Supreme Court of California Justia
Docket No. S054774

People v. Taylor

Filed 12/24/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S054774

v.

KEITH DESMOND TAYLOR,

San Bernardino County

Defendant and Appellant.

Super. Ct. No. FRE00861



Keith Desmond Taylor was convicted and sentenced to death for the 1994

murder of Marilyn Mishak, committed in the course of burglarizing Mishak‟s

Redlands home and robbing her. Defendant, who represented himself at trial,

contends he was mentally incompetent to conduct his own defense and should not

have been permitted to do so. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of September 1, 1994, someone broke into Marilyn Mishak‟s

condominium and stabbed and strangled her to death. Defendant was tied to the

burglary and killing primarily by his fingerprints found at the scene and by

witnesses who placed him in the vicinity at the time. The jury convicted

defendant of first degree murder, robbery and burglary, and found true special

circumstance allegations of murder in the commission of burglary and robbery.

(Pen. Code, §§ 187, 189, 190.2, 211, 459.) The jury set the penalty for the murder

at death, and defendant was so sentenced.

1


Guilt Phase Evidence

On August 31, 1994, defendant stayed with Clemente Calloway at the

home of Calloway‟s grandmother. On September 1, Calloway and defendant went

to dinner at a friend‟s house. They left around 9:00 p.m., and on the way home

defendant said he wanted to get a beer. Because no drinking was permitted at his

grandmother‟s, Calloway dropped defendant at a 7-Eleven convenience store a

few blocks away, less than a mile from Mishak‟s condominium. Defendant did

not return to Calloway‟s grandmother‟s house that night, and Calloway next saw

defendant in court.

About 11:30 p.m. on September 1, Kevin Holman, who lived in Mishak‟s

neighborhood, heard tapping on one of his windows. Soon after that, the doorbell

rang and Holman answered it to find a young African-American man in dark

clothing. The man asked for “Yolanda”1 and, when told no one by that name lived

there, walked away. In a photographic lineup and at trial, Holman identified

defendant as the man on his doorstep, though he was not absolutely certain of

either identification. About 11:45 p.m., another neighbor, Anne Mills, was

awakened by her doorbell ringing. After turning on lights and waiting a few

minutes, she looked out the window but saw no one at the door.

Mishak was a developmentally disabled 33-year-old woman who lived

alone. Her mother talked to her around 4:00 p.m. on September 1 and went to

check on her the next day when she did not come to work. She noticed the garage

and condominium were uncharacteristically messy; no morning coffee had been

made; and a bottle of wine, which Mishak never drank but kept in a cupboard for


1

Calloway later testified defendant had a former girlfriend by this name.

2

her father, was on the counter. In the living room, she found Mishak‟s body lying

on the floor, an electrical cord wrapped around her neck.

Police officers called to the scene found the victim lying facedown with the

cord around her neck. She was wearing a bloodstained T-shirt, and her underpants

were down at her feet. A knife with a three and one-half-inch handle, similar to

ones in a butcher block in the kitchen, was embedded in the victim‟s abdomen.

The autopsy showed Mishak had been strangled and stabbed in the

abdomen, piercing her liver. Either event could have been fatal. Her body also

bore bruises in several areas. The medical examiner opined the stabbing and

strangling had probably occurred within a few minutes of each other, as the

amount of bleeding and hemorrhaging indicated the victim was alive during each.

Mishak‟s father testified that after her killing he tested the garage door and

found that when its handle was pulled upward from the outside, the motion

activated the automatic garage door opener and the door opened fully. Doors from

the garage into the laundry room and the dining room bore pry marks and had

been propped open. A twisted metal strip and a spatula-like tool, which police

found on the garage floor, could have been used to pry open the doors. Also found

on the garage floor was a paper bag containing a beer bottle.

In the bedrooms, closets and drawers were open. Mishak‟s jewelry boxes

were sitting on the bed and rug in her bedroom, and the contents of her purse had

been emptied onto the floor. The victim‟s mother later examined the

condominium‟s contents and identified several missing items, including the garage

door opener and the victim‟s wallet, watches and other jewelry.

When a latent fingerprint from the paper bag containing the beer bottle was

compared to fingerprints in law enforcement databases, it matched defendant‟s

fingerprint. Defendant‟s fingerprints were then compared to others taken from the

victim‟s condominium. They matched latent fingerprints on the frame of an

3

exterior door, on the wine bottle found on the kitchen counter, and on one of

Mishak‟s jewelry boxes.

A police detective visited 20 to 25 stores in the vicinity to find any that sold

40-ounce bottles of Magnum Malt Liquor, the type of bottle found in the paper

bag on the garage floor, and used No. 8 size bags certified as 50 percent recycled

by Scientific Certification Laboratories, the type of bag found on the garage floor.

He found only one match for the combination of bag and beverage: the 7-Eleven

store where Calloway left defendant to buy beer on the night of the killing.

Called to the stand by defendant, another of Mishak‟s neighbors testified

that early on the morning of September 2, 1994, she saw a man, whom she

described to police as White or Hispanic, walking in the area and carrying a paper

bag. Several days later, also in the early morning, she saw the same person from

closer up; this time he was wearing a backpack and looked like a teenager.

Defendant also called a clerk at the 7-Eleven store and re-called the

principal police investigator, Detective Garcia, in an effort to suggest the crimes

may have been committed by Jesse Mason, who Garcia had learned was also

staying at Calloway‟s grandmother‟s house at the time. Garcia had shown the

clerk a photograph of Jesse Mason as part of a photographic lineup. She

recognized one picture in the lineup (which did not include defendant‟s

photograph) as that of a regular customer. Some days later, Garcia interviewed

Mason and searched his residence, but eliminated him as a suspect when his

fingerprints failed to match any of the latent prints taken from the crime scene.

Finally, defendant extensively examined the forensic specialist who lifted

latent fingerprints from the scene, a detective who helped collect evidence at the

scene, a clerk in the fingerprint examiner‟s office, and the supervisor of that office

regarding the numbering system used to mark latent prints and other evidence and

the procedures the examiner‟s office followed for logging and tracking prints. His

4

apparent goal was to cast doubt on the identification of his fingerprints at the scene

by proving gaps or discrepancies in the collection and comparison procedures.

Penalty Phase Evidence

The prosecution presented evidence of three incidents involving defendant.

In 1988, defendant had broken into a woman‟s mobilehome in Lemoore at night;

when she awoke and confronted him, he knocked her to the floor with his fist. In

1991, he led an Emeryville police officer on a high speed chase, ran when his car

crashed, lunged at the officer during his arrest and, even after being handcuffed,

threatened and kicked at the arresting officers. Finally, in 1994, he rang a doorbell

in Alameda at 6:15 a.m. and, when the resident did not answer, broke into the

garage by smashing a door. Police had difficulty arresting him, and he was

carrying a pistol. The prosecution also presented evidence defendant had

previously been convicted of residential burglary and auto theft.

Defendant presented no penalty phase evidence.

ANALYSIS

I. Procedures for Determining Competence to Stand Trial

Defendant contends the procedures by which the trial court found him

competent to stand trial were constitutionally deficient in several respects. We

find no error in the procedures employed.

The question of competence to stand trial was first raised in pretrial

proceedings, after defendant‟s first request to represent himself was denied.2 In


2

Defendant had numerous pretrial disputes with his appointed attorneys,

conflicts that prompted five hearings on defendant‟s request for appointment of
different attorneys and finally led him to request self-representation. These
disputes seemed to center on counsel‟s requests for more time to prepare, on what
guilt phase strategy to adopt in light of the fingerprint evidence placing defendant


(footnote continued on next page)

5

explaining its finding that defendant was not competent to represent himself, the

trial court (Judge McCarville) observed: “[W]hile the record, the written record,

may reflect [defendant] has given articulate responses [to the court‟s questions

regarding self-representation,] the court will note by his own facial expressions

and by certain time delays from the time questions were posed by the court and his

responses, and what I will call quizzical looks on his face, while he appeared to

give intelligent responses, the court finds that it is not, in fact, the case.”

Defense counsel then made “a 1368 motion based on some of the court‟s

comments.”3 The trial court responded that its comments had been aimed only at

the question of self-representation, but because counsel sought a determination of

trial competence, the court suspended the criminal proceedings and ordered the

appointment of two psychologists to examine defendant.

On the form letter of appointment, the court clerk correctly informed the

psychologists they were to examine defendant and report on his “present mental

competence pursuant to P.C. 1368.” Boxes were checked on the form for that

statute and for three subsidiary determinations to be made: “Is the defendant

presently able to understand the nature and purpose of the proceedings taken

against him?” “Is he presently able to cooperate in a rational manner with counsel

in presenting a defense?” and “Is he presently able to prepare and conduct his own

defense in a rational manner without counsel?” In addition, although defendant

had not entered a plea of not guilty by reason of insanity, the letter stated the

(footnote continued from previous page)

at the scene, and on counsel‟s preparation for a possible penalty phase despite
defendant‟s insistence on his innocence.

3

Penal Code section 1368 contains the statutory requirements for a

determination of trial competence. All further unspecified statutory references are
to the Penal Code.

6

examination was also under “section 1026 of the Penal Code,” which sets out the

procedures for trying such a plea, and two question boxes relating to insanity were

checked: “Was the defendant sane at the time of the commission of the alleged

offense?” and “Has the defendant „fully recovered his sanity‟ . . . ?”

The appointed psychologists, Michael Kania and Christopher Flach, each

examined defendant and submitted a written report. Kania, who interviewed

defendant but administered no tests, concentrated his report on competence

questions. He found defendant was “able to accurately perceive events occurring

around him, with no evidence of significant distortions due to severe

psychopathology.” Defendant‟s “cognitive functioning is intact. Attention,

concentration and comprehension are good. The defendant appears to be of

average intellectual ability. . . . [¶] Diagnostically, the defendant does not appear

to suffer from any severe psychological disorder at the present time. There are

some features of a personality disorder, and there is also a history of cocaine

abuse.” Defendant knew the charges against him and the roles played by his

attorney, the district attorney, the court and the jury. Kania concluded defendant

understood the nature and purpose of the proceedings, was able to cooperate in a

rational manner with counsel (though he expressed dissatisfaction with his current

attorney), and would be able to conduct his own defense in a rational manner.

Defendant was “trial competent.”

Flach administered several tests, including two intelligence tests, and also

interviewed defendant. He described his appointment as for a “1368 PC

evaluation,” but also purported to ascertain defendant‟s mental state “to aid in

diagnosis, treatment, and placement planning.” He found defendant knew he

faced a murder charge and could be sentenced to death, and knew the roles of the

prosecutor, the judge and the defense counsel, though he distrusted his current

attorney and had difficulty understanding his point of view. Flach found “no acute

7

psychotic thought disorders” from his examination, but found defendant seemed

“somewhat grandiose at times,” particularly as to courtroom “strategies,” and

presented with “an exaggerated degree of self-importance” and entitlement,

displaying a “rather narcissistic perspective.” Defendant had “inflated ideas about

his own accomplishments” and an “almost . . . delusional conviction regarding the

nature of his insight.” He “seems to believe that his needs are special, particularly

within the courtroom situation. In part, this may explain his reason for doubting

his own attorney or even trying to represent himself.” Flach observed these

personality traits could be related to defendant‟s “long history of cocaine

dependence.”

With regard to intellectual functioning, defendant‟s test results were in the

“borderline range” (including a 75 verbal IQ score on the Weschler Adult

Intelligence Scale — Revised). In general, Flach found defendant‟s abilities

borderline in understanding of the world, vocabulary and memory, and low

average in math skills. Overall defendant had “low average to borderline

intelligence, with severe deficits noted in common sense reasoning and abstract

thinking abilities.” These deficits, which “would [a]ffect his ability to effectively

interact with others at times” and to understand abstract problems, were

“consistent” with defendant‟s history of substance abuse. Flach concluded

defendant understood the nature and purpose of the proceedings, but “may have

difficulty in rationally cooperating with coun[sel], due to his tendency to become

somewhat defensive and distrusting.” Because of his low average to borderline

intellectual functioning, defendant “would have some difficulty in representing

himself without an attorney.” Addressing the insanity-related questions checked

on the form letter of appointment, Flach observed that defendant appeared to be

aware of the wrongful conduct he had admitted (breaking into an Oakland garage),

but that his thinking at the time may have been affected by substance use, and that

8

defendant had not “fully recovered” his sanity, in that the possibility of drug use

made him a continuing danger to himself and others.

After receiving the psychologists‟ reports, the trial court held a hearing to

try the competence issue. Defendant waived his right to a jury trial on the

question, and both parties submitted the question to the court without further

evidence or argument. The court, “based upon review of the reports,” found

defendant competent to stand trial and assigned the case to a trial department.

Neither the federal Constitution nor our statutes allow a person to be tried

criminally while mentally incompetent. (Pate v. Robinson (1966) 383 U.S. 375,

378; § 1367, subd. (a).) The constitutional test is whether the defendant “ „has

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

rational understanding—and whether he has a rational as well as factual

understanding of the proceedings against him.‟ ” (Dusky v. United States (1960)
362 U.S. 402 (per curiam).) Our statutes similarly forbid prosecution while the

defendant, “as a result of mental disorder or developmental disability, . . . is

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

the conduct of a defense in a rational manner.” (§ 1367, subd. (a).)

The federal Constitution further demands that “state procedures . . . be

adequate to protect this right.” (Pate v. Robinson, supra, 383 U.S. at p. 378;

accord, Drope v. Missouri (1975) 420 U.S. 162, 172.) Our statutes provide for

suspension of criminal proceedings when a doubt as to the defendant‟s

competence arises in the trial judge‟s mind or when counsel informs the court of

counsel‟s belief the defendant may be incompetent (§ 1368); the appointment of

psychologists or psychiatrists to examine the defendant (§ 1369, subd. (a)); and

trial of the issue to a jury or to the court (id., subds. (b)-(f)). The defense may

waive a jury trial and may even, as here, submit the issue to the court on the

9

written reports of psychologists or psychiatrists. (People v. Lawley (2002) 27

Cal.4th 102, 131-132; People v. McPeters (1992) 2 Cal.4th 1148, 1169.)

Defendant contends the procedures the trial court employed for determining

his competence to stand trial were constitutionally inadequate, first, in that the

court failed to pose the proper questions for the two psychologists. According to

defendant, this resulted in “the failure of one of the experts [Flach] to address the

competency question at all.” At the least, defendant argues, the resulting flaws in

Flach‟s report required live testimony to be taken at the competence hearing.

The record does not support this contention. The court‟s form letter of

appointment requested evaluation of defendant‟s “present mental competence

pursuant to P.C. 1368,” and a series of more specific questions aimed at that issue

were checked on the form. That the letter also referred inappropriately to the issue

of sanity, and two questions regarding that issue were also checked, does not

establish any constitutionally significant error. Similarly, the record shows

Flach‟s report did address the competence questions, though he refrained from

giving a definitive opinion on the final issue. That he also discussed defendant‟s

mental status more broadly and briefly addressed the checked insanity questions

did not render his report ambiguous or misleading. Flach‟s superfluous

conclusions therefore did not require the trial court to hold an evidentiary hearing

at which the expert could be cross-examined. Defendant‟s cited case, Matheney v.

Anderson (7th Cir. 2001) 253 F.3d 1025, in which counsel requested a competence

evaluation but the trial court‟s examination order and the experts‟ reports

addressed only the sanity question, yet counsel failed to seek a hearing (see id. at

pp. 1029-1032, 1040-1041), is clearly inapposite.

Second, defendant contends the trial court was constitutionally obliged to

hold an evidentiary hearing in order to resolve conflicts between the two

psychologists‟ reports. On this point, we agree with the Attorney General that

10

defendant‟s characterization of the conflict is exaggerated. Neither psychologist

found that defendant suffered from any psychosis or other severe mental illness,

and both noted defendant‟s history of substance abuse, which Flach found might

have adversely affected defendant‟s intellectual functioning and personality.

While Kania noted “some features of a personality disorder,” Flach‟s more

detailed description of defendant‟s self-image as “somewhat grandiose” with “an

exaggerated degree of self-importance” and a “rather narcissistic perspective” was

not inconsistent. Although defendant‟s intellectual functioning was assessed as

average by Kania and as low average or borderline by Flach, the experts agreed he

was capable of understanding the nature of the proceedings against him.

