IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
JON SCOTT DUNKLE,
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
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
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.
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.
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
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
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
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
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
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
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
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-
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,
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
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
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
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
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.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Dunkle
Original Appeal XXX
Opinion No. S014200
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
René A. Chacon
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
|1||The People (Respondent)|
Represented by Attorney General - San Francisco Office
Rene A. Chacon, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Dunkle, Jon Scott (Appellant)|
Represented by Conrad Petermann
Attorney at Law
323 East Matilija Street, # 110, PMB 142
|3||Dunkle, Jon Scott (Appellant)|
Represented by S. Michelle May
Attorney at Law
1800 Market St., #38
San Francisco, CA
|4||Dunkle, Jon Scott (Appellant)|
Represented by John T. Philipsborn
Attorney At Law
507 Polk St., Suite 250
San Francisco, CA
|Aug 4 2005||Opinion: Affirmed|
|Feb 7 1990||Judgment of death|
|Feb 20 1990||Filed certified copy of Judgment of Death Rendered|
|Jan 27 1993||Counsel 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 1993||Application for Extension of Time filed|
By Applt to request correction of Record.
|Mar 8 1993||Extension of Time application Granted|
To Applt To 5-3-93 To request Corr. of Record.
|May 3 1993||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 3 1993||Change of Address filed for:|
Counsel for Applt (Michael B. Dashjian)
|May 6 1993||Compensation awarded counsel|
|May 10 1993||Extension of Time application Granted|
To Applt To 6-2-93 To request Corr. of Record.
|Jun 2 1993||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jun 3 1993||Extension of Time application Granted|
To Applt To 7-1-93 To request Corr. of Record.
|Jun 30 1993||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jun 30 1993||Compensation awarded counsel|
|Jul 2 1993||Extension of Time application Granted|
To Applt To 8-2-93 To request Corr. of Record.
|Jul 14 1993||Received:|
copy of appellant's motion to augment the record. (5 pp.)
|Aug 2 1993||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 4 1993||Received:|
Copy of Applt's motion to Augment, filed in San Mateo Superior Court.
|Aug 11 1993||Extension of Time application Granted|
To Applt To 9-1-93 To request correction of Record. no further Extensions of time Are Contemplated.
|Sep 3 1993||Received:|
Copy of Applt's request for correction, for Addit. Record, & to Settle Record on Appeal (12 Pp.)
|Oct 18 1993||Compensation awarded counsel|
|Nov 8 1993||Filed:|
Certification of Notice to Resp (Re: motion for Conditional Order of Exam of Douglas Gray, Esq.)
|Dec 1 1993||Compensation awarded counsel|
|Apr 27 1994||Compensation awarded counsel|
|May 9 1994||Change of Address filed for:|
Atty Michael B. Dashjian.
|Apr 4 1995||Change of Address filed for:|
Resp Atty General - S.F. Office.
|Jan 23 1996||Change of Address filed for:|
Atty Michael Dashjian.
|Feb 6 1996||Motion filed|
By Applt (Confidential).
|Mar 14 1996||Request 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 1996||Motion filed|
For appointment of Applt's Counsel as Guardian Ad Litem For Applt (11 Pp.)
|Jun 14 1996||Filed:|
Resp's response to motion for appointment as Guardian Ad Litem for Applt (3 Pp.)
|Jun 18 1996||Motion filed|
appellant's motion for transcription of sound recordings and production of transcripts and compliance with court order.
|Jun 24 1996||Filed:|
Reply to Resp's response to motion for appointment of Guardian Ad Litem (3 Pp.)
|Jul 5 1996||Filed:|
Letter from Resp, dated 7-3-96, Re: Stipulation Regarding Applt's motion for Transcription of Sound Recordings & Production of Transcripts.
|Sep 18 1996||Filed:|
Letter from Atty Dashjian, dated 9-15-96, Re: motion filed 6-18-96.
|Oct 1 1996||Letter sent to:|
Resp, requesting response to Applt's motion for Transcription of Sound Recordings Etc.; Due 10-11-96.
|Oct 11 1996||Filed:|
Letter from Resp,dated 10/11/96 Re: response to Applt's motion for Transcription of Sound Recordings Etc.
|Nov 13 1996||Order 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 1996||Reference 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 1997||Referee appointed|
Hon. Judith Whitmer Kozloski, Judge of the San Mateo Super. Ct., appointed as the referee.
