid., quoting People v. Welch, supra, 20 Cal.4th at p. 729.) In
this case, for the reasons stated, defendant’s right to self-representation at
sentencing was not absolute but subject to the court’s discretion.

79



C. Challenges to California’s Death Penalty Law

Defendant challenges California’s death penalty law on various grounds we

have repeatedly rejected. He offers no persuasive reason to reconsider our prior

decisions. We continue to hold:

Section 190.2 does not unconstitutionally fail to narrow the class of persons

eligible for the death penalty. (People v. Chatman (2006) 38 Cal.4th 344, 410.)

Section 190.3, factor (a), permitting the penalty phase jury to consider the

circumstances of the offense and the existence of any special circumstances, is

neither vague nor overbroad, and does not unconstitutionally permit arbitrary and

capricious imposition of the death penalty. (People v. Guerra (2006) 37 Cal.4th

1067, 1165.) “The jury may properly consider evidence of unadjudicated criminal

activity involving force or violence under factor (b) of section 190.3.” (People v.

Brown (2004) 33 Cal.4th 382, 402.)

Neither the state nor federal Constitution requires the jury to make written

findings or agree unanimously as to specific aggravating circumstances. (People

v. Morrison (2004) 34 Cal.4th 698, 730.) Nor is California’s death penalty law

unconstitutional for failing to require proof beyond a reasonable doubt or by a

preponderance of the evidence “as to the existence of aggravating circumstances,

the greater weight of aggravating circumstances over mitigating circumstances, or

the appropriateness of a death sentence.” (People v. Brown, supra, 33 Cal.4th at p.

401.) Therefore, the trial court here did not err by not instructing on burden of

proof. (People v. Perry (2006) 38 Cal.4th 302, 321.) The United States Supreme

Court’s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona

(2002) 536 U.S. 584, and Blakely v. Washington (2004) 542 U.S. 296, do not

require us to alter these conclusions. (People v. Howard (2008) 42 Cal.4th 1000,

1031)

80



The trial court is not constitutionally required to instruct the jury that

certain sentencing factors are relevant only to mitigation. (People v. Panah,

supra, 35 Cal.4th at p. 499.) The use of the phrase “whether or not” in certain

statutory factors (e.g., section 190.3, factor (d), “[w]hether or not the offense was

committed while the defendant was under the influence of extreme mental or

emotional disturbance”) does not unconstitutionally suggest “that the absence of

such factors amount[s] to aggravation.” (People v. Kraft (2000) 23 Cal.4th 978,

1079.) The use of certain adjectives (i.e., “extreme” and “substantial”) in the list

of sentencing factors neither acts as a barrier to the jury’s consideration of

mitigation facts nor renders the statute unconstitutional. (People v. Panah, supra,

35 Cal.4th at p. 500.)

“Intercase proportionality review is not constitutionally required.

[Citation.] Nor does equal protection require that capital defendants be afforded

the same sentence review afforded other felons under the determinate sentencing

law.” (People v. Dunkle, supra, 36 Cal.4th at p. 940.)

D. International Law

Defendant contends that California’s death penalty violates international

law. Specifically, he argues California’s use of capital punishment “as regular

punishment for substantial numbers of crimes—as opposed to extraordinary

punishment for extraordinary crimes,” violates international norms of human

decency and hence, the Eighth and Fourteenth Amendments to the United States

Constitution. We have rejected these arguments before and do so again.

“International law does not compel the elimination of capital punishment in

California.” (People v. Snow (2003) 30 Cal.4th 43, 127.) Moreover, California

does not impose capital punishment as “ ‘regular punishment for substantial

numbers of crimes.’ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 43.) “The

81



death penalty is available only for the crime of first degree murder, and only when

a special circumstance is found true; furthermore, administration of the penalty is

governed by constitutional and statutory provisions different from those applying

to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, § 11; §§ 190.1-

190.9, 1239, subd. (b).)” (Id. at p. 44.)

IV. DISPOSITION

The judgment is affirmed.

CORRIGAN, J.

WE CONCUR:


GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.

82



CONCURRING AND DISSENTING OPINION BY KENNARD, J.

In this capital case, the County of Fresno agreed to pay the fees of the

appointed defense attorney. Under the contract, counsel received an $80,000 flat

fee that included $60,000 for defense expenses; counsel was allowed to keep any

of the money not spent. The contract thus had a built-in incentive for counsel to

spend as little as possible on the defense so he could pocket more money. That is

what happened here, where counsel spent less than 20 percent of the money

allocated for defense expenses, keeping the remaining funds for himself.

One cannot tell from the record whether there were reasonable tactical

decisions justifying defense counsel’s small expenditures and minimal efforts to

prepare for the guilt phase of trial. Therefore, I join the majority in rejecting

defendant’s claim that his right to counsel was violated at the guilt phase;

defendant may, of course, raise that claim again in a habeas corpus petition,

relying on evidence outside the appellate record.

With respect to the penalty phase, however, the record shows that there was

no tactical justification for counsel’s substandard preparations. Consequently,

unlike the majority, I am of the view that the fee agreement in question violated

defendant’s right to counsel, thus requiring reversal of the sentence of death.

I

Defendant was charged in Fresno County with two counts of murder and

four counts of attempted murder, as well as special circumstances that made him

eligible for the death penalty. Initially the Fresno County Public Defender

1



represented him, but when the public defender declared a conflict of interest, the

trial court appointed Attorney Rudy Petilla to represent defendant.

To obtain the appointment, the attorney filled out a form entitled “Proposal

Setting Compensation,” in which he requested a fee of $80,000; at the time, that

was the amount Fresno County paid for “Category 3” cases — those with multiple

victims or defendants, highly unusual publicity, complicated special

circumstances, or complex factual or legal issues. The attorney estimated total

defense expenses at $60,000 ($40,000 for investigation and $20,000 for expert

witnesses), leaving the remaining $20,000 as his fee. The county agreed.

Counsel represented defendant at the guilt and penalty phases of the capital

trial. But instead of spending the estimated $60,000 on the defense, he spent less

than $9,000, keeping the remaining $71,000 of the $80,000 Fresno County had

paid him.

