PEOPLE v. SATTIEWHITE (CHRISTOPHER)

Respondent’s Brief

Cal.February 13, 2009

CAPJ1'ALCASE 300 S<:,uth Spring Street, Suik 1702 Lv, /\ngek~" Cj\ 90013- Tekqh')I1i.~; (213) 897-4991 F<.'G: OL3) B97·{i496 EnH~il: D,t>,iidL(>o}.;(Adnj .(:·a,gov /\rtO{'f1eys j~)r Re$J,,;.~)n:{.lfnt EDMUND G. r>ROW}~ JR. />dtCjrr:x~y Gf:TH.:::ral of C:;.lif<)mi;;~ DANER, ern,fErrI, Cbief /s,.ssistml1 Auomey (rem;r<'l1 PAl'd:ELA C:, llAMANAKA Senior A.~<:;;\stanI.At!\)rntyGentnd KENNETH C. BYRNB Superv.ising De{I\:Hy AH<>rney Ckr;eral VA\'m C. CO();{ :DI;::pmy Attorrley General St(lH.~ 8ar >10, 172866 RESPONDEN'FSHRIEF Plaintiff and Respondent. Defcmbmt and Appdhmt. CHRfSTOPfH'R J'. \1F'S-' ~ '1·'TIE\VJllTF.... .....~. . .. . .. ". >;.. ). /\.l ": ..;.::", Si , ,'~ '.' . .. . .;.:~ PEOPLE OF THE STATE OF CAl..;IFORNIA.. TABLE OF CONTENTS Page Statement Of Case 1 Statement Of Facts 3 I. Guilt Phase 3 A. Prosecution case-in-chief 3 1. The Murder Of Genoveva Gonzalez[] 3 2. The Murder Scene 8 3. The Murder Weapon 10 4. Appellant's Admission Of GuilL 12 5. Search Of Appellant's Residence 12 6. Appellant's Statements To The Police 13 7. The Autopsy And Subsequent Medical Evaluation 13 8. Ballistics And Other Physical Evidence 15 B. Defense Case 16 1. Defense Evidence Regarding Genoveva's Background 16 2. Defense Evidence Regarding The Events Following The Murder 18 3. Medical Opinion Evidence 19 C. People's Rebuttal Case 20 II. Penalty Phase 22 A. Prosecution Case-In-Chief.. 22 1. Prior Rape and Robbery Committed By Petitioner, Rollins, and Jackson 22 2. Correspondence Between Appellant and Rollins 27 3. The Effect Genoveva's Murder Had On Her Children 28 B. Defense Case 30 1 TABLE OF CONTENTS (continued) Page 1. Evidence Of Appellant's Personal History 30 2. Psychological Evaluations Of Appellant.. 34 a. Dr. Francis Crinella 34 b. Dr. Ines Monguio 39 c. Dr. Patrick Barker 43 d. Dr. David Benson 50 C. Prosecution Rebuttal 52 1. Appellant's Competency Was Correctly Evaluated At Trial 57 A. Relevant Proceedings 57 B. Relevant Legal Principles 59 C. The Trial Court Was Not Obligated To Appoint The Director Of The Regional Center For The Developmentally Disabled To Examine Appellant's Competence Because No Evidence Presented Prior To, Or During, Trial Shows That Appellant Has A Developmental Disability ..... 60 D. No Reversal Is Required Due To The Trial Court's Failure To Suspend Proceedings Upon The Declaration Of Doubt Of Appellant's Competence By Appellant's Trial Counsel 68 II. The Prosecution Properly Exercised Its Peremptory Challenge As To Prospective Juror Paul M. During Jury Selection 69 A. Relevant Proceedings 69 1. Prospective Juror Paul M.' s Jury Questionnaire : 69 2. Voir Dire Of Prospective Juror Paul M 71 B. Relevant Legal Principles 79 11 TABLE OF CONTENTS (continued) Page C. The Record On Appeal Suggests That The Prosecution Had Adequate Non-Racially Biased Grounds For Exercising A Peremptory Challenge As To Prospective Juror Paul M 80 III. The Trial Court Did Not Abuse Its Discretion When It Permitted Autopsy And Crime Scene Photographs To Be Introduced Into Evidence At The Guilt And Penalty Phases Of The Trial 84 A. The Relevant Proceedings At TriaL 84 1. People's Exhibits 5,6,7 85 2. Additional Photographs Of The Victim And The Ditch Where Genoveva's Body Was Found 85 3. Autopsy Photographs Of Genoveva' s Body 87 B. Relevant Legal Principles 87 C. Appellant Has Waived His Entire Claim As It Pertains To People's Exhibits 5,6, 7, 23, 24, And 25 Due To Trial Counsel's Failure To Object Prior To The Witnesses Testifying About The Photographs Before The Jury; Appellant Has Waived All Claims Of Federal Constitutional Error Due To His Lack Of Objection 88 D. The Photographs The Court Allowed Into Evidence Were Not Unduly Gruesome And Were Highly Probative Of Critical Issues In This Case Such Appellant Premeditating And Deliberating Prior To The Murder 89 E. Any Error Was Harmless 91 IV. The Kidnaping Conviction And The Kidnaping Special Circumstance Were Supported By Substantial Evidence , 93 111 TABLE OF CONTENTS (continued) Page A. Relevant Legal Principles , 94 B. There Was Adequate Corroboration Of Rollins's Testimony Regarding The Kidnaping Of Genoveva Such That There Was Sufficient Evidence Of Appellant's Guilt For Simple Kidnaping And A True Finding As To The Kidnaping Special Circumstance 95 V. The Trial Court Correctly Instructed The Jury Regarding The Lack-Of-Consent Element Of Kidnaping : 100 A. Relevant Proceedings 100 B. Relevant Legal Principles 100 C. This Court Has Previously Held That The Version Of CALJIC NO. 9.56 Given At Appellant's Trial Correctly Stated The Law Regarding Consent; Appellant Has Offered No Justification For Finding That The Instruction Could Have Been Mis-Applied By The Jury In This Case 101 VI. There Is No Need For Reversal Of The Death Verdict As Appellant Has Failed To Establish Any Error With Respect To His Convictions And The True Finding For The Special Circumstances 105 VII. The Trial Court Had Jurisdiction To Try Appellant For First Degree Murder 105 VIII. Appellant Had No Right To Have The Jury Instructed On Voluntary Manslaughter Based Upon Duress That Negated Malice, Premeditation, And Deliberation... ~ ........ 106 IX. It Appears That The Trial Court Erred In Instructing The Jury According To CALJIC NO. 2.11.5; However, Any Error Was Harmless 109 A. Relevant Proceedings At Trial.. 109 IV TABLE OF CONTENTS (continued) Page B. Appellant Has Waived This Claim Of Instructional Error By Failing To Request That The Instruction Be Limited To Only Fred Jackson And Not Bobby Rollins 110 C. Even If Error Occurred, Any Error Was Harmless 110 X. CALJIC NO. 2.51 Is A Correct And Proper Statement Of The Law Regarding Motive 110 XI. The Trial Court Correctly Instructed The Jury Regarding The Trial Process 112 A. The Trial Court's References To Appellant's Innocence As Well As CALJIC NOS. 1.00, 2.01, And 2.51 Did Not Diminish The Prosecution's Burden Of Proof 112 B. CALJIC NOS. 2.22,2.27, and 8.20 Did Not Place An Unconstitutional Burden Of Proof On Appellant. 115 C. CALJIC NO. 2.90 Correctly Defines The Prosecution's Burden Of Proof.. 117 XII. Appellant Has Failed To Assert Any Specific Instances Of Ineffective Assistance Of Trial CounseL 120 XIII. The Trial Court Did Not Abuse Its Discretion In Retaining The Jurors Who Expressed Potential Time Conflicts During Penalty Phase Deliberations 120 A. Relevant Proceedings At Trial.. 120 B. Waiver 121 C. The Record Fails To Show To A Demonstrable Reality That The Jurors Who Expressed Potential Time Conflicts Were Unable To Perform The Functions Of A Juror 122 XIV. The Trial Court Properly Denied Appellant's Motion For Modification Of Verdict 123 v TABLE OF CONTENTS (continued) Page A. Relevant Proceedings At Trial 124 B. Appellant Has Forfeited The Instant Claim That Trial Court Relied On The Probation Report In Denying The Motion To Modify The Verdict; The Trial Court Did Not Rely Upon Appellant's Probation Report In Denying The Motion To Modify The Verdict 127 C. Appellant Has Forfeited The Instant Claim Regarding The Trial Court's Consideration Of Appellant's Lack Of Remorse In Denying The Motion To Modify The Verdict; The Trial Court Did Not Refer To Appellant's Lack Of Remorse As A Circumstance In Aggravation; Any Error That May Have Occurred Was Harmless 128 D. Appellant Forfeited Any Claim That The Trial Court Improperly Used Victim Impact Evidence From A Separate Crime As A Circumstance In Aggravation; The Trial Court Properly Considered Appellant's Prior Unrelated Rape , And Robbery Convictions In Denying The Motion To Modify The Verdict.. 130 XV. Appellant was not entitled to a new trial based on newly discovered evidence 131 XVI. The prosecution's failure to disclose the viewpoint of Genoveva's mother and son regarding application of the death penalty in this case did not violate Brady v. Maryland 135 XVII. The trial court properly admitted victim impact, evidence concerning appellant's conviction for a prior rape and robberies 137 XVIII. The trial court did not err in refusing appellant's request to instruct the jury on the meaning of life without the possibility of parole 139 VI TABLE OF CONTENTS (continued) Page A. Relevant proceedings at trial.. 139 B. The trial court properly refused appellant's request for a special instruction regarding the meaning of life without the possibility of parole .... 143 XIX. The penalty phase jury instructions regarding aggravating factors correctly stated the prosecution's burden of proof ~ 145 XX. The trial court properly refused appellant's requested penalty phase jury instructions regarding victim impact evidence and evidence of appellant's background 146 A. Appellant's requested special instruction regarding the treatment of victim impact evidence was duplicative of other jury instructions 147 B. Appellant's special requested instruction regarding appellant's background as mitigating evidence was duplicative of other penalty phase jury instructions 148 XXI. The trial court had no duty to instruct the jury that it must unanimously agree whether appellant committed a premeditated murder or a felony murder before finding him guilty of murder in the first degree ,149 XXII. The trial court properly instructed the jury that it could not return a verdict of second degree murder unless it unanimously acquitted appellant of first degree murder 150 XXIII. The prosecutor's penalty phase argument was proper. 152 A. Any error regarding the prosecutor's argument about safety in the department of corrections was harmless 153 Vll TABLE OF CONTENTS (continued) Page 'B. No prosecutorial misconduct occurred due to the prosecutor's references to the needs of society and the comments about the victim's family visiting the grave site during argument at the penalty phase of the trial 154 C. Appellant has forfeited any claim that the prosecutor committed misconduct by making an inflammatory call for vengeance during the penalty phase argument; no misconduct occurred 156 D. Appellant forfeited any claim that the prosecutor's argument violated Payne v. Tennessee; the prosecutor's argument was proper 158 E. Any error was harmless 159 XXIV.California's use of the death penalty does not violate international law 160 XXV. Appellant's numerous challenges to California's death penalty law are without merit 161 XXVI.Appellant has failed to show that any cumulative prejudicial error occurred at trial 169 Conclusion 170 Vlll TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 120 S.Ct. 2348, 147 L.Ed.2d 435 106, 145, 161, 162 Baqleh v. Superior Court (2002) 100 Cal.AppAth 478 60 Batson v. Kentucky (1986) 476 U.S. 79 106 S.Ct. 1712 90 L.Ed.2d 69 69, 79 Blakely v. Washington (2004) 542 U.S. 296 124 S.Ct. 2531 159 L.Ed.2d 403 145, 162 Booth v. Maryland (1987) 482 U.S. 496 107 S.Ct. 2529 96 L.Ed.2d 440 .. : 136, 159 Brady v. Maryland (1963) 373 U.S. 83 83 S.Ct. 1194 10 L.Ed.2d 215 135 Brewer v. Quartermain 127 S.Ct. 1706 165 Brown v. Sanders (2006) 546 U.S. 212 126 S.Ct. 884, 163 L.Ed.2d 723 105 Caldwell v. Mississippi (1985) 472 U.S. 320 105 S.Ct. 2633 86 L.Ed.2d 231 155 IX Chapman v. California (1967) 386D.S.18 87 S.Ct. 824 17 L.Ed.2d 705 passim Cunningham v. California (2007) 549 U.S. 270 127 S.Ct. 856 166 L.Ed.2d 856 145, 162 Darden v. Wainwright (1986) 477 U.S. 168 106 S.Ct. 2464 91 L.Ed.2d 144 155 Donnelly v. DeChristoforo (1974) 416 U.S. 637 94 S.Ct. 1868 40 L.Ed.2d 431 155 Drope v. Missouri . (1975) 420 U.S. 162 95 S.Ct. 896 43 L. Ed.2d 103 ~ 59 Dusky v. United States (1960) 362 U.S. 402 80 S.Ct. 788 4 L.Ed.2d 824 59 Hovey v. Superior Court (1980) 28 Ca1.3d 1 71 In re Brown (1998) 17 Ca1.4th 873 72 Cal.Rptr.2d 698 952 P.2d 715 137 In re Michele D. (2002) 29 Ca1.4th 600 104 In re Miranda (2008) 43 Ca1.4th 541 136, 137, 169 In re Smith (2008) 42 Ca1.4th 1251 167 x Jackson v. Virginia (1979) 443 U.S. 307 99 S.Ct. 2781 61 L.Ed.2d 560 94 Johnson v. California 545 U.S. at p. 170 79 Kelly v. South Carolina (2002) 534 U.S. 246 122 S.Ct. 726 151 L.Ed.2d 670 143 Kyles v. Whitley (1995) 514 U.S. 419 115 S.Ct. 1555 131 L.Ed.2d490 137 Mitchell v. Gonzales (1991) 54 Ca1.3d 1041 104 Payne v. Tennessee 501 U.S. 808 111 S.Ct. 2597 115 L.Ed.2,d 720 136, 158, 159 People v. Allen (1986) 42 Ca1.3d 1222 ~ 88, 89, 93 People v. Alvarez (1996) 14 Ca1.4th 155 59 People v. Anderson (2002) 28 Ca1.4th 767 107, 108 People v. Anderson (2005) 25 Ca1.4th 543 163 People v. Andrews (1989) 49 Ca1.3d 200 110 People v. Arias supra, 13 Ca1.4th 162, 164, 165 People v. Avena (1996) 13 Ca1.4th 394 130 Xl People v. Avila (2006) 38 Ca1.4th 491 80, 165 People v. Barber (1988) 200 Cal.App.3d 378 80 People v. Barnett (1998) 17 Ca1.4th 1044 118 People v. Beames (2007) 40 Ca1.4th 907 16.1 People v. Beeler (1995) 9 Ca1.4th 953 123 People v. Bell (2007) 40 Ca1.4th 582 84 People v. Benavides (2005) 35 Ca1.4th 69 138 People v. Blair (2005) 36 Ca1.4th 686 .: 160, 162 People v. Blakeley (2000) 23 Ca1.4th 82 108 People v. Bland (2002) 28 Ca1.4th 313 103, 104, 143 People v. Bonilla (2007) 41 Ca1.4th 313 161 People v. Box (2000) 23 Cal.4th 1153 80 People v. Boyette (2002) 29 Ca1.4th 381 158 People v. Brasure (2008) 42 Ca1.4th 1037 110, 163 People v. Breaux (1991) 1 Ca1.4th 281 163, 165 People v. Breverman (1998) 19 CalAth 142 101, 107 xu People v. Brown (2004) 34 Ca1.4th 382 161 People v. Burgener (2003) 29 Ca1.4th 833 83 People v. Cain (1.995) 10 Ca1.4th 1 89, 91, 110 People v. Carey (2007) 41 Ca1.4th 109 147, 148 People v. Carter (2003) 30 Ca1.4th 1166 164 People v. Carter (2005) 36 Ca1.4th 1114 144 People v. Castro (2000) 78 Cal.AppAth 1402 59, 61, 62, 68 People v. Clair (1992) 2 Ca1.4th 629 103, 104 People v. Clark (1990) 50 Ca1.3d 583 138 People v. Cleveland (2004) 32 Ca1.4th 704 111, 112, 154 People v. Coffman (2004) 34 Ca1.4th 1 165 People v. Cole (2004) 33 Ca1.4th 1158 88 h~k~~~ . (2006) 39 Ca1.4th 566 160, 165 People v. Cook (2007) 40 Ca1.4th 1334 164 People v. Cornwell (2005) 37 Ca1.4th 50 