Supreme Court of California Justia
Docket No. S014200
People v. Dunkle

Filed 8/4/05



Plaintiff and Respondent,







Defendant and Appellant.

Super. Ct. No. C-17651-01

A jury convicted defendant Jon Scott Dunkle of the first degree murders of

15-year-old John Davies and 12-year-old Lance Turner, finding true a multiple-

murder special-circumstance allegation and weapon-use enhancement allegations.

(Pen. Code, §§ 187, 190.2, subd. (a)(3), 12022, subd. (b).)1 After a penalty trial,

the same jury returned a verdict of death. This appeal is automatic. (§ 1239, subd.


We affirm the judgment.


Unless otherwise specified, further statutory references are to the Penal




A. Guilt Phase

1. Disappearance of John Davies

In November 1981, defendant, then 21 years old, was a close friend of the

Davies family, who lived in Belmont. He often visited the Davies residence and

spent time with 17-year-old Mark Davies and his 15-year-old brother John. On

the morning of Sunday, November 8, 1981, James Davies called the police to

report his son John missing. Davies and his wife, Joan, had returned home around

1:30 a.m. and had noticed nothing amiss. Joan had found John missing when she

opened his bedroom door sometime after 8:30 a.m. John had laid out his church

clothes and had left behind all his possessions, including his only pair of shoes.

He usually informed his parents of his whereabouts and, according to them, was

not the sort of child who would be expected to run away. James and Joan Davies

unsuccessfully made extensive efforts to locate John for several years after he


Soon after the disappearance, James Davies called defendant to come over

and help post flyers describing John. Defendant came over on the Wednesday or

Thursday after the Sunday John was reported missing, and left with some flyers.

He never visited the Davies family again.

Mark Davies testified that before John disappeared, defendant would come

by the Davies residence in his white Honda automobile. If he came to visit in the

evening, he would throw rocks at Mark’s window so Mark could sneak out of the

house without his parents’ knowledge. They would drive to the Hassler Hospital

site off Woodside Road and Highway 280 to explore the partially abandoned

grounds. Mark last saw his brother John on Saturday, November 7, about

10:30 p.m., when Mark went to bed. Mark never heard from defendant after

John’s disappearance.


Joan Davies testified that when defendant visited her sons, they would often

sit in defendant’s car listening to music.

Initially, police theorized John had run away. Belmont Police Detective

Jerrold Whaley contacted defendant in mid-1982, and defendant told him where

John liked to hang out. Because the Davies family reported that defendant was

John’s closest friend, Whaley contacted defendant often. By September 1984 the

police were treating the disappearance as a possible kidnapping and had contacted

the Federal Bureau of Investigation (FBI) for assistance. On December 4, 1984,

Whaley and FBI Agent Robert Deklinski twice interviewed defendant at his

residence near Sacramento. In the first interview, defendant denied seeing John on

Saturday, November 7, 1981, claiming he did not leave his parents’ home that

evening, and denied ever throwing rocks to summon Mark or John and sitting in

his car listening to music with John. In the second interview, Whaley and

Deklinski probed the discrepancies between the Davies family members’ and

defendant’s accounts; defendant was emphatic that he had neither thrown rocks at

the boys’ bedroom windows nor listened to music with John in his car. Defendant

also denied he had ever traveled with John to a hangout he called the “morgue,”

evidently the Hassler Hospital grounds.

2. Murder of Lance Turner

On October 2, 1984, about 7:00 p.m., Belmont resident Margaret Turner

called the police to report her 12-year-old son, Lance, missing from soccer

practice. That day, Timothy O’Brien had driven his two sons and Lance to soccer

practice at the fields behind Ralston Intermediate School. O’Brien began coaching

his team and did not see Lance again. Later, when the practice ended, O’Brien

asked Lance’s coach, Ray Williamson, where Lance was. Williamson told him

Lance was not at practice that day. Several boys reported seeing Lance head


toward Waterdog Lake, three-eighths of a mile from the soccer field. A search


William Russell arrived at 6:00 p.m. to pick up his son from soccer practice

and, after taking his son home, joined the search for Lance. About 8:20 p.m.,

Russell shined a flashlight onto some bushes in a gully off the path to Waterdog

Lake and saw feet sticking out of the bushes. Lance’s body was found under the

overgrown brush.

Pathologist Peter Benson, M.D., testified Lance had died from blood loss

due to multiple stab wounds. Two wounds to the heart were each fatal; two other

wounds to the lungs were potentially life threatening. There were numerous

defensive wounds to the arms and hands, as well as scratches, scrapes and bruises.

Stephanie Olson, Kendra Durham, and Nicole Guthrie, students at Ralston

Intermediate School at the time of the Turner homicide, testified that about

3:00 p.m. on October 2, 1984, they left school, skipping volleyball practice, and

went down to Waterdog Lake to smoke cigarettes. A man whom Stephanie

described as having dirty blond hair, pimples, and dirty teeth with a retainer

approached them and started a conversation. He told them his name was Jon and

said he had graduated from Carlmont High School the year before. He was

drinking beer from a tall Budweiser can, which he offered to the girls. The girls

left after about 20 minutes. Another Ralston student saw a man with dirty blond

hair near Waterdog Lake about 4:00 p.m. (None of these witnesses was asked to

identify defendant in the courtroom. Olson, Durham and Guthrie gave the police a

description of the man that was incorporated into a composite drawing used in the

investigation of the Turner homicide. As discussed below (post, p. 7), in his

confession to FBI agents, defendant described talking with the three girls shortly

before he killed Turner.)


3. Investigation of Davies and Turner murders

On December 27, 1984, Belmont Police Detective Sergeant James Goulart

interviewed defendant concerning the Turner homicide. Defendant was by then

the only suspect in the crime. Detective Goulart advised him of his constitutional

rights, and he agreed to speak with Goulart. Defendant denied having been at

Waterdog Lake on October 2, 1984, claiming he had been at home until noon and

then had gone to stores in Redwood City to fill out employment applications,

returning home by bus at 4:30 p.m. Later police contacts with those businesses

turned up no such applications.

In January 1985, in an effort to gather information about the Turner

homicide, Belmont Police Officer Lisa Thomas began working undercover at the

Sacramento Carl’s Jr. restaurant where defendant was employed. There she

encountered defendant several days a week, regularly visited him at his sister’s

house, where he was residing, and sometimes went to a bar or movie with him.

Defendant often spoke with Thomas about newspaper reports on the

investigations, at one point showing her a collection of clippings. On February 9,

1985, defendant told her the police and the FBI had been in his home for five

hours, confronting him, and that he had lied to them. To Thomas, he maintained

his innocence, claiming that on the day Turner was killed he had gone to Redwood

City to fill out job applications. Defendant seemed impressed with the attention he

was getting from the FBI.

In May 1986, James and Joan Davies met with defendant for several hours

seeking information about John. Defendant said he had none. Joan Davies met

with defendant again in July 1986, and he continued to insist he had no


On September 16, 1986, Charles Rice told Michael Wiley, a law

enforcement investigator for the State of California, that defendant had admitted to


killing John Davies and Lance Turner. (During the penalty phase, the jury was

informed that Rice was defendant’s cellmate at the state prison in San Luis Obispo

on that date. Defendant was then incarcerated on a burglary conviction arising out

of an incident discussed post, at pages 72-75, in connection with a related

appellate contention.) Wiley testified that Rice voluntarily made a statement,

asking nothing in return, and insisted on trying to obtain further information from

defendant because he was appalled by the killings. On September 22, 1986, Rice

gave investigators two maps, drawn by defendant, of the crime scenes. A week

later, defendant met with Rice, who was wearing a wireless transmitter, and

described the Davies and Turner murders in graphic detail. Defendant refused to

report the crimes to the Belmont police because he did not trust them. He said he

did trust the FBI, however, so Rice told defendant he had a friend who was an FBI

agent and would help defendant if he confessed to him. Prison officials arranged

to find an FBI agent to take the confession.

On October 3, 1986, FBI Special Agents Frank Hickey and Daniel Payne

interviewed defendant at the state prison in San Luis Obispo. Rice was also

present. Defendant was advised of his constitutional rights and signed a waiver.

Defendant stated that, before killing John Davies, he was at Half Moon Bay

with three friends, drinking whisky and smoking marijuana. He then drove to the

Davies residence, parked a few doors down the street, and entered through an

unlocked door. He went to John’s bedroom and invited him to come and drink

beer. John agreed, and went with defendant to Edgewood Park in Redwood City

near the Crystal Springs Reservoir. John was wearing a black T-shirt, blue

corduroy pants and no socks or shoes. Defendant parked near a shooting range

and, before leaving the car, removed a knife from the glove compartment. At that

point, he “committed” himself to killing John. They walked half a mile to two

miles down a dirt road. Defendant then stabbed John in the back, sat on his chest


and stabbed him in the throat. When John struggled, defendant picked up a large

rock and struck him in the head. Defendant then dragged the body to an opening

in the ground, pushed it in and left the scene, later disposing of his bloodstained

clothing. A week after the murder, defendant returned to the area and observed

that the body was bloated and animals were feeding on it. In May 1984, he

returned again and observed a skull.

Asked about a motive for killing John Davies, defendant said that when he

drank beer and smoked marijuana he became aggressive. He also noted that John

used to cause a computer monitor to flash irritating statements that defendant

would observe, and this angered him. Defendant drew a map for the investigators

illustrating the location of John’s remains.

Regarding the murder of Lance Turner, defendant stated that on October 2,

1984, he was in the process of moving from Belmont to another part of the state.

On that day, he bought a six-pack of beer and went to the park near Waterdog

Lake to drink it. At 2:30 p.m., after some three hours at the lake, he went to an

area near Ralston School. He climbed a tree known as the “smokers’ tree” and

used his buck-type hunting knife to stab at it. Three junior-high-school-age girls

came to the tree looking for a pack of cigarettes and dug up a matchbook with a

distinctive inscription. The girls shared defendant’s last beer and one of them

offered him a marijuana cigarette. At one point defendant saw a boy wearing

athletic clothes run down the hill.

After the girls left, defendant stayed for another five minutes. Then, as he

headed back toward the dock, he saw the boy jogging in the area. To get his

attention, defendant asked him the time. The boy responded that it was 3:50, and

turned away. As he turned, defendant stabbed him in the side with his hunting

knife. The boy struggled as defendant stabbed him a second time, then went down

to the ground and complied with defendant’s command to put his leg down. In the


course of the struggle, the boy bit defendant so severely on the thumb that he later

lost the nail. Defendant stabbed him again, in the throat, and yet a fourth time

near the heart. The boy then appeared dead. Defendant moved the body under

some low bushes and went home. He later disposed of the knife and sheath in

separate places and discarded his shoes out of concern that their prints could be

identified. He correctly described a birthmark on the side of the boy’s neck.

Using a map defendant had drawn, Belmont police searched for John

Davies’s remains and found items of clothing, bones and a skull. A forensic

pathologist who examined the skull testified it was consistent with that of a young

Caucasian male and bore evidence of blunt force trauma that could have been

inflicted by a rock. Orthodontist Stan Wolken compared X-rays of his patient,

John Davies, with X-rays of the remains, finding similarities between them.

On October 6, 1984, defendant led investigators into a field near a

Carmichael residence and pointed out the shrubbery where he had discarded the

knife he had used to kill Lance Turner. With the help of a metal detector,

investigators found a folding Puma brand knife.

On two occasions in October 1986, for 45 minutes and five hours

respectively, Psychiatrist James Missett, met with defendant at the request of the

district attorney’s office. Dr. Missett read defendant his constitutional rights at the

outset of each interview and defendant waived them. Defendant described having

an interest in reading newspaper accounts of killings when he was in elementary

school. He stopped doing so in fifth grade because “homicides weren’t part of my

everyday scene.” In sixth grade, defendant became aware that he wanted to kill

someone after watching a movie in which an older boy was about to kill a younger

boy to prevent him from disclosing a diary containing references to other murders.

About the Davies murder, defendant said: “I thought to myself[,] you have got

someone out in the middle of nowhere, here is your chance to kill someone. You


have thought of killing someone before.” After describing how he initially

stabbed Davies, defendant told Dr. Missett he pinned Davies down with his knees

on his shoulders and, when Davies asked what he planned to do, defendant said he

was going to kill him. He told Davies to scream all he wanted before stabbing him

in the throat and strangling him with his hands. Defendant said he stopped to

think whether he wanted to go through with it before he picked up a rock and hit

Davies three times on the right side of the head.

B. Penalty Phase

1. Prosecution case in aggravation

The prosecution introduced evidence that defendant had attempted, in

separate incidents, to kill Steve Murphy and Monte Hansen, and had murdered

Sean Dannehl. The prosecution also presented evidence, described below in

connection with related contentions (see pp. 68-72, post), of defendant’s threat to

kill jail nurse Angela Beck and his burglary of the home of Richard Rennie.

a. Attempted murder of Steve Murphy

On November 5, 1982, 16-year-old Steve Murphy attended a party at a

friend’s house in San Mateo. Leaving the party around 11:30 p.m., he walked

another friend home. Murphy was heading toward his own residence, 15 to 20

houses away, when he lost consciousness. He awoke after daylight the next

morning near a large dirt area surrounded by trees. He fell unconscious again and

next woke up in a hospital, discovering that his spleen and a kidney had been

surgically removed. He spent the next three weeks in the hospital with broken ribs

and a broken pelvis. His injuries caused him to miss several months of school.

In October 1986, after obtaining a waiver of constitutional rights, San

Mateo Police Officer Joseph Farmer spoke with defendant about the assault on

Murphy. Defendant admitted he had been drinking alcohol on the beach before


driving his car up the hill on 42d Avenue in San Mateo. He saw someone walking

on 42d Avenue and made two or three right turns to encounter the person again.

He deliberately ran over the person, put him in the back of his car, and drove him

to an isolated area in Belmont at the Marburger turnaround. He took the person

out of the car and laid him on the roadway. Defendant referred to the person as

“Steve Murphy,” but did not explain how he had learned the victim’s name.

b. Attempted murder of Monte Hansen

In 1982, Monte Hansen, then 16 years old, often went out drinking with

defendant. On New Year’s Eve that year, Hansen invited defendant to come to his

house, as his parents were out. Defendant arrived shortly before midnight,

apparently under the influence of alcohol, and told Hansen he felt dizzy. Hansen

told him to drink some water and went out into the backyard to smoke a cigarette.

There, he turned to observe defendant approaching him, a two-by-four-inch board

studded with nails in his raised hand. Defendant struck at Hansen with the board.

One blow hit him in the head, but Hansen blocked the rest of the blows with his

forearm. Defendant was smiling as he attacked Hansen. Defendant then reentered

the house and Hansen saw him put a knife back in a kitchen cabinet. Hansen

screamed at defendant to get out and told defendant he would kill him if he

harmed his little brother, who was asleep in a bedroom. Defendant ran toward his

car and Hansen never saw him again.

On February 28, 1985, undercover officer Lisa Thomas told defendant a

false story about her involvement in a hit-and-run accident. Defendant then told

her how he had run over Steve Murphy and assaulted Monte Hansen; a recording

of the conversation was played for the jury.


c. Murder of Sean Dannehl

Around 6:00 p.m. on July 2, 1985, 12-year-old Sean Dannehl went to a

friend’s house in Sacramento, riding his bicycle. When he did not return home by

9:00 p.m., his mother called the friend’s house and learned Sean had left around

7:30. His father and mother and her husband searched for him. His body was

found six days later at Lower Sunrise Park. A board with a nail in it and a beer

can were found at the scene.

An autopsy revealed the cause of death to be two stab wounds to the heart,

one penetrating a rib, caused by something thick, pointed and dense, consistent

with a marijuana pipe tool. Sean also suffered a perforating wound to the skull

consistent with the nail-embedded board. Insect activity in the facial and neck

area also suggested the presence of some type of wound there.

Sacramento Detective Robert Bell questioned defendant on July 5, 1985.

Defendant said he did not know about the missing boy, but he admitted that on

July 2 he was on a bicycle trail at Lower Sunrise Park drinking beer with friends

until about 8:30 p.m., when he rode home. He claimed a flat tire prevented him

from arriving at home before 10:00 p.m. Anton Martinez and Paul Stanley

confirmed they were on the bicycle trail with defendant that day, drinking beer and

smoking marijuana until they parted around sunset.

After Sean’s body was found, Detective Bell contacted defendant, who

agreed to accompany investigators to the police station. After waiving his

constitutional rights, defendant denied knowing anything about Sean’s murder.

Investigators drove defendant to his sister’s residence, where he was staying.

Defendant and his sister agreed to a search of the house; no evidence was found.

Defendant later voluntarily returned to the police station to provide hair,

blood and saliva samples. The next day, July 10, 1985, defendant showed

Detective Bell where on the bicycle trail he had had a flat tire and where he and


his friends had met to drink beer. Defendant also assisted investigators in

searching for his missing marijuana pipe tool, accompanying them to several

smoke shops and finding one tool he said resembled the one he had lost. On July

15, 1985, defendant telephoned Detective Bell to tell him Paul Stanley’s blood

might be found on his (defendant’s) bicycle because Stanley had fallen and might

have bled on it.

On August 19, 1985, in an effort to get defendant to confess, undercover

narcotics officer Ronald Goesch, posing as “Ron Cross,” left a letter at defendant’s

house. The letter advised that Cross lived near the river, the police were

pressuring him, and he knew what defendant had done and would be

communicating with him again. Defendant gave the letter to Detective Bell.

Officer Goesch left another letter and called defendant four days later, asking to

meet with him. Goesch said he knew about “the board” and “other stuff,” and

wanted money or he would go to the police and give them evidence, adding that he

needed the money to avoid his own arrest. Defendant did not respond and did not

appear at the time Goesch requested.

After investigators questioned defendant about the Ron Cross information,

defendant telephoned Detective Bell, upset at the course of the investigation. In

the course of the conversation, defendant asked, hypothetically, what might

happen if he confessed to the crime. He also asked, hypothetically, if he were at

the scene, saw the victim screaming and took no action to save him, whether his

inaction would get him in trouble.

Department of Corrections Sergeant Michael Wiley took Charles Rice’s

report of defendant’s confessions. On September 28, 1986, in Wiley’s office,

Wiley overheard defendant describe to Rice, who was wearing a wireless

microphone, the murders of Lance Turner, John Davies and Sean Dannehl.


On October 3, 1986, following defendant’s agreement to confess to the

murders to the FBI (see p. 6, ante), FBI Special Agents Frank Hickey and Daniel

Payne asked defendant about the Dannehl murder. Charles Rice was also present

during the interview. Defendant stated that on July 2, 1985, he had left his home

at 11:30 a.m. and ridden his bicycle to the American River Park, where he met an

acquaintance, Anton. They bought some beer and went to Anton’s house, where

another friend met them. The three rode their bicycles back to the park and

smoked marijuana and continued to drink beer. Defendant drank four tall beers

and three 12-ounce cans of beer. About 8:30 p.m. they parted, and defendant rode

his bicycle to a vista point. He saw Sean Dannehl riding his bicycle towards

Sunrise Boulevard, commenting to Agent Hickey, “I knew right then I was going

to stop him and kill him.” He chased after Sean, ramming Sean’s bicycle with his

own. When Sean fell off his bicycle, defendant grabbed his arm and led him to a

large tree. Sean cooperated, causing defendant to want to humiliate him, over

Sean’s pleas that defendant not hurt him. Defendant forced Sean to take off his

clothes and put them in a pile. A two-by-four lay in the area; defendant put it over

Sean’s eyes as he lay on his back. Defendant was carrying an electrician’s

instrument with a pick, which he thrust into Sean’s chest, near his heart. After

Sean protested that defendant had promised not to hurt him, defendant put a hand

over his mouth and stabbed him again, causing the blade of the instrument to

separate from the handle. Defendant retrieved the blade, screwed it back into the

handle and stabbed Sean in the eyes. He then rode his bicycle home, removing the

handle from the pick along the way and discarding the pieces separately. At

home, defendant washed his clothes and buried his bloody socks in a flowerbed

near a library three blocks from his house. He signed a written statement

incorporating his confession, drew a map of the crime scene, and gave

investigators a sketch of his pick tool.


2. Defense case in mitigation

The defense presented the testimony of a forensic psychiatrist, George

Wilkinson, M.D., who had been appointed by the court on two occasions to

evaluate defendant’s competency to stand trial. Dr. Wilkinson had reviewed

records of defendant’s treatment in correctional mental health facilities, as well as

police and school reports, and testified regarding his observations of defendant’s

behavior, personality and thought processes, his diagnoses of defendant’s mental

condition, and his conclusions regarding how that condition had worsened over the

two years during which he performed his evaluations.

Based on his initial evaluation in 1987, Dr. Wilkinson believed defendant

was not psychotic but had experienced psychotic episodes in the past; also, he was

manipulative and malingering to some degree. Accordingly, Dr. Wilkinson

diagnosed defendant as having antisocial personality disorder with transient

psychotic episodes. Later contacts with defendant, who by then was relating

obviously delusional thoughts and engaging in bizarre behavior, caused

Dr. Wilkinson to alter his diagnosis to paranoid schizophrenia with antisocial

personality traits. Dr. Wilkinson estimated defendant’s intelligence quotient to be

low normal, or no higher than 90.

By judicial notice, the jury was informed that the defense in this case had

never entered a plea of not guilty by reason of insanity.

3. Rebuttal

Psychiatrist James Missett, testified that in October 1986 he examined

defendant on two occasions after obtaining a waiver of constitutional rights.

Defendant acknowledged that before he killed John Davies he had long wondered

what it would be like to kill another human being. Dr. Missett noted that

defendant’s mental processes after the Davies homicide were clear enough to

enable him to take steps to avoid being caught, such as washing up and disposing


of his bloodstained clothing and denying any knowledge of John’s whereabouts to

the Davies family. Dr. Missett diagnosed defendant as having, at the time of all

three murders and since, a mixed personality disorder with antisocial, borderline

and narcissistic traits, and sexual sadism. He saw no evidence to support a

diagnosis of paranoid schizophrenia.

Dr. Missett observed defendant during a May 1988 competency trial and

interviewed him to evaluate his competency in July 1989 (see pp. 16-18 post,

concerning events leading to the competency proceedings), at which time

defendant appeared to be consciously feigning mental illness. Although at times

defendant gave candid and straightforward responses, at other times he disrupted

the interview with gibberish and refused to discuss details of the killings. At one

point he smiled at and maintained eye contact with Dr. Missett, unlike true

schizophrenics, who characteristically are withdrawn. Dr. Missett concluded

defendant had “a little mental illness . . . and a lot of malingering.”

Dr. Missett characterized defendant’s behavior toward him and defense

counsel, as well as defendant’s three murders and other assaults, as involving his

hating and acting contemptuously towards persons he also in some way liked,

respected or admired. Although defendant’s attraction to and hatred of

prepubescent boys were outside his control, his devious planning and avoidance of

detection for long stretches of time were within his control. To Dr. Missett,

defendant’s criminal conduct reflected innate evil rather than mental illness.

Dr. Missett offered no explanation for why defendant could ingest near-

maximum doses of antipsychotic medications and display none of the sleepiness

that would be expected if he were merely malingering.