The only significant difference in the experts‟ conclusions with regard to

trial competence was that Kania believed defendant was “able to cooperate in a

rational manner with counsel,” though he was dissatisfied with his lawyers, while

Flach believed that because of defendant‟s distrustful and defensive tendencies, he

might “have difficulty” cooperating rationally with counsel. Flach‟s conclusion

was consistent with the record of proceedings to that point, which showed

defendant had indeed had difficulty cooperating with counsel, partly because of

distrust arising from differences over defense strategy. (See fn. 2, ante.) Notably,

however, Flach did not opine that defendant‟s difficulties with counsel were due to

mental illness. Nor did he state a conclusion defendant was unable to assist

counsel in presentation of a defense or was incompetent to stand trial.4


4

Defendant argues Flach found him incompetent by opining that he had not

fully recovered his sanity. That conclusion, however, related to insanity under
section 1026, not to trial competence, and was in response to the court‟s inquiry,
on the form letter, whether defendant had recovered his sanity in the sense of
having “improved to such an extent that he is no longer a danger to the health and
safety of others, including himself.” Flach opined that because of his


(footnote continued on next page)

11

We conclude that as in People v. Lawley, supra, 27 Cal.4th at pages 130-

132, where a court-appointed psychologist and one hired by the defense had

reached different conclusions on the defendant‟s trial competence, the trial court

here could, despite the differences between Kania‟s and Flach‟s reports,

constitutionally undertake to resolve the competence question without holding an

evidentiary hearing.5 (See also People v. McPeters, supra, 2 Cal.4th at pp. 1168-

1169 [submission on expert reports not an unconstitutional procedure where,

though two current reports found the defendant competent, a past report by one of

the experts found him incompetent].) There was no evidence before the trial court

of psychosis or any severe thought disorder, and neither expert opined that

defendant would be unable to assist counsel because of a mental illness.

Defendant clearly had a history of conflict with his attorneys, but the court could

reasonably conclude, without contradiction from either psychologist‟s report, that

such conflicts were attributable to difficult aspects of defendant‟s personality

rather than to a diagnosed mental illness.


(footnote continued from previous page)

distrustfulness and his tendency to drug abuse, defendant “seems to present” as a
danger to himself and “quite possibly” to others.

5

Defendant argues People v. Lawley, supra, 27 Cal.4th 102, is inconsistent

with the high court‟s decision in Ford v. Wainwright (1986) 477 U.S. 399. We
disagree. Ford involved procedures for determining sanity at the time of
execution, not competence to stand trial, and the Florida procedure for making that
determination was held constitutionally inadequate primarily because it allowed
no opportunity for the death row inmate or his counsel to contest the opinions of
the state-appointed experts by presenting contrary evidence. (Id. at pp. 413-414;
see also id. at p. 424 (conc. opn. of Powell, J.).) In contrast, California provides a
full opportunity for a contested trial on the issue of trial competence, including
presentation of evidence by the defense. (§ 1369, subd. (b)(1).) Nothing in Ford
suggests a statutory right to a hearing on competence cannot constitutionally be
waived.

12

Third, defendant contends the trial court was obliged to have him examined

by the regional center for the developmentally disabled (see § 1369, subd. (a))

because Flach‟s testing showed a verbal IQ score of 75. Flach‟s report, however,

nowhere referred to any possibility of a developmental disability. Rather, Flach

concluded defendant‟s relatively low intelligence might be “related to his

problems and history with substance dependence,” and his difficulty with

commonsense reasoning was “consistent with his history of substance abuse.”

This was not an opinion that would cause the trial court to “suspect[] the defendant

is developmentally disabled” (§ 1369, subd. (a)), and no referral was therefore

required.

Finally, defendant contends events during the guilt and special

circumstances trial and at a hearing between the guilt and penalty phases should

have led the trial court to reevaluate his trial competence before proceeding with

the penalty trial. We conclude such reexamination was not required.

“ „When a competency hearing has already been held and defendant has

been found competent to stand trial, however, a trial court need not suspend

proceedings to conduct a second competency hearing unless it “is presented with a

substantial change of circumstances or with new evidence” casting a serious doubt

on the validity of that finding. [Citations.]‟ ” (People v. Kelly (1992) 1 Cal.4th

495, 542-543.) Here, there was no such new evidence or changed circumstances.

During the guilt phase of trial, to be sure, defendant displayed some of the

“deficits . . . in common sense reasoning and abstract thinking abilities” Flach had

already noted, engaging in extensive unproductive questioning of witnesses and

inarticulate arguments to the court and jury. But defendant points to nothing in his

guilt phase efforts indicating he had lost the ability to understand the nature of the

criminal proceedings. Defendant‟s attempts to defend himself at the guilt phase

may have been, as he now says, “disturbingly inept,” but they were not of a

13

character to cast serious doubt on the trial court‟s finding that he knew what he

was charged with and the nature of the trial in which he took full part. Nor did

defendant‟s mention, at a hearing before the penalty phase began, of the possibility

that he might seek a new guilt trial on the basis of his own “incompetence” as an

attorney6 constitute changed circumstances or new evidence that undermined the

trial court‟s original determination he was competent to stand trial.

II. Self-representation in Capital Cases

Defendant contends that in capital cases the Sixth Amendment right to

represent oneself, recognized in Faretta v. California (1975) 422 U.S. 806

(Faretta), must give way to the requirements of the Fifth and Eighth Amendments

to the federal Constitution that the death penalty be imposed through a fair and

reliable procedure.7 He maintains the latter principle requires representation by

counsel, even contrary to the defendant‟s choice, in all capital trials or, at a


6

After the guilt phase verdicts were returned, and before the penalty phase

trial began, defendant (who was representing himself) complained about the
reluctance of a man who had agreed to serve as a paralegal for him to prepare a
motion he wanted to file. In an in camera hearing, defendant characterized the
motion as one concerning his own “competence,” and he answered affirmatively
when the court asked if he meant competence to stand trial. On further discussion,
however, defendant clarified he sought not to determine his mental competence to
proceed with the penalty phase trial, but rather, sought to obtain a “retrial” of the
guilt phase on the ground that he had been “incompetent” in representing himself.
Standby counsel, who had discussed the question with the paralegal, explained
that the proposed motion was one for a new trial on grounds of “ineffectiveness of
his [defendant‟s] own counsel.” The court told defendant such a claim would
probably not be persuasive but that he could raise it on appeal or perhaps after the
penalty phase.

7

In order to preserve the claim for potential federal court review, defendant

also contends Faretta, supra, 422 U.S. 806, was wrongly decided and should be
overruled. Because, as defendant recognizes, this court cannot overrule a decision
of the United States Supreme Court, we do not address his attack on Faretta.

14

minimum, whenever the self-representing defendant‟s conduct of his or her trial

renders it unfair. Defendant‟s “inept” conduct of his own defense, he further

argues, made his trial fundamentally unfair.

We addressed and rejected much the same set of claims in People v. Blair

(2005) 36 Cal.4th 686, 736-740, and other cases. We have explained that the

autonomy interest motivating the decision in Faretta — the principle that for the

state to “force a lawyer on a defendant” would impinge on “ „that respect for the

individual which is the lifeblood of the law‟ ” (Faretta, supra, 422 U.S. at p. 834)

— applies at a capital penalty trial as well as in a trial of guilt. (Blair, at

pp. 738-740.) This is true even when self-representation at the penalty phase

permits the defendant to preclude any investigation and presentation of mitigating

evidence. (Id. at p. 737; see also People v. Koontz (2002) 27 Cal.4th 1041, 1073-

1074; People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365.) A defendant

convicted of a capital crime may legitimately choose a strategy aimed at obtaining

a sentence of death rather than one of life imprisonment without the possibility of

parole, for some individuals may rationally prefer the former to the latter. (People

v. Bloom (1989) 48 Cal.3d 1194, 1222-1223.) Moreover, a rule requiring reversal

when a capital defendant chooses self-representation and presents no mitigating

evidence could easily be misused by a knowledgeable defendant who wished to

embed his trial with reversible error. (Id. at pp. 1227-1228.)

Nor does the likelihood or actuality of a poor performance by a defendant

acting in propria persona defeat the federal self-representation right. The Faretta

court explicitly recognized the probability defendants will be ill-served by waiving

counsel and relying on their own “unskilled efforts,” but nonetheless held the

defendant‟s choice “must be honored.” (Faretta, supra, 422 U.S. at p. 834.) “The

high court, however, has adhered to the principles of Faretta even with the

understanding that self-representation more often than not results in detriment to

15

the defendant, if not outright unfairness. [Citations.] Under these circumstances,

we are not free to hold that the government‟s interest in ensuring the fairness and

integrity of defendant‟s trial outweighed defendant‟s right to self-representation.”

(People v. Blair, supra, 36 Cal.4th at pp. 739-740, fn. omitted.)

We conclude, therefore, that neither the fact defendant faced the death

penalty nor the asserted ineptness of his defense efforts warranted denying or

revoking his in propria persona status. We address in the next part the more

difficult question of whether self-representation should have been denied or

revoked on the ground defendant was mentally incompetent to represent himself.

III. Defendant’s Mental Competence to Represent Himself

In its recent decision in Indiana v. Edwards (2008) ___ U.S. ___ [128 S.Ct.

2379] (Edwards), the United States Supreme Court held the federal Constitution

does not prohibit state courts from denying self-representation to defendants who

are competent to stand trial with an attorney, i.e., trial competent, but who lack the

mental health or capacity to conduct their own defense at trial. (See id. at pp. ___,

___ [128 S.Ct. at pp. 2385-2386, 2388].) Relying principally on this decision,

defendant contends he was incompetent to represent himself, and the trial court,

acting under the mistaken belief his request to represent himself could not be

denied once he had been found trial competent, erred in failing to exercise its

discretion to deny self-representation on grounds of mental incompetence.

After setting out the record facts relevant to defendant‟s claim he should

have been denied self-representation on grounds of mental incompetence, we

review the history of the competence question in federal and California courts.

For reasons we explain, we conclude the trial court did not err in granting

defendant‟s request to represent himself. While Edwards makes clear states may

set a higher or different competence standard for self-representation than for trial

16

with counsel, California had not done so at the time of defendant‟s trial. In the

absence of a separate California test of mental competence for self-representation,

the trial court had no higher or different standard to apply to the question. In that

circumstance, the court did not err in relying on federal and state case law

equating competence for self-representation with competence to stand trial.

A. Facts Relevant to the Issue

We review the procedural facts surrounding defendant‟s self-representation

and the aspects of his behavior at trial on which he now relies to show the trial

court should have found him mentally incompetent to present his own defense.

Pretrial Procedure

As we have already noted, defendant had pretrial disagreements with his

appointed attorneys, which led to several motions to substitute counsel, one of

which, in February 1995, was granted. On January 5, 1996, defendant

complained, as he had of his previous lawyers, that new counsel and he did not

“see eye to eye” on strategy. Pressed to be more specific, defendant responded

only that “I don‟t agree with” counsel, that it was nothing personal, but “I don‟t

feel he‟s presenting a good enough defense for me.” Denying the request for

cocounsel status or new counsel, the trial court considered defendant‟s alternative

request for self-representation.

The court (Judge McCarville) examined defendant on his understanding of

the disadvantages and obstacles he would face representing himself. In answer to

the court‟s questions, defendant said he had a high school diploma and could read

and write. When the court explained that the prosecutor would not be lenient if

defendant represented himself, defendant responded: “He‟s not supposed to. He‟s

my enemy.” Asked what legal training he had, if any, defendant answered: “I

think I can think and reason logically, common sense. So I‟d use my best

17

judgment when I defend myself.” Asked why he wanted to represent himself, he

replied: “I feel that I‟ll do a good job and I‟m not about playing games.”

The court denied defendant‟s Faretta motion on the ground he “does not

have the ability to proceed pro per as his own counsel in this case.” In denying the

motion the court made comments that prompted counsel to seek a competence

examination. The court stated that while some of defendant‟s responses in the

colloquy appeared “articulate” and “intelligent,” defendant‟s “quizzical looks” and

delays in answering suggested otherwise. Based on its observations and

defendant‟s responses, the court had “very serious doubts that Mr. Taylor has even

any part of an ability to represent himself in this particular case in a way that

would comport with due process and justice.”

As noted in part I., ante, the psychologists subsequently appointed to

examine defendant regarding his competence to stand trial were also asked

whether he was “presently able to prepare and conduct his own defense in a

rational manner without counsel.” Kania, who found defendant‟s “cognitive

functioning is intact” and defendant to be of “average intellectual ability,” opined

defendant “would be able to conduct his own defense in a rational manner.”

Flach, who found defendant was of “low average to borderline intelligence, with

severe deficits noted in common sense reasoning and abstract thinking abilities,”

opined defendant “would have some difficulty in representing himself without an

attorney.”

On February 5, 1996, after the court found defendant competent to stand

trial, defendant renewed his January 5 self-representation request, but Judge

McCarville stated he had already addressed that issue and transferred the case to

Judge Edwards‟s department for trial. Later the same day, before Judge Edwards,

defendant again asked to represent himself. The court noted Judge McCarville

had just denied that motion and advised defendant the court would reconsider it

18

only if there were a change of circumstances. But on February 26, 1996, at the

outset of jury selection, defendant again renewed his request and the court

scheduled a hearing on it for the next day.

On February 27, the court extensively described to defendant the

difficulties and risks of attempting to defend himself in a capital case. Defendant

said he “underst[ood] clearly” and had no questions. Asked why he wanted to

represent himself, he said, of his attorneys, that “there are things they haven‟t

done” and “we‟ve been having a conflict verbally.” Defendant stated he would

like to have advisory counsel, but wished to represent himself even if advisory

counsel was not appointed.

The court noted: “I think, as I understand the law, Mr. Taylor has been

found competent to stand trial, and that is the test that the court must follow in

deciding whether he is competent to waive counsel.” Having also reviewed the

transcript of defendant‟s previous Faretta hearing before Judge McCarville, the

court found defendant was “knowingly, intelligently, and voluntarily” waiving

counsel, and on that basis granted the motion for self-representation. Attorney

Stephen Levine, who had previously represented defendant, was appointed

advisory counsel.

Trial

As discussed in part IV., post, during jury selection defendant, for reasons

unclear from the record, declined the court‟s invitation to challenge for cause a

juror who indicated on his questionnaire that the death penalty should be

automatic for anyone who commits premeditated murder with special

circumstances. On the other hand, defendant successfully challenged one

prospective juror for cause and exercised a peremptory challenge against another

whom he had unsuccessfully challenged for cause.

19

At the guilt phase of trial, defendant questioned witnesses extensively on

the details of the police investigation. For example, defendant questioned the San

Bernardino County forensic specialist who collected most of the crime scene

evidence, Valerie Seleska, at great length about the system she used to mark and

record that evidence. Much of the questioning focused on the difference between

numerals printed on the placards Seleska had placed at the crime scene and the

property tag numbers she had used to mark the bagged evidence items themselves.

Although Seleska explained early in defendant‟s initial cross-examination of her

that the placards were used only as references for locations at the crime scene and

not to designate items of evidence collected, defendant called her in his own case

and continued to ask about the differing numbering systems (as well as about

separate tags added by the Redlands Police Department). Later, he called her to

the stand again and examined her at length on how and when she had marked and

transmitted to the fingerprint examiner each of the latent prints she collected or

photographed at the scene or from evidence collected there. These questions were

apparently aimed at showing Seleska might have fabricated some aspect of her

records: defendant asked argumentatively how he could tell Seleska had not

duplicated and falsely dated a fingerprint card, and whether, if she “wanted to

make [her] statement accurate, or say some truth into [it],” would she not want

each print “to be documented so there wouldn‟t be no dispute about whether [she]

did it on” a particular date.