79, 80 People v. Cox (1991) 53 Ca1.3d 618 155 X111 People v. Crittenden (1994) 9 Ca1.4th 83 91, 129 People v. Cruz (2008) 44 Ca1.4th 636 79, 100, 107, 165 People v. Davis (1995) 10 Ca1.4th 463 101, 102, 103, 104 People v. Demetruilias (2006) 39 Ca1.4th 1 137, 144 People v. DePriest (2007) 42 Cal.4th 1 143 People v. Dillon (1983) 34 Cal.3d 441 106 People v. Duncan (1991) 53 Ca1.3d 955 164 People v. Earp (1999) 20 Ca1.4th 826 91, 121, 154 People v. Edwards (1991) 54 Ca1.3d 787 83 People v. Estrada (1995) 11 Ca1.4th 568 104, 143 People v. Farnam (2002) 28 Ca1.4th 107 90, 94, 149, 166 People v. Fauber (1992) 2 Ca1.4th 792 95, 98 People v. Fields (1996) 13 Cal.4th 289 152 People v. Fierro (1991) 1 Ca1.4th 173 166 People v. Flood (1998) 18 Ca1.4th 470 : 105 People v. Frye (1998) 18 Ca1.4th 894 134 XIV People v. Geier (2007) 41 Ca1.4th 555 , 163, 164 People v. Ghent (1987) 43 Ca1.3d 739 155, 158 People v. Gray (2005) 37 Ca1.4th 168 80 People v. Guerra (2006) 37 Ca1.4th 1067 94, 98, 119, 122 People v. Gurule (2002) 28 Ca1.4th 557 88, 90 People v. Hardy (1992) 2 Ca1.4th 86 93, 129 People v. Harris (2008) 43 Ca1.4th 1269 passim People v. Hayes (1999) 21 Ca1.4th 1211 95 People v. Hill (1992) 3 Ca1.4th 959 127 People v. Hillhouse (2002) 27 Ca1.4th 469 166 People v. Holloway (2004) 33 Ca1.4th 96 131, 137 People v. Hovarter (2008) 44 Ca1.4th 983 99, 153 People v. Howard (2008) 42 Ca1.4th 1000 , : 122 People v. Huggins (2006) 38 Ca1.4th 175 , 154 People v. Hughes (2002) 27 Ca1.4th 287 106 People v. Humphrey (1996) 13 Ca1.4th 1073 168 xv People v. Jackson (1996) 13 Ca1.4th 1164 119 People v. Jenkins (2000) 22 Ca1.4th 900 79 People v. Johnson (1980) 26 Ca1.3d 557 94 People v Jurado (2006) 38 Ca1.4th 72 137 People v. Karis (1988) 46 Ca1.3d 612 138 People v. Kelly (2007) 42 Ca1.4th 763 111 People v. Kennedy (2005) 36 Ca1.4th 595 129, 130, 161, 165 People v. Kipp (1998) 18 Ca1.4th 349 143 People v. Kipp (2001) 26 Ca1.4th 1100 151 People v. Lamas (2007) 42 Ca1.4th 516 105 People v. Lancaster (2007) 41 Ca1.4th 50 133, 136, 138 People v. Lenart • (2004) 32 Ca1.4th 1107 162 People v. Lenix . (2008) 44 Ca1.4th 602 84 People v. Leonard (2007) 40 Ca1.4th 1370 154 People v. Lewis (2006) 39 Ca1.4th 970 163 People v. Lewis (2008) 43 Ca1.4th 415 138, 160, 166 XVI People v. Lindberg (2008) 45 Ca1.4th 1 166 People v. Loker (2008) 44 Ca1.4th 691 111, 151, 169 People v. Lucas (1995) 12 Ca1.4th 415 91 People v. Manriquez (2005) 37 Ca1.4th 547 169 People v. Marshall (1990) 50 Ca1.3d 907 129 People v. Martinez (2003) 31 Ca1.4th 673 129, 143 People v. Maury (2003) 30 Ca1.4th 342 94 People v. Mayfield (1997) 14 Ca1.4th 668 104 People v. Mendoza (2000) 24 Ca1.4th 130 128, 137, 138 People v. Mickey (1991) 54 Ca1.3d 612 121 People v. Mincey (1992) 2 Ca1.4th 408 95 People v. Montiel (1993) 5 Ca1.4th 877 117 People v. Moon (2005) 37 Ca1.4th 1 154 People v. Morgan (2007) 42 Ca1.4th 593 99 People v. Morris (1991) 53 Ca1.3d 152 ; 88 XVll People v. Morrison (2004) 34 Cal.4th 698 21 Cal.Rptr.3d 682 101 P.3d 568 164 People v. Mungia (2008) 44 Cal.4th l10f 169 People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523 167, 168 People v. Nakahara (2003) 30 Cal.4th 705 115, 117, 119, 152 People v. Navarette (2003) 30 Cal.4th 458 ; 90 People v. Ochoa (1993) 6 Cal.4th 1199 94, 98 People v. Ochoa (1998) 19 Cal.4th 353 ~ 132, 136 People v. Ochoa (2001) 26 Cal.4th 398 129, 130 People v. Orozco (1981) 114 Ca1.App.3d 435.) 119, 120 People v. Orozco supra, 114 Cal.App.3d 120 People v. Padilla (1995) 11 Cal.4th 891 132 People v. Panah (2005) 35 Cal.4th 395 25 Cal.Rptr.3d 672 107 P.3d 790 167 People v. Partida (2005) 37 Ca1.4th 428 88 People v. Perry (2006) 38 Cal.4th 302 ; 87, 88, 90, 149 People v. Pierce (1979) 24 Cal.3d 199 87 XV1l1 People v. Pollock (2004) 32 Ca1.4th 1153 166 People v. Price (1991) 1 Ca1.4th 324 88,110,138 People v. Pride (1992) 3 Ca1.4th 195 122 People v. Prieto (2003) 30 Ca1.4th 226 115, 129, 143, 162 People v. Rayford (1994) 9 Ca1.4th 1 95 People v. Richardson (2008) 43 Ca1.4th 959 94 People v. Riel . (2000) 22 Ca1.4th 1153 87, 130, 152 People v. Riggs supra, 44 Ca1.4th 248 157,158, 165 People v. Rincon-Pineda (1975) 14 Ca1.3d 864 94 People v. Rodrigues (1994) 8 Ca1.4th 1060 60, 68 People v. Rogers (2006) 39 Ca1.4th 826 59 People v. Roldan (2005) 35 Ca1.4th646 passim People v. Romero (2008) 44 Ca1.4th 386 146, 162, 163, 165 People v. Rubalcava (2000) 23 Cal.4th 322 101 People v. Salcido (2008) 44 Ca1.4th 93 129 People v. Samayoa (1997) 15 Ca1.4th 795 127 XIX People v. Sanchez (1995) 12Ca1.4th 1 155, 159 People v. Scheid (1997) 16 Ca1.4th 1 87, 90, 91, 92 People v. Sedeno (1974) 10 Ca1.3d 703 101 People v. Slaughter (2002) 27 Ca1.4th 1187 95, 98 People v. Smith (2003) 30 Ca1.4th 581 132, 133, 136, 164 People v. Smith (2005) 35 Ca1.4th 334 164 People v. Smithey (1999) 20 Ca1.4th 936 143 Peoplev. Snow (2003) 30 Ca1.4th 43 94 People v. Stanley (1995) 10 Ca1.4th 764 161 People v. Stansbury (1993) 4 Ca1.4th 1017 88 People v. Sully (1991) 53 Ca1.3d 1195 110 People v. Tafoya (2007) 42 Ca1.4th 147 130 People v. Taylor (1982) 31 Ca1.3d 488 168 People v. Taylor (2001) 26 Ca1.4th 1155 164 People v. Turner (1994) 8 Ca1.4th 137 80 People v. Valencia (2008) 43 Ca1.4th 268 149, 164 xx People v. Visciotti (1992) 2 Ca1.4th 1 60 People v. Wallace (2008) 44 Ca1.4th 1032 154, 155, 169 People v. Ward (2005) 36 Ca1.4th 186 83, 163 People v. Wash (1993) 6 Ca1.4th 215 91 People v. Watson (1956) 46 Ca1.2d 818 91,93, 165 People v. Welch (1999) 20 Ca1.4th 701 59, 60, 64 People v. Wheeler (1978) 22 Ca1.3d 258 69, 75, 79 People v. Whisenhunt (2008) 44 Ca1.4th 174 passim People v. Williams (2006) 40 Ca1.4th 287 127, 128, 166 People v. Wilson (2005) 36 Ca1.4th 309 144 People v. Wilson (2008) 44 Ca1.4th 758 94 People v. Zambrano (2007) 41 Ca1.4th 1082 153, 154, 158 People v. Zamudio (2008) 43 Ca1.4th 327 148 People v. Zapien (1993) 4 Ca1.4th 95,98, 155 Pulley v. Harris (1984) 465 U.S. 37 104 S.Ct. 871 79 L.Ed.2d 29 161 XXI Ring v. Arizona (2002) 536 U.S. 584 122 S.Ct. 2428 153 L.Ed.2d 556 145, 162 Schad v. Arizona (1991) 501 U.S. 624 111 S.Ct. 2491 115 L.Ed.2d 555 151 Shafer v. South Carolina (2001) 532 U.S. 36 143 Simmons v. South Carolina (1994) 512 U.S. 154 114 S.Ct 2187 129 L.Ed.2d 133 143, 144 Skipper v. South Carolina 476 U.S. at p. 4 136 United States v. Booker (2005) 543 U.S. 220 125 S.Ct. 738 160 L.Ed.2d 621 145 Woodson v. North Carolina (1976) 428 U.S. 280 96 S.Ct. 2978 49 L.Ed.2d 944 159 STATUTES California Health and Safety Code § 11590 20 Evidence Code § 352 passim xxii Penal Code § 187 1, 106 § 187, subdivision (a) 105 § 190.2 1, 161 § 190.2, subdivision (l7)(B) 95 § 190.2, subdivision (a)(l7) 2 § 190.3 131 § 190.3 passim § 190.3, subdivision (a) 105, 130, 138, 161 § 207 1, 96 § 207, subdivision (a) 95 § 261 1 § 654 2 § 1089 122 § 1111 95 § 1118.1 93, 95 § 1192.7 1 § 1239 2 § 1367 59 § 1368 57 § 1368 1,57,59,61 § 1368, et seq 59 § 1369 57 § 1369 57, 59, 62 § 1370.1 60, 64 § 1370.1, subdivision (a)(l)(H) 64, 68 § 12022.5 ; 1 CONSTITUTIONAL PROVISIONS Cal. Cons. art. I, § 15 passim Cal. Cons. art. I, § 16 69,94 Cal. Cons. art. I, § 17 94 U.S. Canst., 5th Amend 94 thU.S. Const., 6 Amend 94 U.S. Const., 8th Amend 94, 120, 136 U.S. Canst., 14th Amend 59, 94, 135 XX1l1 JURY INSTRUCTIONS CALlIC No. 1.00 114 CALlIC No. 1.01 110 CALlIC No. 2.01 119 CALlIC No. 2.01 118 CALlIC No. 2.01 112, 115 CALlIC No. 2.11 119 CALlIC No. 2.11.5 : 109, 110 CALlIC No. 2.20 ~ 110 CALlIC No. 2.22 115 CALlIC No. 2.27 116 CALlIC No. 2.27 115, 117 CALlIC No. 2.51 112 CALlIC No. 2.51 110, 111 CAUIC No. 2.60 119 CALlIC No. 2.61 119 CAUIC No. 2.90 115, 117, 118, 119 CALlIC No. 3.18 110 CALlIC No. 8.20 116 CALlIC No. 8.20 115, 117 CALlIe No. 8.84 143 CALlIC No. 8.84.1 147 CALJIC No. 8.88 143, 144, 163, 164 CALlIC No. 9.56 100, 101, 104 XXIV STATEMENT OF CASE On February 26, 1993, the 1992-1993 Ventura County Grand Jury filed an indictment against appellant. Appellant was accused of committing the crimes of murder (Pen. Code, § 187, subd. (a)), rape (Pen. Code, § 261, subd. (a) (2)), and kidnaping (Pen. Code, § 207, subd. (a)). The three crimes were alleged to be serious felonies (Pen. Code, § 1192.7, subd. (c)). Appellant was alleged to have used a firearm in the commission of the murder (Pen. Code, §§ 12022.5, subd. (a), 1203.06, subd. (a)(l)). Appellant was alleged to have committed the murder while in the commission of a rape and a kidnaping (Pen. Code, § 190.2, subd. (a)(17)). (1 CT 1-3,5; 1 RT 198-200.) On May 28, 1993, appellant was arraigned, pleaded not guilty, and denied the special allegations. (1 CT 23; 1 RT 209.) On August 27,1993, appellant's trial attorney expressed a doubt about appellant's competence to stand trial. The trial court appointed a psychologist to examine appellant. (1 CT 25, 35.) The criminal proceedings were not stayed pursuant to Penal Code section 1368. (1 RT 214-215.) On November 8, 1993, the parties submitted the issue of appellant's competence based on the reports of the doctors. After reviewing the doctor's reports, the trial court found appellant competent to stand trial. (1 CT 44; 1 RT 223-224.) Jury selection began on January 3, 1994. (1 CT 89; 2 RT 242,253.) On January 24, 1994, the jury was empaneled. (3 CT 610; 11 RT 1982, 2011-2012.) On February 1, 1994, the prosecution and defense made their opening statements in the guilt phase of the trial. (11 RT 2018,2041-206'2.) On February 9, 1994, the prosecution rested and the defense commenced its guilt phase case. (16 RT 2831,2890- 2891.) On February 14, 1994, the defense rested and the prosecution began its rebuttal case. That same day, the prosecution rested their rebuttal case and the defense stated it would not offer surrebuttal. (17 RT 3096,3123,3142,3171.) Closing arguments for both parties were completed on February 15, 1994. (17 RT 3177-3210; 18 RT 3211- 3386.) On February 16, 1994, the trial court instructed the jury and the jury deliberations began. (19 RT 3389-3429.) 1 On February 22, 1994, the jury reached its verdict. The jury found appellant guilty of the first degree murder of Genoveva Gonzales. The jury also found that the murder occurred during the commission of a rape and a kidnaping, within the meaning of Penal Code section 190.2, subdivision (a)(l7). The jury also found that appellant personally used a firearm during the commission of the murder. Appellant also was found guilty of rape and kidnaping. (3 CT 605; 19 RT 3449-3450.) The penalty phase of the trial began on March 8, 1994. The prosecutor and the defense made opening statements, and the prosecution commenced its case-in-chief. (20 RT 3600-3623.) On March 9, 1994, the prosecution rested its case-in-chief. (20 RT 3730, 3792.) The defense began its penalty phase case on March 10, 1994, and rested its case on March 16, 1994. (21 RT 3797; 22 RT 4273, 4355.) The prosecution presented its rebuttal case on March 17, 1994. (23 RT 4375,4418-4488.) The defense did not present surrebuttal. (23 RT 4488-4489.) On March 21, 1994, the prosecution and defense pre~ented their arguments to the jury. (23 RT 4501-4657.) On March 22, 1994, the trial court instructed the jury, and the jury began deliberations. (24 RT 4661-4690.) On March 28, 1994, the jury found that the penalty should be death. (3 CT 563; 24 RT 4708-4709.) On April 25, 1994, the trial court denied the defense motion for a new trial and the defense motion for modification of the verdict. The trial court sentenced appellant to death. A sentence of twenty-one years in state prison was imposed and stayed pursuant to Penal Code section 654. The trial court filed the judgment of death on the same day. (3 CT 584-589,592-595; 24 RT 4714-4734.) This appeal is automatic. (Pen. Code, § 1239, subd. (b).) III III III III 2 STATEMENT OF FACTS I. GUILT PHASE A. Prosecution Case-In-Chief 1. The Murder Of Genoveva Gonzalez[l] In January 1992, appellant lived in an apartment on Rowland in Oxnard, California. He lived with Bobby Rollins? Rollins was associated with the Long Beach Crips street gang and was known by the name of "Little Perm.;' Appellant was known as "Baby Perm." Appellant and Rollins were friends and had known each other since 1990. (13 RT 2370-2371,2373.) Rollins's girlfriend was appellant's sister Lydia Sattiewhite. (13 RT 2372.) On the evening of January 25, 1992, appellant, Rollins, and Fred Jackson went to the apartment of Amy Klute on Cuesta Del Mar Road. (13 RT 2314-2321,2375.) Rollins had known Jackson since 1990. Jackson also was known as "Freeze." (13 RT 2373.) The three men met Anna Lanier who also lived in an apartment at that address. Lanier loaned her Cadillac to appellant and Rollins. (13 RT 2321-2322.) 1 The victim hereinafter will be referred to as "Genoveva" to not confuse her with the other witnesses named Gonzalez. 2 At the time of his testimony in appellant's trial, Bobby Rollins had been in custody for seventeen months at the Ventura County Jail for two separate cases. In the first case, Rollins pleaded guilty to robbery of Myra and Jaime M. and rape of Myra by a foreign object. He also had pled guilty to two other counts of forcible rape as to Myra. Rollins admitted being armed with a firearm for these rape and robbery charges. (13 RT 2365-2367.) In the second case, Rollins pleaded guilty to robbery of Manuel Lomeli, sexual battery of Lisa N., and attempted robbery of Lisa N. (13 RT 2367-2368.) Rollins admitted that during the commission of these offenses he was armed with a firearm and that he committed the offenses while on bail, awaiting trial in another case. (13 RT 2367- 2368.) Rollins faced a possible maximum sentence of fifty years and eight months. He had an agreement with the Ventura County District Attorney's Office to cooperate in the investigation of Genoveva's murder and testify truthfully in appellant's case in exchange for a sentence of no more than twenty years. (13 RT 2368-2370.) 