|Jan 16 1997||Compensation awarded counsel|
|Feb 13 1997||Filed:|
By Applt Exparte Application for Association and appointment of Counsel with Trial Level Experience
|Mar 12 1997||Compensation awarded counsel|
|Mar 13 1997||Filed:|
appellant's application for association and appointment of counsel with trial level experience. (for limited purpose of assisting with evidentiary hearing)
|Mar 18 1997||Filed:|
joinder of associate counsel Michael Dashjian in appellant's application for association and appointment of counsel with trial level experience.
|Apr 1 1997||Filed:|
Declaration of attorney John T. Philipsborn in support of request for appointment of counsel to conduct evidentiary hearing.
|Apr 23 1997||Counsel 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 1997||Change of Address filed for:|
Atty Michael B. Dashjian.
|Sep 16 1997||Compensation awarded counsel|
|Oct 23 1997||Habeas funds request filed (confidential)|
(Re: Evidentiary Hearing)
|Jan 21 1998||Order filed re Habeas Funds Request|
re: request filed October 23, 1997
|Feb 26 1998||Compensation awarded counsel|
|Mar 27 1998||Habeas funds request filed (confidential)|
(Re: Evidentiary Hearing).
|May 13 1998||Compensation awarded counsel|
|Jul 8 1998||Compensation awarded counsel|
|Jul 8 1998||Order filed re Habeas Funds Request|
Re: request filed 5-27-98.
|Sep 28 1998||Change of Address filed for:|
Atty John Philipsborn.
|Oct 28 1998||Compensation awarded counsel|
|Jan 20 1999||Compensation awarded counsel|
|Mar 29 1999||Record 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 1999||Appellant's opening brief letter sent, due:|
|Apr 26 1999||Compensation awarded counsel|
|May 10 1999||Application for Extension of Time filed|
To file Aob.
|May 11 1999||Extension of Time application Granted|
To 7-9-99 To file AOB
|May 27 1999||Change of Address filed for:|
Atty General - S.F. Office.
|Jun 11 1999||Filed:|
Resp's Amended Decl of Service.
|Jun 16 1999||Order 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 1999||Application for Extension of Time filed|
To file Aob.
|Jul 12 1999||Extension of Time application Granted|
To 9-7-99 To file AOB
|Aug 10 1999||Motion filed|
By Petnr for Ext. of time in which to Complete the Reference Hearing.
|Aug 17 1999||Order filed:|
The "Motion for Extension of Time in Which to Complete the Reference Hearing," filed August 10, 1999, is denied.
|Sep 7 1999||Application for Extension of Time filed|
To file Aob.
|Sep 9 1999||Extension of Time application Granted|
To 11/8/99 To file Aob.
|Sep 17 1999||Change of Address filed for:|
Atty Michael B. Dashjian.
|Oct 18 1999||Compensation awarded counsel|
|Oct 20 1999||Compensation awarded counsel|
|Nov 8 1999||Application for Extension of Time filed|
To file Aob.
|Nov 12 1999||Extension of Time application Granted|
To 1/7/2000 To file Aob.
|Jan 10 2000||Application for Extension of Time filed|
To file Aob.
|Jan 12 2000||Extension of Time application Granted|
To 3/7/2000 To file Aob.
|Jan 13 2000||Compensation awarded counsel|
|Feb 14 2000||Compensation awarded counsel|
|Feb 16 2000||Compensation awarded counsel|
|Mar 8 2000||Application for Extension of Time filed|
To file Aob.
|Mar 10 2000||Extension of Time application Granted|
To 5/8/2000 To file Aob. no further Eot Are Contemplated.
|Mar 10 2000||Referee's report filed|
"Finding and Recommendation on Reference Question"
|Mar 23 2000||Filed:|
Record from Evidentiary Hearing: 2 Superior Court Files; 11 Vols. of R.T. (899 Pp.); and Exhibits.
|Apr 20 2000||Compensation awarded counsel|
|May 9 2000||Application for Extension of Time filed|
To file Aob.
|May 11 2000||Extension of Time application Granted|
To 7/7/2000 To file AOB. No further extensions of time will be granted.
|Jun 14 2000||Compensation awarded counsel|
|Jul 7 2000||Application for Extension of Time filed|
To file AOB.
|Jul 11 2000||Extension of Time application Granted|
To 7/27/2000 to file AOB. No further ext. of time will be granted.
|Jul 21 2000||Change of Address filed for:|
Atty Michael Dashjian
|Jul 31 2000||Filed:|
application for permission to file AOB in excess of 280 pp. (3 vol. AOB submitted under separate cover.
|Jul 31 2000||Filed:|
applt's Notice of Compliance with Rule 976(c).