Another area of repeated focus for defendant was the procedure used by the

fingerprint examiner‟s office to receive and record prints for comparison. Seleska

first brought prints in this case to the San Bernardino County Sheriff‟s Department

examination office on a holiday, when the clerk who would ordinarily have logged

them in, Mary Batt, was not working; Seleska therefore took them directly to an

examiner who was on duty, Gene Bragdon; she did so with other prints on later

20

days as well. As a result, many of the prints Bragdon examined were not

accompanied by a work order or envelope showing the date and time his office

had received them. Defendant questioned Seleska, Batt and Bragdon on several

occasions about the ordinary procedure for logging prints into the examiner‟s

office and the procedure used with regard to prints in this case. He also

questioned Bragdon in detail on the process by which one of the latent prints from

the scene was initially matched to defendant through a computer database search.

The two topics were, to defendant‟s mind, closely related; he asked Bragdon,

“How can I verify that you submitted a print and not had just went into the

computer and selected people at random” if the time Bragdon received the latent

print from Seleska was not documented.

Part of defendant‟s theory, he explained outside the jury‟s presence, was

that from the many latent fingerprints obtained at the crime scene, Bragdon must

have found database matches to others as well as to defendant, and that the police

had not properly investigated the possible guilt of these hypothetical other

individuals. To the jury, he argued that the fingerprints collected and compared in

the investigation had never been properly documented: “They just floating

around. Just float around. We‟re dealing with my life. Prints floating around.

Not stamped. Not logged in no files. From that day they in and out of the

courtroom as exhibits. Print on the door frame pop up later.”

Generally, in guilt phase jury argument, defendant attempted to tie what he

claimed was sloppy or deceptive documentation of the investigation to an

inappropriate police focus on him to the exclusion of investigating other suspects,

which the police witnesses had attempted to cover up. His defense, he told the

jury, “is pretty obvious, that they want me bad, want me convicted ‟cause they

have no other. Whatever they might believe, they won‟t admit it.” With reference

to Bragdon‟s failure to document when he received prints from Seleska and when

21

he received a match from the computer database search and reported it to the

detectives, defendant argued: “Every piece of information that I need or document

is just undocumented, unsigned. Every piece of information I need to prove my

innocence either is unsigned or is not there. Been denied. Every piece. I wonder

why.” The police, defendant complained, would not admit that they had had other

suspects: “I‟m saying he won‟t admit it, ‟cause I believe they started so many lies

prior would forbid them to tell the truth. They want to win a case. So, you seen

them testify on the stand. Everybody have eyes and they see the testimonies,

reactions, the truth on this. If you had a case, you wouldn‟t be covering up,

coercing. You would tell it like it is.”

After the jury returned guilty verdicts on the charged offenses and found

true the special circumstances, the court asked defendant whether he wished to

have counsel reappointed for the penalty phase of trial, and encouraged him to do

so. Defendant said he would accept someone other than his former attorney,

Levine, who was acting as standby counsel (to which status he had been demoted,

at defendant‟s request, from advisory counsel). Because defendant offered no new

reason for rejecting Levine, however, the court stated it would reappoint him

unless defendant chose to continue representing himself. Defendant chose the

latter course.

Levine then filed a motion to withdraw from his standby position. Levine

explained he believed defendant had shown himself unable to conduct his own

defense. His “focus on irrelevant matter and procedural manuals” had alienated

the jury and, though the reporter‟s transcript did not reflect it, during examination

of witnesses defendant “was unprepared, would stand at the podium for long, long,

periods of time (the longest I recall was 22 minutes) without saying a word,

shuffling papers, while the court, the prosecutor, and the jury all sat there waiting

for him to get his thoughts together.”

22

Levine argued that, at least in capital cases, mere competence to stand trial

should not entitle a defendant to represent himself. While acknowledging that the

high court in Godinez v. Moran (1993) 509 U.S. 389 had held the competence

standard for waiving counsel was the same as that for standing trial, and California

had not yet adopted any higher standard for self-representation, Levine urged the

trial court to take the “courageous” step of doing so itself and finding defendant

incompetent to represent himself at the penalty phase. Absent that step, Levine

“no longer [felt] that [he could] sit in court” and observe as standby counsel.

Regarding Levine‟s plea for revoking defendant‟s self-representation, the

court stated: “While I might personally agree with you, Mr. Levine, I wish the law

were different, and it probably should be different. As I understand the law, it‟s

not. I have really no choice in the matter, once he has been found to be competent

to stand trial, and to waive his right, and has been fully advised and informed of all

of the consequences of exercising his right to represent himself, I think I am bound

to honor that request.” While sympathizing with Levine‟s frustrations, the court

denied his request to withdraw as standby counsel.

Representing himself at the penalty phase trial, defendant put on no

mitigating evidence, though he did cross-examine some of the People‟s witnesses.

He declined to make any argument to the jury.

B. Standard of Mental Competence for Self-representation: California

and Federal Law

Prior to the United States Supreme Court‟s 1975 decision in Faretta, supra,
422 U.S. 806, this court had discussed the criminal defendant‟s right to self-

representation — and the mental competence needed to exercise the right — under

the California Constitution. In People v. Mattson (1959) 51 Cal.2d 777, 788, we

stated that article I, former section 13 of the California Constitution (now art. I,

§ 15), together with implementing statutes, “accord the accused not only a right to

23

counsel but also a right to represent himself if he so elects.” In People v. Carter

(1967) 66 Cal.2d 666, 672, again referring to state law, we observed that

“although every defendant in a criminal case has the constitutional right to

represent himself if he so elects [citations], before his waiver of counsel may be

accepted the trial court is duty bound to determine his competency to represent

himself.”

In People v. Sharp (1972) 7 Cal.3d 448 (Sharp), however, we disapproved

these earlier recognitions of a state law right to self-representation. We held

neither article I, former section 13 of the California Constitution nor Penal Code

section 686, both of which allowed the defendant to appear and defend “in person

and with counsel,” thereby conferred a right to represent oneself. (Sharp, at pp.

459, 463-464.)8 At the same time, we instructed trial courts that in exercising

their discretion whether to allow self-representation, they should continue to apply

the “competency” standards previously set forth. (Sharp, at p. 461.) The only

case we cited as having set forth such standards, however, actually discussed the

standard for determining “whether the defendant is capable of making a knowing

and intelligent election” to waive counsel, not for determining competence to

actually represent oneself at trial. (People v. Floyd (1970) 1 Cal.3d 694, 702-703.)


8

Sharp also held there was no right to self-representation under the federal

Constitution (Sharp, supra, 7 Cal.3d at pp. 454-457), a holding that was, of course,
overruled in Faretta, supra, 422 U.S. at pages 811-812, 836. But Sharp remains
good law as to the California Constitution and Penal Code. Indeed, our
Constitution now makes clear the defendant has the right only to “the assistance of
counsel” and “to be personally present with counsel” (Cal. Const., art. I, § 15), and
the Penal Code (§ 686.1) now provides that capital defendants “shall be
represented in court by counsel at all stages” of trial.

24

Before Faretta, then, we had referred to self-representation competence, but had

not articulated any standard under California law for its assessment.9

In recognizing a federal constitutional right to represent oneself, the high

court in Faretta also did not address the standard of mental competence needed to

claim the right. The court made clear, on the one hand, that the defendant‟s

waiver of counsel must be undertaken voluntarily and “ „with eyes open‟ ” to the

disadvantages of self-representation (Faretta, supra, 422 U.S. at p. 835) and, on

the other, that the defendant‟s “technical legal knowledge” was irrelevant to the

exercise of the right (id. at p. 836). But except for noting that Faretta himself was

“literate, competent, and understanding” (id. at p. 835), the court did not explore

how a defendant‟s mental health and capacity related to the newly recognized

Sixth Amendment right.

In the wake of Faretta‟s strong constitutional statement, California courts

tended to view the federal self-representation right as absolute, assuming a valid

waiver of counsel. In People v. Windham (1977) 19 Cal.3d 121, 128, we held that

upon the making of a timely Faretta motion “a trial court must permit a defendant

to represent himself upon ascertaining that he has voluntarily and intelligently

elected to do so, irrespective of how unwise such a choice might appear to be.”

Two Courts of Appeal went further, expressly deciding there could be, under


9

To be sure, the two issues, competence to waive counsel and competence to

represent oneself, have sometimes been deemed closely related. In People v.
Powers
(1967) 256 Cal.App.2d 904, 915, for example, the Court of Appeal
opined: “A determination of competency to waive counsel must necessarily
embrace an assessment of a defendant‟s ability to conduct his own defense.” In
People v. Floyd, supra, 1 Cal.3d at page 704, this court included the seriousness of
the charges and the defendant‟s youth and limited education as factors against
allowing waiver of counsel. To the extent we intended this as a competence
standard, however, it could not have survived Faretta.

25

Faretta, no separate standard for mental competence to represent oneself: “ „[T]he

sole issue to be determined in a Faretta hearing is whether the defendant has the

mental capacity to waive his constitutional right to counsel with a realization of

the probable risks and consequences of his action. Whether or not a defendant is

competent to act as his own lawyer is irrelevant.‟ ” (People v. Zatko (1978) 80

Cal.App.3d 534, 544, quoting Curry v. Superior Court (1977) 75 Cal.App.3d 221,

226-227.)10

The Court of Appeal in People v. Burnett (1987) 188 Cal.App.3d 1314

(Burnett) expressed a contrasting view. Building on the idea expressed in People

v. Powers, supra, 256 Cal.App.2d at page 915, that “[a] determination of

competency to waive counsel must necessarily embrace an assessment of a

defendant‟s ability to conduct his own defense,” the Burnett court opined that “the

distinction between competence to waive counsel gauged by whether the accused

realizes „the probable risks and consequences,‟ and competence measured by the

ability to actually represent oneself cannot be fully maintained, for there is a

threshold of competence to present a defense below which one cannot genuinely

realize the risk of doing so. . . . A defendant who does not appreciate the extent of

his own disability cannot be fully aware of the risk of self-representation where

the disability significantly impairs his capacity to function in a courtroom.”

(Burnett, at p. 1325.)

10

We endorsed this view in People v. Teron (1979) 23 Cal.3d 103, 113, citing

Curry v. Superior Court, supra, 75 Cal.App.3d at page 226, for the proposition
that “[i]t is not, however, essential that defendant be competent to serve as counsel
in a criminal proceeding,” though a footnote later in our decision suggested that
upon hearing evidence that raises a serious question regarding the defendant‟s
“mental capacity” the trial court should suspend proceedings and order a
psychiatric examination, presumably with an eye to appointing counsel. (Teron, at
p. 114, fn. 6.)

26

The Burnett court went on to state a test for the “cognitive and

communicative skills” involved in competently representing oneself: “Such skills

are present where the accused: (1) possesses a reasonably accurate awareness of

his situation, including not simply an appreciation of the charges against him and

the range and nature of possible penalties, but also his own physical or mental

infirmities, if any; (2) is able to understand and use relevant information rationally

in order to fashion a response to the charges; and (3) can coherently communicate

that response to the trier of fact.” (Burnett, supra, 188 Cal.App.3d at p. 1327, fn.

omitted.) Burnett was later followed in People v. Manago (1990) 220 Cal.App.3d

982, 988, in the case of a defendant “so undereducated and inarticulate that [his]

trial[] would be reduced to a sham and a farce” were he to represent himself.

The United States Supreme Court‟s 1993 decision addressing competence,

Godinez v. Moran, supra, 509 U.S. 389 (Godinez), appeared to resolve any dispute

by denying the existence of a separate competence standard for self-representation

as a matter of federal law. The defendant, Moran, who had tried to kill himself

after fatally shooting his former wife and two others, was evaluated by two

psychologists and found competent to stand trial. He sought to dismiss his

attorneys and plead guilty in order to avoid the presentation of mitigating evidence

at his sentencing hearing. Despite Moran‟s attempted suicide and the fact he was

taking prescribed antiseizure medications, the state trial court accepted his waiver

of counsel and allowed him to plead guilty; he received a death sentence. (Id. at

pp. 391-393.) On petition for a writ of habeas corpus, the federal court of appeals

held that, even though Moran had been found competent to stand trial, the record

showed he was not competent to waive counsel and plead guilty, steps the court of

appeals believed required higher levels of mental functioning than standing trial

with the assistance of counsel. (Id. at p. 394.)

27

The Supreme Court reversed, “reject[ing] the notion that competence to

plead guilty or to waive the right to counsel must be measured by a standard that is

higher than (or even different from) the Dusky standard.” (Godinez, supra, 509

U.S. at p. 398; see Dusky v. United States, supra, 362 U.S. 402.) To the argument

that representing oneself requires greater intellectual powers than standing trial

with an attorney, the high court answered: “But this argument has a flawed

premise; the competence that is required of a defendant seeking to waive his right

to counsel is the competence to waive the right, not the competence to represent

himself.” (Godinez, at p. 399, fn. omitted.) While most defendants undeniably

would be better defended with counsel than without, “a criminal defendant‟s

ability to represent himself has no bearing upon his competence to choose self-

representation.” (Id. at p. 400, fn. omitted.) The high court acknowledged that in

addition to trial competence, the defendant seeking to waive counsel must be

found to do so knowingly and voluntarily. The court stressed, however, that this is

not a competence standard; while the competence inquiry focuses on the

defendant‟s ability to understand the proceedings, the “knowing and voluntary”

(ibid.) inquiry is intended to ensure the defendant actually does understand the

consequences of his or her decision, and that the decision is uncoerced. (Id. at pp.

400-401 & fn. 12.) Finally, the court observed that “psychiatrists and scholars”

might find subclassifications of competence useful, and that “while States are free

to adopt competency standards that are more elaborate than the Dusky formulation,

the Due Process Clause does not impose these additional requirements.” (Id. at

p. 402.)

Our Courts of Appeal promptly held that under Godinez no greater degree

of competence was required for self-representation than for standing trial. In

People v. Poplawski (1994) 25 Cal.App.4th 881, 894-895 (Poplawski), the court

reversed a conviction on the ground the trial court had improperly revoked the

28

defendant‟s in propria persona status because of the defendant‟s difficulty

understanding and communicating during trial proceedings. Godinez established,

the court observed, that the only requirements for waiving counsel were trial

competence and a voluntary and intelligent waiver. Consequently Burnett, supra,

188 Cal.App.3d 1314, and its progeny, decided prior to Godinez, were not to be

followed “insofar as they purport to impose a stricter standard of competency on

the right to undertake one‟s own defense . . . .” (Poplawski, at p. 894.)

Similarly, in People v. Nauton (1994) 29 Cal.App.4th 976, 978-979

(Nauton), the appellate court reversed the conviction because the trial court,

despite finding the defendant competent to stand trial, had denied his Faretta

motion on the ground his “grandiose” thought patterns and “non sequitur

responses” made him unsuitable to represent himself. Under Godinez, the

defendant‟s ability to represent himself was irrelevant to the competence of his

waiver, which was established by his competence to stand trial. (Nauton, at pp.

979-980.)

The court in People v. Hightower (1996) 41 Cal.App.4th 1108 (Hightower)

followed suit, reversing the conviction of a defendant who was denied

self-representation after being found competent to stand trial. Under Godinez, the

competence standards were the same: “Because the trial court properly found

appellant competent to stand trial, it necessarily follows that the trial court erred in

denying appellant‟s motion for self-representation. The two rulings are simply

antithetical.” (Hightower, at p. 1116.) The court noted Godinez‟s reference to

possible adoption of “ „more elaborate‟ ” state law competence standards

(Hightower, at p. 1113), but held Burnett‟s proposed standard was not based on

California law but on an interpretation of Faretta and the high court‟s earlier

decision in Westbrook v. Arizona (1966) 384 U.S. 150 (per curiam), an

interpretation proved wrong in Godinez (Hightower, at p. 1115). The court

29

observed: “The Attorney General has not cited and our independent research has

not led us to a single California case in which a „California‟ standard which is

different from (or „more elaborate than‟) the federal standard for determining

competence to waive counsel has been identified.” (Id. at p. 1115, fn. 4.)

Poplawski and Nauton, decided in 1994, and Hightower, decided January

10, 1996, represented the California appellate courts‟ most recent statements on

the question of competence for self-representation when, on February 27, 1996,

the trial court here granted defendant‟s self-representation motion. Defendant‟s

former attorney, Levine, asking the court to apply a higher competence standard

and to revoke defendant‟s in propria persona status before the penalty phase (in a

motion filed April 23, 1996), acknowledged that Godinez equated the standard for

representing oneself with that for standing trial, and Hightower held California had

not yet adopted a higher competence standard for self-representation.