3 During the evening, Jackson asked appellant and Rollins whether they wanted to "get a victim." Rollins decided to leave appellant and Jackson because they wanted to commit robberies. The three men drove to another area of Oxnard to the home of a man named Glen. When they arrived at Glen's residence, Rollins gave Glen drugs in exchange for the use of Glen's Regal. Eventually, appellant and Jackson left Glen's residence in the Cadillac. (13 RT 2378-2383; 14 RT 2624.) At approximately 10:15 p.m. on January 25,1992, Genoveva arrived at the Casa Del Oro Restaurant in Oxnard, California. Tillie Carrillo, the owner of the restaurant, said that Genovev3; was a regular customer there. When Genoveva entered the bar, she went to a male friend who was sitting at the bar and choked him or grabbed him by the neck. Genoveva had been friends with the man for a long time. The male friend told Genoveva to leave him alone. Carrillo saw Genoveva's interaction with the man, but she did not know whether Genoveva was seriously attacking the man or simply joking around. While Genoveva held the man's neck, two Hispanic men asked her to join them. (12 RT 2208-2213.) Carrillo had not seen the Hispanic men3 in the restaurant before this night. (12 RT 2214.) The two Hispanic men ordered beer for themselves and Genoveva. Genoveva drank only the one beer that the men ordered for her. When they finished drinking, they left the restaurant at approximately 10:30 p.m. (12 RT 2212-2214, 2236.) After leaving appellant and Jackson, Rollins drove around for a couple of hours. Eventually, he saw appellant in front of a Buddy Burgers restaurant on Oxnard Boulevard, near 5th Street. Appellant called out to Rollins. Rollins stopped his car in front of appellant and they talked. During the conversation, Rollins heard Jackson's voice coming from the alley behind a store. Jackson called to appellant, "Come on, Chris. Come on." Appellant started walking toward Jackson. Rollins asked appellant where they were going. Appellant replied, "Just come on. Come on. Follow us. Follow 3 On one occasion months prior to the murder, Carrillo had seen Genoveva in the restaurant with Fred Jackson. Carrillo did not remember having seen appellant in the restaurant with Genoveva. (12 RT 2214-2218,2237-2238.) 4 us." Rollins got back into the Regal. Rollins drove into the alley. He saw the Cadillac on the side of the alley. Appellant entered the driver's seat of the Cadillac. Jackson was in the back seat on the passenger's side. Rollins saw a third head in the back seat on the driver's side of the car. Appellant drove out of the alley. Rollins followed. (13 RT 2385-2393.) They drove to an apartment complex behind a Sav-On's Drug Store in Oxnard and parked their cars in the carports of the complex. Rollins left his car and walked to the driver's door of the Cadillac. Appellant had already exited the Cadillac. Rollins looked into the back seat of the Cadillac and saw Jackson leaning over a woman, who eventually was identified as Genoveva. At one point, Jackson pushed Genoveva back down. Genoveva's head was in the corner of the backseat and she was lying down on the backseat. Jackson was sitting down to the side of her. Rollins asked appellant what has happening in the back seat. Appellant said that Jackson had "gaffled" her. Rollins knew "gaffled" to mean "snatched up." He also knew it to mean caught doing something wrong, such as the police "gaffled" you up and took you to jail. Rollins could hear Jackson telling Genoveva to shut up. She was yelling at Jackson in Spanish. Both Jackson and Genoveva had their clothes on. (13 RT 2394-2395,2398-2399,2401-2402; 14 RT 2546-2547,2617.) Rollins stayed near appellant and the Cadillac.4 Genoveva spat on Jackson and Jackson began hitting her. Rollins said to Jackson, "Fred, that's f'd up." Jackson pushed Genoveva back down to the corner of the backseat. It appeared that she was fighting with Jackson and did not agree to what he was doing. She also appeared drunk. (14 RT 2403-2404, 2478, 2552.) Rollins then left the Cadillac and went to the phone booth by the apartment complex's swimming pool to call appellant's sister Lydia. He told Lydia he would come to her home later. He also said that he was with appellant. Rollins did not tell Lydia 4 On cross-examination, Rollins admitted having falsely told the police that he also was in the car with appellant, Jackson, and Genoveva. (14 RT 2601.) 5 what Jackson was doing to Genoveva. When Rollins returned to the Cadillac, appellant was in the driver's seat. He and Jackson told Rollins to move his car. Appellant drove the Cadillac to another location in the apartment complex parking area. Rollins followed. After the cars were parked, Rollins got out and walked to the Cadillac. He saw Jackson having sex with Genoveva in the backseat. Rollins told appellant that Jackson was going to get him into trouble. Appellant did not reply. Appellant subsequently said that he and Jackson were going to "the dead-end," which Rollins believed was Arnold Road. (13 RT 2406-2408,2410,2412-2414.) After Rollins and appellant agreed to meet at the dead-end on Arnold Road later in the evening, Rollins drove to Lydia's home and appellant drove the Cadillac away with Jackson and Genoveva in the back seat. Rollins stayed withLydia for a while and then left to meet appellant at Arnold Road. Rollins did not tell Lydia what he saw Jackson doing to Genoveva. (13 RT 2415-2418.) Rollins had beento Arnold Road with appellant and Jackson before. (13 RT 2414.) Rollins saw the Cadillac on the side of Arnold Road. The passenger side door of the Cadillac was open, and the car's headlights were not on. Appellant was outside the car on the passenger side. Jackson was in the back seat. Jackson pushed Genoveva out of the car. She appeared to be unconscious. Her body moved only when they pushed her. Jackson pushed Genoveva to the passenger side of the car and then pushed her into· appellant. Appellant grabbed her. Rollins asked, "Whatcha doing?" Appellant and Jackson did not reply. Rollins told them to "wait up." Rollins stayed in his car, drove past them, and made a V-turn. Rollins stopped his car behind the Cadillac. Rollins heard three gunshots. When Rollins heard the shots, Jackson was in the backseat of the Cadillac and appellant was in the ditch on the side of the road. Rollins could not see Genoveva when the shots were fired. Rollins had seen appellant with a gun earlier in the evening. (13 RT 2419,2421-2426.) After hearing the gunshots, Rollins went to look in the ditch. Genoveva was lying face up in the ditch and her legs were "kind of jumping." Appellant was standing over her. Nobody else was in the ditch. Genoveva was wearing a blue denim jacket, but she 6 did not have pants on. (13 RT 2426.) Rollins said, "Let's go." When appellant got back onto the road,Rollins saw that appellant was wearing gloves and had a gun in his hand. Appellant had not been wearing gloves earlier that evening. (13 RT 2427.) Rollins got back into his car. Appellant got into the driver's seat of the Cadillac. Jackson had moved into the front passenger's seat. Appellant gave the gun to Jackson. They drove to an alley that was behind a fire station on Pleasant Valley Road. (13 RT 2433-2434; 14 RT 2561.) Appellant, Rollins, and Jackson exited their cars. Rollins asked appellant why he shot Genoveva. Appellant did not answer. Appellant appeared to be in shock. Eventually, appellant said that he always wanted to do something like that. Appellant also said, "I did it right here" and pointed to his forehead and cheek. Rollins did not talk to Jackson. Jackson leaned into the Cadillac and got some clothes. He wiped some blood off the handgun with a shirt. Jackson gave the handgun back to appellant. Jackson threw the clothes into the trash. Appellant's gloves also were thrown into the trash bin. Jackson said something to the effect of "No, we did it." Before that night, Rollins did not know Genoveva. They stayed in the alley only for a few minutes. (13 RT 2435-2438, 2443,2445-2446, 2480; 14 RT 2562.) Rollins subsequently returned the Regal to Glen. Later, appellant, Rollins, and Jackson went with Lydia to a Denny's Restaurant in Oxnard. (13 RT 2440.) While at the Denny's Restaurant, Rollins said that Genoveva was going to "haunt" them. After they left the Denny's Restaurant and went to appellant's home. Rollins told Lydia what had happened that evening and that Genoveva was killed. Lydia did not believe Rollins at first. Rollins denied telling Lydia that appellant shot Genoveva because Jackson made him. (13 RT 2441-2442; 14 RT 2563-2564.) In the afternoon prior to the murder, Salvadore Zavala had dinner with Genoveva and her children at her home. After dinner, Genoveva asked Zavala for money so she could shop for food. Genoveva did not have money of her own. Zavala gave her approximately $70 or $80. Zavala went to sleep and was still asleep when Genoveva left the residence that evening. At approximately midnight, one of the children in the house 7 woke him. The child was afraid because Genoveva was not yet home. Zavala was surprised that Genoveva was not home. He went out to look for her at some bars located on Oxnard Boulevard where he knew that she liked to go dancing. Zavala later found the money he gave Genoveva in the pocket of her jacket, which had been hanging in a closet in their home. (13 RT 2335-2348.) In the late evening of January 25, 1992, Lanier and Michael Burnett saw Lanier's Cadillac parked in front of appellant's home. They stopped at appellant's home to ask about the Cadillac. Appellant and Rollins were both at appellant's home. As Burnett and Lanier were about to leave appellant said, "Don't take the car because we had got done dirt in it." Burnett left in the Cadillac. Burnett did not know what appellant meant when he said "we had got done dirt in it." (13 RT 2323-2327.) 2. The Murder Scene On the morning of January 26, 1992, Seong Hwan Kim and Chun Lee were fishing at the end of Arnold Road. When they finished and were leaving the area, they saw Genoveva's body in the ditch. They did not go into the ditch. They called the police, and after doing so they saw a deputy from the Ventura County Sheriff's Department. (11 RT 2085-2094.) Ventura County Sheriff's Department Deputy Beal Whitlock, who worked for the department's search and rescue team, saw Kim and Lee near Mugu Rock on Pacific Coast Highway at approximately 7:35 a.m. on January 26, 1992. He was in his patrol K- 9 unit at the time. Kim and Lee led him to Arnold Road. When he arrived at Arnold Road, the K-9 dog alerted Deputy Whitlock that Genoveva was not alive. Deputy Whitlock made sure that nobody, including Kim and Lee, went into the ditch while he was there. He signaled his dispatcher about Genoveva's body in the ditch. The dispatcher called Oxnard Police Department. (11 RT 2076-2082.) At 8:20 a.m., on January 26, 1992, Deputy Jeffrey Nettleton of the Ventura County Sheriff's Department arrived at the murder scene on Arnold Road. Genoveva's body was in the drainage ditch. (11 RT 2063-2065, 2068.) Deputy Nettleton looked down into the ditch and saw that she was dead. He took barrier tape and cordoned off the area. He did 8 not walk down into the ditch and made sure that nobody else walked into the ditch. He saw a set of footprints in the ditch. (11 RT 2069.) He saw that there were footprints were around Genoveva's body. (11 RT 2069-2070.) Deputy Michael Barnes and Detective Richard Gatling of the Ventura County Sheriff's Department arrived at the murder scene on Arnold Road at approximately 9: 15 a.m. on January 26, 1992. Genoveva's body was in the ditch, but nobody else was in the ditch. Deputy Barnes directed the photographing of the crime scene from the roadway above the ditch to preserve the integrity of the crime scene. Genoveva appeared to have two gunshot wounds - one to the forehead and one to the left cheek. (11 RT 2103-2110, 2140-2141.) Deputy Barnes noticed footprints starting from the roadway and leading to ditch. In the ditch, the footprints returned to the area around Genoveva's head, and then returning on the path of entry. It appeared that only one set of shoes made the footprints. (11 RT 2117-2118, 2120.) A mold was taken of the footprints using plaster of Paris. (11 RT 2121,2147-2148.) The gunshot wounds appeared to be contact wounds, received from gunshots fired at very close range, possibly with the gun right against Genoveva's head when they were fired. (11 RT 2134-2135.) Genoveva had a sock on her right foot and her left foot was bare. There was no mud on either of her feet. (11 RT 2126.) There were no signs of a struggle in the area of the ditch or the embankment. (11 RT 2137.) Frederick Warren Lovell, Chief Medical Examiner for Ventura County, went to the crime scene on Arnold Road, on the morning of January 26, 1992. He saw Genoveva's body lying face down in the ditch. She had a gunshot wound in the head. The lower part of her body was unclothed. Her bra had been pulled up, exposing her breasts. (12 RT 2160-2163.) An expended, brass shell casing was found near Genoveva's body. (11 RT 2126- 2128.) There was a pool of blood in the mud under her body. Another shell casing was found in the pool of Genoveva's blood. (11 RT 2129.) Detective Richard Hamilton of the Ventura County Sheriff's Department took possession of the two shell casings. (11 9 2140-2142.) The casings found at the crime scene had .32 engraved on them. (11 RT 2132.) The casings later were determined to have been fired from a .32 caliber semi- automatic gun. (11 RT 2133.) 