IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
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.
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
Calloway later testified defendant had a former girlfriend by this name.
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
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
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.
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
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)
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.
Penal Code section 1368 contains the statutory requirements for a
determination of trial competence. All further unspecified statutory references are
to the Penal Code.
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
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
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
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
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
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
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)
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.
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
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
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
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
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
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.
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
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
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.
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
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
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
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
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.
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
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
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
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.”
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
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
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.)
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.
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
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.
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,
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.)
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.)
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.)
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
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
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.
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
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
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].)
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].).
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
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)
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
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
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
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
The above should not be taken as suggesting an intelligent waiver
necessarily requires a defendant to do more than answer the court‟s questions
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
„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
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
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)
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
(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.”
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
“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.
“[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?
“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
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
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
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
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.)
“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
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.)
The parties agree that in addition to Juror No. 2, one other African-
American, Juror No. 12, ultimately was sworn as a juror.
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
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
Question No. 84 asked: “Do you think that the death penalty should be
automatic for anyone who intentionally commits murder (not in self-defense)?”
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.
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
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.
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.
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
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
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
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
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.”
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
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
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.
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
about the justice system, I can see a basis for excusing him that is not based on
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
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
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
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
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
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
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-
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.)
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
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.
The judgment is affirmed.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Taylor
Original Appeal XXX
Opinion No. S054774
Date Filed: December 24, 2009
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):
Deputy State Public Defender
801 Street, Suite 1100
Sacramento, CA 95814-3518
Alana Cohen Butler
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
Automatic appeal from a judgment of death.
|Thu, 12/24/2009||S054774||Automatic Appeal||submitted/opinion due|
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Alana Rachel Butler, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Taylor, 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
|3||Taylor, 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
|Jun 5 1996||Judgment of death|
|Jul 11 1996||Filed certified copy of Judgment of Death Rendered|
|Dec 12 2000||Order appointing State Public Defender filed|
Appointed for direct appeal
|Dec 22 2000||Received:|
notice from superior court re: delivery of record to applt's counsel on 12-19-2000.
|Feb 13 2001||Counsel's status report received (confidential)|
from State P.D.
|Mar 15 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (1st request)
|Mar 16 2001||Extension of Time application Granted|
To 5/23/2001 to request corr. of record.
|Apr 12 2001||Counsel's status report received (confidential)|
from State P.D.
|May 17 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (2nd request)
|May 21 2001||Extension of Time application Granted|
To 7/23/2001 to applt. to request corr. of the record.
|Jun 12 2001||Counsel's status report received (confidential)|
from State P.D.
|Jul 20 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (3rd request)
|Jul 30 2001||Filed:|
Supplemental proof of service of applt.'s application for extension of time to file request to corr. the record.
|Jul 31 2001||Extension of Time application Granted|
To 9/21/2001 to applt. to request corr. of the record.
|Aug 14 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 13 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (4th request)
|Sep 18 2001||Extension of Time application Granted|
To 11/20/2001 to applt. to request corr. of the record.
|Oct 12 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 15 2001||Request for extension of time filed|
by applt. to request corr. of the record. (5th request)
|Nov 16 2001||Extension of Time application Granted|
To 1/22/2002 to request corr. of the record.
|Dec 13 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 14 2002||Request for extension of time filed|
By applt. to request correction of the record. (6th request)
|Jan 18 2002||Extension 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 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 25 2002||Received:|
copy of applt's request for correction and completion of the record. (19 pp.)
|Apr 15 2002||Counsel's status report received (confidential)|
from State P.D.
|Jun 14 2002||Counsel's status report received (confidential)|
from State P.D.
|Aug 13 2002||Counsel's status report received (confidential)|
from State P.D.
|Oct 24 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Mar 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 28 2003||Counsel's status report received (confidential)|
from State P.D.
|Jun 20 2003||Counsel's status report received (confidential)|
from State P.D.
|Aug 19 2003||Counsel's status report received (confidential)|
from State P.D.
|Oct 17 2003||Counsel's status report received (confidential)|
from State P.D.
|Dec 10 2003||Record 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 2003||Appellant's opening brief letter sent, due:|
January 20, 2004
|Dec 17 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 14 2004||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Jan 16 2004||Extension 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 2004||Counsel's status report received (confidential)|
from State P.D.
|Mar 15 2004||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Mar 17 2004||Extension 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 2004||Counsel's status report received (confidential)|
|May 14 2004||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|May 18 2004||Extension 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 2004||Counsel's status report received (confidential)|
|Jul 14 2004||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Jul 19 2004||Extension 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 2004||Counsel's status report received (confidential)|
from State P.D.