II

Defendant contends the fee agreement between his trial counsel and Fresno

County gave rise to a conflict of interest that violated his right to counsel under

article I, section 15 of the state Constitution.

“The right to effective assistance of counsel, secured by the Sixth

Amendment to the federal Constitution, and article I, section 15 of the California

Constitution, includes the right to representation that is free from conflicts of

interest.” (People v. Cox (2003) 30 Cal.4th 916, 948.)

“Although the federal Constitution . . . requires proof of an actual conflict of

interest, that is, proof that counsel’s conflict adversely affected his or her performance

during the proceedings [citation], under the state Constitution we have required only

that the record support an ‘informed speculation’ that a ‘potential conflict of interest’

impaired the defendant’s right to effective assistance of counsel. [Citations.] Because

a conflict of interest may retard counsel’s development of evidence or arguments in

2



support of the defense . . . we have retained this stricter standard in order to ‘closely

guard’ the fundamental right to the assistance of counsel. ‘The very failure to

produce or emphasize such information . . . produces a void and results in a record

which shields the fact of any possible conflict and makes it difficult to demonstrate on

appeal that a conflict did in fact exist. [Citation.] Accordingly, a [defendant] . . .

need not establish that there was an actual conflict of interest, but rather it is sufficient

if the record provides an adequate basis for an “informed speculation” that there was a

potential conflict of interest which prejudicially affected the defendant’s right to

effective counsel.’ ” (People v. Rundle (2008) 43 Cal.4th 76, 174-175, italics added,

fn. omitted.)

“Conflicts of interest may arise in various factual settings. Broadly, they

‘embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a

client are threatened by his responsibilities to another client or a third person or by

his own interests.’ ” (People v. Jones (1991) 53 Cal.3d 1115, 1134, italics added.)

Here, the nature of defense counsel’s fee agreement with Fresno County

gave him an incentive to spend as little as possible on the defense. Did this create

a potential conflict of interest? I explore this question below.

As a general rule, fee agreements do not violate a defendant’s right to

conflict-free counsel. “ ‘[A]lmost any fee arrangement between attorney and

client may give rise to a “conflict.” An attorney who received a flat fee in advance

would have a “conflicting interest” to dispose of the case as quickly as possible, to

the client’s disadvantage; and an attorney employed at a daily or hourly rate would

have a “conflicting interest” to drag the case on beyond the point of maximum

benefit to the client. [¶] The contingent fee contract so common in civil litigation

creates a “conflict” when either the attorney or the client needs a quick settlement

while the other’s interest would be better served by pressing on in the hope of a

greater recovery. The variants of this kind of “conflict” are infinite. Fortunately

3



most attorneys serve their clients honorably despite the opportunity to profit by

neglecting or betraying the client’s interest.’ ” (Maxwell v. Superior Court (1982)

30 Cal.3d 606, 618, fn. 8.)

Occasionally, however, a fee agreement can create a potential conflict of

interest. For example, “[c]onflicts may . . . arise in situations in which an attorney

undertakes representation of a defendant in exchange for the literary rights to a

portrayal or account based on information relating to the representation.” (People

v. Bonin (1989) 47 Cal.3d 808, 836.) And in In re Gay (1998) 19 Cal.4th 771,

Justice Werdegar’s concurring opinion, which I signed, concluded there was a

conflict of interest when trial counsel “engineered his appointment in a capital

case, doing so by extraordinary, dishonest means, and for the apparent purpose of

quickly obtaining a fee while expending as little time and effort on the case as

possible.” (Id. at p. 833 (conc. opn. of Werdegar, J.).)

The situation here is one of those rare instances in which the fee agreement

has created a “ ‘potential conflict of interest.’ ” (People v. Rundle, supra, 43

Cal.4th at p. 175.) By allowing defense counsel to keep any of the money not

spent on defendant’s behalf, Fresno County gave counsel a considerable financial

incentive to spend as little as possible on defense expenses, so counsel could keep

most of the flat fee the county had paid him.1

1

Recently, flat fee contracts of this nature were criticized in a report by the

California Commission on the Fair Administration of Justice, a group that was
chaired by former Attorney General John Van de Kamp, and whose members
included the current Attorney General; the District Attorneys of Santa Clara, San
Mateo, and Ventura Counties; several law enforcement officers; and members of
the criminal defense bar. The report recommended that “legislation be enacted to
provide that when Counties contract for indigent defense services in criminal
cases, the contract shall provide separate funding for . . . investigators and expert
witnesses.” (Cal. Com. on Fair Admin. of Justice, Final Rep. (2008), Professional

(footnote continued on next page)

4



But this potential conflict of interest does not, by itself, “support an

‘informed speculation’ that . . . [it] impaired the defendant’s right to effective

assistance of counsel” (People v. Rundle, supra, 43 Cal.4th at p. 175), because

most attorneys abide by their commitment to spend the allocated funds on the

defense. Nor is spending only a fraction of the funds on defense expenses in itself

a violation of the defendant’s right to conflict-free counsel, because tactically

reasonable decisions may underlie that decision. For example, at an early stage of

the proceedings, before defense counsel has spent the money allocated for

investigation and experts, a defendant may be offered a highly favorable plea

bargain, which counsel has reason to believe will be withdrawn if not accepted

immediately. In that situation, it makes sense for counsel to advise the defendant

to accept the offer; if the defendant does so, counsel has no need to spend the

money allocated for investigation and experts.

If there is a plausible explanation here for defense counsel’s failure to

spend the money allocated for investigation and expert testimony, or if it cannot be

determined from the record whether counsel’s actions were justified, defendant’s

claim must be rejected on this direct appeal, although he may still have a remedy

on habeas corpus. (See p. 7, fn. 2, post.) As explained below, the record does not

(footnote continued from previous page)

Responsibility and Accountability of Prosecutors and Defense Lawyers, Rep:
Funding Defense Studies, p. 96.)