3. The Murder Weapon On December 17, 1991, Arturo Burciaga,S the owner of B & E Guns, purchased two DavisP-32 handguns and one high power nine millimeter handgun from a wholesaler named Bumblebee. One of the Davis handguns had the serial number of P144343. On a subsequent occasion, Burciaga sold the handgun with serial number P144343 to Greg Wells. Although Burciaga did not record the sale to Wells, he identified Wells as the person to whom he sold the gun. (12 RT 2247-2250, 2253; 15 RT 2665; People's Exhibit 43.) Sometime before January 28, 1992, Burciaga reported the handgun as stolen. (12 RT 2253-2258.) In Decemberof 1991, appellant spoke to Gregory Wells6 about buying a gun. Gregory's sister Adrienne Wells was appellant's girlfriend at the time. Appellant told Gregory that he wanted a "strap," meaning a gun, "to enforce protection," meaning for his personal protection. Gregory agreed to try and help appellant buy a gun. Gregory bought a handgun at Burciaga's store for appellant sometime immediately before Christmas. After Gregory obtained the handgun and brought it home, he called appellant to come and see it. He gave appellant the handgun, but appellant never paid Gregory for it. Gregory identified the handgun with serial number P144343 as the gun that he bought 5 At the time of his testimony, Burciaga was serving three years summary probation after pleading guilty to a misdemeanor charge of possession of a concealed weapon. He received immunity from federal prosecution and from prosecution by the Ventura County District Attorney's Office for his testimony in appellant's case. (12 RT 2242-2243.) 6 At the time of his testimony in appellant's case, Gregory was serving three years summary probation for a misdemeanor conviction of possession of a loaded gun. He pleaded guilty to the misdemeanor and did not receive any consideration or help from the District Attorney's Office. (15 RT 2663.) 10 from Burciaga's store and as the one that he gave to appellant. (13 RT 2438; 15 RT 2660-2662, 2666-2672, 2786-2789.) A week or more after giving appellant the handgun, Gregory called appellant about payment. Three days later, appellant came to see Adrienne and brought back the gun to Gregory. The handgun was in a sock. Gregory looked at the gun and saw "stuff' on it. He put the gun back in the sock, gave it back to appellant, and said, "I don't even want it." Appellant suggested that the gun be sold. (15 RT 2672-2673.) Gregory and appellant drove to an Exxon gasoline station on West Pleasant Valley Road in Oxnard, California. En route, appellant was trying to clean the gun. Gregory asked him what the "stuff' was that was on the gun. Appellant replied, "What do you think it is?" Appellant also said, "Don't worry about it. It was blood." Gregory saw blood inside the barrel of the gun. Gregory asked appellant how the blood came to be on the gun and if it had anything to do with the murder reported in the newspaper. Appellant said, "Have you heard about any other murder?" When they arrived at the gas station, Alfred Ordaz came out to talk to appellant. Ordaz knew appellant. They spoke and then Ordaz went inside the gas station. Ordaz then returned to appellant's car. Appellant gave Ordaz the gun and Ordaz gave appellant money. Ordaz asked appellant if the gun was "dirty" or "stolen." Appellant did not say anything in response. Ordaz said that during the transaction, appellant said that he needed money. (14 RT 2590,2596; 15 RT 2674- 2676,2679-2680.) Ordaz identified the handgun with serial number Pl44343 as looking like the gun that he bought from appellant. (14 RT 2590, 2596.) In February of 1992, Alex Polo was employed at an Exxon gasoline station on Pleasant Valley Road. During that month, Polo bought a handgun from Alfred Ordaz, a former employee of the gas station. Polo brought the handgun to his home on South F Street. Shortly thereafter, Polo separated from his wife and moved out of the residence. When he returned for his belongings, the handgun was missing. Polo's ex-wife had a nephew named Hugo Hernandez, and Hernandez had access to the F Street residence. Hernandez did not have permission to take Polo's gun. Polo identified the handgun with 11 serial number P144343 as the one that he bought from Ordaz. (13 RT 2309-2314; 14 RT 2596.) On May 26, 1992, Officer Stephen Lawrence of the Oxnard Police Department was called to a crime scene regarding a robbery that occurred at the 400 block of Birch Street in Oxnard. The suspect, later identified as Hugo Hernandez, was in custody when Officer Lawrence arrived at the crime scene. Hernandez suspect was believed to have been armed and was chased by officers to a backyard at that address. Office Lawrence assisted in searching for Hernandez's handgun. He found a .32 caliber semi-automatic handgun lying in the dirt at the crime scene. The serial number on the handgun was P144343. (12 RT 2259-2266; 13 RT 2303-2308.) 4. Appellant's Admission Of Guilt In the beginning of 1992, appellant's girlfriend Adrienne spoke with appellant by telephone about a woman who had been killed. (15 RT 2789, 2800-2801.) During the conversation, appellant acted "weird." Appellant was crying as he spoke. Adrienne asked him why he was acting that way. Appellant said that he had killed a lady and not to worry about it. Adrienne insisted that appellant tell her what had happened. (15 RT 2790,2804-2805,2807,2819-2820.) She asked appellant why he killed the woman. Appellant said that he killed the woman because Jackson had raped her.7 Jackson said, "See, you said my name. Now you have - now you have to kill her."g (15 RT 2791, 2811-2813.) 5. Search Of Appellant's Residence On February 7, 1992, Deputy Barnes searched appellant's residence in Oxnard on Halsey Way. The parties stipulated that the search was lawful. During the search, 7 On cross-examination, Adrienne admitted having told an investigator DeFazio that she did not remember whether appellant used the word "rape" when she spoke with him on the telephone. (15 RT 2808.) gOn cross-examination, Adrienne admitted having originally told police officers that she learned about the murder from reading about it in the newspaper and that Lydia Sattiewhite told her something about it as well. (15 RT 2793-2794.) 12 Deputy Barnes took possession of a pair of size 10, Nike shoes that belonged to appellant. (15 RT 2697-2700.) Shoes belonging to Rollins and Jackson were subsequently recovered in other searches. Their shoes were found to be size 7. (15 RT 2710-2712.) 6. Appellant's Statements To The Police Detective Gatling and Deputy Barnes interviewed appellant at the Ventura County Sheriff's Department on July 20, 1993. The interview was tape recorded and a transcript was made of the interview.9 Appellant waived his Miranda rights and agreed to speak with the officers. The interview lasted an hour. For approximately fifteen to twenty minutes of the interview, Deputy Barnes was not in the room, but Gatling remained. During the first forty-five minutes of the interview, appellant denied knowing Genoveva and denied having any knowledge of Genoveva's murder. Later in the interview, appellant admitted that he first met her somewhere near a Buddy Burgers Restaurant and near 5th Street while he and Jackson were driving around. Rollins was not with them when he met Genoveva. He did not know if Jackson knew Genoveva. Appellant and Jackson had been drinking. They had been drinking "everything" and were "[p]robably a little buzzed" although appellant was "not sure." (16 RT 2833-2836,2843-2849,2857.) On cross-examination, Gatling admitted having interviewed Jackson and that Jackson said that he and Genoveva had consensual sex. (16 RT 2871-2872.) 7. The Autopsy And Subsequent Medical Evaluation Dr. Lovell conducted the autopsy on Genoveva's body on January 26, at 3:15 p.m. There were only two entrance gunshot wounds and no exit wounds on Genoveva's body. One of the entrance wounds was in her forehead and the other was in her left cheek. Dr. Lovell opined that the gunshot wounds were contact wounds because there was no 9 The tape recording was played for thejury. The transcript of the tape recording was marked as People's Exhibit 72. The tape was marked as People's Exhibit 73. Defense counsel stipulated to the authentication of the tape and had no objection to admission of the transcript and the tape into evidence. (16 RT 2836-2837.) 13 stippling or tattooing of gunpowder around the wound. There were stellate areas, star shaped tears which are caused by the pressure of the bullet and gasses going under the skin, bursting the skin outwards. There also was searing, heat effect on the bone where the bullet went into her skull. Dr. Lovell opined that the gun used to inflict the wounds was held to her head with moderate to heavy pressure. (12 RT 2164-2176.) Three bullets were recovered from Genoveva's body during the autopsy. (12 RT 2165,2168; 2198.) The bullets were given to Deputy Herb Parish of the Ventura County Sheriff's Department. (12 RT 2168-2169,2197.) Each of the bullets could have individually been a cause of Genoveva's death. The cause of death was a gunshot wound to the head and neck. (12 RT 2169.) Genoveva also suffered a blow to the right side of her head which could have rendered her unconscious. Dr. Lovell opined that Genoveva was unconscious when she was killed. (12 RT 2169-2171,2176.) During the autopsy, Genoveva's blood was tested and found to have a blood alcohol content of .19 percent. Her urine was tested and found to have .21 percent blood alcohol content. Her gastric contents were tested and found to have .21 percent blood alcohol content. There were no significant drugs found other than alcohol. (12 RT 2176-2177, 2180,2193.) There were scratches on Genoveva's abdomen and back. There was bruising around the posterior entrance to Genoveva's vagina. (12 RT 2165,2178.) Dr. Lovell was unable to opine whether the bruising was caused by consensual or non-consensual sexual activity. (12 RT 2180.) Dr. Lovell opined that Genoveva was not sexually assaulted at the crime scene. (12 RT 2183.) Vaginal swabs were taken. (12 RT 2182.) The samples were given to Deputy Parish. (12 RT 2182-2183,2198.) The parties stipulated that blood samples were taken from appellant, Bobby Rollins, and Fred Jackson and tested, and sperm samples were taken from the vagina and rectal areas of Genoveva's body and tested. The parties also stipulated that as a result of the testing', appellant and Rollins were excluded as donors of 14 the sperm samples, but that Fred Jackson was a possible donor of the sperm sample. (12 RT 2202-2205.) In January 1994, Dr. Bruce Woodling was asked by the Ventura County District Attorney's Office to evaluate the autopsy conducted by Dr. Lovell. Dr. Woodling reviewed the dictated autopsy notes of Dr. Lovell, the crime scene summary, verbal information from prosecutors Patricia Murphy and Don Glynn, and several photographs of Genoveva. (15 RT 2719-2729.) Dr. Woodling observed that Genoveva had a blunt force injury to her left eyelid. She had scratches from her belly button to her rib cage. The scratches were consistent with injuries that would be received during a struggle when the person is not clothed in those areas. She had injuries to her genital area that were consistent with forced penetration as seen in a sexual assault as well as a struggle over forced penile penetration into the vagina. The injuries would have been very painful. The injuries are not consistent with consensual sexual situations: (15 RT 2729-2730,2734,2738-2751.) 8. Ballistics And Other Physical Evidence Vincent Vitale, a criminalist with the Ventura County Sheriff's Department Crime Lab, tested the bullets recovered from Genoveva's body and the handgun recovered by Officer Lawrence. He opined that the bullets were all fired from the handgun. The casings recovered from the scene of the murder were consistent with those that would be fired from the handgun. (12 RT 2267-2268, 2281-2284.) Mr. Vitale also tested the foot impression molds taken from the scene of the murder and found them to be of a size 10 shoe. (12 RT 2284-2297.) The parties stipulated that Rollins was five feet five inches tall and weighs 127 pounds. Appellant is five feet ten inches tall and weighs 160 pounds. Jackson is five feet seven inches tall and weighs 155 pounds. Genoveva was four feet ten inches tall and weighed 120 pounds. (16 RT 2889-2890.) 15 B. Defense Case 1. Defense Evidence Regarding Genoveva's Background Appellant's trial attorney conceded during his opening statement that appellant shot and killed Genoveva. (11 RT 2065.) The defense strategy was to attack Genoveva's character and make it appear that she either was a prostitute or a drug user. On January 30, 1990, Sergeant Timothy Combs of the Oxnard Police Department served a search warrant at 527 Meta Street in Oxnard, in Ventura County. During the search of the residence, he seized 1.6 grams of heroin and slightly less than a gram of cocaine. Sergeant Combs also found scales, a measuring spoon, lactose, and balloons that were similar to the packaging that the heroin was found in. The lactose is a cutting agent to add to the drugs. Sergeant Combs arrested Genoveva at the residence at the time of the search. (16 RT 2891-2897.) Jessica Velasquez, an acquaintance of Lydia Sattiewhite, remembered that on three prior occasions in early or mid-1991, she saw Genoveva on Oxnard Boulevard. Each time she saw Genoveva, it was between 8:00 and 10:00 p.m. On these occasions, Genoveva wore hardly any clothes. Although Genoveva was dressed "skimpy," she wore shoes. Genoveva would approach cars and men and leave the area with different men. She also would get in the cars that she approached. Genoveva would be sweating even though she was outside in cold weather and wearing little clothing. Her eyes always were dilated. Velasquez was of the opinion that Genoveva was either a prostitute or cocaine user or both. (16 RT 2918.) On cross-examination, however, Velasquez admitted that in April of 1992, she told Deputy Barnes that she did not remember having seen Genoveva before. Velasquez explained that she lied to Barnes because she did not want to get further involved in the case. (16 RT 2920-2921.) 