While this court appears not to have addressed the issue between Godinez

and defendant‟s trial, we later reached the same conclusion regarding competence

as the Hightower, Nauton and Poplawski courts. In 1997‟s People v. Bradford,

supra, 15 Cal.4th at page 1364, we noted Godinez‟s holdings that ability to

represent oneself is irrelevant to a competent waiver of counsel and that the

competence standard for waiver is the same as to stand trial. In People v. Welch

(1999) 20 Cal.4th 701, 732-734, we discussed the question more fully, holding

that Burnett and its progeny, upon which the Welch trial court had relied in

applying a higher standard of competence and denying a motion for self-

representation, were not good law after Godinez. In light of Godinez, we

explained, the trial court had erred in requiring that the defendant “possess some

minimal ability to represent himself . . . .” (Welch, supra, at p. 734.) More

recently, in People v. Halvorsen (2007) 42 Cal.4th 379, 432, we held a trial court

had erred in denying the defendant‟s motion to represent himself at a penalty

30

retrial on the ground the defendant “lacked the mental capacity to represent

himself . . . .” Under Godinez, the Faretta right “may be asserted by any

defendant competent to stand trial,” making the trial court‟s use of a higher

standard erroneous. (Halvorsen, at p. 433.)11

The federal high court next addressed Faretta competence standards, 15

years after Godinez, in Edwards, supra, ___ U.S. ___ [128 S.Ct. 2379]. Charged

in Indiana state court with attempted murder and other crimes, Edwards was twice

found incompetent to stand trial because of his schizophrenia and delusions. After

his second hospitalization, he was returned to court as competent. The trial court

denied his request for self-representation, however, and denied his renewed

request when he was retried after a partially hung jury; the court noted his lengthy

psychiatric history and found he still suffered from schizophrenia and, while

competent to stand trial, was not competent to defend himself. The Indiana

appellate courts ordered a new trial on the ground that Faretta, supra, 422 U.S.

806, and Godinez, supra, 509 U.S. 389, required the state to permit Edwards to

represent himself. (Edwards, at p. ___ [128 S.Ct. at pp. 2382-2383].)


11

Courts in several other jurisdictions interpreted Godinez similarly to

California courts, holding self-representation required no greater or different
competence than standing trial with counsel. (See U.S. v. Hernandez (9th Cir.
2000) 203 F.3d 614, 620, fn. 8; State v. Day (Conn. 1995) 661 A.2d 539, 547-548;
State v. Thornblad (Minn.Ct.App. 1994) 513 N.W.2d 260, 262-263; Dunn v. State
(Miss. 1997) 693 So. 2d 1333, 1340; State v. Shafer (Mo. 1998) 969 S.W.2d 719,
728-729; State v. Tribble (Vt. 2005) 892 A.2d 232, 240, fn. 2.) Only Wisconsin
and the Seventh Circuit Court of Appeals appear to have understood Godinez as
allowing the state to maintain a higher standard for competence to represent
oneself than for competence to stand trial. (See State v. Klessig (Wis. 1997) 564
N.W.2d 716, 723-724; Brooks v. McCaughtry (7th Cir. 2004) 380 F.3d 1009,
1012-1013 [agreeing Wisconsin rule does not violate Godinez].).

31

The Supreme Court reversed, holding “the Constitution permits States to

insist upon representation by counsel for those competent enough to stand trial

under Dusky but who still suffer from severe mental illness to the point where they

are not competent to conduct trial proceedings by themselves.” (Edwards, supra,

___ U.S. at p. ___ [128 S.Ct. at p. 2388].) The court did not overrule Godinez,

instead distinguishing it on two grounds. First, the defendant in Godinez “sought

only to change his pleas to guilty, he did not seek to conduct trial proceedings, and

his ability to conduct a defense at trial was expressly not at issue.” (Edwards,

supra, ___ U.S. at p. ___ [128 S.Ct. at p. 2385].) Second, “Godinez involved a

State that sought to permit a gray-area defendant to represent himself. Godinez’s

constitutional holding is that a State may do so. But that holding simply does not

tell a State whether it may deny a gray-area defendant the right to represent

himself—the matter at issue here.” (Ibid.)

On the merits of the question, the high court observed that the Dusky

standard for competence to stand trial assumes the defendant will be defending

through counsel. The competence case law thus suggests that defending oneself in

the absence of an attorney “calls for a different standard.” (Edwards, supra, ___

U.S. at p. ___ [128 S.Ct. at p. 2386].) Moreover, “[m]ental illness itself is not a

unitary concept. . . . In certain instances an individual may well be able to satisfy

Dusky‟s mental competence standard, for he will be able to work with counsel at

trial, yet at the same time he may be unable to carry out the basic tasks needed to

present his own defense without the help of counsel.” (Ibid.)12 When a defendant


12

In its recognition of the very different capacities needed to assist defense

counsel and to act as one‟s own counsel, the Edwards court echoes the Godinez
dissent‟s critique of equating competence to stand trial with competence to
represent oneself: “A person who is „competent‟ to play basketball is not thereby


(footnote continued on next page)

32

who lacks the necessary mental capacity attempts to represent himself, the

resulting trial is likely neither to be, nor to appear, fair. “The application of

Dusky‟s basic mental competence standard can help in part to avoid this result.

But given the different capacities needed to proceed to trial without counsel, there

is little reason to believe that Dusky alone is sufficient.” (Id. at p. ___ [128 S.Ct.

at p. 2387].)

The court in Edwards did not hold, contra to Godinez, that due process

mandates a higher standard of mental competence for self-representation than for

trial with counsel. The Edwards court held only that states may, without running

afoul of Faretta, impose a higher standard, a result at which Godinez had hinted

by its reference to possibly “more elaborate” state standards. (Godinez, supra, 509

U.S. at p. 402.) “In light of Edwards, it is clear . . . that we are free to adopt for

mentally ill or mentally incapacitated defendants who wish to represent

themselves at trial a competency standard that differs from the standard for

determining whether such a defendant is competent to stand trial. It is equally

clear, however, that Edwards does not mandate the application of such a dual

standard of competency for mentally ill defendants. In other words, Edwards did

not alter the principle that the federal constitution is not violated when a trial court

permits a mentally ill defendant to represent himself at trial, even if he lacks the

mental capacity to conduct the trial proceedings himself, if he is competent to

stand trial and his waiver of counsel is voluntary, knowing and intelligent.” (State

v. Connor (Conn. 2009) 973 A.2d 627, 650.) Edwards thus does not support a

claim of federal constitutional error in a case like the present one, in which


(footnote continued from previous page)

„competent‟ to play the violin.” (Godinez, supra, 509 U.S. at p. 413 (dis. opn. of
Blackmun, J.).)

33

defendant‟s request to represent himself was granted. In part III.C.2., post, we

address defendant‟s further claim that the trial court erred by failing to exercise

discretion it assertedly had, under state law, to find defendant incompetent to

represent himself.

C. Review of Trial Court’s Ruling

1. Intelligent Waiver of Counsel

In briefing filed before the high court‟s decision in Edwards, supra, ___

U.S. ___ [128 S.Ct. 2379], defendant argues that despite Judge Edwards‟s

extensive advice to defendant on the disadvantages of representation and

defendant‟s apparently rational answers to the colloquy, Judge Edwards should

have denied defendant‟s motion to waive counsel on the ground the waiver was

not knowing and intelligent. Relying on Judge McCarville‟s observations in

denying the earlier Faretta motion and on psychologist Flach‟s findings in the

competence examination, defendant argues: “Judge Edwards asked all the right

questions, but failed to take into account the substantial evidence that [defendant]

simply did not comprehend what he was undertaking.”

We disagree. In Judge Edwards‟s colloquy with defendant on February 27,

1996, defendant did not simply reply to the court passively or monosyllabically.

When defendant initially requested to “go pro. per. with counsel,” for example, the

court explained that it would first decide whether to grant the Faretta motion and,

if it did, only then decide whether to appoint advisory counsel. Defendant said he

understood and, a bit later in the discussion, stated that he would like advisory

counsel “[b]ut if not, then — I would like to request that, but if not, I would prefer

to represent myself.” When the court reiterated that it was not promising to

appoint advisory counsel, defendant responded: “Yes, I heard you when you said

that.” When the court referred to the “great disadvantage” defendant would be

34

under compared to the prosecutor, defendant asked: “What‟s the disadvantage?”

The court elaborated at length, after which defendant acknowledged: “I

understand clearly.” When defense counsel added to the court‟s description of the

problems of self-representation the difficulty defendant might have deciding

whether to introduce mitigation evidence with which he was emotionally involved,

defendant responded: “I think I can control that. I understand what you‟re saying,

though.” The record clearly shows defendant chose self-representation with his

eyes open to the risks and disadvantages it entailed, the nature and seriousness of

the charges he faced, and his right to continue being represented by appointed

counsel throughout trial. (People v. Blair, supra, 36 Cal.4th at p. 708.)13

Neither Judge McCarville‟s earlier remarks nor Flach‟s report required

Judge Edwards to find defendant‟s choice was not knowing and intelligent.

Defendant‟s “quizzical looks” and delays in answering during the initial colloquy

led Judge McCarville to doubt that defendant had the “ability to represent

himself,” to “proceed pro per as his own counsel.” But Judge McCarville

indicated no doubt that defendant had understood his advice. Psychologist Flach

found defendant to have low intelligence and difficulty with abstract thinking; as a

consequence, he would experience “some difficulty in representing himself

without an attorney.” Nothing in Flach‟s report, however, should have convinced

Judge Edwards that, contrary to his own impressions during his lengthy colloquy

with defendant, defendant did not understand the contours of his choice to

represent himself.


13

The above should not be taken as suggesting an intelligent waiver

necessarily requires a defendant to do more than answer the court‟s questions
without elaboration.

35

2. Competence to Defend Without Counsel

In supplemental briefing directed at the effect of Edwards, supra, ___ U.S.

___ [128 S.Ct. 2379], defendant contends the trial court, in considering his

competence to represent himself, should have exercised its discretion, later

recognized in Edwards, to apply a higher standard than mere competence to stand

trial. Because he was incompetent under the higher standard, defendant argues,

the court should have denied his pretrial Faretta motion or, at the least, revoked

his self-represented status when the issue was raised by standby counsel Levine

before the penalty phase. We reject the claim of error because, at the time of

defendant‟s trial, state law provided the trial court with no test of mental

competence to apply other than the Dusky standard of competence to stand trial

(see Dusky v. United States, supra, 362 U.S. 402), under which defendant had

already been found competent.

As explained in part III.B., ante, at the time defendant sought self-

representation, definitive federal case law rejected the idea that “competence to

. . . waive the right to counsel must be measured by a standard that is higher than

(or even different from) the Dusky standard” (Godinez, supra, 509 U.S. at p. 398)

and held that “a criminal defendant‟s ability to represent himself has no bearing

upon his competence to choose self-representation” (id. at p. 400, fn. omitted).

While Godinez also had somewhat cryptically suggested states were free to adopt

“more elaborate” nonconstitutional standards if they so desired (id. at p. 402),

three California Court of Appeal decisions — binding on the trial court under Auto

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 — held it was error

to apply a higher standard. (Hightower, supra, 41 Cal.App.4th at p. 1116; Nauton,

supra, 29 Cal.App.4th at pp. 979-980; Poplawski, supra, 25 Cal.App.4th at

p. 894.) One of those, Hightower, discussed the Godinez dictum but found not “a

single California case in which a „California‟ standard which is different from (or

36

„more elaborate than‟) the federal standard for determining competence to waive

counsel has been identified.” (Hightower, at p. 1115, fn. 4.) The trial court‟s

assessment of the then governing law — that a finding of trial competence dictated

a finding of competence to waive counsel and to represent oneself — was

accurate.

Defendant argues Burnett, supra, 188 Cal.App.3d 1314, and its progeny

provided a basis for the trial court to deny his Faretta motion on the ground he

lacked the mental capacity “to present a rudimentary defense” (Burnett, at p. 1323)

without assistance of counsel. But we agree with the court in Hightower, supra,

41 Cal.App.4th at page 1115, that Burnett did not attempt to articulate a distinct

California standard of competence for self-representation.

The issues as framed in Burnett were whether a trial court should obtain a

psychiatric examination before deciding whether a defendant is “competent to

waive counsel” and the proper standard for making that determination. (Burnett,

supra, 188 Cal.App.3d at p. 1317.) Without extensive discussion of the point, the

court cited federal authority for the proposition that “the standard for determining

competence to stand trial is lower than the standard for determining competence to

waive counsel . . . .” (Id. at p. 1321.) It was this “competence to waive counsel”

for which the court then undertook to articulate a standard. (Id. at p. 1323.) The

court noted that decisions “interpreting Faretta” had differed as to whether

competence to waive counsel depended to any extent on the ability to actually

present a defense (ibid.), but found that two decisions of the United States

Supreme Court suggested it did (id. at p. 1324).14 The Burnett court, as discussed


14

The Burnett court also cited People v. Powers, supra, 256 Cal.App.2d at

page 915, for the proposition that “ „[a] determination of competency to waive
counsel must necessarily embrace an assessment of a defendant‟s ability to


(footnote continued on next page)

37

earlier, then went on to articulate the “basic cognitive and communicative skills”

needed to defend oneself and thus, in the court‟s view, to competently waive

counsel. (Burnett, at p. 1327.)

Closely read, therefore, Burnett is seen to hold only that the federal

constitutional right to self-representation is limited by the principle that a person

without the mental capacity to defend himself is also not competent to waive

counsel. This was the precise point later addressed in Godinez, which, of course,

held ability to defend oneself is irrelevant to competence to waive counsel.

(Godinez, supra, 509 U.S. at p. 400.) Burnett thus did not articulate a separate

California competence standard and, after Godinez, was not good law as to the

federal standard. (See People v. Welch, supra, 20 Cal.4th at pp. 732-734;

Hightower, supra, 41 Cal.App.4th at pp. 1113, 1115; Poplawski, supra, 25

Cal.App.4th at p. 894.) The trial court thus did not err by following Hightower

and concluding, in the absence of a different California standard, that the court‟s

finding that defendant was competent to stand trial compelled a further finding he

was competent to represent himself.

Defendant further asserts the trial court‟s remarks in denying standby

counsel Levine‟s request to reappoint counsel at the penalty phase (“While I might

personally agree with you, Mr. Levine, I wish the law were different, and it

probably should be different. As I understand the law, it‟s not.”) show the court


(footnote continued from previous page)

conduct his own defense‟ ” (Burnett, supra, 188 Cal.App.3d at p. 1325). Powers,
a pre-Faretta decision, in turn cited both federal and California decisions.
(Powers, at pp. 912-915.) But to the extent Powers set limits on the California
self-representation right, its holding was nullified — long before Burnett — by our
decision in Sharp, supra, 7 Cal.3d at pages 459, 463-464, holding that no such
right existed.

38

(Judge Edwards) “certainly believed that [defendant] was not competent to

represent himself” and would have revoked his in propria persona status had the

court known of its authority under Edwards. As just explained, the trial court was

correct that, under binding federal and state authority, it lacked the power to take

that step. But we also believe defendant reads too much into Judge Edwards‟s

remarks. The court‟s expression of “frustration” at defendant‟s insistence on

representing himself and its “wish” the law allowed for denial of defendant‟s

preference was not extraordinary; the exercise of Faretta rights is commonly and

understandably frustrating to trial courts, especially in capital and other very

serious cases, and courts often wish they could deny the exercise of such rights.

Nor was it surprising for the court to express sympathy with Attorney Levine‟s

desire to withdraw from the thankless job of standby counsel, even while denying

the request. The court did not state or necessarily imply that, if permitted to do so,

it would find defendant incompetent to represent himself.