In light of the above-mentioned problems associated with this type of fee

agreement, this court should exercise its supervisory powers to prospectively
declare fee agreements of this type invalid. (See generally, People v. Barboza
(1981) 29 Cal.3d 375, 381 [announcing a “ ‘judicially declared rule of criminal
procedure’ ” invalidating fee agreements between counties and public defender’s
offices that create a financial incentive for the Public Defender not to declare a
conflict of interest].)

5



show that counsel’s minimal preparation for the guilt phase of trial was tactically

unjustified, but there is such a showing with regard to the penalty phase.

A. Guilt Phase

According to defendant, defense investigator Jeff Gunn did only 13.5 hours of

guilt phase preparation before counsel announced that the defense was ready for trial.

But, as the majority points out, investigator Gunn “had originally worked on this case

for about two and one-half months as the investigator for the Fresno County Public

Defender and had conducted approximately 90 hours of investigation before the

public defender declared a conflict.” (Maj. opn., ante, at p. 34.)

Defendant complains that his counsel did not hire a ballistics expert until

shortly before commencement of the guilt phase. But the fee agreement’s built-in

financial incentive for defense counsel not to hire experts provided no incentive

for counsel to delay the retention of experts.

Defendant criticizes his counsel for not hiring an expert to perform a blood

analysis or to perform a tire tread analysis. But the evidence presented at trial

does not show that a blood analysis was significant to the question of guilt.

Defendant faults his counsel for not conducting DNA testing of evidence

obtained from victim Espinoza’s body. But even if that evidence had not

contained defendant’s DNA, defendant would not have been exculpated, because

Espinoza was a prostitute and was thus likely to have had sex with other men.

Also, counsel may have chosen to rush this case to trial in the expectation that the

trial would occur before the prosecution’s completion of its own DNA testing; if

so, counsel can hardly be faulted for not having any DNA testing done himself.

Because the record on this appeal does not show whether defense counsel’s

preparations for the guilt phase were unreasonable, there can be no “informed

speculation” (People v. Rundle, supra, 43 Cal.4th at p. 175) that the representation

6



at the guilt phase violated defendant’s right to conflict-free counsel.2 Not so with

respect to the penalty phase, however.

B. Penalty Phase

With respect to certain aspects of penalty phase preparation — the hiring of

potential expert witnesses and the investigation of potential defense witnesses —

counsel here shortchanged defendant by not using the allocated money in a

reasonably competent manner.

Before trial, counsel budgeted $15,000 for “Background (lifetime)

investigation of Defendant for penalty phase social study report” and $10,000 for a

“Psychiatrist and Social Worker.” Instead, he paid a total of $4,500 for a defense

psychiatrist (who testified at the guilt phase) and a psychologist (who testified at

the penalty phase), and he spent no money on preparation of a social study report.

There is no legitimate tactical justification for not having such a report done.

Counsel also failed to conduct an adequate investigation of potential

character witnesses who could have testified on defendant’s behalf at the penalty

phase. At a hearing on a defense motion for a continuance, held three days before

the penalty phase was scheduled to begin, counsel told the trial court that

defendant had given him a list of 16 potential character witnesses but that he had

2

Rejection of such a claim on direct appeal does not foreclose defendant

from making a more persuasive showing on habeas corpus, based on matters
outside the appellate record. Such a showing may well be possible: Defendant’s
habeas corpus petition (pending in this court), alleges that while representing
defendant, counsel incurred huge gambling debts; that to pay those debts, counsel
borrowed money without intending to repay it, which led the State Bar in 2001 to
temporarily suspend his right to practice law; and that in 2004 he resigned from
the State Bar with additional charges pending. But these matters are not fully
included in the appellate record and therefore may not be considered on this direct
appeal.

7



not contacted any of them. None of them testified at the penalty phase of trial,

where the only defense witness was a psychologist. Counsel made the self-serving

claim that he deliberately did not interview these witnesses so he could avoid

furnishing the prosecution with witness discovery. But this is not a legitimate

tactical justification — to determine whether these potential witnesses would be

helpful to the defense, they needed to be interviewed, a task that a reasonably

competent attorney would ordinarily have assigned to a hired investigator.

To prepare for the penalty phase of a death penalty trial, defense counsel

must “conduct a thorough investigation of the defendant’s background.”

(Williams v. Taylor (2000) 529 U.S. 362, 396.) “[I]nvestigations into mitigating

evidence ‘should comprise efforts to discover all reasonably available mitigating

evidence and evidence to rebut any aggravating evidence that may be introduced

by the prosecutor.’ ” (Wiggins v. Smith (2003) 539 U.S. 510, 524.) Here, as

discussed earlier, defense counsel’s investigation and preparation for the penalty

phase of trial was virtually nonexistent, and he spent only a fraction of the funds

Fresno County had allocated for the defense. This circumstance supports an

“informed speculation” (People v. Rundle, supra, 43 Cal.4th at p. 175) that the

defense has been compromised by the attorney’s conduct, resulting in a violation

of defendant’s right under the California Constitution to be represented by an

attorney unencumbered by a conflict of interest.

Does this violation require reversal of the sentence of death? As explained

below, that question is not an easy one to resolve because case law provides no

definitive answer on the test to be applied.

III

To determine in a particular case whether the right to conflict-free counsel

requires reversal under either the state or the federal Constitution, this court has

long relied on the high court’s decision in Cuyler v. Sullivan (1980) 446 U.S. 335

8



(Sullivan). That case held that when a conflict of interest adversely affects defense

counsel’s representation, reversal is required without an evaluation of whether the

result of trial would have been different had there been no conflict. Put

differently, there is a presumption of prejudice. (See Strickland v. Washington

(1984) 466 U.S. 668, 692 [Sullivan “held that prejudice is presumed when counsel

is burdened by an actual conflict of interest”].)