4. Surrebuttal

In lieu of testimony, the jury heard the parties’ stipulation that, if he were

called to testify, Defense Counsel Douglas Gray would state that he was first

appointed in July 1988, defendant having previously been represented by other

attorneys; that from July to September 1988 defendant cooperated with Gray and

discussed various aspects of the case with him; that from September 1988 through

April 1989 defendant refused to cooperate with Gray by refusing to meet or

discuss the case with him; that in April 1989 defendant began to cooperate with

him selectively but still refused to discuss certain topics such as penalty and legal

issues; that after a competency trial and during the trial of the offenses defendant

refused to cooperate with him; that on several occasions in open court defendant

expressed a desire to plead guilty to the charges; and that no such plea had been

entered on his behalf.


A. Competency Issues

1. Factual background

At several points after defendant was charged in this case and before his

trial began, concerns arose over his competency to stand trial. We outline the

relevant events.

On May 27, 1987, one month after the information was filed, defendant

was admitted to the psychiatric inpatient facility at Harold D. Chope Community

Hospital (Chope Hospital) as gravely disabled under Welfare and Institutions

Code section 5150 because he appeared to be experiencing delusions and

hallucinations and wanted to kill himself. His diagnosis on admission was

atypical psychosis. On June 2, 1987, he was discharged back to the San Mateo

County Jail with a diagnosis of acute paranoid disorder.


A little more than five months later, on November 3, 1987, the trial court

suspended criminal proceedings and appointed two psychiatrists, Dr. Charles

Casella and Dr. George Wilkinson, to examine defendant to determine his

competence to stand trial. (§§ 1367, 1368.) The court also appointed a

psychologist, Dr. Alfred Fricke, to perform tests. All three issued reports and a

competency hearing was set. Shortly before the hearing, on May 6, 1988,

defendant was again admitted to Chope Hospital under Welfare and Institutions

Code section 5150 because his behavior was loud and bizarre, he was agitated and

delusional, and he was exhibiting grandiose and paranoid ideas, looseness of

associations, and disorganized thinking. His diagnosis on admission again was

atypical psychosis. On May 16, 1988, he was discharged back to San Mateo

County Jail with a diagnosis of chronic schizophrenia with acute exacerbation.

That same day, his first competency hearing began, a jury having been

waived. On May 19, 1988, the trial court found defendant competent to stand


On June 17, 1988, the trial court relieved Defense Attorneys Philip Barnett

and Vincent O’Malley at defendant’s request (see People v. Marsden (1970) 2

Cal.3d 118) and denied defendant’s motion for self-representation (see Faretta v.

California (1975) 422 U.S. 806). A week later, Trial Counsel Douglas Gray

appeared on behalf of defendant.

Eight months later, on February 16, 1989, defendant was again admitted to

Chope Hospital under Welfare and Institutions Code section 5150 because he was

exhibiting increasingly bizarre behavior, was delusional with loose associations

and disorganized thinking, and was eating little and not showering. On admission,

he was diagnosed with chronic paranoid schizophrenia, with acute exacerbation.

That same day, counsel declared a doubt as to defendant’s competency, which the

trial court treated as a motion under Penal Code section 1367 and denied. At the


prosecution’s suggestion, the court appointed Dr. Wilkinson under Evidence Code

section 730 to determine whether there had been any change in defendant’s

condition since the May 1988 competency finding.

On March 8, 1989, at the request of the prosecution and the defense, the

court again suspended criminal proceedings under section 1367 and appointed a

second psychiatrist, Dr. Roland Levy. Dr. Wilkinson’s and Dr. Levy’s reports

were received on March 29, 1989.

The prosecution requested a jury trial on the question of defendant’s

competence. In light of Defense Counsel Gray’s status as a witness, Gordon

Rockhill was associated as counsel for the second competency hearing, which

began on July 24, 1989. On August 3, 1989, the jury returned a finding of

competency. Some two and a half months later, on October 16, 1989, jury

selection began in defendant’s criminal trial.

2. Claims pertaining to 1989 competency trial

a. Assertedly erroneous admission of evidence



the trial court erred in allowing, over defense

objections at various points in the competency trial, irrelevant discussion and

evidence of the factual details of the charged offenses. (Evid. Code, § 350.)

Defendant further argues that any relevancy of these details was substantially

outweighed by the prejudice they caused him before the competency jury, in

violation of Evidence Code section 352 and his right to due process of law under

the state and federal Constitutions.

Defendant complains that, during voir dire, the prosecutor asked

prospective jurors, “[I]f it were to come out during the testimony of the

psychiatrists that because there are multiple murder charges against Jon Dunkle,

some other judge and some other jury down the road – not you, nothing for you to


consider . . . may have to consider the death penalty, do you have such strong

feelings, one way or the other,” that it would affect them in the competency trial.

The prosecutor later asked similar questions of other prospective jurors. Defense

counsel objected that the penalty in the criminal trial was irrelevant to and remote

from the issues in the competency proceeding, and that competency jurors should

not be considering the issue of possible penalties. The trial court allowed the

prosecutor to inquire.

There was no error. A trial court enjoys wide latitude in determining what

questions may be asked on voir dire, and its exercise of discretion in this respect

forms grounds for reversal only when it renders the trial fundamentally unfair.

(People v. Cleveland (2004) 32 Cal.4th 704, 737.) Contrary to defendant’s

assertion, the subject of penalty was relevant to the competency trial, in that the

psychiatric experts’ testimony touched on defendant’s understanding of the

potential outcome of the criminal proceedings and his possible motivation to delay

them. Defendant suffered no undue prejudice by the prosecutor’s mention of the

potential penalty during voir dire. (See People v. Padilla (1995) 11 Cal.4th 891,

925 [for purposes of Evidence Code section 352, “undue” prejudice stems from

evidence that “ ‘ “tends to evoke an emotional bias against the defendant as an

individual” ’ ” and that has a negligible bearing on the issues, “not the prejudice

‘that naturally flows from relevant, highly probative evidence.’ ”].) Defendant’s

due process claim lacks merit for the same reasons.

Defendant further complains of the admission of references to the

uncharged killing of Sean Dannehl. First, defendant notes the prosecutor, out of

the presence of the jury, stated that Dr. Missett and Dr. Wilkinson had discussed

the Dannehl homicide with defendant and that he intended to bring up evidence

pertaining to that offense because defendant would be “dealing with [it] during the

penalty phase.” Defense counsel objected on grounds of irrelevancy and undue


prejudice. The trial court ruled inadmissible any mention of the Dannehl homicide

unless it became clear that the probative value of such evidence outweighed its

prejudicial effect. Detective Robert Bell, a homicide investigator in the

Sacramento County Sheriff’s Department who had worked on the Dannehl case,

later testified for the prosecution without mentioning that case. Dr. Levy and

Dr. Missett, in their respective testimony, referred to the existence of the Dannehl

homicide, without describing any details of the offense.

The determination of the extent of a defendant’s ability rationally to assist

counsel in presenting a penalty defense may necessitate reference to evidence of

uncharged offenses likely to be presented to the penalty phase jury. (See People v.

Turner (2004) 34 Cal.4th 406, 427; People v. Medina (1990) 51 Cal.3d 870, 887-

888; People v. Samuel (1981) 29 Cal.3d 489, 494-496.) Here, Dr. Missett testified

that, during the competency examination, defendant spontaneously referred to

Sean Dannehl but refused to discuss the details of the offense; probing a

defendant’s understanding of those details, Dr. Missett noted, is relevant to the

competency determination. We therefore see no error in the references to the

Dannehl homicide.

Defendant additionally argues the prosecutor improperly brought the facts

of the Turner and Davies homicides before the jury, causing prejudice requiring

reversal of the judgment. During his opening statement to the competency jury,

the prosecutor summarized the evidence of those offenses; when defense counsel

objected, the prosecutor explained the evidence would show that defendant

remembered what he had done in the course of the killings and related it to the

evaluators. As promised, the prosecutor then presented the testimony of Belmont

Police Officer Joseph Farmer, who related the substance of defendant’s 1986

confessions to the Davies and Turner homicides and the Murphy attempted

murder. Specifically, Farmer testified defendant said that in 1984 he approached


Lance Turner on a trail, stabbed him with a knife in the throat, stomach and chest,

and dragged the body off the trail into the bushes; in November 1981 he invited

John Davies to have some beer and listen to his car stereo, and then at Edgewood

Park took a knife from his car, walked up a hillside with John, stabbed him in the

back and throat, strangled him, hit him over the head with a rock, and pushed the

body 100 feet off the side of the hill; and in 1982 he deliberately ran Stephen

Murphy over with his car, put him into the car, drove him to another undeveloped

part of Belmont and left him there. Defendant contends these facts were irrelevant

to the issues involved in the competency trial, and that he never contested (as by a

claim of amnesia or organic brain damage) that he remembered his actions.

Contrary to defendant’s contention, the evidence of the homicides and

attempted homicide served a legitimate purpose in the competency trial: to

convey to the jurors the essence of the case against which defendant would have to

defend himself, in order that they could assess his understanding of the charges

and ability to assist counsel in his defense. The evidence, moreover, illuminated

defendant’s failure to discuss the facts of the offenses with the mental health

professionals appointed or retained to evaluate him, as contrasted with his earlier,

more forthcoming admissions to law enforcement officers. This, in turn, tended to

support the prosecution’s contention that defendant could rationally assist counsel,

if he so chose. In any event, a minimum of time was spent on the facts of the

homicides, and the jurors were instructed not to be biased against the defendant, or

swayed by sympathy, passion, prejudice, or the possible consequences of their

verdict. Because the trial court did not abuse its discretion in permitting

references to the facts of the Turner and Davies homicides to come before the jury,

defendant was not denied due process. (Cf. People v. Turner, supra, 34 Cal.4th at

p. 427.)


b. Sufficiency of evidence to support competency finding

Defendant contends insufficient evidence supported the jury’s finding of

his competency, that he was in fact incompetent, and that his trial while

incompetent violated state law and his federal constitutional rights of due process,

to the assistance of counsel and to be present during the proceedings against him.

A person cannot be tried or sentenced while mentally incompetent.

(§ 1367, subd. (a).) A defendant is mentally incompetent to stand trial if, as a

result of mental disorder or developmental disability, he or she is unable to

understand the nature of the criminal proceedings or to assist counsel in the

conduct of a defense in a rational manner. (Ibid.; see also Dusky v. United States

(1960) 362 U.S. 402.) A defendant’s trial while incompetent violates state law

and federal due process guarantees. (Pate v. Robinson (1966) 383 U.S. 375, 385;

People v. Pennington (1967) 66 Cal.2d 508, 516-517.) A defendant is presumed

competent unless the contrary is proven by a preponderance of the evidence.

(§ 1369, subd. (f); People v. Medina, supra, 51 Cal.3d at pp. 881-886; see Medina

v. California (1992) 505 U.S. 437, 448-451 [placing burden on defendant to prove

incompetence does not violate due process].) On appeal, the reviewing court

determines whether substantial evidence, viewed in the light most favorable to the

verdict, supports the finding on competency. (People v. Marshall (1997) 15

Cal.4th 1, 31.) Evidence is substantial if it is reasonable, credible and of solid

value. (Ibid.)

The jury heard this evidence during the 1989 competency proceedings:

Court-appointed Psychiatrist Roland Levy, examined defendant for 45

minutes on March 21, 1989, and concluded he was incompetent. Dr. Levy

reported that defendant displayed affect inappropriate to the content of his

conversation and spoke of how a computer, apparently connected to the FBI,

influenced him and was responsible for the killings, but wandered off that subject


and began to talk about such matters as organized crime, government control and

working for secret agencies. Dr. Levy suspected defendant might be experiencing

auditory hallucinations and concluded he could not distinguish his delusions from

reality. Defendant’s delusions had a diffuse quality, while another person with

better organized paranoid schizophrenia could present a delusion in such a way as

to make it almost believable. Dr. Levy considered and rejected the possibility that

defendant was faking mental illness, noting the only deception defendant seemed

to be practicing was his overt denial that he was mentally ill. Dr. Levy diagnosed

defendant as suffering from chronic schizophrenia with paranoid traits. He

observed that defendant was reacting well to the antipsychotic medication Navane

at a dosage that would cause a nonpsychotic person to feel slow and unable to

think. On July 16, 1989, defendant met with Dr. Levy for 45 minutes; the next

day, he refused to meet with him.

The defense then called Psychiatrist James Missett, who had examined

defendant at the prosecution’s request. Dr. Missett met with defendant for 45

minutes on October 7, 1986, and five hours on October 13, 1986; on July 25,

1989, he observed defendant during a 90-minute court hearing and, on another

occasion, for 90 minutes in jail. Dr. Missett diagnosed defendant as having

antisocial and borderline personality disorders and sexual sadism; he ruled out a

diagnosis of schizophrenia, characterizing defendant’s symptoms as inconsistent

with a diagnosis of schizophrenia and his delusions as having a “psychosis of the

day” quality. Dr. Missett believed defendant was malingering and had fooled

other psychiatrists who had arrived at different diagnoses. He concluded

defendant obtained gratification from “jerking people around.”

The defense also called Psychiatrist George Wilkinson, whom the court had

appointed to examine defendant in connection with the competency proceedings.

Dr. Wilkinson examined defendant on several occasions, the first of them on May


27, 1987, when he committed involuntarily defendant, who was acutely psychotic,

to Chope Hospital after an emergency referral by jail staff. His next examination

of defendant, lasting more than 90 minutes, occurred on January 5, 1988, when

defendant reported experiencing hallucinations. Dr. Wilkinson felt that defendant,

who admitted the truth of his confessions but refused to discuss the facts of his

case, was manipulating him. On January 26, 1988, Dr. Wilkinson again examined

defendant, finding him competent but recommending an evaluation at Atascadero

State Hospital to settle the question of whether he was malingering. (The

recommended evaluation did not occur.) After defendant was again committed to

Chope Hospital in May 1988, Dr. Wilkinson examined defendant and concluded

that, although he had experienced psychotic episodes, he could still cooperate with

counsel and was competent to stand trial. On March 1, 1989, after trial counsel

reported deterioration in his relationship with defendant, Dr. Wilkinson attempted

to interview defendant, who refused for delusional reasons to come out of his jail

cell. Then, after a court appearance on July 7, 1989, Dr. Wilkinson saw defendant

for some 45 minutes and found him to be psychotic, with disorganized thinking,

loose associations, auditory hallucinations and inappropriate affect.

Dr. Wilkinson’s two later attempts to see defendant failed when defendant stood in

his urinal and refused to come out of his cell.

Dr. Wilkinson diagnosed defendant as suffering from paranoid

schizophrenia, although his symptoms did not fit all the criteria for that illness. He

viewed defendant’s manipulation of psychiatrists as a self-protective mechanism

to compensate for feelings of humiliation and low self-esteem. At times, however,

defendant would get his attempts to manipulate mixed up with his illness.

Dr. Wilkinson noted defendant’s condition had improved when he was taking

Navane, consistent with someone who has had a genuine psychotic episode.

Dr. Wilkinson agreed with Dr. Levy that defendant lacked the skills to fake a


major mental illness completely. He disagreed with Dr. Missett that variability in

reported delusions meant the patient was faking; indeed, a lack of variation in such

delusions would be more consistent with total faking.

Trial counsel Douglas Gray testified that defendant initially expressed

hostility toward him and disclosed such delusional beliefs as that his former

attorney had killed a California Highway Patrol officer and received hundreds of

thousands of dollars in bribes, from either organized crime or the government, to

stop defendant from pleading guilty. At first defendant only wanted to plead

guilty, but later he developed a working relationship with Gray. That relationship

faltered as defendant’s mental condition deteriorated in the fall of 1988.

Defendant appeared almost emaciated and had not bathed for some time, and by

January 1989 his statements were incomprehensible and disconnected and he

began to refuse to see Gray. When Gray initiated competency proceedings,

defendant reacted negatively, said he would not take psychotropic medication and

did not want to go to Atascadero State Hospital, and declared he was not and had

never been mentally ill. On the first day of competency proceedings, defendant

wore his jail clothes in compliance with counsel’s tactical decision. On the second

day, defendant angrily said he did not want to wear jail clothes but wanted instead

to wear street clothes in order to get a fair trial. Even after being removed to a

holding cell, he screamed at his attorneys. Finally defendant agreed to behave in

court in exchange for the attorneys’ agreement to permit him to wear street clothes

in court. Defendant told Gray he did not want to testify in the competency

proceedings because he was embarrassed and shy about answering questions about

the psychiatrists, who, he maintained, had lied. He indicated that if he could

confine his testimony to the homicides there would be no problem. The attorneys

would not guarantee that, so he did not testify.


Attorney Thomas Nolan testified as an expert in what is needed for a client

to assist rationally in a capital case. Nolan testified that if a person is

uncommunicative due to mental illness, or wants to plead guilty because a

computer was responsible for the crime and refuses to consider an insanity

defense, or prefers communicating with the district attorney over his own counsel,

or sends letters to sheriff’s deputies without telling his counsel, he is not rationally

assisting counsel and is preventing counsel from fulfilling his or her role.

The prosecution presented the testimony of several deputy sheriffs, who

described their interactions with defendant at court and in jail.

On May 6, 1988, Deputy Sheriff Debra Rosengart was assigned to transport

defendant to Chope Hospital. From an area where she could not be seen,

Rosengart observed defendant stop talking to himself when she left his sight; when

Rosengart reappeared to defendant, she saw him resume talking to himself, only to

stop when she told him to do so. While transporting defendant in a van, Rosengart

turned on the radio to drown out his ramblings; he stopped talking and began to

sing along. While walking into the hospital, defendant was silent; after Rosengart

told him to go along to his evaluation, he resumed talking to himself.

Sheriff’s Sergeant Robert Prevot was assigned to the jail in 1987 and 1988

and there had contact with defendant, who was generally very quiet and read and

slept a lot.

On February 16, 1989, Deputy Sheriff Martin Douglas transported

defendant to court. Defendant was quiet until he was called into court, when he

started babbling. As soon as defendant left court after his appearance, Douglas

noticed he stopped babbling.




Southward, who sometimes worked in the jail,

testified he never saw unusual conduct by defendant. Once Dr. Levy came to visit


defendant at his cell; when defendant asserted he did not know the doctor and

Southward described him, defendant refused to meet with him.

Deputy Sheriff John Quinlan testified that while he was assigned to work in

the jail, he never heard defendant make unusual statements. On three to five

occasions Quinlan saw defendant engage in “bizarre” behavior, including refusing

to see family members, refusing to come out for recreation, and smearing a

substance onto his cell window.

Deputy Sheriff David Barrett testified he had known defendant for two

years as a result of his jail assignment and had a great deal of contact with him

over 8 to 12 months. Barrett and defendant conversed about bicycling, movies

and television. When the conversation touched on his crimes, defendant spoke

about computers. Defendant told Barrett he had smeared shampoo onto his cell

window in order to scare away predatory inmates by making them think he was


Joan Davies was trained to work with persons with dyslexia and spent

hundreds of hours, over a four-year period, helping defendant with his reading

skills before her son John disappeared. Mrs. Davies attended the trial. She

testified that when the prosecutor, during his opening statement, incorrectly

asserted that defendant had lived with the Davies family, defendant turned in his

seat, made eye contact with Davies and her husband, and shook his head “no.”

Sacramento County Sheriff’s Department Investigator Robert Bell first

made contact with defendant in 1984, during the murder investigations; after

defendant’s arrest, he occasionally contacted Bell. In February 1988, defendant

complained to Bell that his attorneys were trying to present a “sham” psychiatric

defense in which defendant did not want to participate. Defendant told Bell he

committed the murders because he had received radar transmissions from a large

antenna in Russia instructing him to kill. Bell told defendant he was disappointed


because defendant had earlier confessed and now seemed to be shirking

responsibility. Defendant became quiet and eventually said he wanted to talk

about something else.

Belmont Police Detective Joseph Farmer testified to the contents of

defendant’s 1986 confessions, including the details of the Davies and Turner

homicides and the assault on Stephen Murphy.

Defendant contends this evidence was insufficient to support the jury’s

competency finding. In particular, he urges that Dr. Missett’s opinion – that he

was competent and malingering – was contrary to facts of record and to

uncontested medical and scientific facts. Here, defendant asserts, the only

substantial evidence was that he was psychotic, no evidence to the contrary was

presented, and no evidence showed that even if he was psychotic he nevertheless

was competent to stand trial.

We disagree. The opinions of the various experts stood in conflict, and in

assessing their testimony the jury was entitled to consider that Dr. Missett had

more than five hours of contact with defendant in 1986 against which to evaluate

his behavior during the 1989 competency proceedings. The jury also heard that

Dr. Wilkinson, in two 1988 reports, had found defendant competent and changed

his mind after a March 1, 1989, contact that lasted only 15 minutes. Although

Dr. Wilkinson saw defendant again on July 7, 1989, for 45 minutes and found him

to be psychotic, he felt less than total (i.e., only 75 to 80 percent) certainty that

defendant was incompetent. Dr. Levy had briefer contact with defendant than had

Dr. Missett (two 45-minute evaluations), from which the jury could infer that Dr.

Missett’s opinion was entitled to greater weight. Although defendant argues his

behavior fit the classic model of incompetency, in that – like truly psychotic

people – he sometimes insisted he was not mentally ill and refused to see the

psychiatrists who were in a position to assist him in avoiding his criminal trial


through a finding of incompetency, the jury was entitled to consider that, during

his first competency trial the year before, defendant had heard expert witnesses

describe the behavior of genuinely psychotic persons and the ways malingerers go

wrong in feigning mental illness. The jury, moreover, was aware that defendant

had the opportunity to observe the behavior of psychotic persons while in the

locked psychiatric ward at Chope Hospital, and heard Dr. Wilkinson testify that

defendant was cunning and manipulative, and derived gratification from

frustrating psychiatrists.

Defendant cites evidence that he responded favorably to antipsychotic

medications, which only a psychotic person can tolerate without becoming sleepy

and clouded in thinking; on Navane, defendant related better to people, was less

hostile, had less trouble controlling his impulses, and apparently experienced none

of the sedation that would be expected in a nonpsychotic person taking the drug.2

Defendant also criticizes as scientifically invalid Dr. Missett’s reliance on a

definition of schizophrenia as involving fixed, firm delusions (and his resulting

opinion that because the reported details of defendant’s delusional material varied

from time to time, he must be making up the material as he went and therefore was

malingering), noting that other experts acknowledged the existence of types of

schizophrenia involving fluctuating or variable delusions. But whether defendant


In contesting the sufficiency of the evidence to support the 1989

competency finding, defendant cites extensively from the record of his earlier
1988 competency hearing, Dr. Missett’s testimony in the penalty phase of the
criminal trial, and the record of an evidentiary hearing held in 1999 to determine
defendant’s competency with respect to postconviction habeas corpus
proceedings. While the record of the penalty phase might shed light on whether
defendant was actually competent to stand trial, neither it nor the 1988
competency proceeding is directly relevant to the question whether substantial
evidence supported the 1989 competency verdict. The 1999 hearing is not a part
of the record on appeal, and any claims arising from it must be raised by petition
for writ of habeas corpus.


was in fact mentally ill and, if so, his precise diagnosis was not determinative of

his competency. Dr. Wilkinson testified one can be both paranoid schizophrenic

and competent to stand trial. The testimony of Dr. Missett and the lay witnesses

describing defendant’s behavior, taken together (see People v. Marshall, supra, 15

Cal.4th at pp. 31-32), provide substantial evidence to support the jury’s finding

that defendant understood the nature of the criminal proceedings and had the

ability to assist his counsel in a rational manner (§ 1367, subd. (a)).

c. Asserted flaws in CALJIC No. 4.10 and reliability of competency


As requested by the parties, the trial court instructed the competency phase

jury with CALJIC No. 4.10 as follows: “In this proceeding you must decide

whether the defendant is mentally competent to be tried for a criminal offense. [¶]

This is not a criminal proceeding and the innocence or guilt of the defendant of the

criminal charge against him is not involved nor is the question of his legal insanity

at the time of the commission of the offense involved. [¶] Although on some

subjects his mind may be deranged or unsound, a person charged with a criminal

offense is deemed mentally competent to be tried for the crime charged against

him, if: [¶] One, he is capable of understanding the nature and purpose of the

proceedings against him; two, he comprehends his own status and condition in

reference to such proceedings; and three, he is able to assist his attorney in

conducting his own defense in a rational manner. [¶] The defendant is presumed

to be mentally competent. The effect of this presumption is to place upon the

defendant the burden of proving by a preponderance of the evidence that he is

mentally incompetent as a result of a mental disorder.”



this instruction was flawed in several respects.