16 Frank RichardsonlO is an acquaintance of appellant, Jackson, and Rollins. (16 RT 2921-2922.) He had met Genoveva numerous times at the Cuesta Del Mar apartments when he visited appellant and Rollins in their apartment at the complex. Richardson would sell drugs at the apartment complex. He had seen Genoveva in Rollins's apartment, but he never saw Genoveva with appellant. On a few occasions, Richardson saw Genoveva and Rollins engage in a hand-to-hand transaction where Genoveva would buy a small amount of a white substance.. (16 RT 2923-2925, 2927-2930.) On one occasion when Rollins was with Genoveva, Rollins told Richardson that "one of these days [Rollins was] going to have sex with [Genoveva] because she is not going to have any money." (16 RT 2933-2934.) In October of 1992, Richardson told Deputy Barnes that Genoveva would "ride the rodeo." This meant that she would go to an area on Oxnard Boulevard where there were drug sales and where people would exchange sexual acts for drugs. Appellant and Rollins "ran" the "rodeo." (16 RT 2942-2945.) Michael Black11 was an acquaintance of Rollins. He had seen Genoveva in the vicinity of the Cuesta Del Mar apartments, but he did not know her name. He also knew Rollins. On one occasion in early January of 1991, he saw Genoveva in Rollins's apartment while appellant and Jackson were waiting outside the apartment. On that occasion, Genoveva was being beaten up by another female. In November of 1992, Black falsely told Deputy Barnes that he did not know Genoveva and he never mentioned the attack that occurred in January of 1991.12 (16 RT 2935-2937, 2939, 2942.) 10 Richardson was convicted of felony burglary on December 12, 1991. (16 RT 2931.) He also had been twice convicted of armed robbery. (16 RT 2945-2946.) 11 At the time of his testimony, Black was in custody for a robbery conviction. (16 RT 2936.) 12 Deputy Barnes testified that during the interview, he showed Black a photograph of Genoveva. Black said that he recognized Genoveva, he had seen her in the area of Cuesta Del Mar, and that Genoveva "rides the rodeo." Black also told Deputy Barnes that Genoveva bought drugs in the area of Cuesta Del Mar. (17 RT 3115-3116.) 17 On cross-examination, Black admitted telling Investigator DeFazio that he did not see Genoveva buy drugs while at Rollins's apartment, but that he knew that Rollins and. appellant sold drugs from their apartment. (16 RT 2940-2941.) 2. Defense Evidence Regarding The Events Following The Murder In the early morning of January 26, 1992, Lydia Sattiewhite went with appellant, Rollins, and Jackson to a Denny's Restaurant. They drove in Anna Lanier's Cadillac. When Rollins, appellant, and Jackson picked Lydia up, Rollins was shaking his head. When Lydia asked Rollins why he was shaking his head, Rollins answered, "We just did something." He did not explain further. They stayed at the Denny's Restaurant approximately thirty to forty-five minutes, which was long enough to eat. Appellant was quiet at the restaurant. Lydia described appellant, Jackson, and Rollins as being "all just mellowed out." Afterwards, they dropped Jackson off at his residence on Hemlock and then went back to Lydia's home. (16 RT 2950-2954,2960.) Upon arriving at Lydia's home, Rollins told Lydia that they picked up a girl and that Jackson had intercourse with her. Lydia denied that Rollins used the word "rape" when referring to Jackson having intercourse with Genoveva. Rollins said that Jackson was "fucking a bride." Rollins also said that Genoveva appeared to have been drinking and that she was "going along" with the sex. She would push Jackson away, and then would return to having sex with Jackson. They took Genoveva to Arnold Road. Jackson told appellant to "smoke her" because appellant never participated in their criminal activities. Rollins told appellant that if he did not "smoke" Genoveva, Rollins "was going to smoke her and him." Rollins told her that appellant shot Genoveva. Lydia did not believe Rollins at first. Lydia opined that appellant was afraid of Rollins. (16 RT 2955-2959.) Deputy Barnes interviewed Rollins on January 6, 1993. Rollins said during the interview that Jackson had a .45 caliber automatic handgun in his back pocket on the night of the murder. At the Denny's Restaurant, appellant appeared upset and said that he felt bad. Rollins had consumed alcohol on the night of the murder and was not sure 18 that he was in his right mind that night. Barnes did not recall Rollins saying during the interview that appellant was wearing gloves when he walked out of the ditch after having shot Genoveva. Rollins did not say during the interview that appellant said he had always wanted to shoot somebody. (17 RT 3103-3108.) Several months after the murder, Lydia spoke with a District Attorney's Office Investigator, Beth Hamilton. Hamilton told Lydia some of the details of what Rollins had told the police about the murder. Lydia was angry because she knew that Rollins was lying about the circumstances of the murder. Lydia then told Hamilton what she knew about the case to prove that Rollins was lying. (16 RT 2966-2969.) Lydia told Hamilton that Jackson was acting nervous at the Denny's Restaurant following the murder. She denied telling Hamilton that Rollins used the word "rape" when referring to Jackson having intercourse with Genoveva. Rollins had told Lydia that appellant shot Genoveva, and Lydia believed him. Lydia was afraid to come forward about the crime because Rollins was gang affiliated and he would have someone from his gang do something to her. She decided to testify only after the beginning of the trial, after speaking with her brother-in-law who had been sitting in the courtroom for the whole trial. 13 (16 RT 2970-2972.) 3. Medical Opinion Evidence Dr. Werner Spitz, a medical doctor and pathologist, was retained by the defense to review the autopsy report, photographs, and other documents related to the investigation. He also received'and reviewed a copy of Dr. Woodling's testimony. He disagreed with Dr. Woodling's conclusions and instead opined that the injuries in Genoveva's vaginal area could have been from vigorous consensuaL sex. (17 RT 3005-3032.) On cross- 13 Deputy Barnes interviewed Lydia on October 19, 1993. Barnes knew that Rollins was Lydia's boyfriend at the time of the murder. Appellant was a suspect in the murder at the time he interviewed Lydia. Lydia repeatedly told Deputy Barnes that she did not have any information about the murders. Deputy Barnes told Lydia that he knew that appellant murdered Genoveva and he wanted to know why. She denied that she was trying to protect Rollins or appellant. (17 RT 3112-3115.) 19 examination, Dr. Spitz admitted that he had never examined live rape victims. He also agreed that the injuries were also consistent with those that occur in a rape. (17 RT 3032- 3039.) C. People's Rebuttal Case Oxnard Police Sergeant Combs reviewed the Oxnard Police Department's computer database regarding police contact with members of the public and crime suspects. The department's records in the database go back as far as 1981. Sergeant Combs found only a single listing of police contact involving Genoveva. The listing was for Genoveva's arrest by Combs on January 30, 1990, for possession of controlled substances for sale. After Genoveva's conviction for that offense, she registered as required under California Health and Safety Code section 11590. There were no other narcotics violations for Genoveva. There were no listings for arrests for being under the influence of a narcotic substance or for prostitution. (16 RT 2893-2897; 17 RT 3142-3145.) On July 20, 1993, Ventura County Deputy District Attorney William Karr interviewed appellant. Investigator Joe Cipollini was present during the interview. The interview was tape recorded. At the time of the interview, appellant was under arrest for the homicide of Genoveva. During the interview, appellant told Karr said that he was not afraid of Jackson or Rollins. (17 RT 3149-3152.) Beth Hamilton, an investigator for the Ventura County District Attorney's Office, unsuccessfully attempted to interview Lydia Sattiewhite on March 1, 1993. Hamilton tried repeatedly during the latter part of the summer of 1993 to interview Lydia, but also was unsuccessful. (17 RT 3155-3157.) Hamilton finally interviewed Lydia on November 3, 1993. (17 RT 3155-3157.) By the time of the interview, Hamilton had received information from Deputy Barnes about his own interview with Lydia. Hamilton interviewed Lydia at her residence on Halsey Way in Oxnard. Nobody else was present for the interview other than some small children in the house. She did not tape record the interview. She believed that because of the difficulty in getting the opportunity to actually interview Lydia, that Lydia would refuse to be interviewed had she put a tape recorder on the table. For the same 20 reasons, she did not attempt to surreptitiously record the interview. Lydia was very hesitant to speak with Hamilton, but she had information about the night of Genoveva' s murder. Lydia said that she had not given the information to anyone else. (17 RT 3157- 3158.) Lydia believed that Rollins had lied to the police about his involvement in Genoveva's murder, and Lydia wanted to "set the record straight." (17 RT 3158-3159.) Rollins was acting strange when he came to pick her up at Jessica Velasquez's home . following the murder. (17 RT 3159.) Lydia and Rollins stood on the sidewalk at Velasquez's home while appellant and Jackson stood by the Anna Lanier's Cadillac. Lydia asked Rollins what was wrong. (17 RT 3159-3160.) Rollins said, "We just did something." Rollins did not give any additional information. (17 RT 3158-3160.) Appellant, Rollins, Jackson, and Lydia then went to the Denny's Restaurant. Appellant was quiet at the restaurant and Jackson was nervous: After eating, Rollins and Lydia went back to her home and appellant went back to his own home. Later that. evening, Rollins told Lydia that they had picked up Genoveva near the clubs on Seventh Street. Jackson raped her and she ended up dead. Lydia asked how Genoveva died. Rollins said that appellant shot her. Lydia did not believe Rollins and asked him to show her where the shooting occurred. Rollins volunteered to take Lydia to Arnold Road where he believed that Genoveva's body still was. At that point, Lydia believed Rollins and did not want to go to the location. (17 RT 3160-3162.) Lydia used the word "rape" when she described what Jackson did to Genoveva. In her notes, Hamilton put the word "raped" in quotation marks and confirmed with Lydia that that was the word she used. Hamilton also told Lydia that "raped" would be used in her report if correct. Rollins said that the rape occurred in the apartments behind the SavOn. Lydia never stated during the interview that Rollins said he made appellant shoot Genoveva. (17 RT 3162-3163.) The day after the interview, Lydia contacted Hamilton saying that it was urgent. Lydia called from Velasquez's home. After speaking with Velasquez, Lydia recalled several additional details about the night of the murder that she thought Hamilton should 21 know. None of the details involved whether Rollins used the word "rape" when describing what Jackson had done to Genoveva. After repeated attempts, Hamilton finally met Lydia again on November 30, 1993 to go over the report. Hamilton met Lydia at Lydia's home and tape recorded the interview. (17 RT 3163-3165.) Lydia told Hamilton that she would not testify in the case and did not want to have anything to do with the case. Lydia read Hamilton's report about the interview and made several changes. She said that she mistakenly used the word "rape" in speaking with Hamilton about Jackson's conduct. Lydia could not remember whether Rollins used the word "rape." Lydia said that Rollins may have said that "Fred fucked her" or some term other than rape. Lydia also told Hamilton that the word Rollins actually used was "fucked." (17 RT 3166,3170.) Hamilton said that Lydia used the word "rape" in their first interview. Hamilton no longer had written notes of the interview with Lydia. Pursuant to district attorney's procedure, the notes regarding the first meeting were destroyed after the official report was prepared. The tape recordings were not destroyed. (17 RT 3167-3168:) The defense did not present a surrebuttal case. The prosecution and the defense both rested. (17 RT 3171,3174.) II. PENALTY PHASE A. Prosecution Case-In-Chief 1. Prior Rape and Robbery Committed By Petitioner, Rollins, And Jackson On September 14, 1991, at approximately 9:15 p.m., Myra and Jaime M. went to a beach near Mandalay Beach Road in Oxnard, California. Myra was 18 years old and Jaime was 19 years old at the time. When they arrived at the beach they were alone. Fifteen to twenty minutes after they arrived, they heard voices and were approached by three Black men. One of the men approached them from the front and the other two men approached them from the back. Myra could not see their faces because she was not wearing her glasses. (20 RT 3623-3028, 3659-3666.) 