We explained in People v. Easley (1988) 46 Cal.3d 712, 725: “It is

important to recognize that ‘adverse effect on counsel’s performance’ under

Sullivan . . . is not the same as ‘prejudice’ in the sense in which we often use that

term. When, for example, we review a ‘traditional’ claim of ineffective assistance

of counsel (i.e., one involving asserted inadequate performance as opposed to

‘conflicted’ performance, we require the defendant to show a reasonable

probability that the result . . . would have been different. [Citations.] This,

however, is not the inquiry called for under Sullivan.” Instead, reversal is required

when “counsel ‘pulled his punches,’ i.e., failed to represent the defendant as

vigorously as he might have had there been no conflict.” (Ibid, see also People

v. Mroczko (1983) 35 Cal.3d 86, 104, fn. 16 [“the Supreme Court’s formulation

seems to envision an analysis of whether there has been some identifiable

prejudice to the right of effective representation, but not an analysis of whether

that prejudice affected the outcome of the case”]; Maxwell v. Superior Court,

supra, 30 Cal.3d at p. 612 [“When a conviction is attacked validly on the ground

that an appointed lawyer was influenced by conflict of interest the appellate court

may not ‘ “indulge in nice calculations as to the amount of [resulting] prejudice

. . . .” ’ ”].)

In Sullivan, the alleged conflict of interest arose from defense counsel’s

multiple concurrent representation; that is, counsel simultaneously represented

more than one client. (Sullivan, supra, 446 U.S. at pp. 337-339.) Rather recently,

9



the United States Supreme Court noted in Mickens v. Taylor (2002) 535 U.S. 162,

174 (Mickens), that several federal circuit courts have applied Sullivan’s

presumption of prejudice standard in cases in which a defense attorney’s

representation implicated “counsel’s personal or financial interests.” But, Mickens

pointed out, “the language of Sullivan itself does not clearly establish, or indeed

even support, such expansive application.” (Id. at p. 175.) Mickens concluded

that “[w]hether Sullivan should be extended to such cases remains, as far as the

jurisprudence of this Court is concerned, an open question” (id. at p. 176), one that

it did not resolve in that case.

Thus, it is not clear what test of prejudice to apply where, as here, the

defense attorney’s professional duty to competently represent the client collides

with the attorney’s personal or financial interests. I note that after the high court’s

decision in Mickens, supra, 535 U.S. 162, this court in People v. Rundle, supra, 43

Cal.4th at pages 168-176, did not apply Sullivan’s presumption of prejudice

standard. In Rundle, the attorney’s narrow conflict of interest pertained only to an

allegation of jury misconduct, not to any other aspect of the case. Here, by

contrast, defense counsel’s conflict of interest adversely affected the entire penalty

phase, and it was the government (Fresno County) that, through its fee agreement,

created the conflict.

The nature of the fee agreement was such that the less money counsel spent

on the defense, the more money he could pocket for himself, thus creating a strong

financial incentive to enrich himself at the expense of the defense. Because it was

the government’s fee agreement that made this possible, I would apply the

standard of presumed prejudice that the high court established in Sullivan, supra,
446 U.S. 335. And I would conclude, based on an “informed speculation” (People

v. Rundle, supra, 43 Cal.4th at p. 175) supported by the record, that Fresno

10



County’s fee agreement with counsel did adversely affect his representation at the

penalty phase of trial, thus requiring reversal of the judgment of death.

IV

I question the soundness of the majority’s reasoning in rejecting

defendant’s conflict of interest claim.

Disapproving decades of this court’s case law, the majority blithely

discards a well-established rule, which goes back some 40 years, that a criminal

defendant need only show ‘that the record support an “informed speculation” that

a “ ‘potential conflict of interest’ impaired the defendant’s right to effective

assistance of counsel.” (People v. Rundle, supra, 43 Cal.4th at p. 175; see, e.g.,

People v. Frye (1998) 18 Cal.4th 894, 998; People v. Mroczko, supra, 35 Cal.3d at

p. 105; People v. Cook (1975) 13 Cal.3d 663, 670; People v. Chacon (1968) 69

Cal.2d 765, 776, fn. 2.) The majority’s conclusory explanation is that “a precise

definition of our informed speculation concept has proven elusive and the concept

has been somewhat variously applied” (maj. opn., ante, at p. 30), and that the

standard “is too amorphous to provide meaningful guidance to either the bench or

bar” (id. at p. 32). How so? The majority does not say. It simply cites six

decisions of this court, each containing in brackets a quoted sentence fragment

describing, each in a slightly different manner, the informed speculation standard.

(Maj. opn., ante, at pp. 30-31.) But those quoted sentence fragments offer no

insight into the majority’s reasons for tossing the informed speculation standard on

the rubbish heap of discarded legal principles.

This court does not lightly cast aside established principles of law. When it

does, it is generally because the old standard has proven unworkable or inequitable, or

because it has led to inconsistent results. (See, e.g., In re Lawrence (2008) 44 Cal.4th

1181, 1218, 1220 [abandoning the “minimum elements inquiry” for appellate review

of parole decisions because it proved to be “unworkable in practice” and

11



“substantially undermine[d] the rehabilitative goals of the governing statutes”].)

Here, the majority makes no attempt to show that the informed speculation standard is

unworkable in practice or that it has led to inconsistent results.

The prejudice standard the majority prefers, and adopts, for cases (like this

one) in which the conflict of interest does not stem from an attorney’s concurrent

representation, is the one that the high court established in Strickland v.

Washington, supra, 466 U.S. 668 (Strickland), a case involving incompetent

representation. The inquiry under that test is whether there is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” (Id. at p. 694.) Applying that test here,

and assuming for the sake of argument that Fresno County’s fee agreement with

defense counsel gave rise to a conflict of interest, the majority concludes that any

violation of defendant’s right to counsel arising from that conflict was harmless.

(Maj. opn., ante, at p. 45.)

Application of the Strickland test would indeed lead to the majority’s

conclusion, for defendant has not shown that he suffered any prejudice from the

violation of his right to counsel. This is why: The record does not show what

mitigating evidence would have been offered had defendant been represented by

an attorney unencumbered by the conflict of interest at issue here.

But, for reasons discussed earlier (see ante, pp. 9-11), that is not the test I

would use here. Because it was the government (Fresno County) that, through the

particular fee agreement it had with defense counsel, created the conflict of

interest, I would apply the presumption of prejudice standard that the high court

established in Sullivan, supra, 446 U.S. 335.