|Jul 31 2000||Request for Judicial Notice filed|
|Aug 8 2000||Order filed:|
granting applt's application for permission to file AOB in excess of the page limit.
|Aug 8 2000||Appellant's opening brief filed|
(3 vols. - 772 pp.)
|Aug 10 2000||Filed:|
Confidential declaration of atty Conrad Petermann
|Aug 15 2000||Filed:|
one vol. of Clerk's Transcript (containing copies of exhibits).
|Aug 15 2000||Filed:|
stipulation of parties re: clerk's exhibits transcript (filed this date.)
|Aug 22 2000||Compensation awarded counsel|
|Sep 5 2000||Application for Extension of Time filed|
to file resp's brief.
|Sep 6 2000||Extension of Time application Granted|
To 11/6/2000 to file resp's brief.
|Sep 19 2000||Compensation awarded counsel|
|Nov 6 2000||Counsel's status report received (confidential)|
|Nov 6 2000||Application for Extension of Time filed|
to file resp's brief (2nd request)
|Nov 8 2000||Extension of Time application Granted|
to 1-5-2001 to file resp's brief.
|Jan 4 2001||Counsel's status report received (confidential)|
|Jan 8 2001||Application for Extension of Time filed|
To file resp's brief. (3rd request)
|Jan 10 2001||Extension of Time application Granted|
To 3/6/2001 to file resp's brief.
|Mar 7 2001||Application for Extension of Time filed|
to file resp's brief. (4th request)
|Mar 12 2001||Counsel's status report received (confidential)|
|Mar 16 2001||Extension of Time application Granted|
To 5/7/2001 to file respondent's brief.
|May 7 2001||Counsel's status report received (confidential)|
|May 7 2001||Application for Extension of Time filed|
To file respondent's brief. (5th request)
|May 11 2001||Extension of Time application Granted|
To 7/6/2001 to file respondent's brief.
|Jun 12 2001||Counsel's status report received (confidential)|
|Jul 5 2001||Letter 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 2001||Application for Extension of Time filed|
To file resp.'s brief. (6th request)
|Jul 13 2001||Extension of Time application Granted|
To 9/4/2001 to file resp.'s brief.
|Jul 16 2001||Application for Extension of Time filed|
To file applt.'s brief on the competence issues. (1st request)
|Jul 25 2001||Extension of Time application Granted|
To 8/27/2001 to file applt.'s brief regarding reference.
|Aug 9 2001||Counsel's status report received (confidential)|
|Aug 22 2001||Motion 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 2001||Filed:|
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 2001||Application for Extension of Time filed|
To file resp.'s brief. (7th request)
|Sep 13 2001||Extension of Time application Granted|
To 11/5/2001 to file resp.'s brief.
|Sep 28 2001||Application 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 2001||Extension 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 2001||Application 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 2001||Extension 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 2001||Counsel's status report received (confidential)|
|Oct 22 2001||Application 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 2001||Extension 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 2001||Application 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 2001||Extension 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 2001||Application for Extension of Time filed|
to file resp.'s brief. (8th request)
|Nov 14 2001||Application 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 2001||Extension of Time application Granted|
To 1/4/2002 to file resp.'s brief. No further extensions of time are contemplated.
|Nov 16 2001||Order 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 2001||Filed:|
Resp.'s brief on the merits of the referee's finding and recommendation on the reference question.
|Nov 16 2001||Filed:|
"Reply to the Attorney General's letter brief to the court dated Nov. 9, 2001".
|Dec 13 2001||Counsel's status report received (confidential)|
|Jan 3 2002||Request for extension of time filed|
to file resp's brief. (9th request)
|Jan 15 2002||Extension 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 2002||Received letter from:|
attorney John Philipsborn, dated 2-5-2002, updating the court on Dunkle's status. (confidential)
|Feb 25 2002||Counsel's status report received (confidential)|
|Mar 4 2002||Request for extension of time filed|
To file resp.'s brief. (10th request)
|Mar 19 2002||Respondent's brief filed|
(196 pp. - perm.)
|Apr 10 2002||Request for extension of time filed|
To file reply brief. (1st request)
|Apr 19 2002||Filed:|
Suppl. declaration in support of application for extension of time to file reply brief.
|Apr 23 2002||Extension 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 2002||Request for extension of time filed|
To file applt.'s reply brief. (2nd request)
|Jun 27 2002||Filed:|
Application for relief from default to request extension of time to file applt.'s reply brief.