IV. Failure to Excuse Juror for Bias

Juror No. 7 indicated on his questionnaire that he favored the death penalty

as a deterrent to crime but did not have strong feelings on the subject, did not

believe in the principle of “an eye for an eye,” needed to know all the

circumstances surrounding the case before making a penalty decision, believed all

types of evidence about the defendant‟s background could be relevant to penalty,

would not “always vote” for either life or death if the defendant were found guilty

of murder with a felony-murder special circumstance, and could see himself

imposing either penalty “in the appropriate case.” Nevertheless, he answered

affirmatively the question whether the death penalty “should be automatic for

anyone who intentionally commits murder (not in self defense),” adding his own

explanatory note, “premeditated [and] special circumstances.”

39

On individual voir dire, the court repeated its explanation, given earlier

before the panel of prospective jurors, that if the jury in the first phase of trial

convicted defendant of first degree murder with special circumstances, there

would be a second phase in which the jury would hear additional evidence of

factors in mitigation and aggravation and would then be asked to weigh those

factors. The following exchange with Juror No. 7 ensued:

“Q. [The Court]: Would you be able to do that or are you telling me that

the minute you decided that he was guilty of first degree murder with special

circumstances you would always vote death?

“A. [Juror No. 7]: I would probably have to vote for the death penalty.

“Q. [The Court]: This is important that we know that, because if what

you‟re saying is that you would vote death at the beginning, then obviously there

is no reason to have the second phase of the trial.

“A. [Juror No. 7]: That‟s right.

“Q. [The Court]: So is that what you‟re telling me?

“A. [Juror No. 7]: Basically, yes.”

After other prospective jurors were questioned, the court entertained

challenges for cause from both the prosecutor and defendant. The following

exchange occurred:

“The Court: But I guess my first question was [Juror No. 7]. And if I

understand his answers correctly, he had indicated that he would automatically

vote death, even before we got to the penalty phase of the trial, if he found you

had committed first degree murder with special circumstances. I don‟t know if

you want to exercise a challenge as to him, but that would certainly seem to be an

appropriate challenge for cause. I don‟t know if Mr. Ramos had any comment.”

“Mr. Ramos [the prosecutor]: I agree with the court. In fact, I‟d stipulate

to number 7.

40

“[Defendant]: Which one? (Juror # 7), number 7, I would like to keep him.

I would like to keep Mr. —

“The Court: I‟m sorry?

“[Defendant]: I would like to keep him.

“The Court: You want to keep (Juror # 7)?

“Mr. Ramos: I‟ll withdraw my request.

“The Court: Unless I misunderstood him, I thought he said he would

automatically vote death if he found you were guilty of first degree murder. You

still want to keep him?

“[Defendant]: Yes.

“The Court. Okay.”

Defendant did not use a peremptory challenge on Juror No. 7, did not

exhaust his peremptory challenges, and accepted the jury as seated.

Defendant contends the trial court committed reversible constitutional error

by including in the penalty jury a juror who would vote automatically for the death

penalty without considering mitigating evidence and regardless of the court‟s

instructions. (Wainwright v. Witt (1985) 469 U.S. 412, 423-424; People v. Weaver

(2001) 26 Cal.4th 876, 910.) The Attorney General does not address whether the

record shows Juror No. 7 was biased, instead arguing the trial court had no sua

sponte duty to excuse the juror, and defendant‟s claim is therefore waived by his

failure to challenge Juror No. 7 and exhaust his peremptory challenges or,

alternatively, is barred under the doctrine of invited error.

We agree with the Attorney General that defendant, having chosen not to

challenge Juror No. 7 for cause or peremptorily, and having neither exhausted his

peremptory challenges nor expressed dissatisfaction with the jury, cannot raise on

appeal the trial court‟s failure to excuse Juror No. 7. “Under our state law, a

defendant who wishes to preserve a claim of error in the improper denial of a

41

challenge for cause must (1) use a peremptory challenge to remove the juror in

question; (2) exhaust his or her peremptory challenges or justify the failure to do

so; and (3) express dissatisfaction with the jury ultimately selected.” (People v.

Blair, supra, 36 Cal.4th at p. 741; see also People v. Carasi (2008) 44 Cal.4th

1263, 1290 [dissatisfaction requirement applies to trials conducted after 1994

decision clarified the law]; People v. Wilson (2008) 43 Cal.4th 1, 34 (conc. opn. of

Werdegar, J.) [noting ambiguity as to application of justification option].) Here,

as the Attorney General argues, defendant failed to challenge the juror for cause or

peremptorily; nor did he express dissatisfaction with the jury ultimately seated.

Indeed, defendant affirmatively stated he wished to keep Juror No. 7 on the jury.

By these choices he waived any claim of error in the juror‟s retention.

If the trial court had a sua sponte duty to excuse jurors on the basis of

disqualification under Wainwright v. Witt, supra, 469 U.S. 412, independent of the

parties‟ challenges for cause, we would have to decide whether the court erred in

not excusing Juror No. 7 on its own motion. The court, however, had no such

duty. (People v. Bolin (1998) 18 Cal.4th 297, 315; accord, People v. Kipp (1998)

18 Cal.4th 349, 365.)

Arguing otherwise, defendant cites our statement in People v. Blair, supra,

36 Cal.4th at page 742, that “[t]o establish that the erroneous inclusion of a juror

violated a defendant‟s right to a fair and impartial jury, the defendant must show

either that a biased juror actually sat on the jury that imposed the death sentence,

or that the defendant was deprived of a peremptory challenge that he or she would

have used to excuse a juror who in the end participated in deciding the case.”

Here, he argues, he has met this burden because the trial court‟s questioning of

Juror No. 7 shows he was actually biased in that he had prejudged the question of

penalty. The quoted passage from Blair, however, addressed the merits of the

defendant‟s claim, this court having determined in the immediately preceding

42

passage that the claim had been properly preserved; the passage does not speak to

whether a defendant has preserved or waived a bias claim. (Id. at pp. 741-742.)

Defendant points out that in none of this court‟s decisions holding a juror

bias claim had not been preserved did the trial court make an express finding of

bias, as defendant contends the court did here, yet retain the juror. But the trial

court‟s remarks here did not amount to a finding of actual bias. Rather, the court

observed that on the basis of Juror No. 7‟s questionnaire and voir dire responses a

challenge for cause would be “appropriate.” This remark suggests that at that

point — absent any further attempts to rehabilitate the juror — the court was

inclined to grant such a challenge, if it were made. But the court did not rule out

further questioning of Juror No. 7, which in light of his other questionnaire

responses might well have rehabilitated him sufficiently.15

Under these circumstances, even where the defendant represented himself,

we adhere to the well-established rule that to preserve a claim a biased juror was

improperly permitted to serve, the defense must exhaust its peremptory challenges


15

On the questionnaire, Juror No. 7 stated he needed to know all the

circumstances surrounding the case before making a penalty decision and would
not “always vote” for either life or death if the defendant were found guilty of
murder with a felony-murder special circumstance. In addition, he qualified the
response to his answer about automatically imposing the death penalty for
intentional murder with a handwritten note that the murder must be
“premeditated.” But the first degree murder allegation here was tried purely on a
felony-murder theory, not one of premeditated and deliberate murder (of which
there was little or no evidence). The jury was not instructed on premeditation.
Even if taken at face value, therefore, Juror No. 7‟s statement that he would
impose the death penalty for an intentional, premeditated murder with special
circumstances did not necessarily show he had actually prejudged the penalty
decision in this case, and we do not interpret the trial court‟s remark as a finding
he had.

43

and object to the jury as sworn. (People v. Blair, supra, 36 Cal.4th at p. 741.)

Because of this conclusion, we need not reach the question of invited error.

V. Discriminatory Use of Peremptory Challenges

Defendant contends the prosecutor used his peremptory challenges to

excuse four prospective jurors because they were African-American, in violation

of defendant‟s state and federal constitutional rights. (People v. Wheeler (1978)

22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162;

Batson v. Kentucky (1986) 476 U.S. 79.) “ „In [Wheeler] . . . we held that the use

of peremptory challenges by a prosecutor to strike prospective jurors on the basis

of group membership violates the right of a criminal defendant to trial by a jury

drawn from a representative cross-section of the community under article I,

section 16, of the California Constitution. Subsequently, in Batson . . . the United

States Supreme Court held that such a practice violates, inter alia, the defendant‟s

right to equal protection of the laws under the Fourteenth Amendment to the

United States Constitution.‟ ” (People v. Catlin (2001) 26 Cal.4th 81, 116.)

“The Batson three-step inquiry is well established. First, the trial court

must determine whether the defendant has made a prima facie showing that the

prosecutor exercised a peremptory challenge based on race. Second, if the

showing is made, the burden shifts to the prosecutor to demonstrate that the

challenges were exercised for a race-neutral reason. Third, the court determines

whether the defendant has proven purposeful discrimination. The ultimate burden

of persuasion regarding racial motivation rests with, and never shifts from, the

opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step

procedure also applies to state constitutional claims. (People v. Bonilla [(2007)]

41 Cal.4th [313,] 341; People v. Bell (2007) 40 Cal.4th 582, 596.)” (People v.

Lenix (2008) 44 Cal.4th 602, 612-613.)

44

“At the third stage of the Wheeler/Batson inquiry, „the issue comes down to

whether the trial court finds the prosecutor‟s race-neutral explanations to be

credible. Credibility can be measured by, among other factors, the prosecutor‟s

demeanor; by how reasonable, or how improbable, the explanations are; and by

whether the proffered rationale has some basis in accepted trial strategy.‟

(Miller-El [v. Cockrell (2003)] 537 U.S. [322,] 339.) In assessing credibility, the

court draws upon its contemporaneous observations of the voir dire. It may also

rely on the court‟s own experiences as a lawyer and bench officer in the

community, and even the common practices of the advocate and the office who

employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.)” (People v. Lenix,

supra, 44 Cal.4th at p. 613, fn. omitted.)

“Review of a trial court‟s denial of a Wheeler/Batson motion is deferential,

examining only whether substantial evidence supports its conclusions. (People v.

Bonilla, supra, 41 Cal.4th at pp. 341-342.) „. . . We presume that a prosecutor

uses peremptory challenges in a constitutional manner and give great deference to

the trial court‟s ability to distinguish bona fide reasons from sham excuses.

[Citation.] So long as the trial court makes a sincere and reasoned effort to

evaluate the nondiscriminatory justifications offered, its conclusions are entitled to

deference on appeal. [Citation.]‟ (People v. Burgener (2003) 29 Cal.4th 833,

864.)” (People v. Lenix, supra, 44 Cal.4th at pp. 613-614, fn. omitted.)

After the prosecutor used peremptory challenges to excuse four of the five

African-American prospective jurors examined to that point, defendant, who is

also African-American, made a “Wheeler motion.” The trial court found a prima

facie case of discriminatory challenges and asked the prosecutor to explain why he

had excused the four prospective jurors. In response, the prosecutor addressed

each of the four challenges — C.C., V.H., G.S. and T.J. — individually. The

prosecutor also noted he had so far used 12 peremptories in total and did not

45

intend to challenge the remaining African-American juror, Juror No. 2.16 The trial

court sought clarification on one point and gave defendant an opportunity to

address the prosecutor‟s explanation. Discussing the challenges individually, the

court concluded the prosecutor had sufficient nondiscriminatory reasons for each,

though the challenge to C.C. was close. The court concluded: “I can‟t say that

they come to the point that he is purposely excluding Blacks. So, at this time I

will deny the motion.”

We discuss each of the four challenges individually. As part of our

analysis, we consider as “bearing on the trial court‟s factual finding regarding

discriminatory intent” (People v. Lenix, supra, 44 Cal.4th at p. 607) the

comparisons of prospective jurors challenged and unchallenged that defendant

expounds in his briefs, though few if any of these comparisons were made in the

trial court. At the same time, “we are mindful that comparative juror analysis on a

cold appellate record has inherent limitations.” (Id. at p. 622.) In addition to the

difficulty of assessing tone, expression and gesture from the written transcript of

voir dire, we attempt to keep in mind the fluid character of the jury selection

process and the complexity of the balance involved. “Two panelists might give a

similar answer on a given point. Yet the risk posed by one panelist might be offset

by other answers, behavior, attitudes or experiences that make one juror, on

balance, more or less desirable. These realities, and the complexity of human

nature, make a formulaic comparison of isolated responses an exceptionally poor

medium to overturn a trial court‟s factual finding.” (Id. at p. 624.)


16

The parties agree that in addition to Juror No. 2, one other African-

American, Juror No. 12, ultimately was sworn as a juror.

46

Challenge to Prospective Juror C.C.

At the time of trial, C.C. was 47 years old, married with three children, and

worked as a motor sweeper operator for the City of Los Angeles. He had served

in the Marine Corps and held a bachelor‟s degree in sociology. According to his

questionnaire answers, he had no opinions about the American jury system and did

not know what should be done about violent crime. His general feelings about the

death penalty were only “in support of the law” and that he “support[ed] whatever

the law states.” Asked whether he believed in “an eye for an eye and a tooth for a

tooth” he checked both yes and no and added, “whatever the law stipulates.” He

believed the death penalty may be appropriate “when the law makes it

appropriate” and not appropriate “when the law so stipulates.” Although he

thought all the circumstances surrounding a case should be considered in deciding

penalty, he indicated he believed all aspects of the defendant‟s background should

not be considered, explaining, in answer to question No. 76 of the questionnaire,

that “the only thing that‟s important is the letter of the law.” Regarding any

potential conflict between religious views and the law, he said he would follow the

law because “this is a nation of laws and we should be bound by laws.” On

question No. 84, he indicated he did not think the death penalty should be

automatic for an intentional murder because “I would need to know what the law

stipulates.”17

Questioned by the court about his answer to question No. 76, C.C. agreed

that he could follow instructions to consider the defendant‟s background in

weighing factors in aggravation and mitigation in a penalty phase trial. When the

prosecutor asked him to explain questionnaire answers the prosecutor


17

Question No. 84 asked: “Do you think that the death penalty should be

automatic for anyone who intentionally commits murder (not in self-defense)?”

47

characterized as “noncommittal and whatever‟s the law,” C.C. responded:

“Whatever the instructions are, whatever the law is. I‟m not thoroughly familiar

with the whole concept.”

Responding to the court‟s request, in the Wheeler/Batson hearing, for his

reasons for excusing C.C., the prosecutor said: “Mr. [C.], it was my feeling was

very noncommittal in his, not only his questionnaire, but some of the questions

that were asked. When I was talking to other jurors, I noticed Mr. [C.] was

looking away like he did not want to be here in this courtroom. And the

questionnaire under the death penalty was, again, noncommittal. Whatever is the

law. Did not say he could go for the death penalty or for life, and that‟s the reason

I excused Mr. [C.]. Later, when the court asked him to clarify what he meant by

noncommittal, a term he had used about T.J. as well, the prosecutor added:

“Noncommittal. Unequivocal [sic] in their answers. They‟re neither for the death

penalty nor against it. They were very vague in their answers in the questionnaire.

They, they wouldn‟t give an indication either way whether they would

automatically or even strongly favor either life or death.” At another point in the

hearing, the prosecutor itemized several questionnaire answers in which C.C.

stated simply that he would follow “the law” and added: “And that was his

attitude at one point, almost turning his head and closing his eyes during jury

selection, and that is the reason, not race, that I felt he should be excused.”

The court stated C.C. was a “close one, but if I understand [the

prosecutor‟s] reasons, he felt that he was noncommittal.” The court agreed with

defendant that such lack of commitment was not grounds for disqualification, but

found the prosecutor “was looking for somebody who had a stronger view

regarding the death penalty or regarding their ability to impose the death penalty.”

Defendant argues that as a “middle-aged, family man, a former combat

Marine, with an obviously very conservative, law-and-order philosophy,” C.C.

48

was a desirable juror from the prosecution‟s point of view and the choice to excuse

him could only have been based upon race. But while C.C. repeatedly stated he

would follow the law, his responses do not necessarily indicate a proprosecution

inclination. He did not have an opinion about solving the problem of violent

crime and did not believe in retribution (“an eye for an eye”) except to the extent

the law “stipulated” it. He had no strong feelings for or against the death penalty

generally, and he neither favored nor opposed the death penalty for a person

convicted of first degree murder in the course of a residential burglary and

robbery. The prosecutor‟s description of C.C. as noncommittal, rather than as a

clear prosecution juror, accords with the record.