22 One of the men asked Jaime where his "homey" was. Jaime did not know what the man was referring to. Jaime pointed in a direction and responded, "Well, he went that way." Jaime believed that the man was asking about a "skinhead" he had seen to the" south of their location on the beach. (20 RT 3665-3666.) The men asked Myra and Jaime for money and their wallets. Myra and Jaime told the men that they did not have their wallets. The men then asked for their jewelry. Jaime took off his jewelry. As she was trying to take off her jewelry, Myra saw one of the men had a gun. She eventually needed Jaime's help to remove her jewelry because she was shaking from nervousness. The man with the gun continued saying that he was going to "blow them away." Jaime handed the jewelry to one of the men. Next, the men told Myra and Jaime to lie down. The man with the gun was about an arm's distance from Myra. After Myra took off her jewelry, the man with the gun kept saying that he was going to blow them away. The men took three rings and a necklace from Myra and two gold chains-from Jaime. (20 RT 3629-3632,3667-3671.) The men again asked for their wallets and whether they had a car. (20 RT 3630, 3666-3667.) Jaime answered, "I don't, I don't have one on me." The men saw their car keys in the sand. One of the unarmed men asked, "Well, where's your car at?" Jaime answered, "It's out there. It is a little brown one." One of the unarmed men went to the car. He returned a few minutes later. The other two men did not say anything to Jaime and Myra while the third was gone. (20 RT 3666-3668.) Myra was lying on her back and Jaime was lying face down, with half of his body covering Myra's. Jaime was hugging Myra. The man with the gun pressed the gun to Myra's head. Jaime told the man to point the gun at him rather than at Myra. Myra was scared at this time. Jaime gave the men the keys to their car. One of the unarmed men left the group to go to the car. The other men stayed with Myra and Jaime. (20 RT 3632- 3633.) The men who stayed with Myra and Jaime asked where they were from and what gang they claimed to be in. Jaime said that they were not in gangs and that they were just students. Jaime said that they were from Oxnard High School. The men asked whether 23 Myra and Jaime knew about the Crips. Myra and Jaime said that they did not. (20 RT 3634, 3672.) One of the men said, "We're Crips. We're from LA. All fucking Mexicans, fucking with the Crips." (20 RT 3674.) The man with the gun again threatened to blow them away. The men also said that they should have blown them away a long time ago. (20 RT 3634.) Eventually the third man returned. Jaime had told the men that there was a stereo in the car and that they could take whatever they wanted. The men who stayed with Myra and Jaime asked the third man whether he had gotten the stereo out of the car. The third man asked what brand of stereo was in the car. Jaime told him the brand name. The third man was ordered back to the car to get the stereo. Myra and Jaime were lying on the sand all the while this took place. (20 RT 3635-3636, 3676.) When the third man returned again, the third man said "let's go" or "let's jam." (20 RT 3636.) One of the other two men said, "No. I feel like fucking this bitch." (20 RT 3636, 3676.) One of the other men said, "Well, just do her." (20 RT 3677.) Two of the men moved in front of Myra's feet. The man with the gun pulled Jaime off of Myra. The men covered Myra's and Jaime's faces with a blanket. Myra was able to see one of the men before her face was covered. One of the men noticed that Myra could see so they arranged the blanket so she could not see them. Myra was lying on her back and Jaime was lying face down in the sand. (20 RT 3637-3638, 3676-3678.) Myra told Jaime, "Don't do nothing." (20 RT 3678.) She began praying. (20 RT 3678.) Myra tried to look at the man with the gun. The man with the gun pointed the gun at her and said, "Don't look at me, bitch." (20 RT 3678.) Jaime then asked, "Why don't you point the gun at me?" (20 RT 3678.) The man with the gun struck Jaime with the gun or his fist on the back of Jaime's neck. Jaime was afraid that he and Myra would be shot. (20 RT 3679-3680.) One of the men was Myra to remove her shorts and underwear. They caressed her legs. (20 RT 3638, 3680.) One of the men said, "Open up your legs, bitch." (20 RT 3680.) Myra was praying in Spanish. She had her hand on Jaime's arm. They were inches from each other and Jaime was lying alongside of her. One of the men caressed 24 Myra's vagina and inserted a finger. He took out his finger and then tried to insert his penis. The man lifted Myra's legs and inserted his penis into her vagina. Myra was too afraid to struggle with the man because she believed that one of the men was armed. Jaime could feel the movement of a man who was touching Myra going up and down in the sand. The movement was going on for a couple of seconds. (20 RT 3639,3680- 3681.) The man who had been on Myra said "ah" and then leaned over her. He whispered to Myra, "You are a sweet bitch." (20 RT 3639-3640.) Myra felt wetness. The man then closed Myra's legs. One of the other men then pulled her legs apart. (20 RT 3640, 3682.) He said, "You are not done." (20 RT 3640.) He inserted his penis into her vagina. Eventually, he pulled his penis out. Myra felt wetness after the second man finished. (20 RT 3640-3641.) While the rape occurred, Myra held onto Jaime who was by her side. She said a prayer to God asking that she live. Jaime told her, "Shhh, be quiet, they are going to hear us." (20 RT 3641.) After the second rape occurred, one of the men told Jaime and Myra to get up and run and not look back. Their car keys were thrown onto the sand near Jaime. Myra and Jaime got up and ran. Myra did not stop to take her glasses. Myra had only her T-shirt on. (20 RT 3641-3642,3682-3683.) As Myra ran to the car, she thought that the men would not let them live. She thought that the men were going to shoot them from behind. Myra had difficulty running and tripped twice on the way to the car. Jaime helped her up when she tripped. They eventually made it to the car. Myra got into the driver's seat of the car. They were not able to drive away from the beach because Myra could not see very well without her glasses. (20 RT 3642, 3683.) They drove down an alley and then stopped to trade positions in the car. Jaime then drove to the residence of a friend, Diego Pena, approximately ten to fifteen minutes away. (20 RT 3643, 3683.) When they arrived at the Pena residence, Myra stayed in the car. Jaime went into the home and told Diego 'to get his gun. Jaime was hysterical. Diego's sister Angelina 25 went to see Myra in the car. Eventually, Myra went inside the house with Angelina. (20 RT 3643, 3683-3684, 3690-3692.) Jaime and Diego returned to the car and left for the beach where the rapes occurred. (20 RT 3644, 3684.) Angelina gave Myra underwear and pants to wear. Jaime called shortly thereafter and said that he had called the police. Myra then went back to the beach where they met . with police officers. They told the police about the rapes. Myra then went to the hospital with one of the police officers. She was examined at the hospital. (20 RT 3644-3645, 3696.) When asked what effect the rapes had on her, Myra said as follows: Well, urn, like now I feel like, urn, I feel scared. Like I don't feel confident. Like if I go outside, 'specially at night, you know, like I feel like someone's just watching me. Or like if someone's kind of going to come off from behind and attack me. Or, like, urn, I have a little girl and I seems - - I want to take her to the park and so she could enjoy herself. It's like I have tried to do it, and I, I can't even stay there that long. I stay there like 3, 10, 15 minutes because I'm afraid because it's only her and me. So it's like I get scared. (20 RT 3653.) When asked if the crime has had any effect on her relationship with Jaime, Myra said as follows: Yes, it has. First like, urn like before this ever happened, urn, we were always like, you know, like we would like understand each other better. We would, urn, we weren't argue as much, and it's like now we're arguing or like, urn, we're - - I don't know. It is just - - it is hard to communicate between us now. (20 RT 3653.) Before the rapes, Myra and Jaime went to the beach often. Since the rapes, they did not go to the beach anymore. (20 RT 3653.) On November 12, 1992, appellant pleaded guilty to one count of second degree robbery of Myra and admitted using a firearm in the commission of the crime. He pleaded guilty to second degree robbery of Jaime and admitted using a firearm in the commission of the crime. He pleaded guilty to rape by means of a foreign object in concert and forcible rape in concert as to Myra. He also admitted using a firearm in the 26 commission of the two rape counts. On March 8, 1993, Fred Jackson entered essentially the same pleas as appellant. (20 RT 3708-3712.) The parties stipulated that Myra was examined on September 15, 1991, at 1:45 a.m.. DNA testing was done on vaginal samples and blood samples taken from Myra, and blood samples taken from Rollins, Jackson, Jaime, and appellant. The testing eliminated appellant and Jaime as donors of the vaginal samples. The vaginal samples were tested and found to have RFLP banding patterns that were similar to those found in the blood samples taken from Jackson and Rollins. (20 RT 3714-3719.) 2. Correspondence Between Appellant and Rollins Sometime in December of 1993, Sergeant Barnes came into possession of letters written between appellant and Rollins while they were in jail. Appellant wrote to Rollins as follows: I got no love for you. If I don't get the DP, I am taking you out. Nigga you don't scare me. Bitch ass nigga. If you would of kept your mouth shut a nigga wouldn't have spoke on your name. But since you chose to turn snitch it's on cuz! It's on you mark. The word is out on you nigga. P.S. The OGe4] in the pin gave me the ok to take you out. Your all mines. (20 RT 3735-3736.) Rollins's letter back to appellant had the following passage, but the passage was crossed out with an X: 15 Say Nigga! I hear you speaking on a nigga's name. Nigga fuck ya now. Your punk ass should've kept your mouth shut. Then you wouldn't have nothing to swiz' it but since you chose to talk shit, 14 The parties stipulated that Ventura County Sheriff's Deputy Gordon Beckwith could offer opinion testimony as an expert on criminal street gangs. Deputy Beckwith opined that "OG" in gang jargon meant "original gangster," which also means a person who was originally a member of the gang or a person who is a veteran of the gang. It also could mean someone who is in charge of the gang or high in the gang's hierarchy. (20 RT 3740-3742.) 15 Sergeant Barnes opined that the passage was written by Rollins, but appellant had been the one who crossed out this passage. (20 RT 3739.) 27 it's on cuz! Nigga all love lost. Too bad you had to go out like this. P.S. Continue to talk yo bitch talk nigga! [Cj[] Thee Original Perm - - Perm Doggy-Dogg I-II. (20 RT 3736-3737.) The following passage was written after the above-mentioned, crossed-out passage: You got 2 strikes. Number one, you're a snitch, number two rapist. [<]I] Niggas don't like you kind in the pin. Your no good. [Cj[] Snitch, snitch. [<]I] Niggas already ran Fred off the yard. (20 RT 3737.) Sergeant Barnes opined that appellant added the following comments on the letter written by Rollins: "Mad ass insane gang XXI" and "Sir Enemy Killa!!" There is an X written through the word "Enemy." (20 RT 3739.) 3. The Effect Genoveva's Murder Had On Her Children At the time of the murder, Genoveva's daughter Vanessa was a first grade student at Rose Avenue Elementary School in Oxnard, California. (20 RT 3742-3744.) Vanessa's teacher, Dr. Joan Calkins, noticed that prior to the murder, Vanessa was "a shy child, but not painfully so." (20 RT 3742-3743, 3745.) Vanessa did her homework every night and was always nicely dressed, clean, neat. After the murder, Vanessa was "quite shy" and would stay next to Dr. Calkins all of the time, even during playground duty. She would not interact as much with other children. Vanessa showed signs of stress. 16 (20 RT 3746-3747.) At the time of the murder, Genoveva's son Salvador also was a student at Rose Avenue Elementary School. He attended a fourth/fifth grade class taught by Alicia Hernandez. Ms. Hernandez described Salvador as a "very good student," "bright," and "very outgoing" before Genoveva's murder. He was a leader and popular with the other 16 The defense introduced into evidence one of Vanessa's report cards which showed that she received "satisfactory" as a grade for all of her subjects both before the murder and after the murder. (20 RT 3747-3751.) The report card also showed that after the murder, Dr. Calkin included a written comment that Vanessa was "very shy," "a good student," and "has good study habits." (20 RT 3751-3752.) 28 children. She was going to recommend him for the Gifted Students Program. He wanted to be a doctor, and Ms. Hernandez believed he had the potential to achieve that goal. (20 RT 3752-3754.) Ms. Hernandez had also seen Genoveva interact with Salvador. Genoveva was very proud of her son, and they were affectionate toward each other. Genoveva had also volunteered to help with class activities. (20 RT 3755-3756.) On the Monday after his mother's murder, Ms. Hernandez saw Salvador at school. When Ms. Hernandez expressed her sympathy to Salvador about his mother, Salvador answered that he did not know what Ms. Hernandez was talking about, and that his mother was in Mexico. After the murder, Salvador's attendance was very sporadic. As the school year progressed, Ms. Hernandez believed that she could no longer refer Salvador to the Gifted Students Program because she did not believe that he could keep up with the program or even be present for the exam. After the murder, Salvador became very interested in police work. Salvador did not speak about his mother's murder. (20 RT 3756-3761.) Salvador testified at the penalty phase of appellant's trial. He was 12 years old when he testified. After the murder, he lived with his aunt in Fillmore, California. Salvador's sisters also live there. Salvador remembered living in Oxnard with his mother. His family life there was fun. He would help his mother pack lunches. Genoveva worked during the day. She was home when Salvador and his sisters returned from school. Genoveva would go to the school sometimes for meetings. She would make the children do their homework. Genoveva would come to watch Salvador play baseball. (20 RT 3772-3776.) Genoveva made sure that they had a place to live and food to eat and clothes to wear. (20 RT 3778.) Salvador was sad when he found out his mother died. He went to Mexico for a time, but when he returned to California he wanted to know as much as he could about what happened. He would read about the crime in the newspaper, but at some point he stopped because it bothered him. Salvador and his sisters did not have as much fun as they had before their mother was killed. (20 RT 3776-3778.) 