The Attorney General urges that trial counsel, by joining in the prosecutor’s

request for the instruction, invited any error and that defendant therefore is barred


from raising these contentions on appeal. On the record before us, we cannot say

that trial counsel both “ ‘intentionally caused the trial court to err’ ” and did so for

“ ‘tactical reasons.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)

Reviewing the merits of defendant’s argument, we find no error.

First, defendant argues the instruction improperly permitted the jury to find

him competent if it believed he had a mental disorder but could be made able to

assist his counsel in a rational manner if he were administered antipsychotic

medications. Defendant observes that the evidence – including his own statements

and the fact that, once returned to jail after each of his involuntary commitments,

he stopped taking the medication he had been compelled to take while in the

hospital – indicated he would not voluntarily ingest them. Such a predicate to a

competency finding, he contends, would violate both the federal Constitution and

state law. He argues that because it cannot be discerned from the general verdict

of competency whether the jury based its finding on permissible or impermissible

considerations, the judgment cannot stand.

Defendant acknowledges that a recent decision of the United States

Supreme Court permits, under certain circumstances, the involuntary

administration of antipsychotic medications in order to make a criminal defendant

competent to stand trial. (Sell v. United States (2003) 539 U.S. 166 (Sell).) To be

consistent with the federal Constitution’s protection of a defendant’s liberty

interest, Sell holds such medication must be medically appropriate, substantially

unlikely to have side effects that may undermine the fairness of the trial, and,

taking account of less intrusive alternatives, necessary to significantly further

important governmental trial-related interests, and the trial court must so find.

(Sell, supra, 539 U.S. at pp. 180-181, 186; Riggins v. Nevada (1992) 504 U.S. 127,

135-136 [the Sixth and Fourteenth Amendment rights of a fair trial and due

process demand that, when a criminal defendant files a motion to terminate the


administration of antipsychotic medication during trial, the state must establish the

need for, and medical appropriateness of, the medication]; Washington v. Harper

(1990) 494 U.S. 210, 222-227 [state law that provided convicted prisoners with

administrative rather than judicial review of involuntary medication orders

adequately protected constitutional liberty interests].) Defendant contends that,

because the jury might have believed he would be competent only if medicated,

because the trial court here did not make the findings required by Sell, and because

the record indicates he was not voluntarily taking medication at the time of the

1989 competency trial, and indeed shows that he refused to take prescribed

psychotropic medication after his release from each of his several involuntary

commitments to Chope Hospital, the jury’s finding of competency is invalid.

As the Attorney General observes, because this case does not involve an

effort to forcibly medicate defendant, the Sell findings were not required. For the

same reason, the jury’s finding of competency here is not invalidated by decisions

such as Thor v. Superior Court (1993) 5 Cal.4th 725, 732, recognizing the right of

convicted prisoners to refuse medical treatment, Keyhea v. Rushen (1986) 178

Cal.App.3d 526, 530, 542, recognizing the right of prisoners to refuse

psychotropic medication absent a judicial finding of grave disability, and Riese v.

St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1308,

recognizing the right of psychiatric patients involuntarily committed to mental

health facilities under Welfare and Institutions Code sections 5150 and 5250 to

refuse antipsychotic medications absent a judicial determination of their incapacity

to make treatment decisions. (See also In re Qawi (2004) 32 Cal.4th 1, 10 [in

nonemergency situations, a competent mentally disordered offender cannot be

forced to take antipsychotic medications absent a judicial finding of



The evidence tending to show that defendant was competent to stand trial

was not predicated on his being administered antipsychotic medications. As

noted, Dr. Missett testified defendant was malingering and not psychotic, and

diagnosed defendant instead with antisocial personality disorder and sexual

sadism. Jail personnel testified defendant generally behaved normally in custody,

supporting an inference that he was not psychotic. Nor did the evidence tending to

show that defendant was incompetent directly posit that medication was necessary

to make him competent: Dr. Wilkinson merely acknowledged that defendant

might regain his competency and previously had benefited from taking

antipsychotic medication. Neither the prosecutor nor defendant’s counsel, in their

closing arguments, touched on the subject of defendant’s taking medication during

trial or being made competent as a result of medication. Thus, given the state of

the evidence and argument, there was no foundation for a jury finding that

defendant was competent based on an assumption that he would be administered

antipsychotic medication, voluntarily or otherwise. The trial court therefore had

no obligation to instruct the jury as defendant now argues, i.e., that to return a

verdict of competency on a theory that defendant was competent only if

administered antipsychotic medication, it must find either that he would

voluntarily take his medications or that the Sell factors were present. For the same

reason, contrary to defendant’s argument the competency verdict is not inherently

vague or ambiguous.




that the definition of competency in CALJIC No.

4.10 is inconsistent with that mandated in Dusky v. United States, supra, 362 U.S.

402, and thus fails to satisfy the requirements of due process. Specifically, he

argues that a person who “is able to assist an attorney in conducting his own

defense in a rational manner” (CALJIC No. 4.10) does not necessarily have

“ ‘sufficient present ability to consult with his lawyer with a reasonable degree of


rational understanding’ ” as Dusky requires. (Dusky v. United States, supra, 362

U.S. at p. 402.) Defendant asserts that “consult,” properly understood, means

actively to “deliberate together” with counsel, or in other words to “think about or

discuss issues and decisions carefully,” concepts assertedly missing from CALJIC

No. 4.10. We previously have observed that the language of section 1367, from

which CALJIC No. 4.10 is drawn, “does not match, word for word, that of Dusky.

But as the Court of Appeal noted in James H. v. Superior Court (1978) 77

Cal.App.3d 169, 177 [143 Cal.Rptr. 398], ‘To anyone but a hairsplitting

semanticist, the two tests are identical.’ ” (People v. Stanley (1995) 10 Cal.4th

764, 816.) Contrary to defendant’s suggestion, CALJIC No. 4.10 requires more

for a competency finding than evidence that a defendant is oriented to time and

place, has a factual understanding of his circumstances, and recalls the events in

question. Defendant’s point therefore lacks merit.




Medina v. California, supra, 505 U.S. at pages

450-451, held it consistent with due process to place the burden of proof of

incompetency on the defendant, in part because defense counsel often has the best

informed view concerning a defendant’s inability to assist in his own defense.

Defendant suggests that CALJIC No. 4.10 vitiates the predicate of Medina, and

thereby rendered it unconstitutional to impose on him the burden of proof of

incompetency, by failing to tell the jury, which might otherwise perceive Gray as a

partisan advocate, not to discount his testimony merely because of his status as

defendant’s attorney, or otherwise to convey that an attorney is an officer of the

court who has special obligations to the court before which he or she appears.

Defendant contends the trial court exacerbated this problem by instructing the

jury, using CALJIC Nos. 2.20 and 1.02, to consider possible bias and motive in

determining a witness’s credibility and that statements by attorneys are not

evidence. If defendant believed CALJIC No. 4.10 required elaboration or


clarification in this regard, however, it was incumbent on him to request it.

(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 122; People v. Cox (1991)

53 Cal.3d 618, 669; People v. Reed (1952) 38 Cal.2d 423, 430.) And, as discussed

below (see post, pp. 42-43), nothing in the instruction invited the jury to disregard

Gray’s testimony. The giving of the instruction did not deny defendant due


Defendant further contends that CALJIC No. 4.10, as given in this case,

was deficient because it failed to give the jury sufficient guidance regarding the

various constitutional rights implicated in a criminal trial and failed to tell the jury

how much and what kind of assistance a defendant must be able to provide

counsel. As the Attorney General observes, however, the terms contained in

CALJIC No. 4.10, including the word “assist,” are ones of ordinary usage. None

has a technical meaning peculiar to the law on which the trial court was required

to instruct absent a specific request. (People v. Roberge (2003) 29 Cal.4th 979,

988.) If defendant believed the instruction required clarification or elaboration, he

had the burden of requesting it. (People v. Coffman and Marlow, supra, 34

Cal.4th at p. 122.) Defendant’s contention thus lacks merit.

d. Failure to instruct jury it could find defendant competent only if

he would satisfy criteria for competency throughout capital trial




CALJIC No. 4.10, as given, was defective in that it

failed to convey to the jury that a defendant must meet the criteria for competency

for the duration of the capital proceedings. He argues the instruction permitted the

jury to find him competent even if it believed he suffered from schizophrenia and

might not have been able to maintain his competency throughout the entire trial.

The asserted error was prejudicial, he maintains, because the record shows his

condition waxed and waned, so that he was sometimes lucid but at other times



As the Attorney General points out, defendant asked the trial court to

instruct the jury with CALJIC No. 4.10 and never requested a modification or

clarification along these lines. The contention, therefore, is forfeited for appellate

purposes. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 122.) In any

event, the point lacks merit. To demand that the jury predict the course of

defendant’s competency throughout a capital trial of indeterminate length would

be to insist on speculation. More important, as the Attorney General reasons,

section 1368 provides for the institution of additional competency proceedings

should a substantial change of circumstances or the emergence of new evidence

cast doubt on the earlier finding of competency. Due process requires no more.

e. Trial court’s response to jury request for “legal definition” of

“rational manner”

During deliberations, the jury sent the court a note asking for a “legal

definition” of the term “rational manner,” as used in CALJIC No. 4.10. Out of the

jury’s presence, the court discussed the request with counsel. After conducting

research, the court and counsel could find neither a judicial decision defining the

term nor a dictionary definition to which all parties would agree. Accordingly, the

court instructed jurors “to rely upon the common understanding of the meaning of

the word,” and reread to them the first paragraph of CALJIC No. 1.01, which

directed them not to single out any particular sentence, point or instruction, but to

consider the instructions as a whole. Defendant contends that by referring the jury

to the common understanding of the term, the court failed in its duty to assist the

jury to understand the issue before it, depriving him of a reliable competency

verdict under the Sixth, Eighth and Fourteenth Amendments to the federal


The Attorney General asserts that defendant forfeited the issue for appellate

purposes by approving the trial court’s response, but the record reflects that his


trial counsel objected to the court’s proposed response and suggested a different

one of his own devising, which the court declined to give. Counsel was not

required to continue to argue the point in order to preserve it for appeal.

On the merits, however, we see no reasonable likelihood (People v. Barnett

(1998) 17 Cal.4th 1044, 1161) that the trial court’s response could have led the

jury to misunderstand the nature of its task. That the jury expressed some

uncertainty over the “legal definition” of the term “rational manner,” and the

parties could not agree on a definition, does not mean that the term has a technical

meaning, peculiar to the law, on which the court had an obligation to instruct the

jury. (See People v. Howard (1988) 44 Cal.3d 375, 408.) Thus, the trial court was

not remiss in failing to instruct in the manner that defendant now argues.

Our conclusion is unaffected by the circumstance that the court followed

this advice with a rereading of CALJIC No. 1.01. Nothing in the instruction

would have caused the jury to minimize the importance of the competency


f. Refusal to permit evidence, and failure to instruct, that defendant

would still be subject to criminal prosecution if found incompetent

Counsel sought to inform the jury, through the testimony of defense

experts, what would happen if defendant were found incompetent to stand trial.

When counsel asked Dr. Levy whether there was “a way to get Mr. Dunkle

competent,” the trial court sustained the prosecutor’s objection on grounds of

relevancy. When counsel examined Dr. Wilkinson about his February 1988

recommendation that defendant be sent to Atascadero State Hospital for further

evaluation, asking what “Atascadero” was, the trial court again sustained the

prosecutor’s objection on relevancy grounds. During the examination of Trial

Counsel Douglas Gray, counsel asked what Gray had told defendant about the

procedures occurring after the competency trial. When the prosecutor objected on


grounds of relevancy, counsel explained that the information was relevant to

defendant’s motivations. The trial court permitted the testimony, instructing the

jury that Gray’s response was admitted only on the question of how much

defendant understood of what he was told. Gray then answered: “I told him if he

were found incompetent in these proceedings that the criminal proceedings would

remain suspended, [essentially] on hold, and he would be sent to a state hospital,

most likely Atascadero State Hospital here in California where he would be treated

for his mental condition. [¶] I told him that he would be required to take

medication, that he would not have a choice as to whether or not to take it, and

that efforts would be made to restore him to competency through treatment and

medication, and that there would be further proceedings to either evaluate whether

or not he had been restored to competency or to simply check and see if he had

been. [¶] I told him that if he were found to be competent then we would resume

the normal criminal proceedings.” The court instructed jurors that “the possible or

potential outcome of your verdict . . . is something that is not to concern you . . .

normally a jury is not told what the outcome of their verdict may be, what will

happen one way or the other.”

Defendant now contends the trial court erred in sustaining the prosecutor’s

objections to the questions quoted above, and in failing to instruct on the legal

consequences of a verdict of incompetency.

We see no abuse of discretion in the trial court’s evidentiary rulings. As

the trial court noted, the nature and functions of Atascadero State Hospital were

not in issue in this case, and permitting testimony about whether or how defendant

could “get competent” would have invited the jury to consider matters outside its

function of determining defendant’s competency.

We further conclude that defendant forfeited his claim of instructional error

by failing to request the instruction he now contends the trial court should have


given, and that, in any event, the trial court did not err in failing to give the

instruction on its own motion.

Defendant analogizes this case to People v. Moore (1985) 166 Cal.App.3d

540 (Moore). There, the Court of Appeal held a defendant was entitled to an

instruction on the consequences of a verdict of not guilty by reason of insanity, a

subject now covered in CALJIC No. 4.01. (166 Cal.App.3d. at p. 549.)

Acknowledging that a jury should not consider the subject of penalty or

punishment in arriving at its decision on a criminal defendant’s guilt or innocence,

the Moore court noted that, unlike the significance of either of those verdicts, the

consequence of a verdict of insanity is not commonly known to jurors. (Id. at pp.

552-554.) Without an appropriate instruction, the Moore court reasoned, the jury

likely would speculate on what might happen to a defendant found not guilty by

reason of insanity, and might wrongly assume he or she would walk free, like a

defendant found not guilty for other reasons. (Id. at p. 554.) The Moore court

concluded “the danger of an erroneous assumption during jury deliberations

overshadows any possible invitation to speculate on matters likely to be discussed

anyway.” (Ibid. )

We have declined to apply Moore outside its original context (People v.

Marks (2003) 31 Cal.4th 197, 222 [finding no error in the trial court’s refusal of a

flawed instruction, requested by the defense, regarding the consequences of a

verdict of incompetency]), and do so again here. Because the outcome of any

future efforts at restoring a defendant to competency is uncertain at the time when

the jury must make its decision on competency, an instruction patterned after

Moore and CALJIC No. 4.01 is necessarily speculative. Thus, even had defendant

preserved his claim of error in failing to give such an instruction, it would fail.


g. Failure to instruct jury regarding defendant’s admissions

Defendant contends the trial court erred prejudicially under state law and

violated federal due process principles in failing to instruct the competency phase

jury, on its own motion, with CALJIC No. 2.71, to view his admissions with

caution.3 Acknowledging we have held that trial courts are not required to give

this instruction without a request in the penalty phase of trial (People v. Livaditis

(1992) 2 Cal.4th 759, 782-784), he observes we have recently reiterated the rule

requiring such an instruction, even absent a request, in the guilt phase (People v.

Slaughter (2002) 27 Cal.4th 1187, 1200-1201). Defendant argues that a

competency trial more resembles a guilt trial than it does a penalty trial, in that –

unlike a normative sentencing decision – it results in a “binary yes/no”

determination, in which an affirmative determination of competency is “always

unfavorable” to a defendant. We disagree. “Defendant’s contrary argument is

premised on the false belief a defendant in a competency proceeding has only one

interest – to be found incompetent. However, unlike a criminal defendant, whose

legal interest lies in being found not guilty whether he is guilty or not, the

defendant in a competency proceeding has not only the right not to be tried for a

criminal offense when he is incompetent; he has an equally important interest in

not being sent to a mental institution with his criminal case unresolved, if he is

competent.” (People v. Stanley, supra, 10 Cal.4th at pp. 805-806.)




People v. Livaditis, supra, 2 Cal.4th at pages 782-784,

recognized that a defendant’s statement, admitted during a penalty trial, may be


In his opening brief, defendant contended the trial court also should have

instructed, on its own motion, with CALJIC No. 2.71.5, but in his supplemental
briefing he acknowledges that in People v. Carter (2003) 30 Cal.4th 1166, we held
that instruction generally need not be given absent a request. (Id. at pp. 1197-
1198.) Defendant nevertheless contends the trial court in this case should have
instructed the jury with CALJIC No. 2.71 “as to all evidence of purported
admissions by [defendant], whether direct or adoptive in nature.”


subject to varying interpretations and thus may tend either to mitigate or to

aggravate; thus, we concluded, at this phase of trial an obligation to instruct,

absent a request, is inappropriate. The same reasoning applies here with equal

force. Because juries – and witnesses – may disagree over whether a particular

communicative act or statement by a defendant reflects competency or its

opposite, an instruction cautioning a jury to view a defendant’s admissions,

whether direct or adoptive, with caution should be given only on request.

Defendant’s contention, consequently, lacks merit.

h. Assertedly misleading instruction on expert testimony

The trial court instructed the jury in accordance with CALJIC No. 2.80 as

follows: “A duly qualified expert may give an opinion on questions in

controversy at a trial. To assist you in deciding such questions, you may consider

the opinion with the reasons given for it, if any, by the expert who gives the

opinion. [¶] You may also consider the qualifications and the credibility of the

expert. You are not bound to accept an expert opinion as conclusive but should

give it the weight to which you find it to be entitled.” (See § 1127b [requiring the

trial court, when the opinion of any expert is received in evidence, to instruct in

substantially the above terms, and stating no further instruction on the subject of

opinion evidence need be given].)

Defendant contends this instruction was deficient because it merely

permitted, but did not require, the jury to consider the factual premises underlying

the expert’s opinion. This omission, he urges, misled the jury to believe that, to be

given weight, an expert’s opinion need not be founded on any reasons. Thus,

defendant argues, the instruction as given caused the jury to accept uncritically

Dr. Missett’s opinion that defendant was malingering rather than incompetent. He

observes that CALJIC No. 2.80 was revised, after his trial, to provide that the jury


should consider, in addition to the witness’s qualifications and believability, “the

facts or materials upon which each opinion is based, and the reasons for each

opinion.” (CALJIC No. 2.80 (6th ed. 1996).) Because the asserted error affected

the reliability of the jury’s verdict, he contends, it denied him due process of law

under the Fourteenth Amendment to the federal Constitution.

As the Attorney General points out, defendant requested this instruction,

without requesting it be modified along the lines he now asserts was necessary. If

defendant believed the instruction was incomplete, it was incumbent on him to ask

the trial court to clarify or supplement it. (People v. Cole (2004) 33 Cal.4th 1158,

1211.) In any event, we see no reasonable likelihood the jury would have

understood the instruction in the manner defendant contends. (Estelle v. McGuire

(1991) 502 U.S. 62, 72; People v. Clair (1992) 2 Cal.4th 629, 663.) The

instruction told the jury it should consider the “reasons” supporting the expert’s

opinion; that the jury would not have understood this term to encompass the

factual assumptions underlying the opinion is implausible.

i. Asserted error in instructing jury with CALJIC Nos. 1.00, 1.02

and 1.03

Defendant contends the trial court erred in giving the jury the standard

instructions that statements made by the attorneys during the trial are not evidence

(CALJIC No. 1.02), that jurors must determine the facts from the evidence and no

other source (CALJIC No. 1.00), and that they must not independently investigate

the facts (CALJIC No. 1.03). The problem with these instructions, defendant

asserts, is that they invited the jury to disregard the testimony of Douglas Gray,

defendant’s counsel at the guilt and penalty phases of trial, who testified in the

competency phase concerning defendant’s interaction with him.

The Attorney General points out that defendant requested these instructions

and argues he therefore invited any error. We agree: Although counsel did not


expressly articulate a tactical purpose in requesting the instructions, that he did so

in order to ensure the jury did not consider statements made by the prosecutor as

evidence seems likely. (See People v. Coffman and Marlow, supra, 34 Cal.4th at

p. 49.) We also agree with the Attorney General that defendant fails to

demonstrate a reasonable likelihood that the jury misapplied the challenged

instructions. (Estelle v. McGuire, supra, 502 U.S. at p. 72; People v. Clair, supra,

2 Cal.4th at p. 663.) The trial court and the parties informed the jurors, during voir

dire, that they would be asked to consider the testimony of two attorney witnesses,

Gray and Nolan. Neither party suggested that jurors disregard Gray’s testimony

because of his status as defendant’s counsel in the criminal trial. Indeed, the

prosecutor cited portions of Gray’s testimony in his closing argument. The giving

of these instructions did not constitute error.

j. Cumulative error

Defendant contends that multiple instructional errors in his 1989

competency trial cumulatively resulted in prejudice and require reversal of the

judgment. As we have found no instructional error, we reject this contention.

3. May 1988 competency trial

a. Evidence presented

As discussed more fully above (see ante, p. 17), defendant’s first

competency trial commenced as his second involuntary commitment under

Welfare and Institutions Code section 5150 was ending. In the May 1988 hearing,

Psychologist William Horstman testified he had spent nine hours with defendant

between February and May 1988; based on his observations, he concluded

defendant was psychotic, grossly incompetent, and not malingering. Dr. Horstman

thought defendant understood the nature of the charges, but his understanding of

the proceedings was questionable. Dr. Horstman believed defendant could not


cooperate in his own defense because of his delusions about his attorney and the

prosecutor, but that he could be made competent with antipsychotic medication.

Dr. George Wilkinson, who had spent about three hours with defendant

between December 1987 and May 1988, testified it was a close question whether

defendant was competent. When Dr. Wilkinson wrote his report in February

1988, defendant was generally not psychotic and had a good understanding of his

case, but in May 1987, when first admitted to Chope Hospital, he had been floridly

psychotic. Dr. Wilkinson leaned toward finding defendant competent, but thought

his competency might be impaired if he discontinued his medications.

Psychiatrist James Missett examined defendant in October 1986, at the

prosecution’s behest, to determine his state of mind at the time of the offenses, and

testified about defendant’s mental state at the time of that examination.

Dr. Missett diagnosed defendant as having mixed personality disorder with

borderline features, a history of drug abuse, sexual sadism, and sociopathy, but no

psychosis. Dr. Missett believed, however, that defendant’s personality disorders

were not necessarily inconsistent with the psychotic features described in the 1988

Chope Hospital records.

Dr. Charles Casella examined defendant on several occasions in November

1987 and January and May 1988, and testified defendant had some understanding

of the proceedings and the role of his attorneys, but also expressed some

delusional thinking about his attorney. Casella concluded defendant had

experienced genuine psychotic episodes and was not malingering, but was

competent at the time of his May 1988 interview. In Casella’s view, the primary

factor determining whether defendant’s psychotic symptoms would abate was

medication, and whether defendant would continue to take it was difficult to



The prosecution presented several nonexpert witnesses, including law

enforcement and jail personnel. Their testimony supported an inference that

defendant generally acted and spoke normally, and that he appeared capable of

ceasing any strange behavior at will.