12



CONCLUSION

For the reasons given above, I would reverse the judgment of death.



KENNARD,

J.

I CONCUR:

WERDEGAR, J.

13

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

Name of Opinion People v. Doolin
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S054489
Date Filed: January 5, 2009
__________________________________________________________________________________

Court:
Superior
County: Fresno

Judge: James L. Quaschnick


__________________________________________________________________________________

Attorneys for Appellant:

Robert Derham, under appointment by the Supreme Court, for Defendant and Appellant.





__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Eric Chistoffersen and Lloyd G. Carter, Deputy
Attorneys General, for Plaintiff and Respondent.










Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert Derham
1010 B Street, Suite 212
San Rafael, CA 94901
(415) 485-2945

Lloyd G. Carter
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1669



2



3

Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 01/05/200945 Cal. 4th 390, 198 P.3d 11, 87 Cal. Rptr. 3d 209S054489Automatic Appealclosed; remittitur issued

DOOLIN (KEITH ZON) v. S.C. (PEOPLE) (S116759)
DOOLIN (KEITH) ON H.C. (S137884)


Parties
1The People (Respondent)
Represented by Attorney General - Fresno Office
Lloyd G. Carter, Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA

2Doolin, Keith Zon (Appellant)
San Quentin State Prison
Represented by Robert Derham
Attorney at Law
400 Red Hill Avenue
San Anselmo, CA

3State Public Defender (Amicus curiae)
Represented by Barry P. Helft
Office of the State Public Defender
221 Main Street, 10th Floor
San Francisco, CA

4Aclu Foundation Of Northern California (Amicus curiae)
Represented by Cliff Gardner
Law Office of Cliff Gardner
19 Embarcadero Cove
Oakland, CA

5Aclu Foundation Of Northern California (Amicus curiae)
Represented by Natasha Langford Minsker
ACLU Foundation of Northern California
39 Drumm St.
San Francisco, CA

6California Attorneys For Criminal Justice (Amicus curiae)
Represented by Cliff Gardner
Law Office of Cliff Gardner
19 Embarcadero Cove
Oakland, CA

7California Attorneys For Criminal Justice (Amicus curiae)
Represented by John T. Philipsborn
California Attorneys for Criminal Justice
507 Polk Street, Suite 350
San Francisco, CA

8Death Penalty Clinic, Uc Berkeley, School Of Law (Amicus curiae)
Represented by Cliff Gardner
Law Office of Cliff Gardner
19 Embarcadero Cove
Oakland, CA

9Death Penalty Clinic, Uc Berkeley, School Of Law (Amicus curiae)
Represented by Elisabeth Semel
Death Penalty Clinic
University of California
Berkeley, CA

10Death Penalty Clinic, Uc Berkeley, School Of Law (Amicus curiae)
Represented by Ty Alper
Death Penalty Clinic
University of California
Berkeley, CA


Disposition
Jan 5 2009Opinion: Affirmed

Dockets
Jun 18 1996Judgment of death
 
Jun 25 1996Filed certified copy of Judgment of Death Rendered
  6-18-96.
Jul 19 1996Application for Extension of Time filed
  By Court Reporter L. Berke to Complete R.T.
Jul 19 1996Application for Extension of Time filed
  By Court Reporter J. Mitchell to Complete R.T.
Jul 24 1996Application for Extension of Time filed
  To Court Reporters To 9-6-96 To Complete R.T.
Dec 18 2000Filed:
  Request by inmate for dual representation
Dec 18 2000Filed:
  Request by counsel for dual representation appointment
Dec 21 2000Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Robert Derham is hereby appointed to represent appellant Keith Zon Doolin for both the direct appeal and related state habeas corpus/executive clemency proceedings, in the above automatic appeal now pending in this court.
Jan 22 2001Received letter from:
  Superior Court dated 1/19/2001 re record mailed via UPS to applt counsel same date.
Feb 23 2001Counsel's status report received (confidential)
  from atty Derham.
Mar 14 2001Compensation awarded counsel
  Atty Derham
Apr 20 2001Counsel's status report received (confidential)
  from atty Derham.
Apr 23 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (1st request)
Apr 25 2001Filed:
  Amended proof of service.
Apr 27 2001Extension of Time application Granted
  To 6/25/2001 to applt. to request corr. of the record.
Jun 18 2001Application for Extension of Time filed
  By applt. to request correction of the record. (2nd request)
Jun 18 2001Counsel's status report received (confidential)
  from atty Derham.
Jun 19 2001Extension of Time application Granted
  To applt. to 8/24/2001 to request corr. of the record.
Aug 24 2001Application for Extension of Time filed
  by applt. to request corr. of the record. (3rd request)
Aug 29 2001Extension of Time application Granted
  To 10/23/2001 to applt. to request corr. of the record. No further extensions of time are contemplated.
Sep 10 2001Counsel's status report received (confidential)
  from atty Derham.
Oct 23 2001Application for Extension of Time filed
  by applt. to request corr. of the record. (4th request)
Nov 1 2001Extension of Time application Granted
  To 11/6/2001 to applt. to request corr. of the record. No further extensions of time will be granted.
Nov 15 2001Received copy of appellant's record correction motion
  applt's motion to settle the record, complete the record, examine sealed transcripts, and remove and seal other documents. (13 pp.)
Nov 16 2001Counsel's status report received (confidential)
  from atty Derham.
Nov 28 2001Compensation awarded counsel
  Atty Derham
Feb 1 2002Counsel's status report received (confidential)
  from atty Derham.
May 9 2002Counsel's status report received (confidential)
  from atty Derham.
Jun 26 2002Compensation awarded counsel
  Atty Derham
Jul 2 2002Counsel's status report received (confidential)
 