Defendant points out that two jurors accepted by the prosecutor to sit in this

case, both White, also indicated on the questionnaire or in voir dire that they

would follow the law. But neither of these retained jurors clung so persistently to

this answer as C.C. did. In answer to question No. 63 (strength of feelings about

the death penalty), Juror No. 3 said it should be used only “where circumstances

indicate as determined by [the] judicial system,” but he gave detailed, well-

thought-out answers on questions Nos. 60 and 61 (feelings about the death penalty

and reasons for so feeling) and question No. 64 (regarding “an eye for an eye”), all

of which C.C. responded to with terse statements that he supported the law and

believed whatever it provided. In answer to questions Nos. 73 and 74, Juror No. 7

stated the death penalty was appropriate only “as prescribed by the law,” but on

question No. 60 he said he “favored the death penalty as a deterrent to crime”

(where C.C. responded only that his feelings were “in support of the law”), and on

question No. 84 he said the death penalty should be automatic for certain specified

49

kinds of murder (where C.C. responded only that he would need to know “what

the law stipulates”).18

Finally, defendant observes that some jurors the prosecutor accepted gave

answers suggesting reservations about imposing the death penalty. But the

prosecutor‟s stated reason for challenging C.C. was not that he insufficiently

favored the death penalty; rather, it was that he resisted expressing a view on

either possible penalty: he “[d]id not say he could go for the death penalty or for

life,” was “neither for the death penalty nor against it,” was “very vague in [his]

answers,” and “wouldn‟t give an indication either way whether they would

automatically or even strongly favor either life or death.” (Italics added.)

Certainly, impartiality requires that a juror not commit to one penalty or the other

before hearing the evidence. But a prosecutor might plausibly fear that a

prospective juror who articulates no personal views and insists his role will be

merely to follow the law will be unprepared and perhaps unable to make the

difficult normative decision required of a California penalty juror.

The trial court did not abuse its discretion in finding the prosecutor

peremptorily challenged C.C. not because of his race, but because the prosecutor

“was looking for somebody who had a stronger view regarding the death penalty

or regarding their ability to impose the death penalty.”

Challenge to Prospective Juror V.H.

V.H., 34 years old at the time of trial and married with three children, was a

high school graduate and worked as a civilian warehouse worker for the United

States Marine Corps. Her brother was awaiting trial on a robbery charge.

18

As discussed in part IV., ante, the prosecutor initially offered to stipulate to

Juror No. 7‟s excusal for cause, based on his response to question No. 84 and oral
follow-up, but withdrew the offer when defendant opposed excusing the juror.

50

Regarding the solution to the violent crime problem, she wrote: “We need to seek

God!” Her hobbies and interests were “softball, and doing anything and

everything I can do to please God!” Asked whether she held religious or moral

feelings that might interfere in judging another, she did not check yes or no, but

wrote: “I believe that God will do the judging in the end. But I also believe that

everyone should have a fair treatment.” Her general feeling about the death

penalty was that she would “pray and believe that the Lord would direct me in the

right way”; her feelings were tied to the biblical admonitions “thou shalt not kill”

and “vengeance is mine, saith the Lord.” Regarding whether her feelings about

the death penalty were strong, she wrote: “Well I just believe in the word of God

and I know that it‟s true.” She felt obliged to accept her religious organization‟s

views, but did not think they were in conflict with the law. On question No. 84

(automatic death penalty for intentional murder) she “would have to pray strongly

on this matter,” though “without prayer my answer would have to be yes.”

On voir dire, V.H. reiterated that she held strong religious beliefs and that

she would seek guidance from her faith as well as from the court in making a

decision. On further questioning by the court, she affirmed that she could set aside

her religious views and make a decision based on the evidence and the law if so

instructed. In response to a similar question from the prosecutor, however, she

answered: “To be honest with you, I really don‟t want to decide anybody‟s life or

death.” The court denied the prosecutor‟s challenge for cause, immediately after

which the prosecutor excused V.H. by peremptory challenge.

At the Wheeler/Batson hearing, the prosecutor noted he had unsuccessfully

challenged V.H. for cause and explained that while she had said she could be fair

and listen to the evidence, “she told me honestly that she could not judge a person,

and could not judge a person whether to give them life or death. She has a brother

awaiting trial for a robbery. She indicated she would like to be present for that

51

trial. She had very strong religious beliefs, which I felt after reading her

questionnaire and talking to her would get in the way of her ability to be a juror

and conduct herself as a juror should in a death penalty case.”

Ruling on the motion, the court found, with respect to V.H.: “I had noted

from her answers in the questionnaire that she is an extremely religious person to

the point where she may not be able to come to a decision based on the evidence

and the law. And may, in fact, seek divine guidance. And although her answers to

this Court‟s questions and to counsel‟s questions technically avoided a challenge

for cause, I think there is certainly sufficient reason based on factors other than

race to challenge her in the exercise of a peremptory challenge.”

Defendant faults the trial court for not assessing and considering the

prosecutor‟s second reason for excusing V.H., that she wanted to attend her

brother‟s upcoming trial. Defendant observes that while the prosecutor‟s

questions to V.H. suggested she would have trouble serving and also attending her

brother‟s trial, her answers suggested the opposite: she did not know when his

case would come to trial and was not planning to attend every day in any event.

Defendant argues the prosecutor‟s “fabrication” of a problem suggests his given

reasons were pretextual. But the record does not necessarily establish

“fabrication.” The juror did say that she wanted to attend her brother‟s trial

whenever she could, and regardless of when that trial was scheduled, her interest

in it could have raised a concern on the prosecutor‟s part about her sympathy for

the defense or hostility toward the prosecution. Further, the defendant‟s burden at

the third stage of a Wheeler/Batson hearing is to show the prosecutor excused

prospective jurors for discriminatory reasons (People v. Lenix, supra, 44 Cal.4th at

pp. 612-613), not merely that some of the nondiscriminatory reasons offered by the

prosecutor are not supported by the record. In assessing the prosecutor‟s

52

credibility, the trial court may, but is not required to, give weight to the fact that he

or she has offered some reasons that do not withstand analysis.

Defendant compares the prosecutor‟s questioning of V.H. with his failure to

question a White juror, Juror No. 6, who also indicated he would follow a

religious principle in deciding penalty. The two panelists‟ questionnaire answers,

however, are not comparable. Juror No. 6 checked “no” when asked whether he

had any religious or moral feeling that would make it difficult for him to judge

another and did not explain further. He did not refer to religion in any of his

responses. To question No. 77 (“What is the view, if any, of your religious

organization concerning the death penalty?”) he answered: “People since the

beginning were put to death for unforgivable crimes.” On question No. 79 (“If

this view is in conflict with the law, would you follow the law?”) he checked “no.”

As defendant acknowledges, Juror No. 6‟s questionnaire responses were generally

pro-death penalty. That the prosecutor did not see a need to probe Juror No. 6‟s

understanding of his religious organization‟s views, which clearly would not

prevent him from reaching a death verdict, sheds no light on the prosecutor‟s

treatment of V.H.

The trial court did not abuse its discretion in finding the prosecutor

exercised a peremptory challenge against Prospective Juror V.H. for the nonracial

reason that her religious beliefs might prevent her from reaching verdicts in this

case and, especially, from reaching a death verdict.

Challenge to Prospective Juror G.S.

G.S., 66 years old at the time of trial, was a retired telephone operator with

a high school education. She was married with one adult child. Many of her

questionnaire answers appeared confused. For example, on question No. 31 she

indicated that neither she nor any close friend or relative had been a victim of or a

53

witness to a serious crime, yet she answered the subsequent questions about “the

crime,” stating “I felt fine” about the police response (question No. 34) and “I feel

OK” about the judicial system‟s response (question No. 35). Asked the view of

her religious organization on the death penalty (question No. 77), G.S. answered

“None,” but asked next whether she felt “obligated to accept this view,” she

checked “yes.” Asked in question No. 81 whether she could ever, in the

appropriate case, see herself “rejecting life imprisonment without the possibility of

parole and choosing the death penalty instead,” she checked “no.” (Italics added.)

Yet on question No. 82, asked for her attitude about the death penalty for someone

convicted of first degree murder in the course of a residential robbery and

burglary, G.S. checked the two harshest categories, “Automatically vote for the

death penalty” and “Strongly favor the death penalty.” She also said (on question

No. 84) that the death penalty should be “automatic” for anyone who intentionally

commits murder. Finally, asked in question No. 85 “what kind of information”

would be significant for her in choosing between death and life without parole, she

answered simply, “Yes.”

In voir dire, the court asked G.S. to say which of six categories printed on

placards best reflected her feelings about the death penalty.19 When she

responded, “Oh, dear,” the court assured her her answer did not have to be precise

and she should say if she was between two categories. She chose group 6: “Will

vote for life without the possibility of parole in every case of murder with special

circumstances.” The court asked whether that meant “under no circumstances


19

The placards are not in the record, but according to a settled statement the

categories ranged from group 1: “Will vote for the death penalty in every case of
murder with special circumstances” to group 6: “Will vote for life without the
possibility of parole in every case of murder with special circumstances.”

54

could you ever vote for the death penalty.” G.S. answered: “Oh, yes, if it was

proven to be that.” G.S. then said she identified with placard group 3 (“Somewhat

in favor of the death penalty in some cases of murder with special circumstances”)

as well as group 6. After some additional discussion, she returned to her original

answer of group 6, but when the court reminded her that meant she could never

impose the death penalty, she answered: “No. No, it says parole in every case of

murder with special circumstances. It depends on what the evidence says.” The

court then abandoned the placard approach and asked G.S. directly whether she

would have her mind made up before the penalty phase or would listen to the

evidence in that phase of trial and weigh it before making a penalty decision. She

answered she would listen to and weigh the evidence.

The prosecutor also questioned G.S. briefly. She reaffirmed her

questionnaire response that she would automatically vote for death for a person

found guilty of murder with special circumstances (question No. 82), adding,

“Anybody that‟s guilty, sure.” But she agreed she would be willing to listen to

evidence of aggravation and mitigation and “balance both out.”

In the Wheeler/Batson hearing, the prosecutor explained he excused G.S.

because she was “very confused. Had nothing to do with race. In her

questionnaire she contradicted herself.” On the placards, the prosecutor noted,

“she said six, then she changed her mind, and then she went back and said six. I

would always choose life without parole.” The prosecutor also doubted G.S.‟s

ability to understand the proceedings and her responsibility as a juror: “I do not

believe she was capable of listening to the evidence, weighing the evidence, and

applying the law which can become quite complicated . . . .”

The court agreed G.S. “was clearly confused. Her answers were all over

the board, so to speak, and there is concern, his concern, that she would be unable

55

to understand and follow the directions of the court, the instructions of the court, I

think is a legitimate one, and I made note of that.”

The prosecutor‟s stated reasons are well supported by the record. Whether

due to anxiety, limited literacy, poor verbal comprehension or other factors, G.S.

displayed great difficulty understanding the written and oral questioning and, in

consequence, gave answers that were highly ambiguous, confused and

contradictory. Her questionnaire and oral examination gave strong reason to doubt

her ability to perform her duties as a juror.

As with Prospective Juror V.H., discussed above, defendant compares the

prosecutor‟s treatment of G.S. with that of Juror No. 6, a White man whom the

prosecutor did not excuse. As noted earlier, Juror No. 6 gave several pro-death-

penalty answers on his questionnaire, writing, for example, that in his view if the

evidence was sufficient “all convicted murderers should receive the death

penalty.” Yet, defendant points out, he also said he would not always vote for

death, regardless of the penalty phase evidence, for a defendant convicted of first

degree murder with a felony-murder special circumstance, and he neither favored

nor opposed the death penalty in that situation.

There was some tension among Juror No. 6‟s various questionnaire

responses, as was true for many of the prospective jurors. But his questionnaire

does not display the same level of confusion and lack of comprehension as G.S.‟s.

His voir dire, moreover, went much more smoothly. Shown the placards with

categories of death penalty attitudes, he chose group 2, “Favors the death penalty

but will not vote to impose it in every case of murder with special circumstances,”

and agreed that best represented his attitude when the court read it aloud to him.

While his questionnaire responses raised a question whether he would

automatically vote for death and would not consider the penalty phase evidence,

the court, by reminding him of the structure of a capital trial and the

56

responsibilities of jurors in such a trial, was able to clarify his attitudes effectively

and remove any suggestion of disqualification.

The prosecutor could easily have doubted G.S‟s ability to perform as a

juror without harboring the same doubt as to Juror No. 6. As was the case with

Prospective Juror V.H., therefore, a comparison with Juror No. 6 does not tend to

prove the prosecutor‟s stated reasons for exercising a peremptory challenge

against G.S. were pretextual.

Challenge to Prospective Juror T.J.

T.J., 26 years old and single at the time of trial, worked as a file clerk for

Kaiser Permanente. He had a high school education and had taken some college

courses. Asked on the questionnaire about having visited correctional facilities, he

wrote: “I‟ve visited a friend @ a correctional facility at least times.” (Sic:

Spacing in original.) Regarding the American jury system, he wrote: “I think that

those with the most money can afford the best defense. I feel that it would work if

we were all on a level playing field.” Asked for his “general feelings” about the

death penalty, he wrote: “I do feel that the taking of a life is a serious crime,

however, I don‟t have any general feelings about anything.” To the next question,

which asked for reasons for his feelings, T.J. wrote that criminal trials are

“complicated” and must be viewed “objectively,” and that while he “possibly”

could judge guilt or innocence, he thought sentencing laws “are motivated by

politics and not always reflective of the degree of the crime.” His other answers

regarding the death penalty consistently stated he would look to all the

circumstances of a case and would not preclude either sentence beforehand.

Asked whether there was any reason he would prefer not to serve as a juror, he

noted that his employer only paid for 30 days of jury duty and that “this trial may

last longer” and cause him financial hardship.

57

In voir dire, the prosecutor assured T.J. the parties did not anticipate the

trial taking more than 30 court days, though there might be a one- or two-week

break between the guilt and penalty phases. T.J. said that would not create a

problem for him. When the prosecutor asked about T.J.‟s statement that those

with the most money can get the best defense, T.J. explained that this opinion was

based in part on the recently concluded O.J. Simpson murder trial but also on other

cases, and he noted that defendant was representing himself, which was not very

smart. Regarding the political motivation of sentencing, T.J. explained he thought

some white collar criminals were given unjustifiably light sentences compared

with those who commit violent crimes.

At the Wheeler/Batson hearing, the prosecutor explained, first, that he

found it “very disturbing” T.J. had visited “friends” in jail or prison but did not say

how many times he had done so. The prosecutor continued: “He — we talked

about his unpleasant experience with the police. We talked about money affording

the best defense. He also indicated under confidentiality that a close friend or

relative has been arrested. . . . [H]e was unequivocal [sic] about the death penalty.

He didn‟t have any feelings about anything. Talked about the law, and although

he may have been indicating appropriate answers when I asked him questions

today, his body language, the way he responded, his movement indicated he did

not want to serve, as well as his — I can count three times where he‟s questioned

the length of time, the hardship it would create for him and his employment.” The

prosecutor reiterated that there might be a delay between the two phases of trial,

“which may create a problem in these situations.”

The court evaluated the challenge to T.J. as follows: “[C]ertainly there was

no reason to excuse him for cause, at least what appeared from his answers. But

based on his answers, some of his answers in his questionnaire, some of his views

58

about the justice system, I can see a basis for excusing him that is not based on

race.”

Defendant argues several of the prosecutor‟s stated reasons for excusing

T.J. are contradicted by the record or do not withstand comparison with White

jurors the prosecutor retained. But even granting that some parts of the

prosecutor‟s assessment (for example, that T.J. equivocated regarding the death

penalty on his questionnaire) are not well supported by the record, the trial court

was not required to find the excusal was motivated by T.J.‟s race. The reason the

trial court accepted for T.J.‟s excusal was supported by the record: T.J. had

written in his questionnaire that sentencing law reflected politics and that a

defendant‟s wealth determined the quality of his defense. On voir dire, he did not

retreat from those positions. While T.J.‟s critique of the criminal justice system

was hardly out of the mainstream, and did not indicate any legal disqualification to

serve as a juror, a prosecutor might reasonably prefer jurors who did not hold

these views. That the prosecutor excused T.J. on this basis, and not because of his

race, was therefore plausible on its face.