At the conclusion of the hearing, the court found defendant competent.

b. Claims raised





proceedings conducted in May 1988

were flawed in some of the same respects as his 1989 competency trial.

Specifically, he contends that the court in the 1988 proceedings applied the wrong

legal standard by finding him competent provided he were to be medicated if he

ceased to be willing to cooperate with his counsel (see pp. 31-33, ante); and that

the competency verdict was unreliable because it depended on the fulfillment of a

condition subsequent (i.e., the administration of psychotropic drugs) (see p. 33,

ante). Additionally, observing the proceeding took place while defendant was

completing a 14-day hold at Chope Hospital under Welfare and Institutions Code

section 5250, he contends that the trial court erred in refusing to hold the hearing

at a time when defendant was not receiving medication (see pp. 31-33, ante).

In finding defendant competent to stand trial in May 1988, the trial court

remarked: “There has been some discussion, both during the hearing and in

argument, about what slice of the time we’re looking at, and for the purpose of my

ruling, I think I should make it clear that I am incorporating, at least to some

extent, the concept of the reasonable present time, rather than some microsecond

in time. I think that is actually part and parcel of the concept of being competent

to stand trial. I don’t think that implies that the person’s competent – that

competency is determined based on a person’s ability to make it through the first

twenty minutes of a trial. I think that standing trial implies going through a trial.


“And I do find, based on the evidence presented, that Mr. Dunkle is

competent to stand trial within that definition.

“I think it’s clear that he’s able to both understand the nature of the

proceedings and to cooperate with his counsel in a meaningful way.

“Whether or not he will cooperate with counsel is perhaps a separate

question and is a question that may be difficult to answer with respect to any

defendant in a criminal case, wholly without regard to any mental condition that

he may have.

“I recognize that it may require continued medication for Mr. Dunkle to

remain willing to cooperate with his counsel, but I – I do find by a preponderance

of the evidence, certainly, that he is able to do so. And based on that ruling, I will

reinstate the criminal proceedings.”

Thus, the trial court’s ruling was not, contrary to defendant’s argument,

“conditioned” on his continued ingestion of psychotropic medications or reflective

of a misunderstanding of the relevant legal standard. Instead, the court essentially

acknowledged the evidence showing the utility of such medications in maintaining

defendant’s willingness to cooperate with counsel, and the possibility that he

would become unwilling to do so if he discontinued his medication. The court

also was aware of testimony by Drs. Casella and Wilkinson and of a stipulation

between the parties that defendant had at times refused to take his prescribed

medication. Apparently, however, this evidence, in the trial court’s view, did not

outweigh the evidence showing defendant was presently competent. Any attempt

to predict whether defendant would continue to comply with his medication

regimen necessarily would have been speculative, and would not have reached the

ultimate question whether, assuming defendant ceased taking medication, his

condition would deteriorate to the point that he no longer would be able to

cooperate with counsel. As the trial court no doubt recognized, moreover, such a


significant change in defendant’s condition would warrant the institution of

renewed competency proceedings, as in fact happened. Accordingly, based on the

evidence before it, the trial court did not err in finding defendant competent in

1988. For the same reason, defendant’s claim that the competency finding was

unreliable because it depended on the fulfillment of a condition subsequent lacks


We likewise reject defendant’s contention that the trial court erred in

refusing to hold the competency hearing at a time when defendant was not

receiving psychotropic medication. As the Attorney General observes, there is

limited evidence concerning how, or to what extent, defendant’s recent ingestion

of medication could have masked his incompetence from the experts or the court.

Nor was there evidence that medication negatively affected defendant’s

understanding of the proceedings or his ability to cooperate with counsel. The

expert witnesses were aware of defendant’s hospital and jail records reflecting

what he was prescribed and what he ingested, and presumably took such

information into account in formulating their opinions.

Having rejected defendant’s specific claims of error, we further reject his

claim that the cumulative impact of those asserted errors dictates reversal.

4. Failure to hold another competency trial in June 1988

On June 17, 1988, several weeks after the trial court found defendant

competent to stand trial, a different superior court judge held a hearing, outside the

presence of the prosecutor, on defendant’s motion for substitute counsel. (See

People v. Marsden, supra, 2 Cal.3d 118.) In attempting to explain to the court

why he wanted his attorneys, Vincent O’Malley and Philip Barnett, relieved and

the district attorney appointed in their stead, defendant accused O’Malley of

having killed a California Highway Patrol officer and both of taking a $275,000


bribe, from either the FBI or the Central Intelligence Agency, to get him into a

mental hospital. Barnett observed that defendant appeared to believe his attorneys

were operating against his interests, and invited the court to inquire into the basis

of that belief. Lacing his comments with profanity and vulgar epithets, defendant

complained that, among other things, counsel were failing to provide him with

“proper legal material.” In response to the court’s request for comment, O’Malley

said: “I think [defendant’s allegation] is so incoherent that I don’t believe in my

own mind that Mr. Dunkle is even competent to proceed with the Marsden


After the prosecutor returned to the courtroom, Barnett declared a doubt as

to defendant’s competency to cooperate with counsel. The court asked Barnett, in

essence, to explain how defendant’s condition had changed. Barnett answered

that, at the competency trial, defendant did not appear to be incoherent; in contrast,

defendant was now “on medication, and it’s my belief that his mental and

emotional condition are different now than they were at the time the judge made

his decision.” Barnett then made an offer of proof “that a Ph.D., clinical

psychologist employed by the defense, examined Mr. Dunkle on Saturday or

Sunday and told me that in her opinion Mr. Dunkle was completely incompetent to

proceed to trial and to cooperate with counsel.” In response to the court’s request

for a written report, Barnett acknowledged none had been prepared. In opposition,

the prosecutor asserted that, during the earlier competency proceeding, the defense

had presented evidence of conduct similar to that which defendant was displaying

and counsel was describing.

The court denied the request to institute competency proceedings “without

prejudice to the defense presenting me with some evidence that there are some

new facts in the case. And I’ll accept a written report from the psychiatrist or



Defendant contends the trial court erred in refusing to order another

competency hearing. He acknowledges that, given the May 1988 finding that

defendant was competent, a new competency hearing was required only upon a

substantial change in circumstances, or new evidence that cast serious doubt on

the earlier finding. (People v. Frye (1998) 18 Cal.4th 894, 1005.) He nevertheless

argues that the new evidence of incompetency deprived the judge of the discretion

not to order a hearing. (People v. Pennington, supra, 66 Cal.2d at pp. 518-519.)

That is, defendant contends his attorney’s assertion that his condition had

deteriorated, together with the intrusion of his paranoid thinking, which he had

previously expressed only outside of court, into the proceedings and the offer of

proof of the unidentified psychologist’s opinion that he was incompetent,

compelled the suspension of criminal proceedings and the institution of another

competency hearing. Defendant argues the trial court further erred in refusing to

hear testimony by the psychologist.

We disagree. First, counsel’s unparticularized assertion that defendant’s

condition had deteriorated, with no explanation of how it had done so, essentially

amounted to no more than an invocation of the legal standard for institution of

renewed competency proceedings after an initial determination of competency.

Second, defendant’s asserted belief that O’Malley had killed a CHP officer, and

similar paranoid thinking, was, as defendant acknowledges, not a new

development. Finally, even the proffered opinion of the unidentified psychologist

that defendant was incompetent, without further specifics, would not necessarily

compel the trial court to declare a doubt regarding competency, given that some

other mental health professionals had also testified defendant was incompetent.

The defense apparently never took up the court’s invitation to submit a written

report by the psychologist, in which specific indications of a substantial change in

circumstances might have been laid out. In any event, even were we to agree that


the trial court erred in failing to institute competency proceedings on June 17,

1988, the question of defendant’s competency was eventually relitigated the

following year. Defendant thus was not forced to stand trial while a doubt existed

regarding his competency.

5. Failure to grant defendant immunity

Defense counsel wished to have defendant testify during the May 1988

competency hearing, but wanted to preclude the prosecution from using any of

defendant’s testimony in a future trial of his guilt. Accordingly, counsel asked the

court to grant defendant immunity for anything he might say on the witness stand.

The trial court refused to do so. Defendant neither testified nor made a proffer of

testimony. Defendant contends the ruling denied him due process of law and a

reliable competency determination.

Although we have characterized as “doubtful” the general proposition that a

trial court has the inherent authority to grant immunity to a defense witness

(People v. Lucas (1995) 12 Cal.4th 415, 460), defendant relies on an exception

first recognized in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 470

(Tarantino), and approved in People v. Arcega (1982) 32 Cal.3d 504, 521-523,

under which statements that a defendant makes in the course of a mental

competency examination pursuant to section 1369 may not be used in a trial on the

question of his guilt. The immunity created by Tarantino, however, is designed to

obviate the compelled self-incrimination inherent in a court-ordered competency

examination. (Tarantino, supra, 48 Cal.App.3d at p. 469 [“As to the right against

self-incrimination, we find no violation in compelling a defendant to submit to

examination by court-appointed psychiatrists under section 1367 et seq., at least

under a judicially declared immunity reasonably to be implied from the code

provisions.”]; People v. Arcega, supra, 32 Cal.3d at p. 522 [“This rule [of


immunity] is necessary to ensure that an accused is not convicted by use of his

own statements made at a court-compelled examination.”].) A defendant’s

voluntary choice to take the stand during the competency trial falls outside the

scope of the Tarantino immunity.

People v. Harris (1987) 192 Cal.App.3d 943, on which defendant relies, is

not inconsistent with this conclusion. That case held that, if the prosecution

wishes to rebut defense testimony concerning the defendant’s mental capacity to

commit an offense, it must conduct a psychiatric examination using psychiatrists

or psychologists other than those who examined the defendant for the purposes of

determining competency to stand trial. (Id. at p. 949.) The Harris court also

concluded that a defendant who takes the stand to testify in his own behalf during

the guilt trial does not waive the immunity conferred on his statements made to

mental health professionals in the course of the competency examination. (Ibid.)

It did not hold that a defendant is entitled to testify under a grant of judicial

immunity during the competency trial. Contrary to defendant’s argument, in

acknowledging before the trial court that defendant’s statements to mental health

professionals could not be used against him in his criminal trial, the Attorney

General did not become estopped to argue before this court that defendant was not

entitled to judicial immunity for testimony given in the competency trial.

People v. Weaver (2001) 26 Cal.4th 876, which defendant also cites, does

not hold to the contrary. There, applying Tarantino and Arcega, we held that the

testimony of two psychiatrists who examined the defendant regarding both his

competency to stand trial and his sanity at the time of the charged offenses was

inadmissible in the sanity phase of trial because the defendant was not permitted to

invoke his constitutional privilege against self-incrimination in speaking to the

doctors. (Id. at p. 961.) That circumstance does not exist here.


Defendant’s claim of error in the trial court’s refusal to grant him immunity

for purposes of testimony during the May 1988 competency trial therefore must

fail. And in the absence of a proffer of defendant’s testimony, the record would

not support a conclusion the ruling, even if erroneous, was prejudicial.

B. Guilt Phase Issues

1. Asserted Faretta error




on June 17, 1988, a superior court judge (not the

judge who presided at trial) erred in denying his motion to represent himself under

Faretta v. California, supra, 422 U.S. 806 (Faretta). The Attorney General

asserts that defendant’s waiver of self-representation later cured any error. We

agree with the Attorney General.

Analysis of this contention requires a recitation at some length of the

pertinent factual background. As mentioned above (see pp. 47-48, ante), on June

15, 1988, defendant moved to dismiss his attorneys, Barnett and O’Malley, and

have the district attorney represent him. (See People v. Marsden, supra, 2 Cal.3d

118 (Marsden).) When told that representation by the prosecutor was impossible,

defendant renewed his motion to dismiss his attorneys and asked to represent


Defense counsel raised a doubt as to defendant’s competency, and argued

that if the court did not agree that defendant was incompetent, then there was a

breakdown in the attorney-client relationship. The court disagreed. O’Malley

noted that defendant’s Faretta motion remained pending, and both defense

attorneys moved to withdraw as counsel, citing a deterioration in the attorney-

client relationship.

The court then asked defendant a number of questions to determine whether

his request for self-representation was voluntary. Defendant responded that he


understood the court’s admonitions, was aware of the dangers of self-

representation, and knew he potentially faced the death penalty. He also expressed

a desire to plead guilty, but the court said it would not allow him to do so even if

he represented himself. In response to the court’s inquiry about his education,

defendant said he had graduated from high school and had one year of college.

The court asked whether defendant had any problem understanding English;

defendant answered in the negative, although he acknowledged he needed some

words explained to him. The court told defendant he might not understand much

of the language to be used in the trial.

The court denied the Faretta motion, stating: “I think the record

adequately reflects the reason for the court’s denial, but the court does not feel that

[defendant] is competent to represent himself in this particular action based upon

his education and his language.” The court also stated it was granting the

Marsden motion, apparently referring to Barnett’s and O’Malley’s motion to

withdraw. The court ordered the transcript of the hearing sealed.

More than a year later, on July 27, 1989, the judge then presiding over

defendant’s competency trial ordered the transcript of the June 17, 1988, hearing

unsealed at the parties’ joint request. Defense Counsel Gray argued the transcript

revealed error in the denial of defendant’s Faretta motion. The prosecutor and the

judge agreed. In an effort to cure the error in denying his Faretta motion, the

judge offered to examine defendant immediately concerning his current thoughts

on self-representation, and to do so again after the verdict in the competency trial.

The judge explained to defendant that the transcript of the June 17, 1988, hearing

revealed that incorrect “procedure” had been followed and that the court and

counsel were discussing how to remedy the problem. The judge then declared a

recess to allow defendant to confer with his attorneys.


When the court reconvened, competency Trial Counsel Rockhill stated that

defendant did not then wish to represent himself. At the prosecutor’s request, the

court examined defendant on the issue. Defendant stated that he understood what

they had been discussing and that, with respect to his attorneys, “I personally don’t

like either one of them as far as their attitudes toward me, but I do agree with what

you just said, I do not want to represent myself. I need some lawyers.” During the

afternoon session that day, Trial Counsel Gray moved to dismiss the case based on

Faretta error. The court denied the motion, stating it believed any error had been

cured because defendant was given and declined the opportunity to represent

himself, and would be given the same opportunity after the determination of his


On October 10, 1989, after the jury found defendant competent to stand

trial, and before the start of voir dire in the criminal trial, the trial court again

asked defendant if he wished to represent himself. Defendant answered: “I don’t

want to represent myself. I want the lawyer – the lawyer to take full responsibility

of the case for shipping me to San Francisco for the federal jury.” The court

commended defendant on his decision, and defendant replied: “I don’t really

appreciate his work but we will see how it goes. If you are willing to take the

responsibility, Mr. Gray. Mr. Dunkle cannot sign anything because it is the

responsibility of the government and they are responsible for the murders for

controlling Mr. Dunkle on the headwave without the permission of Jon Dunkle.”

On appeal, defendant contends the trial court erred in denying his Faretta

motion on June 17, 1988, and that later proceedings failed to remedy the error. As

defendant observes, Faretta holds that the Sixth Amendment grants an accused

personally the right to present a defense and thus to represent himself upon a

timely and unequivocal request. (People v. Marshall, supra, 15 Cal.4th at pp. 20-

21.) The right to self-representation obtains in capital cases as in other criminal


cases (People v. Clark (1990) 50 Cal.3d 583, 617), and may be asserted by any

defendant competent to stand trial – one’s technical legal knowledge, as such,

being irrelevant to the question whether he knowingly and voluntarily exercises

the right (Godinez v. Moran (1993) 509 U.S. 389, 399-400; People v. Joseph

(1983) 34 Cal.3d 936, 943-944). The right to representation by counsel persists

until a defendant affirmatively waives it, and courts indulge every reasonable

inference against such waiver. (People v. Marshall, supra, 15 Cal.4th at p. 20.)

Applying these standards, we conclude defendant’s June 17, 1988, request to

represent himself, made over a year before the commencement of his criminal

trial, was timely, and the Attorney General does not argue it was either involuntary

or other than knowing. Notably, when he made the request, defendant had just

been found competent to stand trial. Thus, the superior court erred in denying the


Defendant acknowledges that the Faretta right, once asserted, may be

waived or abandoned. In McKaskle v. Wiggins (1984) 465 U.S. 168, in which the

trial court appointed standby counsel for a self-represented defendant, the United

States Supreme Court concluded that the defendant, who had acquiesced in

standby counsel’s participation at various points during the trial, could not

complain on appeal that he was denied his right to represent himself at those

points. (Id. at pp. 182-183.) In Brown v. Wainwright (5th Cir. 1982) 665 F.2d

607, the federal court of appeals concluded that a defendant who, expressing

dissatisfaction with his attorney, first asserted his right of self-representation and

later made no objection when his counsel told the court that he and the defendant

had resolved their difficulties and that the defendant wanted him to continue his

representation, had waived his Faretta request. (Id. at p. 611; see also People v.

Rudd (1998) 63 Cal.App.4th 620, 628-631; id. at p. 631 [a defendant who failed to

object to revocation of his self-represented status for “ ‘serious and obstructionist


conduct’ ” in failing to be ready for trial on the date he had agreed could not

complain on appeal]; People v. Skaggs (1996) 44 Cal.App.4th 1, 7-9 [even if the

defendant’s equivocal comment were construed as a Faretta request, he

abandoned it by failing to seek a definitive ruling on it]; People v. Kenner (1990)

223 Cal.App.3d 56, 62 [a defendant may, by his or her conduct, indicate

abandonment or withdrawal of a request for self-representation].)

We agree with defendant that the proceedings of July 27, 1989, although

resulting in defendant’s clear disclaimer of his Faretta rights, failed to remedy the

error in the denial of his Faretta request because criminal proceedings were then

suspended due to the pendency of the competency hearing. (See § 1368, subd. (c)

[“[W]hen an order for a hearing into the present mental competence of the

defendant has been issued, all proceedings in the criminal prosecution shall be

suspended until the question of the present mental competence of the defendant

has been determined.”]; People v. Horton (1995) 11 Cal.4th 1068, 1108; People v.

Marks (1988) 45 Cal.3d 1335, 1340.) We disagree, however, with defendant’s

further contention that the proceedings of October 10, 1989, after the resumption

of criminal proceedings, failed to correct the error because the record reflects he

was talking “gibberish” and thus did not intentionally and voluntarily waive a

constitutional right. Defendant does not now appear to assert he was incompetent

on that date, and any such assertion must fail. As the Attorney General notes,

defendant had already had two competency hearings, most recently some two

months earlier, and no substantial change of circumstances, warranting yet another

competency inquiry, had occurred. (People v. Lawley (2002) 27 Cal.4th 102,

136.) In any event, the record contains no suggestion that defendant did not

understand what he was giving up in confirming that he wished to be represented

by counsel, or that he might in fact have wished to represent himself

notwithstanding his statements to the contrary during the October 10, 1989,


proceedings as well as the earlier hearing. For this reason, too, the circumstance

that the court informed defendant that the trial would start the following week, or

that in 1988 it had declined to permit defendant to plead guilty, did not render his

waiver of Faretta rights involuntary. Because the proceedings of October 10,

1989, cured the error in denying defendant his Faretta rights, any error in the

court’s denial of the defense motion for mistrial based on the Faretta error was


Defendant further asserts that, in any event, reversal of the judgment is

required because the trial court’s error in denying his Faretta motion resulted in

his being forced to accept unwanted representation by counsel for an entire year,

during which period resolution of the case was delayed, against his wish to plead

guilty. But he cites no authority for the proposition that a defendant who,

following an erroneous denial of his assertion of Faretta rights, validly waives the

right to self-representation and proceeds to trial represented by counsel is entitled

to relief on appeal. Indeed, such decisions as McKaskle v. Wiggins, supra, 465

U.S. 168, and Brown v. Wainwright, supra, 665 F.2d 607, are to the contrary, and

we therefore reject the contention.

2. Asserted instructional error

a. Failure to instruct on diminished capacity

Defendant contends his conviction of the murder of John Davies must be

reversed because the trial court failed to instruct the jury on voluntary

manslaughter based on diminished capacity negating the mental state required for

first or second degree murder.

At the time of the Davies murder, the defense of diminished capacity was

still recognized in California, and the parties agree that, if warranted by the

evidence, diminished capacity instructions should have been given in this case.


(People v. Pensinger (1991) 52 Cal.3d 1210, 1240-1241; see Stats. 1981, ch. 404,

§§ 2, 4, pp. 1591-1592 [amending § 22 and adding § 28]; see generally People v.

Saille (1991) 54 Cal.3d 1103, 1111-1112.) That condition is met when the record

contains substantial evidence from which a reasonable jury could conclude that a

defendant’s voluntary intoxication or mental defect may have prevented him from

forming the mental state required for the charged offense. (People v. Flannel

(1979) 25 Cal.3d 668, 684-685.)

In arguing such instructions should have been given, defendant notes that

he told police, in a confession that was admitted into evidence, that he was “pretty

well drunk” the night he killed Davies, that he had spent time earlier that evening

with other friends, drinking and “taking dope,” and that when he drank beer and

consumed marijuana his “body chemistry” changed, he became aggressive, and he

developed “extremely assaultive behavior.”

This evidence, however, “lent only minimal and insubstantial support to

[defendant’s] theory of diminished capacity from intoxication and therefore was

not sufficient to justify the requested instruction.” (People v. Rodriguez (1986) 42

Cal.3d 730, 762.) That defendant was, to some degree, intoxicated on the night of

the offense, and that he behaved aggressively after consuming alcohol and

marijuana, did not constitute substantial evidence that he lacked the capacity to

form the intent to kill or to premeditate and deliberate. To the contrary:

Defendant’s description of his conduct in killing Davies failed to reflect the

influence of alcohol or marijuana. He admitted that after picking up Davies and

driving to Edgewood Park, he took a knife from the glove compartment and

“committed” himself to killing Davies. After walking with Davies a half mile to

two miles down a dirt road, defendant stabbed him in the back, sat on his chest,

stabbed him in the throat, and struck him in the head with a large rock. Defendant

proceeded to dispose of the body and the clothing he had been wearing. This goal-


directed, purposeful behavior is incompatible with any suggestion of diminished

capacity. Thus, lacking a sufficient evidentiary predicate for instructions on

voluntary manslaughter on a theory of diminished capacity, the trial court did not

err in failing to give them.

b. Failure to instruct on requirement that defendant have “maturely

and meaningfully reflected”

Defendant argues we must reverse the judgment as to the Davies count

because the instructions failed to include “mature and meaningful reflection” as an

element of first degree murder. His contention finds its genesis in People v. Wolff

(1964) 61 Cal.2d 795. In that case, we reduced from first to second degree a

murder judgment entered against a defendant who, when he killed his mother, was

15 years old and a diagnosed schizophrenic, and who had unsuccessfully defended

on the ground of insanity. Although we concluded the evidence sufficiently

supported the jury’s finding that the defendant was legally sane when he

committed the crime, we found it insufficient to establish that the murder was of

the first degree: “[I]n light of defendant’s youth and undisputed mental illness, all

as shown under the California M’Naughton rule on the trial of the plea of not

guilty by reason of insanity . . . the true test must include consideration of the

somewhat limited extent to which this defendant could maturely and meaningfully

reflect upon the gravity of his contemplated act.” (Id. at p. 821.) Several weeks

after the Davies killing, on January 1, 1982, a statutory amendment became

effective that provides that, to prove a killing was “deliberate and premeditated,” it

is unnecessary to prove the defendant maturely and meaningfully reflected on the

gravity of his or her act. (§ 189, as amended by Stats. 1981, ch. 404, § 7, p. 1593.)