Sep 3 2002Change of Address filed for:
  Appellant's counsel, Robert Derham.
Oct 17 2002Counsel's status report received (confidential)
  from attorney Derham.
Oct 25 2002Record on appeal filed
  Clerk's transcript - 28 volumes (7466 pp.) and reporter's transcript - 36 volumes (4791 pp.), including material under seal. Clerk's transcript includes 5444 pp. of juror questionnaires.
Oct 25 2002Appellant's opening brief letter sent, due:
  December 4, 2002.
Oct 29 2002Compensation awarded counsel
  Atty Derham
Oct 29 2002Compensation awarded counsel
  Atty Derham
Dec 4 2002Request for extension of time filed
  To file appellant's opening brief. (1st request)
Dec 5 2002Counsel's status report received (confidential)
  from atty Derham.
Dec 6 2002Extension of time granted
  To 2/3/2003 to file appellant's opening brief.
Jan 27 2003Counsel's status report received (confidential)
 
Jan 27 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Jan 27 2003Extension of time granted
  to 4/4/2003 to file appellant's opening brief.
Apr 2 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Apr 7 2003Filed:
  "Amened" aplication for extension of time to file appellant's opening brief.
Apr 8 2003Extension of time granted
  to 6/10/2003 to file appellant's opening brief.
Apr 9 2003Counsel's status report received (confidential)
 
Jun 11 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jun 12 2003Extension of time granted
  to 8/11/2003 to file appellant's opening brief.
Aug 11 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Aug 14 2003Extension of time granted
  to 10/10/2003 to file appellant's opening brief. Extension is granted based upon counsel Robert Derham's representation that he anticipates filing that brief by 10/10/2003. After that date, no further extension is contemplated.
Aug 20 2003Counsel's status report received (confidential)
 
Sep 4 2003Compensation awarded counsel
  Atty Derham
Sep 11 2003Compensation awarded counsel
  Atty Derham
Sep 29 2003Filed:
  One volume of reporter's transcript (vol. 29 pp. 5079-5092)
Oct 7 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Oct 15 2003Extension of time granted
  to 11/12/2003 to file appellant's openinf brief. After that date, no further extension will be granted. Extension is granted based upon counsel Robert Derham's representation that he anticipates filing that brief by 11/9/2003.
Nov 12 2003Application to file over-length brief filed
  to file appellant's opening brief. (337 pp. brief submitted under separate cover)
Nov 14 2003Order filed
  Appellant's application for leave for permission to file opening brief in excess of 280 pages is granted.
Nov 14 2003Appellant's opening brief filed
  (337 pp.)
Nov 20 2003Filed:
  Declaration of attorney Robert Derham pursuant to Penal Code Section 1241 (confidential).
Dec 12 2003Motion for access to sealed record filed
  by respondent for "Sealed Records Pursuant to Penal Code Section 987.9(d)."
Dec 16 2003Counsel's status report received (confidential)
  from atty Derham.
Dec 19 2003Order filed
  The clerk is directed to return the record on appeal to the Superior Court of Fresno County. The superior court is directed to cause its clerk and any and all reporters to prepare the clerk's transcript, the reporter's transcript, and any other document included in the record on appeal in accordance with rule 33.6 of the California Rules of Court, implementing Code of Civil Procedure section 237, with attention to, but not limited to, pages 448, 449 and 451 of the clerk's transcript and pages 414 through 815, 819 and 1789 through 1799 of the reporter's transcript. The transcripts and document or documents so prepared must be certified and transmitted as specified in rules 35(e) and 39.50 of the California Rules of Court. The superior court is also directed to comply, and to cause its clerk and any and all reporters to comply, with the foregoing directions on or before February 2, 2004. The superior court is further directed to cause its clerk to transmit to this court the record on appeal hereby returned to it on or before February 2, 2004.
Dec 19 2003Request for extension of time filed
  to file respondent's brief. (1st request)
Dec 19 2003Filed:
  applt's response to request for sealed records.
Dec 29 2003Filed:
  Resubmitted request for extension of time to file respondent's brief.
Jan 5 2004Compensation awarded counsel
  Atty Derham
Jan 8 2004Extension of time granted
  Respondent's application for relief from default is granted. Extension of time granted to 2/11/2004 to file respondent's brief. After that date, only four further extensions totaling about 210 additional days will be granted. Extension is granted based upon Deputy Attorney General Lloyd G. Carter's representation that he anticipates filing that brief by September 3, 2004
Jan 14 2004Compensation awarded counsel
  Atty Derham
Feb 4 2004Counsel's status report received (confidential)
 
Feb 6 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Feb 9 2004Request for extension of time filed
  by superior court to comply with order of 12-19-2003.
Feb 13 2004Change of Address filed for:
  appellate counsel, Robert Derham.
Feb 17 2004Filed:
  declaration of superior court clerk re: redaction of clerk's transcript on appeal. (pursuant to Supreme Court's order of 12-19-03.)
Feb 17 2004Filed:
  declaration of court reporter J. Mitchell regarding redaction of juror identifying information. (pursuant to Supreme Court's order of 12-19-03.)
Feb 17 2004Extension of time granted
  to 2/17/2004 to the superior court to comply with the order filed on 12/19/2003.
Feb 18 2004Extension of time granted
  to 4/12/2004 to file respondent's brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy Attorney General Lloyd G. Carter's representation that he anticipates filing that brief by 9/3/2004.
Feb 20 2004Note:
  Corrected record returned by Superior Court was reviewed this date; in compliance with this court's order of December 19, 2003.
Feb 20 2004Filed:
  4 envelopes of Clerk's transcsripts and 1 volume of Reporter's transcripts prepared by Superior Court pursuant to order of December 19, 2003.
Apr 2 2004Counsel's status report received (confidential)
 
Apr 7 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
Apr 12 2004Extension of time granted
  to June 11, 2004 to file respondent's brief. After that date, only two further extensions totaling 90 additional days will be granted. Extension is granted based upon Deputy Attorney General Lloyd G. Carter's representation that he anticipates filing that brief by September 3, 2004.
Apr 28 2004Compensation awarded counsel
  Atty Derham
Jun 4 2004Counsel's status report received (confidential)
  from atty Derham.
Jun 8 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Jun 14 2004Extension of time granted
  to 8/10/2004 to file respondent's brief. After that date, only one further extension totaling about 25 additional days will be granted. Extension is granted based upon Deputy Attorney General Lloyd Carter's representation that he anticipates filing that brief by 9/3/2004.
Jun 29 2004Motion filed (AA confidential)
 