|Jul 1 2002||Extension 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 2002||Motion 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 2002||Request for extension of time filed|
To file appellant's reply brief. (3rd request)
|Aug 13 2002||Extension 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 2002||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Oct 15 2002||Extension 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 2002||Request for extension of time filed|
To file appellant's reply brief. (5th request)
|Dec 11 2002||Compensation awarded counsel|
|Dec 12 2002||Extension 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 2003||Compensation awarded counsel|
|Feb 28 2003||Application for relief from default filed|
|Feb 28 2003||Request for extension of time filed|
to file appellant's reply brief. (6th request)
|Mar 5 2003||Received letter from:|
attorney John Philipsborn, dated 3-5-2003.
|Mar 5 2003||Order 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 2003||Application to file over-length brief filed|
(426 pp. reply brief submitted under separate cover).
|Mar 26 2003||Order filed|
Appellant's application for leave for permission to file reply brief in excess of 140 pages in capital case is granted.
|Mar 26 2003||Appellant's reply brief filed|
(426 pp. - perm.)
|Apr 1 2003||Filed:|
Declaration of attorney Conrad Peterman (confidential).
|Apr 4 2003||Counsel's status report received (confidential)|
|Apr 8 2003||Compensation awarded counsel|
|Aug 29 2003||Motion filed (in AA proceeding)|
by applt to file supplemental AOB; request to toll 180-day period. (brief submitted under separate cover)
|Sep 8 2003||Opposition filed|
by respondent to appellant's request to toll 180-day period.
|Sep 10 2003||Filed:|
Supplemental appellant's opening brief. (58 pp.)
|Sep 10 2003||Order 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 2003||Change of Address filed for:|
lead counsel for appellant Conrad Peterman.
|Sep 22 2003||Filed:|
Supplemental declaration of service of notice of change of address.
|Oct 7 2003||Filed:|
Supplemental respondent's brief. (22 pp.)
|Oct 21 2003||Related habeas corpus petition filed (concurrent)|
|Nov 3 2003||Request for extension of time filed|
to file supplemental appellant's reply brief. (1st request)
|Nov 12 2003||Extension 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 2003||Supplemental reply brief filed|
by appellant. (29 pp. - pursuant to rule 40(k))
|Nov 24 2003||Change of Address filed for:|
appellant's co-counsel Michael B. Dashjian.
|May 11 2004||Letter 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 2005||Exhibit(s) lodged|
Court's exhibit no. 2.
|Apr 6 2005||Oral 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 2005||Case ordered on calendar|
5/31/05, 2pm, LA
|May 11 2005||Filed:|
Notice of change of name, address and telephone number; S. Michelle May, associate counsel for appellant.
|May 11 2005||Filed:|
letter from attorney S. Michelle May, dated 5-11-2005, requesting change in date for oral argument.
|May 13 2005||Filed letter from:|
respondent, dated 5/12/2005, re focus issues for oral argument.
|May 13 2005||Filed letter from:|
appellant, dated 5/13/2005, re focus issues for oral argument and request for 45 minutes for argument.
|May 13 2005||Argument rescheduled|
to 5/26/05 @ 1:30pm in SF (was 5/31/05 in LA)
|May 20 2005||Request for judicial notice granted|
The request for judicial notice, filed on July 31, 2000, is granted.
|May 26 2005||Cause argued and submitted|
|Jun 8 2005||Compensation awarded counsel|
|Aug 4 2005||Opinion filed: Judgment affirmed in full|
Majority Opinion by Kennard, J. -----joined by George C.J., Baxter, Werdegar, Chin & Moreno, JJ.
|Aug 22 2005||Rehearing petition filed|
by appellant (filed per rule 40.1(b)) (2,332 words; 9 pp.)
|Aug 25 2005||Time 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 2005||Rehearing denied|
Petition for rehearing DENIED. George, C.J., was absent and did not participate.
|Sep 21 2005||Remittitur issued (AA)|
|Sep 26 2005||Exhibit(s) returned|
to San Mateo County Superior Court: Court's 2.
|Sep 27 2005||Order filed (150 day statement)|
|Oct 3 2005||Received:|
acknowledgment of receipt of exhibits.
|Oct 17 2005||Received:|
acknowledgment of receipt of remittitur.
|Dec 22 2005||Received:|
copy of appellant's petition for writ of certiorari. (19 pp. excluding appendix)
|Feb 27 2006||Received:|
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 2006||Received:|
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 2006||Certiorari denied by U.S. Supreme Court|
|Aug 8 2000||Appellant's opening brief filed|
|Mar 19 2002||Respondent's brief filed|
|Mar 26 2003||Appellant's reply brief filed|