In this case, the trial court instructed the jury with CALJIC No. 8.20 that

“[t]he word deliberate means formed or arrived at or determined upon as a result

of careful thought and weighing of considerations for and against the proposed


course of action. The word premeditated means considered beforehand.”

Defendant contends the instruction erroneously omitted the requirement of

“mature and meaningful reflection,” and that his conviction must be reversed as a


Defendant’s argument lacks merit. From the portion of the Wolff decision

quoted above, it is clear that our recognition of the “mature and meaningful

reflection” requirement depended on the circumstances of the case, in particular

the defendant’s youth and mental illness in the context of his insanity defense.

Wolff has never been read as mandating jury instructions on “mature and

meaningful reflection” in a murder prosecution in which the evidence fails to raise

an issue as to legal sanity or diminished capacity stemming from mental illness or

intoxication. Indeed, in People v. Fain (1969) 70 Cal.2d 588, where the defendant

presented no evidence of mental illness and the trial court premised diminished

capacity instructions on “the most fragmentary evidence of intoxication” (id. at

p. 596), we rejected a claim similar to the one defendant asserts here. We

observed: “Unlike the situation in Wolff, however, defendant did not present

evidence of mental illness during the guilt phase. His defense, we repeat, was that

of alibi, not diminished capacity. In this case the diminished capacity instruction

given by the court [citation] fully informed the jury to the extent permitted by the

evidence.” (70 Cal.2d at p. 597; see also People v. Cruz (1980) 26 Cal.3d 233,

243 [“The Wolff language has been endorsed repeatedly by this court in

diminished-capacity murder cases where premeditation was an issue.”].)

Defendant cites no case requiring an instruction on “mature and meaningful

reflection” outside the context of a diminished capacity defense.

Here, as noted, the record contains no evidence of diminished capacity or

mental illness in connection with the Davies murder. Accordingly, defendant was

not entitled to an instruction on “mature and meaningful reflection” as an aspect of


premeditation and deliberation. His derivative claims of federal constitutional

violations likewise must fail.

c. Asserted flaws in CALJIC No. 2.02

At the conclusion of the guilt phase, the trial court instructed the jury with

CALJIC No. 2.02, concerning the sufficiency of circumstantial evidence to prove

the specific intent or mental state with which an act was done. Defendant

contends the instruction undermined the accuracy of the verdicts, operated as a

mandatory conclusive presumption, and misled the jury about the burden of proof

on the ultimate issue of guilt or innocence, in violation of the Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution. Specifically, he complains

about the portion of the instruction that told the jury that if one interpretation of

the evidence regarding specific intent or mental state appeared to be reasonable,

and the other interpretation to be unreasonable, it must accept the reasonable

interpretation and reject the unreasonable one. Although he did not object at trial

to this instruction, to the extent the asserted instructional error affected his

substantial rights, the claim is preserved for appellate review. (§ 1259; see People

v. Prieto (2003) 30 Cal.4th 226, 247.)

As defendant acknowledges, we previously have rejected his interpretation

of CALJIC No. 2.02 (People v. Crew (2003) 31 Cal.4th 822, 847; People v.

Nakahara (2003) 30 Cal.4th 705, 713-714; People v. Millwee (1998) 18 Cal.4th

96, 160; People v. Crittenden (1994) 9 Cal.4th 83, 144), and we do so again here.

The circumstance that the jury was also instructed with the definition of

reasonable doubt and that it was required to accept and follow the court’s

instructions (pursuant to CALJIC Nos. 2.90 and 1.00, respectively) did not render

CALJIC No. 2.02 misleading.


3. Cumulative error

Defendant urges this court to hold the errors he asserts occurred during the

guilt phase of his trial to be reversible when considered cumulatively. Apart from

the Faretta error that we have concluded was cured, we have found no error in this

phase of the trial. The contention therefore must fail.

C. Penalty Phase Issues

1. Asserted conflict of interest on the part of defense counsel



that his counsel labored under a conflict of interest

during the penalty phase and the trial court erred in failing to conduct an

appropriate inquiry. The conflict arose, he asserts, because the penalty defense

centered on defendant’s current mental state, and counsel had testified during the

second competency trial concerning the same subject matter. Counsel presented

only one witness in the penalty phase, Psychiatrist George Wilkinson, but did not

himself testify despite his personal knowledge of facts supporting the penalty

defense. Moreover, counsel presented what defendant characterizes as an

unfavorable stipulation, in lieu of his own testimony, as surrebuttal to the

prosecution’s rebuttal testimony. The trial court, having presided over the second

competency trial, knew or should have known of the conflict, but improperly took

no action. This inaction, defendant asserts, violated his constitutional right to

representation by conflict-free counsel.

“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 (Cox).) “ ‘ “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.’ ” ’

[Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 673.)

“Under the federal Constitution, when counsel suffers from an actual

conflict of interest, prejudice is presumed. (Cuyler v. Sullivan (1980) 446 U.S.

335, 349.) This presumption arises, however, ‘only if the defendant demonstrates

that counsel “actively represented conflicting interests” and that “an actual conflict

of interest adversely affected his lawyer’s performance.” ’ (Strickland v.

Washington (1984) 466 U.S. 668, 692, citing Cuyler v. Sullivan, supra, at p. 348.)

An actual conflict of interest means ‘a conflict that affected counsel’s

performance—as opposed to a mere theoretical division of loyalties.’ (Mickens v.

Taylor (2002) 535 U.S. 162, 171, italics omitted.)” (People v. Roldan, supra, 35

Cal.4th at p. 673.) The Sixth Amendment to the federal Constitution dictates

reversal if a defendant, over a timely objection, is forced to continue with

conflicted counsel. (Holloway v. Arkansas (1978) 435 U.S. 475, 488.) “To obtain

a reversal for this type of error, ‘the defendant need not demonstrate specific,

outcome-determinative prejudice. [Citation.] But he must show that an actual

conflict of interest existed and that that conflict adversely affected counsel’s

performance.’ (People v. Bonin (1989) 47 Cal.3d 808, 837-838; see generally

Mickens v. Taylor, supra, 535 U.S. 162 [167-172].)” (Id. at p. 674.)

“ ‘ “To show a violation of the corresponding right under our state

Constitution, a defendant need only demonstrate a potential conflict, so long as the

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

affected counsel’s performance. [Citations.]” (People v. Frye (1998) 18 Cal.4th

894, 998 [77 Cal.Rptr.2d 25, 959 P.2d 183].) “But ‘[p]ermissible speculation

giving rise to a conflict of interest may be deemed an informed speculation . . .

only when such is grounded on a factual basis that can be found in the record.’ ”



“ ‘To determine whether counsel’s performance was “adversely affected,”

we have suggested that [Cuyler v.] Sullivan[, supra, 446 U.S. 335,] requires an

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. Roldan, supra, 35 Cal.4th at p. 674, quoting Cox,

supra, 30 Cal.4th at pp. 948-949.)

Defendant argues that counsel was ethically obligated to withdraw from

representing him and to testify as a witness in the penalty phase, thus generating a

conflict between the obligation and his self-interest in maintaining employment on

the case. An attorney must withdraw from representation, absent the client’s

informed written consent, whenever he or she knows or should know he or she

ought to be a material witness in the client’s cause. (Cal. Rules of Prof. Conduct,

rule 5-210; see Comden v. Superior Court (1978) 20 Cal.3d 906, 911, fn. 1

[motion to disqualify opposing counsel].) The determination whether an attorney

ought to testify ordinarily is based on an evaluation of all pertinent factors,

including the significance of the matters to which the attorney might testify, the

weight the testimony might have in resolving such matters, and the availability of

other witnesses or documentary evidence by which these matters may be

independently established. (Comden, supra, at p. 913.) An attorney should

“resolve any doubt in favor of preserving the integrity of his testimony and against

his continued participation as trial counsel.” (Id. at p. 915.)


Applying the Comden factors in the context of this case, we conclude

counsel had no duty to withdraw and testify. The essence of the case in mitigation

was a description of defendant’s mental state and a chronicle of its deterioration in

the preceding several years. To that end, counsel presented the expert testimony

of Dr. Wilkinson, who reviewed voluminous reports and records and recounted at

length his own observations of defendant during the course of multiple interviews.

Counsel had, as defendant states, some unique personal knowledge, to which he

testified during the competency trial, of the same general subject matter. He

therefore could have given relevant testimony during the penalty phase. But

section 190.3, factor (k), permits the jury to consider a virtually unlimited range of

mitigating evidence (e.g., People v. Smithey (1999) 20 Cal.4th 936, 1007), and

trial counsel in every case has unique personal knowledge of the defendant that

conceivably might be relevant or useful in the penalty phase. We have never

suggested that counsel therefore must withdraw from penalty phase representation

and testify on the defendant’s behalf, and we reject any such implication now.

Moreover, in this context, a contrary rule would be undesirable (in that a

defendant may benefit from having the same attorney both testify in competency

proceedings and continue representing the defendant during a later penalty phase)

and inefficient (in that it would almost certainly necessitate delays while

replacement trial counsel familiarized himself or herself with the case). While

other factual scenarios may give rise to an actual conflict that requires counsel to

withdraw from further representation after testifying in a competency trial in order

to give unique and compelling testimony again in the penalty phase, this case is

not one of them.

Because the fact that counsel testified during the competency phase did not

create an obligation to withdraw from representation and testify about the same


matters during the penalty phase, counsel did not labor under an actual conflict of

interest in failing to do so.

Could there, nevertheless, have existed a potential conflict requiring the

trial court to conduct an inquiry, or take remedial action? We look to whether

facts known to the trial court raised the possibility of a conflict of interest obliging

it to inquire further. (Wood v. Georgia (1981) 450 U.S. 261, 272.) Defendant

contends certain actions and omissions by counsel during the penalty trial, all of

which were known to the trial court, showed that his performance was adversely

affected by the purported conflict, obligating the court to inquire. These included

counsel’s (1) failure to introduce gibberish written by defendant and medical

records from defendant’s hospitalizations under Welfare and Institutions Code

section 5150, (2) failure to have other competency phase witnesses testify,

(3) failure to seek the appointment of associate counsel under Keenan v. Superior

Court (1982) 31 Cal.3d 424, (4) disparagement of defendant during guilt phase

arguments, and (5) entering into a stipulation assertedly adverse to defendant’s


Because the competency hearing and the penalty trial served different

purposes, the circumstance that Defense Attorney Gray did not present, during the

penalty phase, all of the evidence introduced in the competency hearing is

unsurprising and cannot necessarily be attributed to a conflict. Among the

competency phase witnesses, for example, Attorney Tom Nolan testified about the

requirement that a criminal defendant be able rationally to assist his counsel in his

own defense, an issue relevant only to the competency phase. We see no basis to

conclude an unconflicted attorney would have called Nolan to testify in the

penalty phase. Dr. Levy’s competency phase testimony that defendant was

incompetent was substantially similar to Dr. Wilkinson’s, and an unconflicted


attorney quite properly could have chosen to present only the latter in the penalty


Defense Attorney Gray’s decision not to introduce into evidence

defendant’s hospital records during the penalty phase is one that unconflicted

counsel quite conceivably would make for tactical reasons, given the multiple

references in those records to a possible motive for malingering (defendant’s

expressed fear of receiving the death penalty); a reference to defendant’s talking to

other psychiatric patients about the “ ‘rationale’ for insanity pleas”; and a

clinician’s note theorizing that defendant’s behavior was “probably related to

current court action regarding his mental status.” We do not share defendant’s

view that Gray’s failure to introduce defendant’s “word salad” writings indicated

he was pulling his punches, given that Gray presented other evidence, in the form

of Dr. Wilkinson’s testimony, regarding the occurrence and significance of loose

associations in defendant’s communications.

What defendant characterizes as disparagement during Defense Attorney

Gray’s guilt phase arguments was, in context, an effort to get the jury to look

skeptically at aspects of defendant’s confessions that the prosecution argued

pointed strongly toward a finding of premeditation and deliberation. Counsel with

no conceivable conflict also might well have characterized his client as a liar and

as seriously disturbed in an effort to obtain a second degree murder verdict in a

case involving strong evidence of premeditation.

We see nothing in Defense Attorney Gray’s failure to request the

appointment of a second attorney to assist him (see Keenan v. Superior Court,

supra, 31 Cal.3d at p. 430) that suggests a conflict of interest. For all that appears

on the record, this case was relatively uncomplicated, and the need for second

counsel is not apparent.


And although defendant insists the stipulation formulated by Defense

Attorney Gray adversely affected his interests, in that it essentially told the jury he

had willfully refused to cooperate with Gray, the jury could instead have

interpreted it as describing defendant’s increasing inability, as the case progressed,

to assist his counsel in a rational manner.

In sum, defendant fails to demonstrate that Defense Attorney Gray had a

potential conflict of interest into which the trial court had a duty to inquire.

2. Asserted instructional errors




offense as aggravating evidence

Defendant contends the trial court erroneously instructed the jury that it

could consider in aggravation evidence that he threatened violence against a public

officer. We disagree.

Section 190.3, factor (b), permits the prosecution to introduce evidence,

during the penalty phase of a capital case, of other “criminal activity by the

defendant which involved the use or attempted use of force or violence or the

express or implied threat to use force or violence.” Here, the prosecutor presented

the testimony of Angela Beck, a county-employed registered nurse who on March

3, 1989, was assigned to work in the county jail. Her duties included passing

medication to prisoners, evaluating their medical and psychiatric needs, and noting

any refusal of medication in the prisoner’s medical chart. Beck testified that on

that date she offered defendant, who was behind a locked door in the lockup area

of the jail, his prescribed psychotropic medication. Defendant refused to take it,

and Beck asked him why, stating a psychiatrist would want to know. Defendant

looked at her and said, in a hostile manner, “If you talk to my psychiatrist, I will

kill you.” Beck testified she took the statement seriously, made an entry to that

effect in the jail records, and mentioned the incident to her supervisor.


Defendant argues nurse Beck’s testimony did not constitute substantial

evidence of a violation of section 71, which provides that one is guilty of a public

offense who, with the requisite intent, attempts to cause, or causes, any public

officer or employee to do or refrain from doing any act in the performance of his

or her duties by means of a threat, directly communicated to such person, to inflict

an unlawful injury on any person or property, and it reasonably appears to the

recipient that the threat could be carried out. Specifically, defendant asserts there

was no substantial evidence that Beck reasonably could have believed he would

carry out the threat or actually believed he intended to kill her, particularly

because he was then confined behind a locked door; that he harbored the requisite

intent to interfere with her performance of her duties; or that the threat related to

something connected with Beck’s duties. Consequently, defendant contends the

trial court erred in instructing the jury that “the prosecution has presented evidence

implicating the defendant in other criminal acts,” followed by an instruction (the

substance of which he does not challenge) on threatening a public officer.

Most of defendant’s attacks on the sufficiency of proof of the various

elements of the offense lack merit. For example, contrary to defendant’s

argument, the record does not lack evidence that nurse Beck actually believed he

would try to kill her: in fact, she testified she took the threat seriously and

reported it to her supervisor and in the jail log. Nor is evidence lacking that

defendant intended to interfere with Beck’s performance of her official duty to

report inmates’ refusals of prescribed medication. Defendant errs in suggesting

the relevant duty was that of prodding defendant into taking medications he did

not wish to take, and his claim that he could not have threatened Beck for

reporting what he all along wanted his psychiatrist to know, i.e., that he did not

wish to take his medications, simply flies in the face of Beck’s testimony

regarding the words he used.


Defendant’s assertion that he could not, consistently with the First

Amendment, be found to have threatened a public officer fails, because true

threats are not constitutionally protected. (In re M.S. (1995) 10 Cal.4th 698, 710;

see People v. Toledo (2001) 26 Cal.4th 221, 228-229.) A statute may

constitutionally criminalize threats, even without a requirement of immediacy or

imminence, if it includes a requirement of specific intent and present or apparent

ability to carry out the threat. (In re M.S., supra, 10 Cal.4th at pp. 711-713.)

Section 71 requires the intent to cause a public officer or employee to do or refrain

from doing any act in the performance of his or her duties, and requires that it

reasonably appear to the recipient that the threat could be carried out. The statute

thus satisfies the First Amendment concerns addressed in In re M.S., supra, 10

Cal.4th 698, and does not punish a defendant for engaging in protected speech.

The jury was instructed in the language of the statute, and for a juror to have

considered the Beck incident in aggravation of penalty, he or she necessarily

would have had to find each element of the offense, including the required intent

and apparent ability, true beyond a reasonable doubt.

The sufficiency of the proof of one element of the offense – that of the

reasonableness of the recipient’s belief that the threat would be carried out – is a

closer question because, when defendant uttered the threat, he was behind a locked

door and thus could not at that moment harm nurse Beck. This circumstance is not

dispositive, however. In People v. Boyd (1985) 38 Cal.3d 762, we noted that the

prosecution’s proof of an asserted violation of section 71 was deficient, in that the

defendant was locked in his cell at the time he made the alleged threat and thus

was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777.) In

People v. Tuilaepa (1992) 4 Cal.4th 569, we cited the fact that the defendant was

locked in his cell for the night when he threatened to burn a pair of pants and an

adviser’s face, along with the absence of a “substantial showing that [the]


defendant harbored the requisite intent – interfering with the performance of

official duties” – in rejecting the Attorney General’s contention the threats in that

case violated section 71. (4 Cal.4th at p. 590.) In neither case, however, did we

consider that section 71, unlike section 422 (prohibiting criminal threats) and

section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

(See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139; In re Marcus T. (2001) 89

Cal.App.4th 468, 472.) Indeed, the statute expressly provides that the threat may

be communicated by “telephone, telegraph, or letter” (§ 71) – clearly indicating

the Legislature did not intend to require that the defendant have the capability to

inflict the threatened unlawful injury immediately. Provided the defendant harbors

the requisite intent and, to the recipient, it reasonably appears the threat could be

carried out, that the defendant uttered it from behind a locked door does not

preclude a determination that he violated section 71.

Nevertheless, whether the record in this case contains sufficient evidence

that nurse Beck could have reasonably believed defendant could carry out his

threat is arguable. The prosecutor suggested to the jurors that jail inmates on

occasion leave their cells and meet with nurses, but as defendant points out, there

was no testimony establishing he ever had physical contact with Beck or any other

nurse dispensing psychotropic medication, or any evidence of circumstances under

which he might have been outside his cell, unrestrained, in a place where he could

have attacked Beck. Thus, although Beck testified defendant delivered the threat

in a “very hostile” manner and she took it seriously, reported it in jail records, and

told her supervisor about it, that the jury could have found all of the elements of a

violation of section 71 on these facts is open to question.

Nevertheless, we see no reasonable likelihood the giving of the instruction

(which, as defendant appears to concede, correctly defined the offense) misled the

jury in its penalty determination. (People v. Clair, supra, 2 Cal.4th at p. 663.) As


noted, the jury was instructed not to consider the evidence regarding the threat to

nurse Beck unless it found the prosecution had proven all the elements of a

violation of section 71 beyond a reasonable doubt. We presume it followed those

instructions. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 44.) Even

assuming error in the giving of the instruction, we see no reasonable possibility

defendant would have obtained a more favorable outcome in its absence, given the

great weight of the aggravating evidence against him. (People v. Brown (1988) 46

Cal.3d 432, 446-449.)

b. Residential burglary as aggravating evidence

During the penalty phase, the prosecution presented evidence that

defendant committed burglary on April 4, 1985. On that date, defendant and

Officer Lisa Thomas, who was working undercover and posing as defendant’s

friend, spent several hours at the Wit’s End bar. Defendant talked at length about

breaking into houses, telling Thomas that, among other things, it was better to do

it at night, that one should stake out the house in order to learn the residents’

patterns, that if a child lived in the house one was burglarizing, he or she could be

tied up and made to tell where items were and the police would not consider the

child a reliable witness. Defendant discussed alarm systems and methods of

getting away from the scene of a burglary. He told Thomas they should not smoke

marijuana for at least two days before committing any burglaries. After four or

five hours at the Wit’s End, defendant and Thomas went to Goethe Park and

walked for about an hour and a half on a trail that ran along the river. Defendant

seemed to sober up during this time. Returning to the park entrance, defendant

saw a house on the corner with a “bug zapper” with bright blue lights in the yard.

Defendant went into the yard and called to Thomas, saying he had found an

unlocked door and wanted to go in and take a stereo. He instructed her to act as a


lookout and left her to enter the house. Sergeant Goulart, meanwhile, was

conducting electronic surveillance, and Thomas, using a wireless transmitter, told

him of defendant’s plan. Thomas ran to a neighboring house, woke the residents

and used their telephone to call the sheriff’s office.

Sergeant Goulart testified that he had followed defendant and Thomas since

3:00 p.m. that day, listening to their conversation over the wireless transmitter.

When he saw defendant enter the house through a sliding door around 11:00 p.m.,

he told Thomas to go down the block and call the sheriff’s office. After four or

five minutes, Goulart saw defendant run out of the house. Goulart shined a

flashlight on defendant’s face, identified himself as a police officer, and ordered

defendant to the ground. He then physically forced defendant down, dragged him

back to the house, and yelled to the residents for assistance.

The house defendant had entered belonged to Richard Rennie, who lived

there with his family. When the Rennies went to bed around 11:00 p.m.,

Mr. Rennie checked on his daughter and made sure her comforter was atop her

bed. Ten to 15 minutes later, Rennie heard a commotion and went downstairs to

investigate, stepping on something in the hallway on the way. Turning on the

light, he saw Sergeant Goulart trying to handcuff defendant. Rennie noticed a pair

of scissors lying in the middle of the family room floor, out of its customary place

in the dining room. Going upstairs later, Rennie noticed his daughter’s quilt, on

which he had stepped, lying in the hall halfway out of her room.

As relevant to the evidence of the Rennie incident, the trial court instructed

the jury with language adapted from CALJIC No. 14.50 on burglary for theft. The

trial court also instructed the jury with the language of section 190.3, factor (b),

which, as noted, directs the jury to consider the presence or absence of criminal

activity by the defendant, other than the crimes for which he was tried in the

present proceedings, that involved the use or attempted use of force or violence or


the express or implied threat to use force or violence. Defendant makes two

related claims of error: (1) the instruction on burglary for theft improperly

permitted the jury to find an aggravating factor based on an offense not involving

the use or threat of force or violence against a person, in violation of section 190.3,

factor (b), an error he asserts was compounded by the trial court’s failure to define

the term “express or implied threat to use force or violence”; and (2) any

instruction on burglary was improper because the evidence failed to show that any

force or violence was used or threatened in the course of the incident. These

errors, he contends, violated state law and deprived him of a reliable verdict as

guaranteed by the Eighth and Fourteenth Amendments to the federal Constitution.

We find no error.

To the extent defendant is arguing that burglary for theft categorically is an

offense not involving force or violence, and therefore can never be the subject of a

section 190.3, factor (b) instruction, he is mistaken. (See People v. Montiel (1993)

5 Cal.4th 877, 936 [residential burglary in which the defendant displayed a knife

to the resident involved actual or threatened violence, and evidence thereof was

admissible under factor (b)].) Whether such a burglary “involves” force or

violence, and thus qualifies as an aggravating factor under factor (b), depends on

the circumstances of its commission.