Jul 7 2004Motion for access to sealed record filed
  respondent's request for sealed records pursuant to Penal Code section 987.9(d).
Jul 9 2004Motion for access to sealed record filed
  Respondent's request for sealed Faretta records.
Jul 12 2004Filed:
  respondent's "Inquiry regarding requested sealed records".
Jul 12 2004Filed letter from:
  attorney Robert Derham, dated 7/8/2004, advising appellant has no objection to respondent's request for confidential document page 5773A of the supplemantal clerk's transcript.
Jul 19 2004Motion for access to sealed record filed
  Respondent's "Request for Production of Sealed Clerk's Transcripts."
Jul 19 2004Letter sent to:
  attorney Derham directing that he file a response to respondent's "Request for Sealed Faretta Records," filed on 7-9-2004. Response due 7-28-2004.
Jul 19 2004Letter sent to:
  counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of respondent's "Request for Sealed Faretta Records," filed on 7-9-2004. (See Cal. Rules of Court, rule 12.5(f)(2).) Counsel invited to serve and file a response, if they wish, on or before 7-28-2004, addressing whether the records in question are "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
Jul 26 2004Received:
  letter from atty Derham, dated 7-23-2004. (confidential)
Jul 28 2004Filed:
  Appellant's response to request for production of sealed clerk's transcript.
Jul 28 2004Filed:
  Appellant's response to request for sealed Faretta records.
Jul 28 2004Motion for access to sealed record granted
  The "Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (d)" filed by respondent on December 12, 2003, and the "Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (d)" filed by respondent on July 7, 2004, are granted. The Clerk of this court is directed to provide respondent with copies of: (1) the "Supplemental Clerk's Transcript on Appeal #3 - Confidential"; and (2) "Supp. C.T. 5733A," the one-page request for appointment of counsel, filed as Exhibit B to appellant's June 11, 2002, Motion to Settle the Record on Appeal. Except as provided herein, these documents "shall remain under seal and their use shall be limited solely to the pending proceeding." (See Pen. Code section 987.9, subd. (d).)
Jul 30 2004Counsel's status report received (confidential)
 
Jul 30 2004Request for extension of time filed
  to file respondent's brief. (5th request)
Aug 5 2004Extension of time granted
  to 10/12/2004 to file respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Lloyd Carter's representation that he anticipates filing that brief by 10/9/2004.
Aug 11 2004Motion for access to sealed record granted
  Respondent's "Request for Sealed Faretta Records," filed on July 9, 2004, is granted. The Clerk of this court is directed to provide respondent with copies of (1) the reporter's transcript of the in camera Marsden hearing on June 18, 1996, before Judge James L. Quaschnick, Vol. XXVII, pp. 4908-4951; and (2) the reporter's transcript of the in camera Faretta hearing on June 18, 1996, before Judge James L. Quaschnick, Vol. XXVII, pp. 4954-4959. On the court's own motion, the Clerk is further directed to unseal (1) the reporter's transcript of the in camera Marsden hearing on June 18, 1996, before Judge James L. Quaschnick, Vol. XXVII, pp. 4908-4951; and (2) the reporter's transcript of the in camera Faretta hearing on June 18, 1996, before Judge James L. Quaschnick, Vol. XXVII, pp. 4954-4959.
Aug 18 2004Motion denied (confidential)
  Chin, J., was absent and did not participate.
Aug 18 2004Record ordered unsealed
  Respondent's "Request for Production of Sealed Clerk's Transcript" filed on July 19, 2004, is granted. The Clerk of this court is directed to unseal pages 801 through 870 of the Clerk's Transcript and to provide a copy of these pages to respondent. The letter from trial counsel Rudy Petilla, apparently faxed to District Attorney Ed Hunt on June 28, 1996, and attached as Exhibit A to respondent's "Request for Production of Sealed Clerk's Transcript," is not part of the record on appeal. (See California Rules of Court, Rules 31(b); 31.1(b)(1); 34.1(a)(1).) Chin, J., was absent and did not participate.
Oct 5 2004Counsel's status report received (confidential)
 
Oct 6 2004Respondent's brief filed
  (53487 words; 176 pp. - excluding attached exhibit)
Oct 13 2004Filed:
  Declaration of attorney Derham pursuant to Penal Code Seciton 1241 (confidential).
Oct 20 2004Compensation awarded counsel
  Atty Derham
Oct 25 2004Request for extension of time filed
  to file appellant's reply brief. (1st request)
Oct 26 2004Extension of time granted
  to 12/27/2004 to file appellant's reply brief.
Dec 13 2004Counsel's status report received (confidential)
 
Dec 20 2004Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Dec 22 2004Extension of time granted
  to 2/28/2005 to file appellant's reply brief. Extension is granted based upon counsel Robert Derham's representation that he anticipates filing that brief by 2/28/2005. After that date, no further extension will be granted.
Feb 7 2005Counsel's status report received (confidential)
 
Feb 28 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Mar 3 2005Extension of time granted
  to 4/11/2005 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Robert Derham's representation that he anticipates filing that brief by 4/10/2005.
Apr 8 2005Counsel's status report received (confidential)
 
Apr 12 2005Appellant's reply brief filed
  (15,244 words; 71 pp. - pursuant to rule 40.1(b)(3)(B))
Jun 9 2005Counsel's status report received (confidential)
 
Aug 8 2005Counsel's status report received (confidential)
  from atty Derham.
Aug 11 2005Habeas funds request filed (confidential)
 
Sep 15 2005Filed:
  Declaration of attorney Robert Derham pursuant to Penal Code Section 1241 (confidential).
Sep 21 2005Order filed re habeas funds request (confidential)
  George, C.J., was absent and did not participate.
Sep 23 2005Compensation awarded counsel
  Atty Derham
Sep 30 2005Habeas funds request filed (confidential)
 
Oct 11 2005Related habeas corpus petition filed (concurrent)
  No. S137884
Dec 14 2005Compensation awarded counsel
  Atty Derham
Jul 7 2006Change of contact information filed for:
  applt counsel Robert Derham.
Oct 15 2007Request for judicial notice filed (AA)
 