As we explained in discussing the challenge to Prospective Juror V.H., a

trial court deciding whether to credit the prosecutor‟s stated reasons may, but is

not required to, discount a supportable reason because it is accompanied by

unsupportable ones. While an attorney who offers unsupported explanations for

excusing a prospective juror may be trying to cover for the fact his or her real

motivation is discriminatory, alternatively this may reflect nothing more than a

misguided sense that more reasons must be better than fewer or simply a failure of

accurate recollection. In the present case, whether by offering a series of

nondiscriminatory reasons the prosecutor was trying to obscure his group bias or

was simply reading through his notes attempting to articulate what he found

unsatisfactory about the prospective juror is impossible to tell from the cold

59

record. The trial court, which could judge tone, gesture and inflection, as well as

the words themselves, was in the best position to make this credibility

determination. In this situation, we cannot confidently conclude the trial court

misjudged the prosecutor and must fall back on the principle that we “ „give great

deference to the trial court‟s ability to distinguish bona fide reasons from sham

excuses.‟ ” (People v. Lenix, supra, 44 Cal.4th at p. 614.)

Comparison of Challenges for Cause

Defendant contends the prosecutor‟s discriminatory motive is

circumstantially demonstrated by his differing approaches to challenges for cause.

Prospective Juror D.C., an African-American man, gave several

questionnaire answers indicating he would have difficulty considering the

sentence of life without possibility of parole for a murder with special

circumstances, and he was only partly rehabilitated on voir dire. The prosecutor

challenged him for cause and maintained that position (successfully) even after

defendant objected to D.C.‟s excusal. Defendant draws a contrast to the

prosecutor‟s later treatment of Juror No. 7 (discussed in pt. IV., ante), a White

juror who also indicated on one questionnaire question (No. 84) that he would vote

automatically for death and who was not rehabilitated on voir dire. The prosecutor

initially offered to stipulate to Juror No. 7‟s excusal (which had been suggested by

the court) but withdrew the stipulation when defendant objected to the juror‟s

excusal.

The two men‟s responses were not, however, as comparable as defendant

suggests. D.C. indicated his feelings about the death penalty were very strong and

he believed in the saying, “An eye for an eye and a tooth for a tooth”; Juror No. 7

gave the opposite answers to both these questions. On question No. 76, asking

whether one should hear “all of the circumstances concerning the defendant and

60

his background” before deciding penalty, D.C. checked “no” and wrote, “As long

as you know he or she knows right from wrong and had a choice,” while Juror

No. 7 checked “yes” and wrote that one “cannot reach a verdict without full

knowledge.” On question No. 82 (asking which category best reflected the

respondent‟s feelings about the death penalty for “someone convicted of first

degree murder in the course of a residential robbery and burglary”), D.C. checked

“Automatically vote for the death penalty,” while Juror No. 7 checked “Neither

favor nor oppose the death penalty.” It was primarily on the basis of D.C.‟s

answer to question No. 82 that the prosecutor argued he should be excused,

observing: “Every other person that checked automatic, on number 82, vote for

death penalty, we have excused.”

We note as well that D.C. was the first death-leaning prospective juror who

defendant (representing himself) argued, seemingly against his own interests,

should be retained; Juror No. 7 was the second. Although the prosecutor excused

D.C. as one who would automatically vote for the death penalty, by the time Juror

No. 7 was considered the prosecutor may have decided not to stand in the way of

what appeared to be a strategic error on defendant‟s part. By offering to stipulate

to Juror No. 7‟s excusal, the prosecutor protected himself and the People from

being blamed for any error in the juror‟s retention, but he may have felt that if

defendant was going to repeatedly insist on retaining death-leaning jurors, the

People need not actively oppose that effort.

Finally, defendant notes the prosecutor stipulated to excusal of an African-

American prospective juror with hearing problems, while a White juror who noted

some hearing difficulty on her questionnaire was retained. The excused

prospective juror, however, said in voir dire that she had been unable to hear

anything defendant (who spoke softly) had said during the proceedings, leading

both parties to stipulate to her excusal. Defendant cites nothing in the record

61

indicating the retained juror‟s hearing difficulty was comparably severe or affected

her ability to serve in the same way.

VI. Instructions on Aggravating and Mitigating Factors

Defendant‟s jury was instructed in the penalty phase with CALJIC No.

8.85, giving the jury the statutory list of possible factors in aggravation and

mitigation it could consider (§ 190.3), and with CALJIC No. 8.88, the standard

instruction explaining the process of weighing these factors and arriving at the

appropriate penalty. Although defendant challenges these instructions on a

number of constitutional grounds, we have previously entertained and rejected all

of his claims of unconstitutionality, and he does not persuade us to reexamine

those decisions.

Factor (a) of section 190.3, which permits the jury to consider the

circumstances of the capital crime, does not inject arbitrariness or capriciousness

into the penalty decision. (People v. Brasure (2008) 42 Cal.4th 1037, 1066;

People v. Alfaro (2007) 41 Cal.4th 1277, 1330-1331.) It was, therefore, not

constitutional error to so instruct the jury.

The trial court did not constitutionally err in failing to require unanimous

jury agreement on defendant‟s commission of violent crimes considered under

factor (b) of section 190.3. Where each juror may rely on such criminal activity as

an aggravating factor only if the juror finds defendant‟s commission of the crime

has been proven beyond a reasonable doubt, and the jury must unanimously agree

that death is the appropriate penalty, neither the Sixth nor the Eighth Amendment

to the federal Constitution requires that the jury also unanimously agree on the

application of factor (b) or any other factor in aggravation. (People v. Brasure,

supra, 42 Cal.4th at pp. 1067-1068; People v. Zambrano (2007) 41 Cal.4th 1082,

1181-1182; People v. Miranda (1987) 44 Cal.3d 57, 99.) Similarly, written

62

findings on factors in aggravation are not constitutionally required, even though in

noncapital cases the court must state reasons for its sentencing choices; the

individual normative character of capital jurors‟ penalty decisions provides a

legitimate basis for the use of procedures different from those used in noncapital

sentencing. (Brasure, at p. 1069; People v. Davis (2005) 36 Cal.4th 510, 571-

572.)

Nor did the court err in failing to delete from its instruction references to

assertedly inapplicable factors listed in section 190.3 or to specify which factors

may be considered only in mitigation. (People v. Brasure, supra, 42 Cal.4th at

p. 1069.) The use of the limiting adjectives “extreme” and “substantial” in the

instruction on section 190.3, factors (d) and (g) does not unconstitutionally prevent

the jury from considering mitigating evidence. (Brasure, at p. 1069.)

VII. Burden of Proof on Penalty

Defendant contends our death penalty statute violates the Sixth, Eighth and

Fourteenth Amendments to the federal Constitution in failing to require jurors to

find beyond a reasonable doubt that aggravating circumstances are proved, that

they outweigh the mitigating circumstances, and that death is the appropriate

penalty. We have previously rejected these contentions, including those based on

Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny. (People v. Brasure,

supra, 42 Cal.4th at pp. 1067-1068; People v. Alfaro, supra, 41 Cal.4th at p. 1331;

People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32.) The trial court also did not err

in failing to tell the jury the People bore the burden of proof on penalty or,

alternatively, that no burden of proof is applicable. (Alfaro, at p. 1331; People v.

Dunkle (2005) 36 Cal.4th 861, 939.) No instruction on a presumption that the

sentence should be life without parole, rather than death, was constitutionally

required. (Brasure, at p. 1069; Dunkle, at p. 940.)

63

VIII. Instruction on Weighing of Aggravation and Mitigation

Defendant assigns several constitutional flaws to CALJIC No. 8.88‟s

command to jurors that “[t]o return a judgment of death, each of you must be

persuaded that the aggravating circumstances are so substantial in comparison

with the mitigating circumstances that it warrants death instead of life without

parole,” but we have previously rejected his claims in this regard. The

instruction‟s reference to aggravation “substantial[ly]” outweighing mitigation is

not impermissibly vague; nor is the instruction misleading in permitting a death

verdict when the jurors find that sentence “warrant[ed].” “By advising that a death

verdict should be returned only if aggravation is „so substantial in comparison

with‟ mitigation that death is „warranted,‟ the instruction clearly admonishes the

jury to determine whether the balance of aggravation and mitigation makes death

the appropriate penalty.” (People v. Arias (1996) 13 Cal.4th 92, 171; accord,

People v. Perry (2006) 38 Cal.4th 302, 320.) Nor is the instruction deficient in

failing to expressly tell jurors they must return a verdict of life without possibility

of parole if mitigation outweighs aggravation; that principle is clearly implicit in

the standard instruction. (Perry, at p. 320.) And, as already noted, the instruction

was also not deficient in failing to state that neither party bore the burden of

proving whether death was the appropriate penalty. (People v. Dunkle, supra, 36

Cal.4th at p. 939.)

IX. Intercase Proportionality Review

Comparative intercase proportionality review of death sentences is not

constitutionally required. (People v. Brasure, supra, 42 Cal.4th at p. 1068; People

v. Snow, supra, 30 Cal.4th at p. 126.) Defendant argues federal and state court

holdings to this effect should be reevaluated in light of his contentions that the

California death penalty statute lacks other constitutionally necessary safeguards

64

against arbitrary imposition. But as noted in parts VI. through VIII., ante, we have

consistently rejected these constitutional claims as well.

X. International Law and the Eighth Amendment

California‟s use of capital punishment as an authorized sentence for certain

specified types of first degree murder does not constitute cruel and unusual

punishment merely because most nations have chosen not to employ the death

penalty at all. (People v. Brasure, supra, 42 Cal.4th at pp. 1071-1072; People v.

Demetrulias (2006) 39 Cal.4th 1, 43-44.) Nor does our statute violate the

International Covenant on Civil and Political Rights. (Brasure, at p. 1072; People

v. Turner (2004) 34 Cal.4th 406, 439-440.)

XI. Cumulative Effect of Errors

Defendant contends that even if none of the errors he has identified was

independently prejudicial, their combined effect requires reversal of his conviction

and sentence. Having found no unwaived error on the trial court‟s part, however,

we can discern no cumulative prejudice.

DISPOSITION

The judgment is affirmed.

WERDEGAR, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

65

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Taylor
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S054774
Date Filed: December 24, 2009
__________________________________________________________________________________

Court:
Superior
County: San Bernardino
Judge: James A. Edwards

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek State Public Defender, under appointment by the Supreme Court, Jay Colangelo,
Assistant State Public Defender, Jessica K. McGuire, Ellen J. Eggers and Barry Helft, Deputy State Public
Defenders, for Defendant and Appellant.






__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Holly Wilkens, Alana Cohen
Butler and Annie Fraser, Deputy Attorneys General, for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Barry Helft
Deputy State Public Defender
801 Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676

Alana Cohen Butler
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2534


Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:
Thu, 12/24/2009S054774Automatic Appealsubmitted/opinion due

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Alana Rachel Butler, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Taylor, Keith Desmond (Appellant)
San Quentin State Prison
Represented by Office of the State Public Defender-SF
Barry Helft, Chief Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA

3Taylor, Keith Desmond (Appellant)
San Quentin State Prison
Represented by Office of the State Public Defender-Sac
Ellen J. Eggers, Deputy State Public Defender
801 "K" Street, Suite 1100
Sacramento, CA


Dockets
Jun 5 1996Judgment of death
 
Jul 11 1996Filed certified copy of Judgment of Death Rendered
  6-5-96.
Dec 12 2000Order appointing State Public Defender filed
  Appointed for direct appeal
Dec 22 2000Received:
  notice from superior court re: delivery of record to applt's counsel on 12-19-2000.
Feb 13 2001Counsel's status report received (confidential)
  from State P.D.
Mar 15 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (1st request)
Mar 16 2001Extension of Time application Granted
  To 5/23/2001 to request corr. of record.
Apr 12 2001Counsel's status report received (confidential)
  from State P.D.
May 17 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (2nd request)
May 21 2001Extension of Time application Granted
  To 7/23/2001 to applt. to request corr. of the record.
Jun 12 2001Counsel's status report received (confidential)
  from State P.D.
Jul 20 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (3rd request)
Jul 30 2001Filed:
  Supplemental proof of service of applt.'s application for extension of time to file request to corr. the record.
Jul 31 2001Extension of Time application Granted
  To 9/21/2001 to applt. to request corr. of the record.
Aug 14 2001Counsel's status report received (confidential)
  from State P.D.
Sep 13 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (4th request)
Sep 18 2001Extension of Time application Granted
  To 11/20/2001 to applt. to request corr. of the record.
Oct 12 2001Counsel's status report received (confidential)
  from State P.D.
Nov 15 2001Request for extension of time filed
  by applt. to request corr. of the record. (5th request)
Nov 16 2001Extension of Time application Granted
  To 1/22/2002 to request corr. of the record.
Dec 13 2001Counsel's status report received (confidential)
  from State P.D.
Jan 14 2002Request for extension of time filed
  By applt. to request correction of the record. (6th request)
Jan 18 2002Extension of time granted
  based upon Deputy State P.D. Ellen Eggers's representation that she anticipates filing the request for correction of the record by 3-25-2002, extension of time in which to request correction of the record in the superior court is granted to 3-25-2002. After that date, no further extension is contemplated.
Feb 13 2002Counsel's status report received (confidential)
  from State P.D.
Mar 25 2002Received:
  copy of applt's request for correction and completion of the record. (19 pp.)
Apr 15 2002Counsel's status report received (confidential)
  from State P.D.
Jun 14 2002Counsel's status report received (confidential)
  from State P.D.
Aug 13 2002Counsel's status report received (confidential)
  from State P.D.
Oct 24 2002Counsel's status report received (confidential)
  from State P.D.
Jan 3 2003Counsel's status report received (confidential)
  from State P.D.
Mar 3 2003Counsel's status report received (confidential)
  from State P.D.
Apr 28 2003Counsel's status report received (confidential)
  from State P.D.
Jun 20 2003Counsel's status report received (confidential)
  from State P.D.
Aug 19 2003Counsel's status report received (confidential)
  from State P.D.
Oct 17 2003Counsel's status report received (confidential)
  from State P.D.
Dec 10 2003Record on appeal filed
  Clerk's transcript 29 volumes (5753 pp.) and reporter's transcript 17 volumes (2310 pp.); including material under seal. Clerk's transcript includes 4210 pages of juror questionnaires.
Dec 10 2003Appellant's opening brief letter sent, due:
  January 20, 2004
Dec 17 2003Counsel's status report received (confidential)
  from State P.D.
Jan 14 2004Request for extension of time filed
  to file appellant's opening brief. (1st request)
Jan 16 2004Extension of time granted
  to 03/22/04 to file appellant's opening brief. After that date, only six further extensions totaling 315 additional days will be granted. Extension is granted based up Deputy State Public Defender Ellen J. Egger's representation that she anticipates filing that brief by 02/04/05.
Feb 18 2004Counsel's status report received (confidential)
  from State P.D.
Mar 15 2004Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Mar 17 2004Extension of time granted
  to 5/21/2004 to file appellant's opening brief. After that date, only five further extensions totaling about 255 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Egger's representation that she anticipates filing that brief by 2/4/2005.
Apr 20 2004Counsel's status report received (confidential)
 
May 14 2004Request for extension of time filed
  to file appellant's opening brief. (3rd request)
May 18 2004Extension of time granted
  to 7/21/2004 to fle appellant's opening brief. After that date, only four further extensions totaling about 195 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 2/4/2005.
Jun 16 2004Counsel's status report received (confidential)
 