Defendant’s contention that the trial court erred in failing to define “express

or implied threat to use force or violence” in the context of a section 190.3, factor

(b) burglary likewise lacks merit. He cites no decision, and we have found none,

holding that the phrase must be defined for the jury. It is self-explanatory. In

rejecting a claim that factor (b) is unconstitutionally vague, the high court in

Tuilaepa v. California (1994) 512 U.S. 967, noted it is phrased in “conventional

and understandable terms” (id. at pp. 976, 977) and affirmed that it possesses a


“ ‘common-sense core of meaning . . . that criminal juries should be capable of

understanding.’ ” (Id. at p. 975.)

Furthermore, we agree with the Attorney General that, although the portion

of the instructions defining burglary, in isolation, did not refer to the “force or

violence” requirement, nevertheless, when read together, the burglary instruction,

the general section 190.3, factor (b) instruction, and CALJIC No. 8.87 adequately

conveyed to the jury that, before it could consider the Rennie incident in

aggravation it had to find, beyond a reasonable doubt, all of the elements of the

offense of burglary and that the offense involved the use or attempted use of force

or violence, or the express or implied threat to use force or violence.

Defendant’s remaining contention, that the evidence failed to show any

force or violence was used or threatened in the course of the Rennie burglary,

fails. Richard Rennie testified that, after defendant was apprehended, Rennie

found a pair of scissors lying on the floor, away from its usual place in the dining

room, and his daughter’s quilt lay on the floor, halfway out of her bedroom.

Officer Thomas testified that, while she was working undercover before the

Rennie incident, defendant spoke with her about the possibility of committing

burglaries, telling her, in effect, that the police do not take 12-year-old children

seriously as witnesses, and that if a child were present at a burglary he or she

could be tied up or handcuffed and questioned about the location of items in the

house. Seen in the context of defendant’s musings about restraining a child to

facilitate stealing a family’s valuables, Rennie’s testimony supported an inference

that defendant armed himself with the scissors, entered the sleeping girl’s bedroom

and disturbed her quilt before being interrupted and attempting to leave the house.

That other inferences could, as defendant suggests, be drawn from these facts does

not mean the instruction was improper. In sum, there was evidence sufficient to

support a jury finding that defendant attempted to use force or violence in


committing the burglary, and the jury was properly instructed under section 190.3,

factor (b).

c. Mental illness as aggravating factor




CALJIC Nos. 8.85 and 8.88, as read to the jury

during the penalty phase, improperly permitted consideration of his mental illness

as an aggravating factor, in violation of the Sixth, Eighth and Fourteenth

Amendments to the federal Constitution and state death penalty law. He asserts

that nothing in the instructions drawn from section 190.3, factors (a), (b), (d), and

(h) expressly informed the jury that evidence of his mental illness and the role it

may have played in the commission of his offenses could be considered only in

mitigation, and that the evidence in this case – including expert testimony that

defendant’s mental illness caused him to hate the victims with a homicidal rage he

could not control – could have led the jury to see him as worthier of a death

verdict because of his illness. Defendant acknowledges that Tuilaepa v.

California, supra, 512 U.S. at page 979, held those sentencing factors facially

constitutional, but contends the high court there did not face circumstances similar

to those here, where the instructions did not preclude the jury from treating as

aggravating evidence that, he contends, constitutionally can only mitigate penalty.

Defendant also acknowledges our decisions in People v. Benson (1990) 52 Cal.3d

754, 801-803, and People v. McPeters (1992) 2 Cal.4th 1148, 1191, holding that

penalty phase jury instructions need not explicitly label a factor such as extreme

mental or emotional disturbance as mitigating, provided there is no reasonable

likelihood jurors misunderstood the instruction in a way that violated the

defendant’s rights, but he likewise distinguishes those cases as not involving

evidence of particular manifestations of mental illness that jurors could have seen

as rendering defendant exceptionally dangerous and deserving of death.


The Attorney General contends the contention is forfeited for purposes of

this appeal under the invited error doctrine (see People v. Wader (1993) 5 Cal.4th

610, 657-658) because trial counsel stated he had no objection to the instructions

being given. On the record before us, the invited error doctrine is inapplicable, as

it does not appear trial counsel both “ ‘intentionally caused the trial court to err’ ”

and clearly did so for tactical reasons. (People v. Coffman and Marlow, supra, 34

Cal.4th at p. 49.) We therefore address the argument on its merits (see § 1259;

People v. Prieto, supra, 30 Cal.4th at p. 247) and, as will appear, reject it.

We previously have rejected the contention that the standard instruction

based on section 190.3, factor (d) improperly allows the jury to consider evidence

of mental illness in aggravation. (People v. Carpenter (1997) 15 Cal.4th 312, 420;

People v. McPeters, supra, 2 Cal.4th at p. 1191; see also People v. Smith (2005)

35 Cal.4th 334, 352-356, 360-361 [although evidence of mental illness as extreme

mental or emotional disturbance, under section 190.3, factor (d), or as a

circumstance extenuating the gravity of the crime, under section 190.3, factor (k),

can only be mitigating, if evidence of a defendant’s mental illness relates to an

aggravating factor such as section 190.3, factor (a), the circumstances of the

offense, the prosecution may introduce it during its penalty phase case-in-chief,

even if the evidence also bears upon a mitigating factor listed in that section, and

the jury may be instructed accordingly.].) Defendant offers no persuasive reason

to depart from that conclusion.

Nothing in the prosecution’s evidence or argument in this case suggested

that defendant’s mental illness should be considered in aggravation. Certain

evidence that defendant cites in support of this argument – Dr. Missett’s opinion

that defendant was “evil” and acted out of a homicidal rage toward his victims –

was elicited by the defense on cross-examination, apparently in an effort to show

the witness’s bias. Of the other evidence that defendant cites – psychiatric


opinions that the murder of Sean Dannehl reflected sexual sadism and

Dr. Wilkinson’s diagnosis of paranoid schizophrenia – none was argued as an

aggravating factor. Thus, we see no reasonable likelihood the jury considered

evidence of defendant’s mental illness as aggravating. (People v. Carpenter,

supra, 15 Cal.4th at p. 420.)

To the extent defendant is arguing that the instructions improperly

permitted the jury to consider evidence of his mental illness in determining

whether he had committed other violent criminal acts within the meaning of

section 190.3, factor (b), we see no error. The jury was correctly instructed on the

elements of the factor (b) offenses, and defendant shows no reasonable likelihood

that the evidence of his current mental illness would have affected their

determination whether the prosecution had proven beyond a reasonable doubt he

committed those offenses, so as to permit the jury to consider them in aggravation.

(People v. Clair, supra, 2 Cal.4th at p. 663.)

d. Permitting consideration of sympathy for victims and their


Defendant contends that CALJIC No. 8.88, as given in this case,

improperly allowed the jury to base its penalty determination on an emotional

reaction unrelated to his personal culpability, namely sympathy for the families of

the victims. He observes that the instruction told jurors to “assign whatever moral

or sympathetic value [they] deem[ed] appropriate to each and all of the various

factors [they were] permitted to consider,” which included section 190.3, factors

(a) (circumstances of the offense) and (b) (other violent criminal conduct).

Although a jury must never be influenced by passion or prejudice, at the

penalty phase of a capital case a jury may properly consider in aggravation, as a

circumstance of the crime, the impact of a capital defendant’s crimes on the

victim’s family, and in so doing may exercise sympathy for the defendant’s


murder victims and for their bereaved family members. (People v. Pollack (2004)

32 Cal.4th 1153, 1195.) Consequently, CALJIC No. 8.88 is not flawed in

permitting the jury to do so. We see nothing in the instruction or prosecutorial

argument in this case that invited the jury to decide the penalty on the basis of

passion or prejudice. We therefore reject defendant’s contention.

e. Misleading jury as to extent of mitigating evidence

The trial court instructed the jury, in the language of section 190.3, factor

(k), that in determining the appropriate penalty it could consider “any other

circumstance which extenuates the gravity of the crime even though it is not a

legal excuse for the crime, and any sympathetic or other aspect of the defendant’s

character or record that the defendant offers as a basis for a sentence of less than

death, whether or not related to the offense for which he is on trial.” Defendant

acknowledges that this language, taken from People v. Easley (1983) 34 Cal.3d

858, 878, footnote 10, and derived from Lockett v. Ohio (1978) 438 U.S. 586, 604,

“in the vast majority of situations,” “will not mislead the jury” because defense

counsel generally will argue, as a basis for a sentence less than death, all

mitigating factors supported by the evidence. He asserts the contrary is true here

because his counsel argued only defendant’s current mental illness as a reason for

the jury to spare him the death penalty, and failed to present evidence of other

possible mitigating factors, such as the role of defendant’s intoxication in the

capital crimes and in some of his unadjudicated criminal conduct. Defendant

notes that the prosecution’s penalty phase case-in-chief did include such

potentially mitigating evidence, but asserts the factor (k) instruction precluded the

jury from considering it.

The Attorney General argues defendant may not raise this contention on

appeal because his counsel stated he had no objection to the giving of the section


190.3, factor (k) instruction. For the reasons given above in connection with

defendant’s claim that the instructions improperly permitted evidence of mental

illness to be used in aggravation (see p. 77, ante), we disagree.

On the merits, however, we see no reasonable likelihood (People v. Clair,

supra, 2 Cal.4th at p. 663) the jury understood the instructions in the manner

defendant suggests. The instructions did not tell the jury not to consider any of the

mitigating factors. Indeed, they directed the jury to consider all of the evidence

received during any part of the trial, enumerated the statutory mitigating and

aggravating factors, and advised the jury it was free to assign whatever moral or

sympathetic value it deemed appropriate to each of the factors it was permitted to

consider. (§ 190.3; CALJIC No. 8.88.) As discussed, at the guilt phase the jury

heard about defendant’s consumption of alcohol and his use of marijuana before

committing the Davies and Turner murders. As the Attorney General observes,

moreover, in his summation the prosecutor discussed the various statutory

mitigating factors, arguing either that the evidence did not support the existence of

the factor (extreme mental or emotional distress at the time of the offenses, and

whether defendant’s ability to appreciate the criminality of his conduct was

affected by mental disease or defect or intoxication) or that the factor was entitled

to little weight (the absence of any prior felony convictions). There is no

reasonable likelihood the instruction caused the jury not to consider any mitigating

evidence in the record.

f. Failure to give CALJIC No. 2.01 or 2.02

Defendant contends the trial court erred in failing to instruct the jury with

the portion of CALJIC No. 2.01 that states: “[A] finding of guilt as to any crime

may not be based on circumstantial evidence unless the proved circumstances are

not only (1) consistent with the theory that the defendant is guilty of the crime, but


(2) cannot be reconciled with any other rational conclusion.” Alternatively, he

contends the court should have given the corresponding portion of CALJIC No.

2.02. Its failure to do so, he argues, prejudicially violated state law and the Sixth,

Eighth and Fourteenth Amendments to the federal Constitution and requires

reversal. We disagree.

The Attorney General urges that defendant invited any error by asking that

CALJIC Nos. 2.01 and 2.02 not be given. Defendant acknowledges that, at the

penalty phase instructions conference, his trial counsel initially requested that

CALJIC Nos. 2.01 and 2.02, along with other instructions pertaining to the

elements of the section 190.3, factor (b) offenses the prosecutor proved in the

penalty phase, not be given. Later, the court and counsel agreed that the jury

should be instructed on the elements of the factor (b) offenses. From this

circumstance, defendant argues that his trial counsel withdrew his objection to,

and should be understood to have affirmatively asked for, CALJIC Nos. 2.01 and


We read the record differently. After agreeing that the jury should be

instructed on the elements of the section 190.3, factor (b) offenses (murder

[CALJIC Nos. 8.10 and 8.11], burglary [CALJIC No. 14.50], attempt [CALJIC

Nos. 6.00 and 6.01] and threatening a public officer [in the language of section

71]), the court and counsel again reviewed other potentially applicable instructions

and concluded that several of them should be given (CALJIC Nos. 2.70

[confessions and admissions], 2.72 [corpus delicti], 3.31 [concurrence of act and

specific intent], 2.80 [expert testimony], 2.82 [hypothetical questions], 2.83

[resolution of conflicting expert testimony], 2.90 [reasonable doubt], 8.85 [factors

for consideration in determining penalty], and 8.87 [standard of proof beyond a

reasonable doubt for other criminal activity]). Thus, that counsel individually

considered potentially applicable penalty phase instructions is clear, and his


agreement to several other instructions, after having disclaimed a wish to have the

trial court instruct the jury with CALJIC Nos. 2.01 and 2.02, cannot be interpreted

as a request that they be given.

In any event, the trial court did not err in failing to instruct the jury with

CALJIC No. 2.01 or 2.02. Such instructions are required only when the

prosecution substantially relies on circumstantial evidence. (People v. Brown

(2003) 31 Cal.4th 518, 563.) When “circumstantial inference is not the primary

means by which the prosecution seeks to establish that the defendant engaged in

criminal conduct, the instruction may confuse and mislead, and thus should not be

given.” (People v. Anderson (2001) 25 Cal.4th 543, 582.) Here, to prove the

section 190.3, factor (b) offenses the prosecution relied primarily on direct

evidence: defendant’s confession to murdering Sean Dannehl and deliberately

running over Steven Murphy; Monte Hansen’s testimony that defendant hit him

with a board; Angela Beck’s testimony that defendant threatened her; and the

testimony of Belmont police detectives Goulart and Thomas, along with

defendant’s tape-recorded conversation with Thomas, concerning the Rennie

burglary. Defendant argues that his guilt of those offenses turned entirely on his

mental state, which was susceptible to proof only by circumstantial evidence. We

disagree. In a case addressing the question whether CALJIC No. 2.01 was

required to be given in a noncapital criminal trial, we reasoned: “The fact that the

elements of a charged offense include mental elements that must necessarily be

proved by inferences drawn from circumstantial evidence does not alone require

an instruction on the effect to be given such evidence however. The contrary is

usually the rule. . . . [¶] In the instant case the instructions were unnecessary

because the People did not ‘substantially rely’ on circumstantial evidence, and . . .

the evidence as to the mental elements of murder was either direct evidence, or if

circumstantial was not equally consistent with a rational conclusion that appellant


was innocent of murder under either of the theories pursued by the People.”

(People v. Wiley (1976) 18 Cal.3d 162, 175.) The same reasoning applies to this

case. To the extent the evidence of defendant’s mental state during the section

190.3, factor (b) offenses was circumstantial, it was not equally consistent with a

rational finding of innocence. Hence, the trial court did not err in failing to

instruct with CALJIC Nos. 2.01 and 2.02. Nor was there any constitutional


g. Instruction on expert testimony




as he did in connection with the giving of the

same instruction given in the competency phase (see pt. II.A.2.h, ante), that the

trial court erred in telling the jury that, in assessing the testimony of an expert, it

should consider the expert’s opinion with the reasons given for it, without

explicitly instructing the jury to consider the facts on which the opinion was based.

For the reasons we rejected the contention above, we do so again here.

h. Preinstruction during voir dire

During voir dire, the trial court distributed to prospective jurors a printed

instruction regarding the penalty phase, which stated: “In the penalty phase of the

trial both counsel are permitted to introduce mitigating and aggravating evidence

about the defendant. Aggravating circumstances may involve other bad acts,

different from the offense(s) charged. Mitigating circumstances could be

psychiatric testimony or other sympathetic factors in a defendant’s life. If you[]

are selected as a juror in this case you must, by law, consider these mitigating and

aggravating factors along with the facts of the case in making a decision about the

penalty to be imposed.”

Defendant contends this instruction was prejudicially inaccurate. He

observes that its description of possible mitigating circumstances was incomplete,


in that mitigation can encompass any and all factors that jurors perceive as

extenuating a defendant’s conduct. Indeed, he contends the mitigating evidence

presented to the jury included abundant evidence falling outside the narrow

categories enumerated by the trial court, including his asserted intoxication at the

times of the offenses, the mental disease or defect he asserts caused him to become

assaultive when intoxicated, and his confession to the crimes, which assisted

police investigations and brought closure to the victims’ families. The

underinclusiveness of the instruction, he contends, violated his rights under the

Eighth and Fourteenth Amendments because it effectively precluded the sentencer

from considering as mitigating any circumstance of the offense proffered as a

reason for a sentence less than death. (Lockett v. Ohio, supra, 438 U.S. at p. 601.)

Although defendant did not object to this preinstruction or request

clarification, we do not deem forfeited any claim of instructional error affecting a

defendant’s substantial rights. (§ 1259; People v. Coffman and Marlow, supra, 34

Cal.4th at p. 104, fn. 34.)

On the merits, however, we conclude the preinstruction did not prejudice

defendant. As we said in assessing a similar claim in People v. Livaditis, supra, 2

Cal.4th 759: “The comments were not the actual complete jury instructions. The

full instructions came at the end of the trial . . . . [¶] ‘The purpose of these

comments was to give prospective jurors, most of whom had little or no familiarity

with courts in general and penalty phase death penalty trials in particular, a general

idea of the nature of the proceeding. The comments were not intended to be, and

were not, a substitute for full instructions at the end of the trial.’ ” (Id. at p. 781.)

Likewise here, at the conclusion of the penalty phase the trial court read the

complete standard instructions on aggravating and mitigating factors and

determining penalty. (CALJIC Nos. 8.85, 8.88.) The court also instructed the jury

to disregard all other instructions given in other phases of the trial. Thus, there is


no reasonable likelihood (People v. Clair, supra, 2 Cal.4th at p. 663) the jury

understood the instruction given during the voir dire process as restricting the

range of mitigating evidence it could consider in deliberating on penalty.

3. Asserted errors in proceedings on automatic application to modify




that proceedings on the automatic application to

modify the verdict under section 190.4, subdivision (e) were so affected by a

variety of errors that remand for a new hearing on the application is required. We

independently consider the record in reviewing the trial court’s ruling. (People v.

Koontz (2002) 27 Cal.4th 1041, 1091.) As will appear, we find no error

warranting reversal.

a. Counsel’s inaction



United States v. Cronic (1984) 466 U.S. 648, 655-657, 659-660

(Cronic), defendant contends that his trial counsel’s inaction – specifically, his

filing no documents and making no argument – at this critical stage of the trial

(see Evitts v. Lucey (1985) 469 U.S. 387, 393 [recognizing right to effective

assistance of counsel in first appeal as of right]; Mempa v. Rhay (1967) 389 U.S.

128, 134-137 [recognizing right to counsel at sentencing]) led to a total breakdown

of the adversarial process, requiring reversal without consideration of prejudice.

(Defendant expressly makes no claim on appeal that his counsel was ineffective

within the meaning of Strickland v. Washington (1984) 466 U.S. 668, 688



Cronic, the high court stated: “ ‘The right to the effective assistance of

counsel is . . . the right of the accused to require the prosecution’s case to survive

the crucible of meaningful adversarial testing. When a true adversarial criminal

trial has been conducted – even if defense counsel may have made demonstrable


errors – the kind of testing envisioned by the Sixth Amendment has occurred. But

if the process loses its character as a confrontation between adversaries, the

constitutional guarantee is violated.’ ” (In re Avena (1996) 12 Cal.4th 694, 727,

quoting Cronic, supra, 466 U.S. at pp. 656-657, fns. omitted.) The high court

gave examples of the ways in which a trial might cease to afford meaningful

adversarial testing: “ ‘The Court has uniformly found constitutional error without

any showing of prejudice when counsel was either totally absent, or prevented

from assisting the accused during a critical stage of the proceeding.’ . . . ‘Apart

from circumstances of that magnitude, however, there is generally no basis for

finding a Sixth Amendment violation unless the accused can show how specific

errors of counsel undermined the reliability of the finding of guilt.’ ” (In re

Avena, supra, 12 Cal.4th at p. 727, quoting Cronic, supra, 466 U.S. at p. 659, fns.

25, 26, italics omitted.)


Bell v. Cone (2002) 535 U.S. 685 (Cone), the high court emphasized the

narrowness of its holding in Cronic. “When we spoke in Cronic of the possibility

of presuming prejudice based on an attorney’s failure to test the prosecutor’s case,

we indicated that the attorney’s failure must be complete.” (Id. at pp. 696-697,

italics added.) In mounting a guilt phase defense of insanity, defense counsel in

Cone presented psychological and neuropharmacological evidence of the

defendant’s substance abuse and posttraumatic stress related to his military service

in Vietnam, as well as testimony by the defendant’s mother and evidence of

remorse. During the sentencing hearing that followed the jury’s verdict of guilty,

defense counsel called the jurors’ attention to the mitigating evidence they had

heard in the earlier phase of trial and asked them to exercise mercy. Defense

counsel objected to the prosecutor’s proffer of photographs of the victims’

decomposing bodies and, after the junior prosecuting attorney gave a “low-key”

summation, waived closing argument, thereby foreclosing the lead prosecutor,


who by all accounts was a highly effective advocate, from offering rebuttal. The

high court rejected Cone’s claim that his counsel failed to subject the

prosecution’s case to adversarial testing within the meaning of Cronic, reasoning

that the claim was “not that his counsel failed to oppose the prosecution

throughout the sentencing proceeding as a whole, but that his counsel failed to do

so at specific points. For purposes of distinguishing between the rule of Strickland

and that of Cronic, this difference is not of degree but of kind.” (Id. at p. 697.)

This case is similar to Cone. After presenting a penalty phase defense of

current mental illness via the testimony of Dr. Wilkinson and arguing his case to

the jury, counsel appeared at the hearing on the automatic motion to modify and

noted he had reviewed the prosecutor’s proposed ruling and had nothing to add.

After the trial court read its decision into the record, counsel reminded the court

that he had asked it to defer reading the probation report until after ruling on the

automatic application. The trial court responded that it had done so. Before the

court recessed to consider the report, defense counsel pointed out a factual error in




which show that defense counsel was present at and

actively participating in the penalty trial as a whole, including the evidentiary

portion and argument to the jury, do not reach the magnitude of those in which

courts have concluded Cronic required reversal without a showing of prejudice.

In particular, this is not a case like People v. McKenzie (1983) 34 Cal.3d 616,

disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 365, a

pre-Cronic decision in which we reversed a conviction after the defendant’s

counsel expressly refused to participate in the trial beyond appearing in the

courtroom, and remained mute throughout the proceedings. In ruling on the

automatic application, the trial court is limited to the evidence that was before the

jury; thus, trial counsel was not at liberty to present new evidence and clearly


cannot be faulted for not doing so. (§ 190.4, subd. (e); People v. Farnam (2002)

28 Cal.4th 107, 196.) Defendant’s central complaint is that counsel did not argue

to the trial court, orally or in writing, for reduction of his sentence. But during his

penalty phase summation counsel had argued for a verdict of life imprisonment

without possibility of parole based on the evidence he had presented during that

phase of trial. That counsel did not repeat himself in the proceedings on the

automatic application was not the equivalent of his being absent or failing to

subject the prosecution’s case to adversarial testing during the sentencing phase of

trial. That counsel chose not to present argument at the hearing on the automatic

application, moreover, meant that the prosecutor likewise would not enjoy another

opportunity to urge the court to confirm the death sentence.

The authorities on which defendant relies, all of which predate Cone, supra,
535 U.S. 685, are distinguishable on their facts: In Tucker v. Day (5th Cir. 1992)
969 F.2d 155, 159, counsel at a noncapital resentencing hearing did not consult

with the defendant, had no knowledge of the facts, and acted as a mere spectator

of whose presence the defendant was unaware. In Patrasso v. Nelson (7th Cir.