Nov 13 2007Received:
  copy of U.S. District Court, Eastern District order filed on November 7, 2007, in Doolin v. Ayers, Jr., case no. 1:06-cv-00825 AWI, denying Doolin's request for federal court intervention in pending state proceedings.
Nov 14 2007Received:
  pro se letter from Doolin, dated November 12, 2007.
Nov 27 2007Received:
  pro se motion from Doolin
Nov 29 2007Note:
  returned pro se motion received on November 27, 2007, to Doolin.
Dec 17 2007Received:
  pro se motion from Doolin.
Jan 8 2008Note:
  returned pro se motion received on December 17, 2007, to Doolin.
Feb 26 2008Received:
  pro se "notification" document from Doolin, dated February 21, 2008.
Mar 5 2008Received:
  pro se "notification" document from Doolin, dated March 3, 2008.
Mar 12 2008Order filed re habeas funds request (confidential)
 
May 23 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week of September 1, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Aug 1 2008Request for judicial notice granted
  Respondent's request for judicial notice on page 62, footnote 19, of respondent's brief, filed on October 6, 2004 is granted. Appellant's "Motion for Judicial Notice," filed on October 15, 2007 is granted.
Aug 12 2008Note:
  returned pro se documents dated February 21, 2008 and March 3, 2008 to Doolin.
Aug 20 2008Case ordered on calendar
  to be argued Tuesday, October 7, 2008, at 1:30 p.m., in Riverside County
Aug 20 2008Filed:
  appellant's focus issue letter, dated August 19, 2008.
Aug 22 2008Received:
  appearance sheet from Attorney Robert Derham, indicating 45 minutes for oral argument for appellant.
Aug 22 2008Filed:
  respondent's focus issue letter, dated August 20, 2008.
Aug 29 2008Received:
  appearance sheet from Deputy Attorney General, Lloyd G. Cater, indicating 30 minutes for oral argument for respondent.
Sep 2 2008Request for Extended Media coverage Filed
  The California Channel by James Gualtieri
Sep 5 2008Request for Extended Media coverage Granted
  The request for media coverage, filed by the California Channel on September 2, 2008, is granted, subject to the conditions set forth in rule 1.150, of the California Rules of Court.
Sep 29 2008Received:
  appellant's additional authorities letter, dated September 26, 2008.
Oct 1 2008Request for Extended Media coverage Filed
  The Desert Sun Mike Snyder, photographer
Oct 1 2008Request for Extended Media coverage Filed
  Calif. State University, San Bernardino-Palm Desert Campus Mike Singer, photographer.
Oct 3 2008Request for Extended Media coverage Granted
  The request for extended media coverage of the Supreme Court's Oral Argument Special Session on October 7, and 8, 2008, filed by the California State University, San Bernardino-Palm Desert Campus photographer on September 26, 2008, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 3 2008Request for Extended Media coverage Granted
  The request for extended media coverage of the Supreme Court's Oral Argument Special Session on October 7 and 8, 2008, filed on October 1, 2008, by The Desert Sun to serve as pool photographer is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 7 2008Cause argued and submitted
 
Oct 16 2008Compensation awarded counsel
  Atty Derham
Jan 2 2009Notice of forthcoming opinion posted
 
Jan 5 2009Opinion filed: Judgment affirmed in full
  opinion by Corrigan, J. -----joined by George, C.J., Baxter, Chin, and Moreno, JJ. Concurring and Dissenting Opinion by Kennard, J -----joined by Werdegar, J
Jan 20 2009Application to file amicus curiae brief filed
  application by the State Public Defender to file an amicus curiae letter in support of appellant's petition for rehearing. (letter received under separate cover)
Jan 20 2009Application to file amicus curiae brief filed
  Motion of California Attorneys for Criminal Justice, the American Civil Liberties Union of Northern California and of Elisabeth Semel and Ty Alper of the Berkeley Law Death Penalty Clinic for permission to file an amici curiae brief in support of appellant's petition for rehearing. (brief submitted under separate cover)
Jan 20 2009Rehearing petition filed
  by appellant. (3,243 words; 12 pp.)
Jan 21 2009Amicus curiae brief filed
  amicus curiae letter from the State Public Defender, dated January 20, 2009, in support of appellant's petition for rehearing. (2,111 words; 5 pp.)
Jan 21 2009Amicus curiae brief filed
  Brief of amici California Attorneys for Criminal Justice, the American Civil Liberties Union of Northern California, and of Elisabeth Semel and Ty Alper of the Berkeley Law Death Penalty Clinic, in support of appellant's petition for rehearing. (3,547 words; 15 pp.)
Jan 21 2009Permission to file amicus curiae brief granted
  The application of the State Public Defender to file an amicus curiae letter in support of appellant's petition for rehearing, and the motion of California Attorneys for Criminal Justice, the American Civil Liberties Union of Northern California and of Elisabeth Semel and Ty Alper of the Berkeley Law Death Penalty Clinic for permission to file an amici curiae brief in support of appellant's petition for rehearing are hereby granted. Any answer thereto may be served and filed by any party on or before January 28, 2009.
Feb 4 2009Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including April 3, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Mar 25 2009Rehearing denied
  The petition for rehearing is denied. Kennard and Werdegar, JJ., are of the opinion the petition should be granted.
Mar 25 2009Remittitur issued (AA)
 
Apr 1 2009Received:
  acknowledgment for receipt of remittitur.
Jun 1 2009Change of contact information filed for:
  Robert Derham, Attorney at Law.
Jun 22 2009Received:
  Letter from U.S.S.C. dated June 18, 2009, advising petition for writ of certiorari was filed on June 15, 2009, No. 08-10966.
Oct 5 2009Certiorari denied by U.S. Supreme Court
 

Briefs
Nov 14 2003Appellant's opening brief filed
 
Oct 6 2004Respondent's brief filed
 
Apr 12 2005Appellant's reply brief filed
 
Jan 21 2009Amicus curiae brief filed
 
Jan 21 2009Amicus curiae brief filed
 
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