|Sep 15 2004||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Sep 17 2004||Extension 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 2004||Counsel's status report received (confidential)|
from State P.D.
|Nov 12 2004||Motion filed (AA)|
by appellant to order compliance with rule 31.3 (of Cal. Rules of Court) requiring a single juror identification number.
|Nov 16 2004||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Nov 22 2004||Extension 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 2004||Counsel's status report received (confidential)|
from State P.D.
|Dec 22 2004||Order 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 2005||Letter sent to:|
counsel advising that the record, corrected pursuant to this court's order of 12/22/2004, was received this date.
|Jan 12 2005||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Jan 14 2005||Extension 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 2005||Counsel's status report received (confidential)|
from State P.D.
|Mar 9 2005||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Mar 15 2005||Extension 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 2005||Counsel's status report received (confidential)|
from State P.D.
|May 11 2005||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|May 13 2005||Extension 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 2005||Counsel's status report received (confidential)|
from State P.D.
|Jul 1 2005||Request for extension of time filed|
to file AOB. (10th request)
|Jul 7 2005||Extension 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 2005||Counsel's status report received (confidential)|
from State P.D.
|Sep 2 2005||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Sep 9 2005||Extension 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 2005||Counsel's status report received (confidential)|
from State P.D.
|Oct 18 2005||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|Oct 21 2005||Motion filed (AA)|
counsel's "Joint Motion to File Amended Settled Statement Number 6." (Amended Settled Statement Number 6 submitted under separate cover)
|Oct 24 2005||Extension 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 2005||Order 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 2005||Filed:|
appellant's "Amended Settled Statement Number 6," filed pursuant to court's order of 12/14/2005.
|Dec 19 2005||Request for extension of time filed|
to file appellant's opening brief. (13th request)
|Dec 28 2005||Extension 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 2006||Request for extension of time filed|
to file appellant's opening brief. (14th request)
|Feb 3 2006||Extension 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 2006||Counsel's status report received (confidential)|
from State P.D.
|Mar 8 2006||Appellant's opening brief filed|
(70,541 words; 238 pp.)
|Apr 6 2006||Request for extension of time filed|
to file respondent's brief. (1st request)
|Apr 13 2006||Extension of time granted|
to June 6, 2006 to file respondent's brief.
|May 31 2006||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jun 6 2006||Extension 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 2006||Motion for access to sealed record filed|
respondent's "Motion to Release Marsden Hearing Transcript."
|Aug 2 2006||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Aug 2 2006||Order 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 2006||Extension 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 2006||Request for extension of time filed|
to file respondent's brief. (4th request)
|Oct 10 2006||Extension 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 2006||Respondent's brief filed|
(30466 words; 99 pp.)
|Oct 23 2006||Note:|
Appellant's Reply Brief due: November 8, 2006 (see Calif. Rules of Court, rule 33(c)(3))
|Nov 7 2006||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Nov 9 2006||Extension of time granted|
to January 8, 2007 to file appellant's reply brief.
|Jan 5 2007||Request for extension of time filed|
to file reply brief. (2nd request)
|Jan 9 2007||Extension 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 2007||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Mar 9 2007||Extension 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 2007||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|May 10 2007||Extension 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 2007||Request for extension of time filed|
to file appellant's reply brief. (5th request)
|Jul 13 2007||Extension 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 2007||Request for extension of time filed|
to file appellant's reply brief. (6th request)
|Sep 11 2007||Extension 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 2007||Request for extension of time filed|
to file appellant's reply brief.(7th request)
|Nov 8 2007||Extension 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 2007||Motion to unseal record filed (AA)|
|Jan 2 2008||Request for extension of time filed|
to file appellant's reply brief. (8th request)
|Jan 7 2008||Extension 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 2008||Record 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 2008||Appellant's reply brief filed|
(22,813 words; 77 pp.)
|May 29 2008||Motion 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 2008||Order 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 2008||Supplemental brief filed|
by appellant, supplemental opening brief. (8,577 words; 28 words)
|Jul 1 2008||Request for extension of time filed (AA)|
to file supplemental respondent's brief. (1st request)
|Jul 2 2008||Extension 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 2008||Request for extension of time filed (AA)|
to file supplemental respondent's brief. (2nd request)
|Sep 9 2008||Extension 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 2008||Motion filed (AA)|
by appellant, "Request for Leave to File Second Supplemental Opening Brief and Brief in Excess of 2,800 Words."