1997) 121 F.3d 297, 304-305, counsel in a noncapital case performed no

investigation before sentencing and made no effort to obtain a mitigated

punishment. As noted, the facts of this case are distinguishable.

Our conclusion that the rule in Cronic does not apply here should not be

read as an endorsement of defense counsel’s performance in connection with the

hearing on the automatic application to modify the verdict. Cases in which

counsel at such hearings appropriately choose to forgo arguing that their client’s

life be spared should be rare indeed. As noted, this appeal affords us no occasion

to comment on the adequacy of counsel’s representation within the meaning of

Strickland, supra, 466 U.S. at page 688. Resolution of any claim predicated on

Strickland must await collateral proceedings.


b. Asserted conflict of interest

Next, defendant contends the trial court erred in failing to modify the

verdict due to counsel’s conflict of interest (see pp. 62-68, ante). Because we

have concluded counsel did not have a conflict of interest, we reject the


c. Trial court remarks suggesting role of emotion or religious belief

in ruling

Defendant next argues he was denied due process of law because the

judge’s decision on the automatic application to modify the verdict was tainted by

passion, emotion, and religious beliefs. He cites several remarks the trial court

made during the sentencing hearing.

First, in examining section 190.3, factor (d) – whether the murders were

committed while defendant was under the influence of extreme mental or

emotional disturbance – the court stated: “There is no evidence that the murders

of John Davies and Lance Turner were committed while the defendant was under

the influence of extreme mental or emotional disturbance. Even the doctors most

favorable to the defendant testified that Jon Dunkle showed no signs of mental

illness until 1987. [¶] Those of us who are overcome by the horror of these

crimes may have an urge to imagine that Jon Dunkle suffered from some

emotional illness[;] perhaps we do this to protect ourselves from the very real fact

that some people in this world delight in doing evil. [¶] However, evidence

indicates that the defendant has systematically feigned mental problems in order to

avoid responsibility for his vicious acts.” (Italics added.)

Defendant argues the italicized phrase shows that the court’s ruling was

improperly based on its personal emotion. But he takes this comment out of

context. The ruling as a whole makes clear that the court carefully considered all

of the evidence presented at trial, applying the section 190.3 factors in exercising


its independent judgment to determine that the weight of the evidence supported

the jury’s verdict. We see no basis for a conclusion the trial court improperly took

emotional considerations into account in making its ruling.

Defendant further asserts that the court’s discussion of section 190.3, factor

(a), the circumstances of the offenses, revealed that emotion and passion affected

the ruling. The court stated: “The circumstances of the crime for which the

defendant was convicted were particularly vicious. The first of the defendant’s

chosen victims, John Davies, was especially vulnerable to the defendant’s

murderous intentions because he regarded the defendant as a friend. He trusted

Jon Dunkle. The defendant used this trust, as well as John Davies’ youth, to lure

him to an isolated area, and there for pleasure, Jon Dunkle murdered his friend.

[An] incomprehensible and vicious act. Having accomplished that, he abandoned

John’s body to the elements, he cruelly allowed the family who had welcomed him

to be torn apart by years of searching and heart-[rending] sor[r]ow. [¶] Then the

defendant in 1984 murdered again. As before the defendant chose a particularly

vulnerable victim, a 12-year-old boy, Lance Turner. A child whom the defendant

had never before seen. For a thrill, the defendant brutally stabbed Lance 23 times.

For the perverse pleasure of seeing a human being suffer and die, Jon Scott

Dunkle ended Lance’s life and plunged the Turner family into darkest grief.

(Italics added.) Later, in the course of its comments on section 190.3, factor (b),

other violent criminal conduct, the court stated: “Proof beyond a reasonable doubt

was also presented on a third murder committed by the defendant in 1985. The

murder of Sean Dannehl. While the defend[ant] was living in Sacramento and

[a]waiting court proceeding on the burglary charge, he happened upon his third

victim, a slight 12-year-old boy, riding his bicycle home through the twilight. Jon

Dunkle chased him on his own bike, rammed him twice, forcing Sean to stop.

Who can imagine the terror that that child must have felt naked, alone and


trapped by this defendant? Jon Dunkle brutally and pitilessly stabbed Sean in the

heart and eyes. He forcibly penetrated that little skull. He drained Sean’s life

from him, and left him to decompose in the summer heat. [¶] The defendant

confessed to this crime as well.” (Italics added.)

The italicized comments reveal the court’s appreciation of the terror and

grief felt by the victims and their families. They do not support defendant’s

assertion that the court made its ruling on the basis of its personal emotion or


Finally, defendant contends certain comments the court made after ruling

on the automatic application and after imposing sentence, demonstrate that the

court’s emotional reactions and religious views improperly influenced its ruling.

The court said: “To the families of John Davies and Lance Turner: The facts that

were presented here in this courtroom constitute a tragedy of incomprehensible

proportions. Our children are so much a part of ourselves, their personalities, their

uniqueness, become woven into the fabric of our being. When that precious part

of our lives is ripped ruthlessly [from] us, as happened in this case, the resulting

wound must be beyond endurance. [¶] I know that I speak for each person who

sat in the courtroom and listened to the evidence, when I say that our hearts go out

to you. We hope now, that somehow the healing process can begin. [¶] We

admire your courage and pure faith. You have born[e] unbearable sorrow with

grace and dignity. [¶] To Jon Scott Dunkle I say do not look to this court for

forgiveness, Mr. Dunkle. I can find no mercy for you in my heart. [¶] What you

have done deserves the fullest condemnation of the law. The jury rightly

determined that there is no penalty but death to be imposed in this situation and I

concur with that determination. [¶] I suggest that you now look beyond this earth

for forgiveness, for what is not possible for man is possible for God. When you

were younger you went to church. You know that a judgment day that will make


this pale in comparison is coming. Direct your thoughts to that judgment that you

may not make a wreckage of your eternal life as you have this mortal life. [¶]

Court is in recess.”

As noted, the court made these comments after ruling on the automatic

verdict modification application and after imposing sentence. In the course of our

review of the ruling, we have independently considered the record and the court’s

statement of its reasons for the ruling. (People v. Holt (1997) 15 Cal.4th 619,

710.) We are satisfied the court complied with its obligation to weigh the

evidence independently and without being influenced by improper religious or

emotional considerations. Its postruling comments were personal reflections and

not part of a legal ruling.

d. Asserted error in trial court’s factual conclusions

Defendant contends the trial court’s ruling on the automatic application

contained several factual errors that violated an Eighth and Fourteenth

Amendment interest he discerns in the reliable implementation of the last

procedural safeguard before imposition of the death penalty. We discuss each

asserted error in turn.

Defendant criticizes the trial court’s statement that: “Nothing was

presented to the jury to prove that [defendant] was under the influence at the time

of the murder [of Lance Turner].” Defendant argues the trial court ignored the

portion of his confession in which he described sharing a beer and a marijuana

cigarette with the three girls at Waterdog Lake Park before the murder and his

explanation that when he drinks alcohol and smokes marijuana, his body

chemistry changes and he becomes assaultive. In fact, the trial court considered

that evidence and concluded it did not establish that defendant was intoxicated

within the meaning of section 190.3, factor (h) at the time of the offenses: “The


girls who talked to Jon Dunkle before he attacked Lance Turner saw the defendant

with one can of beer. They reported no symptoms of intoxication. The defendant

himself did not say that he was intoxicated when he saw Lance Turner on the path

and decided to kill him. [¶] Perhaps the most persuasive evidence on this point is

the careful planning of these murders by the defendant, which was mentioned by

the court earlier. Such planning is inconsistent with intoxication.”

Defendant criticizes the trial court’s further statement that: “Jon Dunkle

also told the police that on the night he killed John Davies he had been drinking

and smoking marijuana. However, the defendant did not indicate that he was high

when he committed the murder.” Defendant complains that the trial court

overlooked substantial evidence to the contrary, namely his statement to Belmont

police that he was drunk and had been drinking whisky and smoking marijuana

that night, and his statement to the FBI attributing the Davies murder to the effects

of drink. The court’s ruling, however, makes clear that it considered the evidence

defendant cites, and simply did not accord it substantial mitigating weight.



the trial court erred in finding premeditation and

deliberation in the Davies and Turner homicides because they were carefully

planned, and “such planning is inconsistent with intoxication.” In addition to

arguing that the evidence in this case fails to show careful planning, defendant

argues that premeditation and deliberation may be affected by intoxication, and

that evidence of diminished capacity due to intoxication or mental defect, whether

or not it rises to the level of a diminished capacity defense, is still a mitigating

factor in capital sentencing. We do not infer the trial court overlooked relevant

evidence or ignored applicable law to which it referred elsewhere in its ruling.

Rather, it simply accorded greater weight to what the Attorney General calls

defendant’s deliberate goal-oriented behavior at the time of the Davies and Turner



Defendant criticizes the trial court’s conclusion that defendant had

threatened to use force or violence in the course of the Rennie burglary. As we

concluded above, however (pp. 74-75, ante), the trial court properly could

consider the evidence of that incident under section 190.3, factor (b). Defendant

further argues the trial court improperly considered the fact that he resisted arrest

and used force against Sergeant Goulart of the Belmont Police Department when

the latter thwarted the Rennie burglary. Defendant notes that the prosecution

never gave pretrial notice of an intent to use that fact, and never argued it as a

circumstance in aggravation. But defendant cites no authority precluding the trial

court, in ruling on an automatic application under section 190.4, subdivision (e),

from relying on a factual aspect of a factor (b) offense that was presented to the

jury merely because the prosecution did not explicitly argue it in aggravation.

Defendant contends the trial court improperly concluded that he

“delight[ed] in doing evil” and had “systematically feigned mental problems in

order to avoid responsibility for his vicious acts.” He admits there is evidence he

sometimes produced or exaggerated symptoms of a mental illness he actually had,

but – noting he confessed to his crimes – he argues there is no evidence he faked

mental illness in order to avoid the death penalty. He also asserts the trial court

improperly relied on evidence presented during the second competency trial. We

disagree. As the Attorney General observes, at the penalty phase Dr. Missett

testified defendant was malingering and Dr. Wilkinson testified defendant at times

malingered and was manipulative. The trial court properly could consider this

penalty phase evidence in ruling on the automatic application.

Defendant asserts the trial court erred in stating: “It was proven beyond a

reasonable doubt that both during the murders and the legal proceedings the

defendant knew right from wrong, and has always had the ability to make choices

and maintain control of himself when he wishes to do so.” Defendant points out


that, in the second competency trial (which the trial court could not properly

consider in ruling on the automatic application), the jury made no finding under

the beyond a reasonable doubt standard and no finding regarding his knowledge of

right from wrong or his ability to control himself, nor were the latter issues

relevant to the guilt phase. The Attorney General interprets the trial court’s

comment as referring to the lack of evidence showing that defendant was

psychotic at the time of the murders or incompetent at the time of trial. Whether

or not that interpretation is correct, we agree with the Attorney General that even

if the trial court misapprehended the appropriate standard or improperly

considered evidence from the second competency trial, defendant fails to show a

reasonable possibility any such error might have affected its ruling on the

automatic application. (People v. Clark (1992) 3 Cal.4th 41, 172.)

Defendant contends the trial court erred in stating, as relevant to section

190.3, factor (d): “There is no evidence that the murders of John Davies and

Lance Turner were committed while the defendant was under the influence of

extreme mental or emotional disturbance. Even the doctors most favorable to the

defendant testified that Jon Dunkle showed no signs of mental illness until 1987.”

He cites Dr. Missett’s testimony that he was “certainly prepared to admit that there

are aspects of [defendant’s] personality or motivations or intention that may be

beyond his control. . . .”

But defendant takes Dr. Missett’s testimony out of context. Before making

the quoted comment, Dr. Missett stated that “the principal way in which

[defendant] presents himself and the principal characteristic of his acts, involves

intentionality, involves awareness of what you are doing, involves awareness and

disregard of consequences, and it involves things that are under his control.”

Dr. Missett went on to say: “But the actions themselves, and the amount of

devious planning that goes into them, . . . those are under his control.”


Dr. Wilkinson, testifying on defendant’s behalf during the penalty phase, said that

in reviewing the police reports relevant to the case he saw no symptoms of mental

illness that led him to believe it was a “dominant explanation” for the crimes. The

trial court did not err in not treating defendant’s statement to police that he

develops assaultive behavior after drinking alcohol or smoking marijuana as

weighty evidence of extreme mental or emotional disturbance within the meaning

of section 190.3, factor (d).

Finally, defendant complains that nothing in the court’s ruling suggests it

took into consideration the sole penalty phase defense proffered by counsel:

current mental illness. To the contrary, in its discussion of section 190.3, factor

(k), the court stated: “There was presented no circumstance which could

extenuate the gravity of the crimes for which the defendant was convicted.

Nothing the defendant has presented regarding his personal history, which

includes a learning disability, constitutes a basis for a sentence less than death.

Nothing in the defendant’s background excuses, explains or mitigates the violence

and the brutality surrounding the murders of John Davies and Lance Turner. [¶]

Evidence that the defend[ant] was influenced by alcohol or drug consumption or

schizophrenia at the time of the homicide is not convincing. Jon Dunkle’s conduct

during the commission of each murder was deliberate and purposeful. It was

proven beyond a reasonable doubt that both during the murders and the legal

proceedings the defendant knew right from wrong, and has always had the ability

to make choices and maintain control of himself when he wishes to do so.” (Italics

added.) The trial court considered, but evidently accorded little weight to,

defendant’s evidence of current mental illness.

In sum, in ruling on the automatic application to modify the verdict the trial

court made no factual errors sufficient to undermine the validity of its conclusion.


e. Effect of guilt and penalty phase errors

Defendant contends the trial court’s ruling on the automatic application for

modification of the verdict was prejudicially affected by errors it committed

during the guilt and penalty phases of the trial, considered individually and

cumulatively. He fails, however, to show how any error may have done so, and

we reject the point.

f. Cumulative error in proceedings on automatic application

Defendant contends that errors in the proceedings under section 190.4,

subdivision (e) should be reviewed for their cumulative effect and the judgment

should be reversed accordingly. We have found no error that, individually or

cumulatively, demonstrates that the trial court failed to accord him proper review

under section 190.4, subdivision (e) of the jury’s sentencing decision.

4. Cumulative penalty phase error

Defendant argues that errors occurring in the penalty phase of his trial,

considered cumulatively, require reversal of the death judgment. Because we have

found no error in this phase of the trial, however, the contention must fail.

5. Asserted unconstitutionality of death penalty law



that many features of this state’s capital sentencing

law, alone or in combination with each other, violate the federal Constitution. He

acknowledges we have rejected these contentions in other cases.

Thus, we have held the inclusion in the list of mitigating factors of such

adjectives as “extreme” (see section 190.3, factor (d); CALJIC No. 8.85) does not

act as a barrier to the jury’s consideration of mitigating evidence in violation of the

Fifth, Sixth, Eighth and Fourteenth Amendments (People v. Monterroso (2004) 34

Cal.4th 743, 796), nor does it render such factors unconstitutionally vague,


arbitrary, capricious or incapable of principled application (People v. Yeoman

(2003) 31 Cal.4th 93, 165; People v. Stanley, supra, 10 Cal.4th 764, 842).

California’s death penalty law does not fail to perform the constitutionally

required narrowing function by virtue of the number of special circumstances or

the manner in which they have been construed. (People v. Morrison (2004) 34

Cal.4th 698, 730.)

The law does not deprive defendant of meaningful appellate review and

federal due process and Eighth Amendment rights by failing to require written or

other specific findings by the jury on the aggravating factors it applies. (People v.

Smith (2003) 30 Cal.4th 581, 641-642.)

The death penalty law does not violate the Fourteenth Amendment’s due

process clause by failing to require that all aggravating factors be proved beyond a

reasonable doubt, that aggravation must outweigh mitigation beyond a reasonable

doubt, and that death is the appropriate penalty beyond a reasonable doubt.

(People v. Snow (2003) 30 Cal.4th 43, 126.) Indeed, the sentencing law is not

unconstitutional, and does not violate Evidence Code section 520, in requiring no

burden of proof as to penalty because the capital sentencing function is not

susceptible to a burden of proof quantification. (People v. Brown (2004) 33

Cal.4th 382, 401; People v. Lenart (2004) 32 Cal.4th 1107, 1136.) We find no

merit in defendant’s alternative contention that CALJIC No. 8.84 was deficient

because it did not expressly inform the jury that no party bore the burden of proof;

taken as a whole, the instructions accurately advised the jury concerning the

process of penalty determination, and more was not required.

The jury’s unanimous agreement on aggravating factors is not required.

(People v. Medina (1995) 11 Cal.4th 694, 782.)


That the death penalty law permits consideration of unadjudicated criminal

activity does not render it unconstitutional. (People v. Kraft (2000) 23 Cal.4th

978, 1078.)

The existence of prosecutorial discretion whether to seek the death penalty

in a given case does not render the law unconstitutional. (People v. Kraft, supra,

23 Cal.4th at p. 1078.)

California’s death penalty law is not unconstitutional because the use of the

death penalty as a regular form of punishment falls short of international norms of

human decency. (People v. Brown, supra, 33 Cal.4th at pp. 403-404.)

The terms “aggravating” and “mitigating” are commonly understood words

that we have held need not be further defined for the jury (People v. Hawkins

(1995) 10 Cal.4th 920, 965, disapproved on other grounds in People v. Lasko

(2000) 23 Cal.4th 101, 110); it follows they are not unconstitutionally vague.

The trial court was not required to instruct the jury that a sentence of life

imprisonment without possibility of parole means that a defendant will never be

paroled. (People v. Arias (1996) 13 Cal.4th 92, 172.)

The trial court also was not required to instruct the jury on a

“ ‘ “presumption of life.” ’ ” (People v. Combs (2004) 34 Cal.4th 821, 868.)

Intercase proportionality review is not constitutionally required. (People v.

Horning (2004) 34 Cal.4th 871, 913.) Nor does equal protection require that

capital defendants be afforded the same sentence review afforded other felons

under the determinate sentencing law. (People v. Morrison, supra, 34 Cal.4th at

p. 731.)

The death penalty does not constitute cruel and unusual punishment, nor

does the existence of procedural “barriers” to state or federal postconviction

remedies violate the Eighth and Fourteenth Amendments. (People v. Staten

(2000) 24 Cal.4th 434, 462; People v. Fairbank (1997) 16 Cal.4th 1223, 1255.)


The administration of the death penalty in this state is not

unconstitutionally arbitrary. (People v. Snow, supra, 30 Cal.4th at p. 127.)

Defendant offers no persuasive reason to depart from these precedents.

6. Asserted unconstitutionality of method of execution




the method of execution prescribed by the 1990

judgment in this case, the administration of lethal gas, has been held to violate the

Eighth and Fourteenth Amendments. (Fierro v. Gomez (9th Cir. 1996) 77 F.3d

301, 309, vacated for reconsideration in light of statutory amendment (1996) 519

U.S. 918.) He contends his sentence should be reduced to life imprisonment

without the possibility of parole because the 1992 amendment to section 3604 to

permit execution by lethal injection as an alternative to lethal gas (Stats. 1992, ch.

558, § 2, p. 2075) would constitute an unconstitutional ex post facto law or bill of

attainder as applied to him. We have previously rejected the same contention,

reasoning the amendment did not increase or make more burdensome in any way a

condemned prisoner’s punishment. (People v. Snow, supra, 30 Cal.4th at pp. 127-

128.) We see no reason to depart from that holding. For the same reason,

defendant’s claim that execution by lethal injection would place him a second time

in jeopardy in violation of the Fifth and Fourteenth Amendments lacks merit.

Defendant further argues that execution by lethal injection itself violates the

Eighth and Fourteenth Amendments. As he acknowledges, we have held to the

contrary (People v. Samayoa (1997) 15 Cal.4th 795, 864), and defendant advances

no persuasive reason to reconsider that conclusion.

7. Election of method of execution

Defendant asks that, if this court affirms his sentence, counsel with

expertise in matters pertaining to execution be appointed to advise him on the

issue of the method of his execution. He reasons that the election between lethal


gas and lethal injection, under section 3604, is a critical stage of the proceedings

during which he is constitutionally entitled to representation. (See Mempa v.

Rhay, supra, 389 U.S. at pp. 134-137 [holding the right to counsel applies at the

time of imposition of sentence following revocation of probation or deferred


Assuming defendant is correct that he is entitled to the advice of counsel

before making the section 3604 election, we conclude that to appoint counsel at

this juncture, well before the setting of any execution date, would be premature.



contends that any valid election of a method of execution

under section 3604 presupposes that the prisoner is competent to make such an

election. (See Ford v. Wainwright (1986) 477 U.S. 399, 410 [barring execution of

the insane].) Accordingly, he asks for a determination of his competency for that

purpose. Like the appointment of counsel to advise defendant on the section 3604

election, a determination of his competency for this purpose at this time would be


8. Delay in appellate process and execution of sentence

Observing that the judgment in this case was entered in 1990, appellate

counsel was appointed in 1993, and further delay has occurred in the process of

briefing and adjudicating this appeal, defendant contends these circumstances

support a presumption of excessive delay in violation of his right to due process of

law and the Eighth and Fourteenth Amendments to the federal Constitution.

Defendant also asserts that if he receives inferior treatment because of his

indigence than a person who could afford counsel would have received, he has

been denied equal protection of the laws. In support, he relies on Harris v.

Champion (10th Cir. 1994) 15 F.3d 1538. We previously have distinguished that

case, in which the federal court of appeals held that a two-year delay in disposing

of noncapital criminal appeals is presumptively excessive, as “[not] address[ing]


the unique demands of appellate representation in capital cases.” (People v. Holt,

supra, 15 Cal.4th 619, 709.) “[D]efendant fails to demonstrate that the delay

inherent in the procedures by which California recruits, screens, and appoints

attorneys to represent capital defendants on appeal, is not necessary to ensure that

competent representation is available for indigent capital appellants.” (Ibid.)

Moreover, although defendant complains that long delay renders a retrial more

difficult and complicated, he “fails to suggest any impact that the delay could have

on the validity of the judgment rendered before that delay occurred.” (Ibid.)

Finally, defendant argues that the long delay between the imposition and

execution of the death sentence constitutes cruel and unusual punishment. He

acknowledges we have previously rejected this contention (People v. Anderson,

supra, 25 Cal.4th at p. 606; People v. Massie (1998) 19 Cal.4th 550, 574), but asks

us to reconsider our view. For the reasons stated in our earlier decisions, we

decline to do so.


The judgment is affirmed.