29 Salvador and his sisters would go to visit Genoveva's grave. They brought flowers and talked to her about what was happening in their lives. After Genoveva was killed, Salvador began being afraid of somebody breaking into their house and getting him and his siblings. These thoughts sometimes would wake him in the middle of the night. He would sometimes feel like he had to take care of his siblings since Genoveva was no longer there. (20 RT 3779-3781.) Genoveva's mother,Maria Cabrera, testified that Genoveva worked four days a week as a seamstress. She would leave her home at 6:30 a.m., get to work by 7:30 a.m., and return home at 6:00 p.m. Genoveva would prepare breakfast for her children before leaving for work and would prepare dinner after returning home from work. She would make birthday cakes for her children on their birthdays. She sewed clothes for her children. (20 RT 3789.) After Genoveva's murder, her children did not want their mother mentioned at all, and they would not talk about their mother. (20 RT 3781-3790.) B. Defense Case 1. Evidence Of Appellant's Personal History Several of appellant's family members and friends of appellant's family testified about appellant's childhood and personal history. Appellant was born on August 31, 1969. (22 RT 4328.) Appellant's father is J.D. Sattiewhite and his mother is Margaret Sattiewhite. (22 RT 4318-4319.) In August of 1969, when Margaret was eight months pregnant with appellant, she was involved in two car accidents. (21 RT 3804; 22 RT 4328.) In both accidents, her car was hit from behind and Margaret was thrown into the dashboard. She received medical treatment, but she experienced bleeding from that time until appellant's birth. Margaret complained of rib pain and a headache after the accident and she was concerned that she would lose the baby. She also experienced severe pain following the second accident. (21 RT 3804- 3806; 22 RT 4329-4330, 4352-5354.) J.D. was very proud when appellant was born. (21 RT 3806; 22 RT 4330.) He had always wanted a son. (22 RT 4321.) He brought appellant to the church where he was a 30 minister and showed off appellant to everyone, and would hold him after services concluded. (21 RT 3807, 3880-3881.) As a baby, appellant developed at a slow rate. (21 RT 3808, 3913; 22 RT 4198, 4332.) he did not sit up and roll over until he was approximately a year old. He did not walk until he was 2 years old because he had structural problems with his feet. (21 RT 3829; 22 RT 4332.) Appellant had to have his legs broken and reset in a cast. He also needed support bars in his shoes. (21 RT 3913.) Appellant would talk, but it was difficult to understand what he said. (22 RT 4332- 4333.) Margaret insisted that they seek special help for appellant, but J.D. refused. (22 RT 4333.) J.D. would hit appellant when appellant put his shoes on the wrong feet. (22 RT 4335.) Appellant sucked his middle finger and his ring finger until he was approximately thirteen years old. J.D. was cruel when he saw appellant suck his fingers. He would slap appellant's hand out of his mouth or put hot sauce on his hand. (22 RT4334-4335.) Appellant also was a bed wetter until he was 13 or 14 years old. (21 RT 3829, 3864.) He stuttered and attended special education classes in elementary school. (21 RT 3839.) Although appellant was very obedient and polite, he was mentally slow and had learning disabilities. (21 RT 3810,3939-3941, 3944-3946,3883-3884,4060,4089.) J.D. was a strict disciplinarian and he had difficulty accepting that appellant was a slow learner in school. (21 RT 3806-3807, 3809,3832, 3889,4058; 22 RT 4104,4199.) When appellant wet the bed, his father would rip the sheets off the bed and throw them at appellant. He then would beat appellant with a long, leather belt. (21 RT 3864, 3956- 3957.) He would belittle appellant or beat him for matters beyond appellant's control such as his inability to tie his shoes. He would beat appellant with his fists, belts, sticks, hard switches, and cable cords. 17 (21 RT 3914,3956-3960; see 21 RT 3812-3813, 3833.) 17 Sheila Lewis, one of appellant's sisters, said that all of appellant's siblings got beatings, but that their self esteem "was never low" as a result of the beatings. (21 RT 3856, 3864.) 31 On one occasion,· appellant's father picked up appellant and threw him into a wall and into a coffee table. J.D. did not seek medical attention for appellant after this incident. (21 RT 3833,3915.) Appellant's father would beat appellant for having poor grades in school. (21 RT 3873-3874.) During church services, J.D. would come down from the church pulpit to hit appellant for not sitting still during the sermon. I8 (21 RT 3811; 22 RT 4336-4337; see 21 RT 3910-3912.) J.D. would beat appellant if he did not say prayers correctly. J.D. also stopped allowing appellant to say prayers before the congregation during church services. (22 RT 4341.) Appellant tried to constantly please J.D., but never could. J.D. never showed any affection to appellant. Appellant was frightened of J.D. (21 RT 3810,3830,3836,3857- 3859,3861,3864-3865,3882-3883,3913-3915,3945-3948,3957-3958,4054; 22RT 4096-4100,4103,4114,4199,4340-4341.) Although appellant was frightened of J.D., appellant defended his sister Dora from a physical attack by J.D. This incident occurred immediately after appellant graduated high school. Margaret telephoned the police about the altercation. J.D. convinced the police to escort appellant away from their home. (22 RT 4342-4343.) One activity that J.D. would have appellant join him in was watching pornographic and violent movies. (21 RT 3865.) Appellant began watching movies with J.D. when appellant was in tenth grade, but Margaret did not know what the movies were about. J.D. and appellant would watch these movies in the family room. The routine was that everyone else in the family was told to go to their own bedrooms. J.D. and appellant would remain in the family room and watch the movies. They watched movies every 18 Robert Shorts, one of the elders at J.D.' s church, attended every church service. He did not recall an instance where J.D. came down from the pulpit to hit appellant· during services. (21 RT 3880-3881, 3883, 3887.) Robert's wife, Carol Shorts, saw J.D. come down from the pulpit to spank appellant's younger brother Dwight for misbehaving in church. (21RT 3944,3947.) She never saw J.D. hit appellant during church services. (21 RT 3953-3954.) 32 day. While the movies played, Margaret would hear J.D. yelling, pounding on the walls, and yelling at appellant. (22 RT 4337-4339.) Appellant attended Channel Islands High School. He was a good student who tried hard to succeed. He was a "follower," but not violent or aggressive toward other students. He attended special education classes and had a second or third grade ability in reading and math. (21 RT 3902-3905,3921-3932; 22 RT 4339.) J.D. did not approve of appellant being enrolled in special education classes. (22 RT 4339.) Appellant successfully tried out for the school's football team. (21 RT 3907.) He also wrote songs while he was in high school. (21 RT 4068,4077-4079,4082.) Appellant's sister Regina would help him with his school work. She also would defend him at school if others had tried to pick on him. (21 RT 3916.) Appellant would participate as much as possible in church services. He participated in a youth program for disadvantaged children and a program to help feed the homeless. (21 RT 38330-3831.) When appellant was 16 years old, he worked for three months at a fish market that was owned and operated by Steve Otani. Appellant was assigned to help the cook in the restaurant. Appellant had a good attitude, was prompt, and was willing to work. He would do what he was told to do. He worked hard, but was a little "slower" than some of the other workers at the restaurant. Appellant left the job because he planned to join the armed services. Sometime later, appellant asked Otani if he could come back to work because he was unsuccessful in his attempt to join the armed services. (21 RT 3892- 3900J In September of 1989, appellant worked for the City of Oxnard Parks and Facilities Department. While he worked for the department, he was positive and nice. There were instances where he was late to work. He also had one confrontation with a supervisor. He stopped working for the department in December of 1989. (21 RT 3933-3938.) Appellant attempted to join the armed services, but was unable to pass the competency tests for math and English. (21 RT 3813-3814,3866,4070.) He also 33 attempted to enroll in a music school in Los Angeles, but he could not pass the entrance examination. (21 RT 3861-3862.) J.D. left the family and ended his marriage to Margaret while she was in the hospital giving birth to appellant's youngest sister. (21 RT 3834,3916.) J.D. stopped communicating with the family and did not leave a forwarding address. Appellant was very angry with J.D. for leaving the family. Appellant stopped going to church. He was no longer caring or fun. He began drinking. Appellant was violent when he drank. (21 RT 3817-3822, 3834-3835, 3867-3868, 3878, 3917, 3945-3946.) After J.D. left the family, appellant also began hanging around Bobby Rollins and Fred Jackson. They were the only friends appellant ever had. Appellant began selling drugs to raise money for the family. (21 RT 3836-3837, 3868, 3876-3879, 3959; 22 RT 4348-4350.) Despite J.D. being a strict disciplinarian, appellant began associating with gang members for over a year before J.D. left the family. (21 RT 3827.) Appellant had a Long Beach Insane Crips tattoo on his ¥m. (21 RT 3853.) 2. Psychological Evaluations Of Appellant Several psychological examinations of appellant were conducted. The experts who conducted these examinations testified as to appellant's psychological condition. a. Dr. Francis Crinella Dr. Francis Crinella is a clinical psychologist and professor of pediatric psychiatry and physical medicine and rehabilitation at the University of California, Irvine. (21 RT 3955-3966.) In providing an assessment of appellant's psychological condition, Dr. Crinella reviewed the grand jury transcript from appellant's instant case, a probation report, various interviews of witnesses, family members, and former teachers, and transcripts of appellant's school grades. Appellant was interviewed for approximately one hour. Dr. Crinella had appellant take a battery of neuro-psychological tests which 34 Dr. Crinella scored and interpreted. Dr. Crinella spent approximately fifteen hours performing the entire examination of appellant. 19 (21 RT 3968, 4006.) Some of the information Dr. Crinella was told about appellant included that Margaret had been in two car accidents while pregnant with appellant and shortly before he was born. Appellant attended special education classes in school, and had speech therapy through the eighth grade. Appellant's physical development, including the condition of his legs and feet which required surgery to correct, indicated that he suffered from brain damage at birth. He also has had lifelong learning disabilities and continues to function somewhere between the third and fourth grade in math and spelling. (21 RT 3968-3969, 3977-3979.) The interview of appellant was conducted by Dr. Fischer, an associate of Dr. Crinella. Dr. Crinella was not present for that interview. Dr. Crinella reviewed Dr. Fischer's notes in forming his opinions. Appellant told Dr. Fischer that he did not do his class work in school, but instead wrote rap songs. He had been suspended for fighting three or four times. He did not take the regular written driver's license test, but he took the test with a special education teacher who brought in a tape recording of the questions. He did not remember being beaten as a child, and he did not believe that his father ever used a fist on his children. He described his home life as pretty good and average. Appellant said that he had been convicted of possession of cocaine and that when he was confronted by the police, he mistakenly showed the officers where his drugs were. He started associating with gang members when he was out of school. He started using marijuana at age sixteen when his father was still at home. He also tried PCP and had used LSD since the age of eighteen. He talked about his education and said that he attended a business management program at Ventura College. He dropped out of the program before finishing and went to work at J. C. Penney. He had many jobs and could 19 Dr. Crinella did not obtain medical records to corroborate the car accident that occurred prior to appellant's birth, or regarding the condition of appellant's legs and feet as an infant. (21 RT 4007-4008.) 35 not remember them all. He never was fired, but he quit. After he quit, he just was "hanging out." (21 RT 4010-4015.) Of his friendship with Rollins and Jackson, appellant said that neither of them was really the leader of the group. Appellant had tattoos on his arm and said that he tried to have them removed. One tattoo said "Baby Perm" and the other said "Long Beach" and "CRIPS." (21 RT 4015-4017.) Appellant also gave Dr. Fischer an account of the current crime that was consistent with the evidence presented during the grand jury proceedings. At no time during the interview with Dr. Fischer did appellant say that anyone else made him do the shooting. At no time did he tell Dr. Fischer that it was not his choice to do the killing. (21 RT 4017.) During appellant's interview, appellant showed an inability to relate himself to the circumstances that he was in. He knew of events that had occurred in the past, but they were historically jumbled up. Appellant had difficulty contemplating future events other than that he wanted to avoid his current criminal problems. (21 RT 3969-3970.) On the Wechsler Assault Intelligence Scale, appellant scored a verbal IQ of 75, a performance IQ of 76, and full scale IQ of 74. Dr. Crinella opined that these results showed that appellant was borderline mentally retarded. (21 RT 3974.) On the Wide Range Achievement Test, appellant scored in the Sixth Grade Level for reading, fourth grade level for spelling, and third grade level for arithmetic. (21 RT 3975-3976.) On the Luria-Nebraska neuro-psychological battery, appellant had seven of the eleven clinical scales which were associated with brain damage.2o (21 RT 3976-3977.) 