|Sep 19 2008||Order 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 2008||Supplemental brief filed|
by appellant, Second Supplemental Opening Brief. (5,506 words; 20 pp.)
|Oct 6 2008||Application 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 2008||Order filed|
Respondent's "Request for Leave to File a Supplemental Respondent's Brief in Excess of 2,800 Words" is granted.
|Oct 9 2008||Supplemental brief filed|
by respondent. (9760 words; 32 pp.)
|Oct 14 2008||Request for extension of time filed (AA)|
to file respondent's second supplemental brief. (1st request)
|Oct 16 2008||Extension 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 2008||Request for extension of time filed (AA)|
to file appellant's supplemental reply brief. (1st request)
|Oct 23 2008||Extension 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 2008||Application 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 2008||Order filed|
Respondent's "Request for Leave to File a Second Supplemental Respondent's Brief in Excess of 2,800 Words" is granted.
|Dec 23 2008||Supplemental brief filed|
by respondent, "Respondent's Second Supplemental Brief" (6,991 words; 25 pp.)
|Dec 24 2008||Request for extension of time filed (AA)|
to file appellant's second supplemental reply brief. (1st request)
|Dec 29 2008||Application 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 2009||Extension 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 2009||Order filed|
Appellant's "Application For Leave to File Supplemental Reply Brief in Excess of 2,800 Words" is granted.
|Jan 7 2009||Supplemental reply brief filed (AA)|
by appellant. (5,373 words; 19 pp.)
|Mar 9 2009||Application 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 2009||Order filed|
Appellant's "Application for Leave to File Second Supplemental Reply Brief In Excess Of 2,800 Words" is granted.
|Mar 19 2009||Supplemental brief filed|
by appellant, "appellant's second supplemental reply brief". (4,775 words; 17 pp.)
|Apr 22 2009||Additional 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 2009||Request for extension of time filed|
to file appellant's opening letter brief. (1st request)
|May 26 2009||Extension 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 2009||Letter brief filed|
Respondent: The PeopleAttorney: Attorney General - San Diego Office respondent's opening letter brief, dated July 17, 2009
|Jul 21 2009||Letter brief filed|
Appellant: Taylor, Keith DesmondAttorney: Office of the State Public Defender-Sac appellant's opening letter brief, dated July 21, 2009
|Aug 6 2009||Letter brief filed|
Respondent: The PeopleAttorney: Attorney General - San Diego Office respondent's reply letter brief, dated August 6, 2009
|Aug 10 2009||Letter brief filed|
Appellant: Taylor, Keith DesmondAttorney: Office of the State Public Defender-Sac appellant's reply letter brief, dated August 10, 2009
|Aug 12 2009||Oral 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 2009||Case ordered on calendar|
To be argued Tuesday October 6, 2009, 1:30 p.m., Los Angeles, California.
|Sep 10 2009||Order 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 2009||Amicus curiae brief filed|
Information only: Habeas Corpus Resource Center by the Habeas Corpus Resource Center, "Amicus Letter Brief..., dated September 9, 2009"
|Sep 10 2009||Received:|
appearance sheet from Chief Deputy State Public Defender, Barry Helft, indicating 30 minutes for oral argument for appellant.
|Sep 10 2009||Filed:|
appellant's focus issues letter, dated September 10, 2009.
|Sep 14 2009||Filed:|
respondent's focus issues letter, dated September 11, 2009.
|Sep 14 2009||Received:|
appearance sheet from Deputy Attorney General Alana Butler, indicating 30 minutes for oral argument for respondent.
|Sep 25 2009||Received:|
letter from respondent, dated September 23, 2009, with additional authorities.
|Sep 30 2009||Response to amicus curiae brief filed|
Respondent: The PeopleAttorney: Attorney General - San Diego Office by respondent.
|Oct 6 2009||Cause argued and submitted|
|Dec 23 2009||Notice of forthcoming opinion posted|
To be filed Thursday, December 24, 2009 at 10 a.m.
|Mar 8 2006||Appellant's opening brief filed|
|Oct 19 2006||Respondent's brief filed|
|Feb 29 2008||Appellant's reply brief filed|
|Sep 10 2009||Amicus curiae brief filed|
Information only: Habeas Corpus Resource Center
|Sep 30 2009||Response to amicus curiae brief filed|
Respondent: The PeopleAttorney: Attorney General - San Diego Office