See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Dunkle

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: August 4, 2005

County: San Mateo
Judge: Judith W. Kozloski


Attorneys for Appellant:

S. Michelle May and Conrad Petermann, under appointments by the Supreme Court, for Defendant and


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Ronald S. Matthias and René A. Chacon, Deputy Attorneys General, for
Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

S. Michelle May
1800 Market Street, #38
San Francisco, CA 94102-6227
(415) 585-5907

René A. Chacon
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5957


Opinion Information
Date:Docket Number:
Thu, 08/04/2005S014200

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Rene A. Chacon, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Dunkle, Jon Scott (Appellant)
Represented by Conrad Petermann
Attorney at Law
323 East Matilija Street, # 110, PMB 142
Ojai, CA

3Dunkle, Jon Scott (Appellant)
Represented by S. Michelle May
Attorney at Law
1800 Market St., #38
San Francisco, CA

4Dunkle, Jon Scott (Appellant)
Represented by John T. Philipsborn
Attorney At Law
507 Polk St., Suite 250
San Francisco, CA

Aug 4 2005Opinion: Affirmed

Feb 7 1990Judgment of death
Feb 20 1990Filed certified copy of Judgment of Death Rendered
Jan 27 1993Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Conrad Petermann, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. Michael B. Dashjian, Esq., is hereby appointed as associate counsel
Mar 3 1993Application for Extension of Time filed
  By Applt to request correction of Record.
Mar 8 1993Extension of Time application Granted
  To Applt To 5-3-93 To request Corr. of Record.
May 3 1993Application for Extension of Time filed
  By Applt to request correction of Record.
May 3 1993Change of Address filed for:
  Counsel for Applt (Michael B. Dashjian)
May 6 1993Compensation awarded counsel
May 10 1993Extension of Time application Granted
  To Applt To 6-2-93 To request Corr. of Record.
Jun 2 1993Application for Extension of Time filed
  By Applt to request correction of Record.
Jun 3 1993Extension of Time application Granted
  To Applt To 7-1-93 To request Corr. of Record.
Jun 30 1993Application for Extension of Time filed
  By Applt to request correction of Record.
Jun 30 1993Compensation awarded counsel
Jul 2 1993Extension of Time application Granted
  To Applt To 8-2-93 To request Corr. of Record.
Jul 14 1993Received:
  copy of appellant's motion to augment the record. (5 pp.)
Aug 2 1993Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 4 1993Received:
  Copy of Applt's motion to Augment, filed in San Mateo Superior Court.
Aug 11 1993Extension of Time application Granted
  To Applt To 9-1-93 To request correction of Record. no further Extensions of time Are Contemplated.
Sep 3 1993Received:
  Copy of Applt's request for correction, for Addit. Record, & to Settle Record on Appeal (12 Pp.)
Oct 18 1993Compensation awarded counsel
Nov 8 1993Filed:
  Certification of Notice to Resp (Re: motion for Conditional Order of Exam of Douglas Gray, Esq.)
Dec 1 1993Compensation awarded counsel
Apr 27 1994Compensation awarded counsel
May 9 1994Change of Address filed for:
  Atty Michael B. Dashjian.
Apr 4 1995Change of Address filed for:
  Resp Atty General - S.F. Office.
Jan 23 1996Change of Address filed for:
  Atty Michael Dashjian.
Feb 6 1996Motion filed
  By Applt (Confidential).
Mar 14 1996Request Denied
  The ex parte motion of counsel for appellant for appointment as a guardian ad litem is denied without prejudice. Counsel may file a subsequent motion for appointment as a guardian ad litem with service on the Attorney General and appellant Jon Scott Dunkle.
Apr 11 1996Motion filed
  For appointment of Applt's Counsel as Guardian Ad Litem For Applt (11 Pp.)
Jun 14 1996Filed:
  Resp's response to motion for appointment as Guardian Ad Litem for Applt (3 Pp.)
Jun 18 1996Motion filed
  appellant's motion for transcription of sound recordings and production of transcripts and compliance with court order.
Jun 24 1996Filed:
  Reply to Resp's response to motion for appointment of Guardian Ad Litem (3 Pp.)
Jul 5 1996Filed:
  Letter from Resp, dated 7-3-96, Re: Stipulation Regarding Applt's motion for Transcription of Sound Recordings & Production of Transcripts.
Sep 18 1996Filed:
  Letter from Atty Dashjian, dated 9-15-96, Re: motion filed 6-18-96.
Oct 1 1996Letter sent to:
  Resp, requesting response to Applt's motion for Transcription of Sound Recordings Etc.; Due 10-11-96.
Oct 11 1996Filed:
  Letter from Resp,dated 10/11/96 Re: response to Applt's motion for Transcription of Sound Recordings Etc.
Nov 13 1996Order filed:
  The motion of appellant Jon Scott Dunkle for transcription of sound recordings and production of transcripts is granted. San Mateo County Chief Deputy District Attorney Stephen M. Wagstaffe is hereby ordered to lodge, on or before December 2, 1996, transcriptions of trial Exhibits 1A, 26, 29, 37-38, and 41 with the Superior Court of the State of California, for the County of San Mateo. No extensions of time will be granted.
Dec 11 1996Reference hearing ordered
  By the Court: The Hon. Dale A. Hahn, Presiding Judge of the San Mateo Superior Court, shall select a Judge of the San Mateo Superior Court to sit as a referee in this proceedings, and shall promptly notify this court of the referee selected. After appointment by this court, the referee shall supervise discovery; appoint, if necessary, one or more experts; take evidence; and make a finding on the following question: Is defendant Jon Scott Dunkle presently unable, as a result of mental disorder, to understand the nature of defense counsel's attempts to investigate grounds for the filing of a writ of habeas corpus or to assist counsel in that investigation? The referee's recommendation shall be based solely on the record of the proceedings before the referee. Defense counsel's motion to maintain under seal the ex parte motion and its attached exhibits filed in this court on February 6, 1996, is granted.
Jan 15 1997Referee appointed
  Hon. Judith Whitmer Kozloski, Judge of the San Mateo Super. Ct., appointed as the referee.
Jan 16 1997Compensation awarded counsel
Feb 13 1997Filed:
  By Applt Exparte Application for Association and appointment of Counsel with Trial Level Experience
Mar 12 1997Compensation awarded counsel
Mar 13 1997Filed:
  appellant's application for association and appointment of counsel with trial level experience. (for limited purpose of assisting with evidentiary hearing)
Mar 18 1997Filed:
  joinder of associate counsel Michael Dashjian in appellant's application for association and appointment of counsel with trial level experience.
Apr 1 1997Filed:
  Declaration of attorney John T. Philipsborn in support of request for appointment of counsel to conduct evidentiary hearing.
Apr 23 1997Counsel appointment order filed
  The Application for Appointment of John T. Philipsborn as associate counsel, filed March 31, 1997, is granted, effective April 23, 1997.
Aug 1 1997Change of Address filed for:
  Atty Michael B. Dashjian.
Sep 16 1997Compensation awarded counsel
Oct 23 1997Habeas funds request filed (confidential)
  (Re: Evidentiary Hearing)
Jan 21 1998Order filed re Habeas Funds Request
  re: request filed October 23, 1997
Feb 26 1998Compensation awarded counsel
Mar 27 1998Habeas funds request filed (confidential)
  (Re: Evidentiary Hearing).
May 13 1998Compensation awarded counsel
Jul 8 1998Compensation awarded counsel
Jul 8 1998Order filed re Habeas Funds Request
  Re: request filed 5-27-98.
Sep 28 1998Change of Address filed for:
  Atty John Philipsborn.
Oct 28 1998Compensation awarded counsel
Jan 20 1999Compensation awarded counsel
Mar 29 1999Record on appeal filed
  C-11 (2,857 Pp.) and R-95 (6,019 Pp.) (Including Sealed Material). Clerk's Transcript includes 1,591 pages of Juror Questionnaires.
Mar 29 1999Appellant's opening brief letter sent, due:
Apr 26 1999Compensation awarded counsel
May 10 1999Application for Extension of Time filed
  To file Aob.
May 11 1999Extension of Time application Granted
  To 7-9-99 To file AOB
May 27 1999Change of Address filed for:
  Atty General - S.F. Office.
Jun 11 1999Filed:
  Resp's Amended Decl of Service.
Jun 16 1999Order filed:
  The referee is directed to commence the reference hearing on the issue set forth in this court's December 11, 1996, order of reference on or before September 27, 1999, and to proceed with the hearing on each regular court day thereafter until completed. Any application for a continuance of the reference hearing shall be directed to this court, not the referee.
Jul 12 1999Application for Extension of Time filed
  To file Aob.
Jul 12 1999Extension of Time application Granted
  To 9-7-99 To file AOB
Aug 10 1999Motion filed
  By Petnr for Ext. of time in which to Complete the Reference Hearing.
Aug 17 1999Order filed:
  The "Motion for Extension of Time in Which to Complete the Reference Hearing," filed August 10, 1999, is denied.
Sep 7 1999Application for Extension of Time filed
  To file Aob.
Sep 9 1999Extension of Time application Granted
  To 11/8/99 To file Aob.
Sep 17 1999Change of Address filed for:
  Atty Michael B. Dashjian.
Oct 18 1999Compensation awarded counsel
Oct 20 1999Compensation awarded counsel
  Atty Petermann
Nov 8 1999Application for Extension of Time filed
  To file Aob.
Nov 12 1999Extension of Time application Granted
  To 1/7/2000 To file Aob.
Jan 10 2000Application for Extension of Time filed
  To file Aob.
Jan 12 2000Extension of Time application Granted
  To 3/7/2000 To file Aob.
Jan 13 2000Compensation awarded counsel
  Atty Petermann
Feb 14 2000Compensation awarded counsel
  Atty Petermann
Feb 16 2000Compensation awarded counsel
  Atty Petermann
Mar 8 2000Application for Extension of Time filed
  To file Aob.
Mar 10 2000Extension of Time application Granted
  To 5/8/2000 To file Aob. no further Eot Are Contemplated.
Mar 10 2000Referee's report filed
  "Finding and Recommendation on Reference Question"
Mar 23 2000Filed:
  Record from Evidentiary Hearing: 2 Superior Court Files; 11 Vols. of R.T. (899 Pp.); and Exhibits.
Apr 20 2000Compensation awarded counsel
  Atty Petermann
May 9 2000Application for Extension of Time filed
  To file Aob.
May 11 2000Extension of Time application Granted
  To 7/7/2000 To file AOB. No further extensions of time will be granted.
Jun 14 2000Compensation awarded counsel
  Atty Petermann
Jul 7 2000Application for Extension of Time filed
  To file AOB.
Jul 11 2000Extension of Time application Granted
  To 7/27/2000 to file AOB. No further ext. of time will be granted.
Jul 21 2000Change of Address filed for:
  Atty Michael Dashjian
Jul 31 2000Filed:
  application for permission to file AOB in excess of 280 pp. (3 vol. AOB submitted under separate cover.
Jul 31 2000Filed:
  applt's Notice of Compliance with Rule 976(c).
Jul 31 2000Request for Judicial Notice filed
  by applt.
Aug 8 2000Order filed:
  granting applt's application for permission to file AOB in excess of the page limit.
Aug 8 2000Appellant's opening brief filed
  (3 vols. - 772 pp.)
Aug 10 2000Filed:
  Confidential declaration of atty Conrad Petermann
Aug 15 2000Filed:
  one vol. of Clerk's Transcript (containing copies of exhibits).
Aug 15 2000Filed:
  stipulation of parties re: clerk's exhibits transcript (filed this date.)
Aug 22 2000Compensation awarded counsel
  Atty Petermann
Sep 5 2000Application for Extension of Time filed
  to file resp's brief.
Sep 6 2000Extension of Time application Granted
  To 11/6/2000 to file resp's brief.
Sep 19 2000Compensation awarded counsel
  Atty Petermann
Nov 6 2000Counsel's status report received (confidential)
Nov 6 2000Application for Extension of Time filed
  to file resp's brief (2nd request)
Nov 8 2000Extension of Time application Granted
  to 1-5-2001 to file resp's brief.
Jan 4 2001Counsel's status report received (confidential)
Jan 8 2001Application for Extension of Time filed
  To file resp's brief. (3rd request)
Jan 10 2001Extension of Time application Granted
  To 3/6/2001 to file resp's brief.
Mar 7 2001Application for Extension of Time filed
  to file resp's brief. (4th request)
Mar 12 2001Counsel's status report received (confidential)
Mar 16 2001Extension of Time application Granted
  To 5/7/2001 to file respondent's brief.
May 7 2001Counsel's status report received (confidential)
May 7 2001Application for Extension of Time filed
  To file respondent's brief. (5th request)
May 11 2001Extension of Time application Granted
  To 7/6/2001 to file respondent's brief.
Jun 12 2001Counsel's status report received (confidential)
Jul 5 2001Letter sent to:
  counsel requesting that the parties submit briefs addressing the merits of the referee's Finding and Recommendation on Reference Question, whether the court should appoint a guardian ad litem, and the identity of potential guardians ad litem with a statement of reasons for any recommendations made. Applt's brief due 8-6-2001; respondent's due 9-5-2001; applt's reply due 9-20-2001.
Jul 9 2001Application for Extension of Time filed
  To file resp.'s brief. (6th request)
Jul 13 2001Extension of Time application Granted
  To 9/4/2001 to file resp.'s brief.
Jul 16 2001Application for Extension of Time filed
  To file applt.'s brief on the competence issues. (1st request)
Jul 25 2001Extension of Time application Granted
  To 8/27/2001 to file applt.'s brief regarding reference.
Aug 9 2001Counsel's status report received (confidential)
Aug 22 2001Motion for appointment of a guardian ad litem filed.
  Appellant's brief on the referee's findings and recommendations and renewed motion for appointment of guardian ad litem.
Aug 24 2001Filed:
  Supplemental proof of service to applt.'s/petnr.'s brief on the referee's findings and recommendations; renewed motion for appointment of guardian ad litem.
Sep 6 2001Application for Extension of Time filed
  To file resp.'s brief. (7th request)
Sep 13 2001Extension of Time application Granted
  To 11/5/2001 to file resp.'s brief.
Sep 28 2001Application for Extension of Time filed
  To file resp.'s brief on the merits of the referee's finding on the reference question. (1st request)
Oct 4 2001Extension of Time application Granted
  To 10/5/2001 to resp. to file resp.'s brief on the merits of the referee's finding on the reference question.
Oct 5 2001Application for Extension of Time filed
  by resp. to file resp.'s brief on the merits of the referee's finding on the reference question. (2nd request)
Oct 11 2001Extension of Time application Granted
  To 10/19/2001 to resp. to file brief on the merits to the referee's finding on reference question.
Oct 15 2001Counsel's status report received (confidential)
Oct 22 2001Application for Extension of Time filed
  by resp. to file brief on the merits of the referee's finding on the reference question. (3rd request)
Oct 24 2001Extension of Time application Granted
  To 11/2/2001 to file resp.'s brief on the merits of the referee's finding on the reference question.
Nov 6 2001Application for Extension of Time filed
  To file resp.'s brief on the merits of the referee's finding on the reference question. (4th request)
Nov 9 2001Extension of Time application Granted
  To 11/9/2001 to file resp.'s brief on the merits of the referee's finding to the reference question.
Nov 9 2001Application for Extension of Time filed
  to file resp.'s brief. (8th request)
Nov 14 2001Application for relief from default filed
  by resp. to file resp.'s brief on the merits of the referee's finding on the reference question. (3 pp. resp. brief submiited under separate cover on 11/13/2001)
Nov 14 2001Extension of Time application Granted
  To 1/4/2002 to file resp.'s brief. No further extensions of time are contemplated.
Nov 16 2001Order filed
  Resp.'s application for relief from default to file resp.'s brief on the merits of the referee's finding on the reference question is granted.
Nov 16 2001Filed:
  Resp.'s brief on the merits of the referee's finding and recommendation on the reference question.
Nov 16 2001Filed:
  "Reply to the Attorney General's letter brief to the court dated Nov. 9, 2001".
Dec 13 2001Counsel's status report received (confidential)
Jan 3 2002Request for extension of time filed
  to file resp's brief. (9th request)
Jan 15 2002Extension of time granted
  To 3/5/2002 to file resp.'s brief. Dep. AG Chacon anticipates filing the brief by 3/5/2002. After that date, no further extension is contemplated.
Feb 7 2002Received letter from:
  attorney John Philipsborn, dated 2-5-2002, updating the court on Dunkle's status. (confidential)
Feb 25 2002Counsel's status report received (confidential)
Mar 4 2002Request for extension of time filed
  To file resp.'s brief. (10th request)
Mar 19 2002Respondent's brief filed
  (196 pp. - perm.)
Apr 10 2002Request for extension of time filed
  To file reply brief. (1st request)
Apr 19 2002Filed:
  Suppl. declaration in support of application for extension of time to file reply brief.
Apr 23 2002Extension of time granted
  To 6/7/2002 to file reply brief. The court anticipates that after that date, only two further extensions totaling 120 additonal days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and take all steps necessary to meet this schedule.
Jun 19 2002Request for extension of time filed
  To file applt.'s reply brief. (2nd request)
Jun 27 2002Filed:
  Application for relief from default to request extension of time to file applt.'s reply brief.
Jul 1 2002Extension of time granted
  To 8/6/2002 to file applt.'s reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his assisting entity, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
Jul 24 2002Motion for appointment of a guardian ad litem granted.
  The motion for appointment of a guardian ad litem is granted. Defense counsel Conrad Petermann is appointed guardian ad litem on behalf of defendant Jon Scott Dunkle for the limited purpose of preparing and pursuing defendant's habeas corpus petition, with the specific authorization for the guardian ad litem or his designee to obtain on defendant's behalf any records necessary for the investigation and preparation of a petition for a writ of habeas corpus. Werdegar, J., and Brown, J., were absent and did not participate.
Aug 9 2002Request for extension of time filed
  To file appellant's reply brief. (3rd request)
Aug 13 2002Extension of time granted
  To 10/7/2002 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 9 2002Request for extension of time filed
  to file appellant's reply brief. (4th request)
Oct 15 2002Extension of time granted
  To 12/6/2002 to file appellant's reply brief. Extension is granted based upon counsel Michael B. Dashjian's representation that he anticipates filing that brief by 12/6/2002. After that date, no further extension will be granted.
Dec 9 2002Request for extension of time filed
  To file appellant's reply brief. (5th request)
Dec 11 2002Compensation awarded counsel
  Atty Petermann
Dec 12 2002Extension of time granted
  To 2/4/2003 to file appellant's reply brief. Extension is granted based upon counsel Michael B. Dashjian's representation that he anticipates filing that brief by 2/4/2003. After that date, no further extension will be granted.
Feb 19 2003Compensation awarded counsel
  Atty Petermann
Feb 28 2003Application for relief from default filed
Feb 28 2003Request for extension of time filed
  to file appellant's reply brief. (6th request)
Mar 5 2003Received letter from:
  attorney John Philipsborn, dated 3-5-2003.
Mar 5 2003Order filed
  Appellant's application for relief from default is granted. Extension of time is granted to 3/21/2003 to file appellant's reply brief. Extension is granted based upon counsel Conrad Peterman's representation that he anticipates filing that brief by 3/21/2003. After that date, no further extension will be granted.
Mar 25 2003Application to file over-length brief filed
  (426 pp. reply brief submitted under separate cover).
Mar 26 2003Order filed
  Appellant's application for leave for permission to file reply brief in excess of 140 pages in capital case is granted.
Mar 26 2003Appellant's reply brief filed
  (426 pp. - perm.)
Apr 1 2003Filed:
  Declaration of attorney Conrad Peterman (confidential).
Apr 4 2003Counsel's status report received (confidential)
Apr 8 2003Compensation awarded counsel
  Atty Petermann
Aug 29 2003Motion filed (in AA proceeding)
  by applt to file supplemental AOB; request to toll 180-day period. (brief submitted under separate cover)
Sep 8 2003Opposition filed
  by respondent to appellant's request to toll 180-day period.
Sep 10 2003Filed:
  Supplemental appellant's opening brief. (58 pp.)
Sep 10 2003Order filed
  Appellant's "Motion To File Supplemental Appellant's Opening Brief; Request To Toll 180-day Period" is granted. The clerk is directed to file appellant's "Supplemental Appellant's Opening Brief," received on August 29, 2003. Respondent shall file a supplemental respondent's brief on or before October 10, 2003. Appellant may file a supplemental reply brief on or before October 30, 2003. The 180-day period for filing a presumptively timely habeas corpus petition shall be tolled for a period of 30 days, to and including October 22, 2003. (See Supreme Court Policies Regarding Cases Arising From Judgments of Death, Policy 3, stds. 1-1.1, 1-4.).
Sep 15 2003Change of Address filed for:
  lead counsel for appellant Conrad Peterman.
Sep 22 2003Filed:
  Supplemental declaration of service of notice of change of address.
Oct 7 2003Filed:
  Supplemental respondent's brief. (22 pp.)
Oct 21 2003Related habeas corpus petition filed (concurrent)
  No. S119946
Nov 3 2003Request for extension of time filed
  to file supplemental appellant's reply brief. (1st request)
Nov 12 2003Extension of time granted
  to 11/19/2003 to file the supplemental appellant's reply brief. Extension is granted based upon counsel Michael Dashjian's representation that he anticipates filing that brief by 11/19/2003. After that date, no further extension will be granted.
Nov 24 2003Supplemental reply brief filed
  by appellant. (29 pp. - pursuant to rule 40(k))
Nov 24 2003Change of Address filed for:
  appellant's co-counsel Michael B. Dashjian.
May 11 2004Letter sent to:
  counsel: "As you are aware, it has come to the court's attention that it has two volumes numbered 6 containing transcripts of proceedings on July 31, 1989, in appellant's second competency trial. The volume containing unbordered pages, to which appellant's briefing cites, appears to be the more accurate one, and the court therefore will rely on it."
Mar 21 2005Exhibit(s) lodged
  Court's exhibit no. 2.
Apr 6 2005Oral argument letter sent
  advising counsel that case could be scheduled for argument as early as the late May calendar, to be held the week of May 23, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
May 3 2005Case ordered on calendar
  5/31/05, 2pm, LA
May 11 2005Filed:
  Notice of change of name, address and telephone number; S. Michelle May, associate counsel for appellant.
May 11 2005Filed:
  letter from attorney S. Michelle May, dated 5-11-2005, requesting change in date for oral argument.
May 13 2005Filed letter from:
  respondent, dated 5/12/2005, re focus issues for oral argument.
May 13 2005Filed letter from:
  appellant, dated 5/13/2005, re focus issues for oral argument and request for 45 minutes for argument.
May 13 2005Argument rescheduled
  to 5/26/05 @ 1:30pm in SF (was 5/31/05 in LA)
May 20 2005Request for judicial notice granted
  The request for judicial notice, filed on July 31, 2000, is granted.
May 26 2005Cause argued and submitted
Jun 8 2005Compensation awarded counsel
  Atty Peterman
Aug 4 2005Opinion filed: Judgment affirmed in full
  Majority Opinion by Kennard, J. -----joined by George C.J., Baxter, Werdegar, Chin & Moreno, JJ.
Aug 22 2005Rehearing petition filed
  by appellant (filed per rule 40.1(b)) (2,332 words; 9 pp.)
Aug 25 2005Time extended to consider modification or rehearing
  to 11/2/2005 or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 21 2005Rehearing denied
  Petition for rehearing DENIED. George, C.J., was absent and did not participate.
Sep 21 2005Remittitur issued (AA)
Sep 26 2005Exhibit(s) returned
  to San Mateo County Superior Court: Court's 2.
Sep 27 2005Order filed (150 day statement)
Oct 3 2005Received:
  acknowledgment of receipt of exhibits.
Oct 17 2005Received:
  acknowledgment of receipt of remittitur.
Dec 22 2005Received:
  copy of appellant's petition for writ of certiorari. (19 pp. excluding appendix)
Feb 27 2006Received:
  letter from U.S.S.C., dated February 21, 2006, advising petition for writ of certiorari was filed on December 20, 2005 and placed on docket February 21, 2006 as No. 05-9313.
Feb 28 2006Received:
  letter from U.S.S.C., dated 2/21/2006, advising apellant's motion to proceed in "informa pauperis" without an affidavit of indigency by appellant is granted.
Apr 24 2006Certiorari denied by U.S. Supreme Court

Aug 8 2000Appellant's opening brief filed
Mar 19 2002Respondent's brief filed
Mar 26 2003Appellant's reply brief filed
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