Jul 14 2004Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jul 19 2004Extension of time granted
  to 9/20/2004 to file appellant's opening brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 5/4/2005.
Aug 13 2004Counsel's status report received (confidential)
  from State P.D.
Sep 15 2004Request for extension of time filed
  to file appellant's opening brief. (5th request)
Sep 17 2004Extension of time granted
  to 11/19/2004 to file appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 5/4/2005.
Oct 18 2004Counsel's status report received (confidential)
  from State P.D.
Nov 12 2004Motion filed (AA)
  by appellant to order compliance with rule 31.3 (of Cal. Rules of Court) requiring a single juror identification number.
Nov 16 2004Request for extension of time filed
  to file appellant's opening brief. (6th request)
Nov 22 2004Extension of time granted
  to 1/18/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted ased upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 5/4/2005.
Dec 17 2004Counsel's status report received (confidential)
  from State P.D.
Dec 22 2004Order filed
  The "Motion to Order Compliance With Rule 31.3 Requiring a Single Juror Identification Number," filed on November 12, 2004, is granted. The clerk of this court is directed to return the record to the San Bernardino County Superior Court. The clerk of that court is directed to replace the juror identification numbers currently appearing on the juror questionnaires associated with the sworn jurors in this case with the corresponding juror identification number contained in the reporter's transcript, to send copies of the corrected questionnaires to counsel for both parties, and to return the corrected record to this court by Friday, January 28, 2005. Werdegar, J., was absent and did not participate.
Jan 6 2005Letter sent to:
  counsel advising that the record, corrected pursuant to this court's order of 12/22/2004, was received this date.
Jan 12 2005Request for extension of time filed
  to file appellant's opening brief. (7th request)
Jan 14 2005Extension of time granted
  to 3/15/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 110 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 7/4/2005.
Feb 16 2005Counsel's status report received (confidential)
  from State P.D.
Mar 9 2005Request for extension of time filed
  to file appellant's opening brief. (8th request)
Mar 15 2005Extension of time granted
  to 5/16/2005 to file appellant's opening brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 7/4/2005.
Apr 18 2005Counsel's status report received (confidential)
  from State P.D.
May 11 2005Request for extension of time filed
  to file appellant's opening brief. (9th request)
May 13 2005Extension of time granted
  to 7/6/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 11/6/2005.
Jun 16 2005Counsel's status report received (confidential)
  from State P.D.
Jul 1 2005Request for extension of time filed
  to file AOB. (10th request)
Jul 7 2005Extension of time granted
  to September 6, 2005 to file appellant?s opening brief. After that date, only one further extensions totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Egger?s representation that she anticipates filing that brief by November 6, 2005.
Aug 17 2005Counsel's status report received (confidential)
  from State P.D.
Sep 2 2005Request for extension of time filed
  to file appellant's opening brief. (11th request)
Sep 9 2005Extension of time granted
  to 11/7/2005 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 11/6/2005.
Oct 17 2005Counsel's status report received (confidential)
  from State P.D.
Oct 18 2005Request for extension of time filed
  to file appellant's opening brief. (12th request)
Oct 21 2005Motion filed (AA)
  counsel's "Joint Motion to File Amended Settled Statement Number 6." (Amended Settled Statement Number 6 submitted under separate cover)
Oct 24 2005Extension of time granted
  to 1/6/2006 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 2/5/2006.
Dec 14 2005Order filed
  Appellant Keith Desmond Taylor and respondent's "Joint Motion to File Amended Settled Statement Number 6," filed October 21, 2005, is granted. The clerk is directed to file "Amended Settled Statement Number 6," dated August 18, 2005.
Dec 14 2005Filed:
  appellant's "Amended Settled Statement Number 6," filed pursuant to court's order of 12/14/2005.
Dec 19 2005Request for extension of time filed
  to file appellant's opening brief. (13th request)
Dec 28 2005Extension of time granted
  to 2/6/2006 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 2/5/2006.
Jan 27 2006Request for extension of time filed
  to file appellant's opening brief. (14th request)
Feb 3 2006Extension of time granted
  to 3/8/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 3/8/2006.
Feb 10 2006Counsel's status report received (confidential)
  from State P.D.
Mar 8 2006Appellant's opening brief filed
  (70,541 words; 238 pp.)
Apr 6 2006Request for extension of time filed
  to file respondent's brief. (1st request)
Apr 13 2006Extension of time granted
  to June 6, 2006 to file respondent's brief.
May 31 2006Request for extension of time filed
  to file respondent's brief. (2nd request)
Jun 6 2006Extension of time granted
  to August 7, 2006 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing that brief by September 7, 2006.
Jun 28 2006Motion for access to sealed record filed
  respondent's "Motion to Release Marsden Hearing Transcript."
Aug 2 2006Request for extension of time filed
  to file respondent's brief. (3rd request)
Aug 2 2006Order filed
  Respondent's motion, filed on June 28, 2006, to release sealed Marsden hearing transcript is denied. (See Cal. Rules of Court, rule 31.2 [court will unseal transcript of Marsden hearing on respondent's motion when appellant raises Marsden issue on appeal].) Having considered whether to strike the filing of appellant's opening brief for failure to comply with California Rules of Court, rule 12.5(g) [prohibiting references in publicly filed records to material contained in a sealed record], and in view of appellant's citation, in his opening brief, to the material identified below and his failure to oppose respondent's motion (see Cal. Rules of Court, rule 41(c)), the court, on its own motion, directs the clerk to unseal for all purposes (and to provide respondent a copy of) the following material in the record in People v. Taylor, S054774: The reporter's transcript of the April 30, 1996, in camera hearing before the Hon. James A. Edwards, Judge of the San Bernardino County Superior Court ("MARSDEN HEARING," sealed R.T., pp. 1652-1672). (Cal. Rules of Court, rule 12.5(f).) George, C.J., was absent and did not participate.
Aug 9 2006Extension of time granted
  to October 7, 2006 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing that brief by October 10, 2006.
Oct 3 2006Request for extension of time filed
  to file respondent's brief. (4th request)
Oct 10 2006Extension of time granted
  to October 24, 2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing that brief by October 24, 2006. After that date, no further extension is contemplated.
Oct 19 2006Respondent's brief filed
  (30466 words; 99 pp.)
Oct 23 2006Note:
  Appellant's Reply Brief due: November 8, 2006 (see Calif. Rules of Court, rule 33(c)(3))
Nov 7 2006Request for extension of time filed
  to file appellant's reply brief. (1st request)
Nov 9 2006Extension of time granted
  to January 8, 2007 to file appellant's reply brief.
Jan 5 2007Request for extension of time filed
  to file reply brief. (2nd request)
Jan 9 2007Extension of time granted
  to March 9, 2007 to file appellant's reply brief. After that date, only four further extensions totaling about 200 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Ellen Eggers's representation that she anticipates filing that brief by October 1, 2007.
Mar 6 2007Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Mar 9 2007Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the appellant's reply brief by October 1, 2007, counsel's request for an extension of time in which to file that brief is granted to May 8, 2007. After that date, only three further extensions totaling about 140 additional days will be granted.
May 3 2007Request for extension of time filed
  to file appellant's reply brief. (4th request)
May 10 2007Extension of time granted
  to July 9, 2007 to file appellant's reply brief. After that date, only three further extensions totaling about 170 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by January 1, 2008.
Jul 11 2007Request for extension of time filed
  to file appellant's reply brief. (5th request)
Jul 13 2007Extension of time granted
  to September 7, 2007 to file the appellant's reply brief. After that date, only two further extensions totaling about 110 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by January 1, 2008.
Sep 5 2007Request for extension of time filed
  to file appellant's reply brief. (6th request)
Sep 11 2007Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the appellant's reply brief by January 1, 2008, counsel's request for an extension of time in which to file that brief is granted to November 6, 2007. After that date, only one further extension totaling about 56 additional days will be granted.
Nov 5 2007Request for extension of time filed
  to file appellant's reply brief.(7th request)
Nov 8 2007Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the appellant's reply brief by March 1, 2008, counsel's request for an extension of time in which to file that brief is granted to January 7, 2008. After that date, only one further extension totaling about 60 additional days is contemplated.
Nov 30 2007Motion to unseal record filed (AA)
  by appellant.
Jan 2 2008Request for extension of time filed
  to file appellant's reply brief. (8th request)
Jan 7 2008Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the appellant's reply brief by March 1, 2008, counsel's request for an extension of time in which to file that brief is granted to March 3, 2008. After that date, no further extension is contemplated.
Jan 23 2008Record ordered unsealed
  Defendant Keith Desmond Taylor's November 30, 2007, "Motion to Unseal Records" is granted as follows: The clerk is directed to unseal the following portions of the record: the January 27, 1995 hearing, pages 35-49, the February 3, 1995 hearing, pages 83-95, the February 8, 1995 hearing, pages 155-166, the February 22, 1995 hearing, pages 193-207, and the January 5, 1996 hearing, pages 1-18, and transmit them to respondent. The clerk is further directed to transmit copies of these portions of the record to respondent.
Feb 29 2008Appellant's reply brief filed
  (22,813 words; 77 pp.)
May 29 2008Motion filed (AA)
  by appellant, "Request for Leave to File Supplemental Opening Brief and Application to File Brief in Excess of 2,800 Words."
Jun 9 2008Order filed
  Appellant's "Request for Leave to File Supplemental Opening Brief and Application to File Brief in Excess of 2,800 Words" are granted. The supplemental respondent's brief must be served and filed on or before July 7, 2008. Appellant's supplemental reply brief will be due within 20 days of the filing of the supplemental respondent's brief.
Jun 9 2008Supplemental brief filed
  by appellant, supplemental opening brief. (8,577 words; 28 words)
Jul 1 2008Request for extension of time filed (AA)
  to file supplemental respondent's brief. (1st request)
Jul 2 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing the supplemental respondent's brief by September 5, 2008, counsel's request for an extension of time in which to file that brief is granted to September 5, 2008. After that date, no further extension is contemplated.
Sep 2 2008Request for extension of time filed (AA)
  to file supplemental respondent's brief. (2nd request)
Sep 9 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing the respondent's supplemental brief by October 6, 2008, counsel's request for an extension of time in which to file that brief is granted to October 6, 2008. After that date, no further extension is contemplated.
Sep 17 2008Motion filed (AA)
  by appellant, "Request for Leave to File Second Supplemental Opening Brief and Brief in Excess of 2,800 Words."
Sep 19 2008Order filed
  Appellant's "Request for Leave to File Second Supplemental Opening Brief and Application to File Brief in Excess of 2,800 Words" are granted. The second supplemental respondent's brief must be served and filed on or before October 20, 2008. Appellant's second supplemental reply brief will be due within 20 days of the filing of the second supplemental respondent's brief.
Sep 19 2008Supplemental brief filed
  by appellant, Second Supplemental Opening Brief. (5,506 words; 20 pp.)
Oct 6 2008Application to file over-length brief filed
  by respondent, "Request for Leave to File a Supplemental Respondent's Brief in Excess of 2,800 Words"
Oct 9 2008Order filed
  Respondent's "Request for Leave to File a Supplemental Respondent's Brief in Excess of 2,800 Words" is granted.
Oct 9 2008Supplemental brief filed
  by respondent. (9760 words; 32 pp.)
Oct 14 2008Request for extension of time filed (AA)
  to file respondent's second supplemental brief. (1st request)
Oct 16 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing the supplemental respondent's brief by December 19, 2008, counsel's request for an extension of time in which to file that brief is granted to December 19, 2008. After that date, no further extension is contemplated.
Oct 21 2008Request for extension of time filed (AA)
  to file appellant's supplemental reply brief. (1st request)
Oct 23 2008Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the supplemental appellant's reply brief by December 29, 2008, counsel's request for an extension of time in which to file that brief is granted to December 29, 2008. After that date, no further extension is contemplated.
Dec 19 2008Application to file over-length brief filed
  by respondent, "Request for Leave to File a Second Supplemental Respondent's Brief in Excess of 2,800 Words"
Dec 23 2008Order filed
  Respondent's "Request for Leave to File a Second Supplemental Respondent's Brief in Excess of 2,800 Words" is granted.
Dec 23 2008Supplemental brief filed
  by respondent, "Respondent's Second Supplemental Brief" (6,991 words; 25 pp.)
Dec 24 2008Request for extension of time filed (AA)
  to file appellant's second supplemental reply brief. (1st request)
Dec 29 2008Application to file over-length brief filed
  Appellant's "Application for leave to file supplemental reply brief in excess of 2,800 words." (brief submitted under separate cover)
Jan 5 2009Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the second supplemental reply brief by March 9, 2009, counsel's request for an extension of time in which to file that brief is granted to March 9, 2009. After that date, no further extension is contemplated.
Jan 7 2009Order filed
  Appellant's "Application For Leave to File Supplemental Reply Brief in Excess of 2,800 Words" is granted.
Jan 7 2009Supplemental reply brief filed (AA)
  by appellant. (5,373 words; 19 pp.)
Mar 9 2009Application to file over-length brief filed
  Appellant's, "application for leave to file second supplemental reply brief in excess of 2,800 words".
Mar 19 2009Order filed
  Appellant's "Application for Leave to File Second Supplemental Reply Brief In Excess Of 2,800 Words" is granted.
Mar 19 2009Supplemental brief filed
  by appellant, "appellant's second supplemental reply brief". (4,775 words; 17 pp.)
Apr 22 2009Additional issues ordered
  The court requests additional briefing on the following questions: 1. Does California law provide a standard of mental competence to waive counsel and represent oneself at trial, separate from competence to stand trial? If so, what is that standard and how would it apply in the present case? 2. If California law does not provide such a standard, should this court, in the exercise of its supervisory powers, articulate one as a judicially declared rule of criminal procedure? If so, what standard should we state and how, if at all, would it apply in the present case? Briefs are to be in letter form and not to exceed 10 pages. Simultaneous opening briefs are due 30 days from the date of this order. Reply briefs may be filed within 20 days after the last opening brief is filed. Corrigan, J., was absent and did not participate.
May 14 2009Request for extension of time filed
  to file appellant's opening letter brief. (1st request)
May 26 2009Extension of time granted
  At the request of counsel for appellant, the time to serve and file the simultaneous opening letter briefs for the parties is extended to and including July 21, 2009.
Jul 20 2009Letter brief filed
Respondent: The PeopleAttorney: Attorney General - San Diego Office   respondent's opening letter brief, dated July 17, 2009
Jul 21 2009Letter brief filed
Appellant: Taylor, Keith DesmondAttorney: Office of the State Public Defender-Sac   appellant's opening letter brief, dated July 21, 2009
Aug 6 2009Letter brief filed
Respondent: The PeopleAttorney: Attorney General - San Diego Office   respondent's reply letter brief, dated August 6, 2009
Aug 10 2009Letter brief filed
Appellant: Taylor, Keith DesmondAttorney: Office of the State Public Defender-Sac   appellant's reply letter brief, dated August 10, 2009
Aug 12 2009Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the October calendar, to be held the week of October 5, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Sep 2 2009Case ordered on calendar
  To be argued Tuesday October 6, 2009, 1:30 p.m., Los Angeles, California.
Sep 10 2009Order filed
  Good cause appearing, and pursuant to California Rules of Court, rule 8.520(f)(2) the application of the Habeas Corpus Resource Center to file an amicus curiae letter brief is granted. Any answer thereto may be served and filed by any party on or before September 30, 2009.
Sep 10 2009Amicus curiae brief filed
Information only: Habeas Corpus Resource Center   by the Habeas Corpus Resource Center, "Amicus Letter Brief..., dated September 9, 2009"
Sep 10 2009Received:
  appearance sheet from Chief Deputy State Public Defender, Barry Helft, indicating 30 minutes for oral argument for appellant.
Sep 10 2009Filed:
  appellant's focus issues letter, dated September 10, 2009.
Sep 14 2009Filed:
  respondent's focus issues letter, dated September 11, 2009.
Sep 14 2009Received:
  appearance sheet from Deputy Attorney General Alana Butler, indicating 30 minutes for oral argument for respondent.
Sep 25 2009Received:
  letter from respondent, dated September 23, 2009, with additional authorities.
Sep 30 2009Response to amicus curiae brief filed
Respondent: The PeopleAttorney: Attorney General - San Diego Office   by respondent.
Oct 6 2009Cause argued and submitted
 
Dec 23 2009Notice of forthcoming opinion posted
  To be filed Thursday, December 24, 2009 at 10 a.m.

Briefs
Mar 8 2006Appellant's opening brief filed
 
Oct 19 2006Respondent's brief filed
 
Feb 29 2008Appellant's reply brief filed
 
Sep 10 2009Amicus curiae brief filed
Information only: Habeas Corpus Resource Center  
Sep 30 2009Response to amicus curiae brief filed
Respondent: The PeopleAttorney: Attorney General - San Diego Office  
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website