20 In November 1993, defense counsel had sent Dr. Crinella authorization to have an MRI and an EEG performed on appellant at UCLA Hospital. Such tests can detect whether there is a lesion or injury to the brain. Dr. Crinella did not have appellant undergo either of those tests. A CAT scan was subsequently performed on appellant, but it showed no abnormalities in appellant's brain. Dr. Crinella said that the lack of abnormalities on the CAT scan image did not change his tentative decision that appellant received brain damage as a result of prenatal trauma. He opined that a person with (continued ... ) 36 On the Bender Visual Motor Gestalt Test, appellant made eight errors. A twelve year old child typically makes no errors on this test. Appellant's errors were consistent with individuals who have neuro-development delay related to brain damage. Dr. Crinella opined that based on the results of the Bender Test, appellant's neuro- developmental age is seven years old. He also opined that the test results show that appellant does not see relationships very well, although he would know the difference between right and wrong. For example, appellant would know that it is·wrong to throw a rock through a window, but he would not necessarily understand that the owner of the broken window would have to spend money to buy another window. Dr. Crinella also opined that appellant lacks an internalized sense of morality. Rather, it is externalized, meaning his moral judgment is shaped by external forces. (21 RT 3979-3984.) On the Minnesota Muliphasic Personality Inventory (MMPI), appellant had to have the questions read to him rather than read the questions himself. The questions are written for a person with the ability to read at a sixth grade level. Dr. Crinella opined that appellant's depression score was average, which is inconsistent with people in jail awaiting punishment for a crime. He expected appellant to have some elevated depression. He had rarely seen a depression score as low as that of appellant for a person awaiting sentencing on murder charges, unless the person was out of touch with reality. Dr. Crinella believes that appellant lacks the ability to see in the future, to visualize himself either being executed or incarcerated. (21 RT 3985-3987.) Appellant was given "ink blot" tests. People with learning disabilities are given these tests to see whether they are able to organize the ink blot into a percept that other people see and whether the subject can use his imagination or fantasy to see a theme in the ink blot. Ten ink blots are shown. They are standardized and have been in use since 1921. Appellant only saw figures in eight of the ink blots. On the remaining two, ( ... continued) appellant's intellectual deficiencies could have suffered brain damage. (21 RT 4039- 4042,4046-4048.) 37 appellant could not see anything, which Dr. Crinella opined was unusual, and in the retarded range. For the eight ink blots in which he saw a figure, he saw what most people have identified seeing such as an elephant where most people see an elephant and a butterfly where most people see a butterfly. He only saw people on two of the cards. Normally, people are seen in at least five or six of the cards. (21 RT 3987-3988.) Dr. Crinella opined that the results show appellant has "very limited imagination, limited intellectual resources, limited ability to imagine what is going to happen in the future to imagine himself in a historical context or other people in a historical context.,,21 (21 RT 3989.) Appellant also was given the Phimotic apperception test. The subject is asked to tell a story about the people in the pictures. Appellant was shown fifteen pictures and asked to tell a story about each card - who the people are, what they are doing, how they are feeling, and what is going to happen. Typically, on each card, the subject can relate a paragraph or more. Appellant's responses showed no historical context for the people in the pictures. Appellant's responses were "extremely concrete" such as "That's a man. That's a woman." He appeared unable to imagine what they were doing. Dr. Crinella opined that appellant could see what was depicted, but he could not use his imagination to create something beyond the stimulus card. Dr. Crinella opined that the results of this 21 Dr. Crinella believed that if appellant had threatened to kill a person who had testified against him in the trial, it would show an ability to imagine what is going to happen in the future. (21 RT 4034.) Dr. Crinella also believed that an individual who uses a firearm to kill someone, and disposes of the firearm after the murder, shows a degree of knowledge of the future and the possible consequences of having a firearm in his possession. When the person wipes blood off the firearm and disposes of it, it shows the person has a degree of thinking that there is some consequence to his actions. When the person disposes of shoes that had made a distinctive shoeprint in the mud before officers can find the shoes, it shows a degree of thinking and reacting to possible future consequences. (21 RT 4037.) 38 test also provided further confirmation that appellant has brain damage.22 (21 RT 3989- 3990.) Despite believing that appellant was borderline mentally retarded, Dr. Crinella believed that appellant would know the difference between right and wrong. If appellant were to put a gun to someone's head, he would know that he would be causing the victim to b~ in fear. He also would know that if he were to put the gun to someone' s head and pull the trigger three times, that he knew that he would kill the person. He understood generally that if he killed the person that the person would no longer be alive. However, he had limitations in appreciating that death was a forever thing. (21 RT 4031-4034.) b. Dr. Ines Monguio Dr. Ines Monguio provided expert opinion testimony regarding neuro-deficits or psychological deficits pertaining to appellant. (22 RT 4125-4129.) Dr. Monguio gave appellant a ninety minute neuro-psychological interview. Dr. Monguio also interviewed appellant's mother for two hours to get additional data. Dr. Monguio alsovisited appellant twice while he was injai1.23 (22 RT 4130.) The tests she gave appellant were designed only to ascertain whether appellant had a brain impairment. (22 RT 4189.) 22 Dr. Crinella stated in his letter to defense counsel that he believed appellant to be borderline mentally retarded due to chronic brain syndrome. Dr. Crinella believed that appellant did not have good adaptive behavior. He was not able to do very well in employment and turned to criminal activity early on in life. Dr. Crinella did not believe that he simply quit his various jobs. Rather, he believed that appellant was fired from his jobs due to incompetence. Dr. Crinella formed this opinion despite having read the statements of Otani and Carbajal from Otani's Market who indicated that appellant was perfectly capable of keeping his job, but that appellant quit because he was trying to do something else. (21 RT 4005, 4026-4028; People's Exhibit 13-P.) Dr. Crinella acknowledged that the term "chronic brain syndrome," which he used in describing appellant, was not found in the DSMIII Manual. (21 RT 4039.) 23 Dr. Monguio testified that her opinions regarding appellant's psychological condition were based solely on the results of the tests she conducted. The information she received from appellant's mother was to corroborate what had been observed clinically. (22 RT 4171-4172.) 39 During these meetings with appellant, Dr. Monguio observed that appellant's speech ability was "okay." When encouraged to use more than one sentence or verb in his responses, appellant would "very quickly get lost." Appellant could not put together more than four or five words in a sentence that would make sense before his speech would break down. His responses were simplistic, and he favored mono-syllabic words with very few modifiers. Appellant had difficulty understanding more than one sentence at a time. Dr. Monguio had to repeat questions being asked of appellant. Appellant was cooperative and not aggressive during the interviews. (22 RT 4131-4134.) Dr. Monguio asked appellant why he committed the rape-murder. Appellant answered that he was angry and he "didn't know." (22 RT 4176.) Dr. Monguio gave appellant the Luria-Nebraska neuropsychology battery, which assesses very basic functions such as movement and complex functions such as . . intellectual processes or intelligence. The test is designed to measure the extent and site of communicative and behavioral deficits that may have resulted from injury to the brain tissue's ideology or origin. The patient sits across from the administrator when the test is given. The first part of the test consists of identifying the subject's motor scale. Appellant scored at a "critical" level, which suggested that he had impaired motor performance. The results showed that appellant had a chronic condition in his brain that made it difficult for him to understand and structure information that was coming into his ears and from the environment around him, so he could use the information on his own. Dr. Monguio opined that appellant would act either impulsively or passively depending on the stimulation in the environment around him. Appellant's ability to think abstractly was very impaired. Dr. Monguio opined that appellant would have difficulty taking a particular lesson and generalizing it to apply to other situations. (22 RT 4145-4134- 4146.) Dr. Monguio administered the Rey Complex figure test. The test involves copying a figure. The results of appellant's copying led Dr. Monguio to opine that appellant had either "severe" or "moderately severe" impaired attention. Appellant was unable to 40 organize complex information as a whole. Instead, he would have to break down the complex information into little pieces he can process. (22 RT 4148-4153.) Dr. Monguio administered the California Category Learning Test. The test is designed to measure the ability of a person to learn a list of semantically-related words and semantically-unrelated words. In Dr. Monguio's opinion, appellant's responses showed he had definite impairment in verbal learning. (22 RT 4153-4155.) Dr. Monguio administered the Tri-Grams Repetition test. The test measures the subject's ability for simple language processing. Dr. Monguio opined that appellant's results showed that he had a chronic condition in his brain that results in a variety of intellectual cognitive impairments ranging from moderate to moderate-severe. (22 RT 4156-4159.) Dr. Monguio administered the Pace Auditory Sequential Addition Task test. She opined that the results showed that appellant had moderately severe to severe deficits in sustained attention and complex attention. (22 RT 4159-4161.) In Dr. Monguio's opinion, appellant was not faking his responses on the tests. There were moments where it was clear that appellant lacked the ability to complete the task for the particular test. Dr. Monguio opined that the results of the tests showed that appellant had "basic sensory processes impairment, in paraorganization of information, in paraplanning, in paramonitoring and in paraself-correction but no craziness. He is not crazy. This is brain injur[y].,,24 (22 RT 4161-4163.) Dr. Monguio also opined that an unimpaired brain has the malleability or plasticity to overcome abuse such as that inflicted by appellant's father. A normal brain has the capacity to form relationships outside the abusive environment and create defense mechanisms. An impaired brain, such as appellant's, does not have that ability. Dr. Monguio's opinion, based on the information she had available to her, was that appellant 24 Dr. Monguio was aware of other testing, such as a CAT scan and an EED, performed by Dr. Benson on appellant, and was not surprised that the tests did not reveal any brain damage. (22 RT 4163-4164.) 41 has a "globally impaired brain." The impairments that appellant had ranged from mild to moderately severe. She opined that the source of the impairment was traumatic head injury that was consistent with the automobile accident described that appellant's mother had while pregnant with appellant.25 The abandonment by appellant's father resulted in appellant having "disinhibition of impulses," meaning that after appellant's father left the family, there was no longer structure or guidelines for appellant. 26 The only environment where appellant could function or perform at all was one that was completely unambiguous, and where the environment was highly structured. (22 RT 4165-4171, 4188.) On cross-examination, Dr. Monguio testified that appellant told her that he had been associating with gang members before his father abandoned the family, and that he "[s]omehow" was able to keep his problems "at bay" so he would not get in trouble with his father. Once his father abandoned the family, there were no more restraints against associating with socially inappropriate people. Appellant was able to keep these associations secret from his mother. Appellant also told Dr. Monguio that although he had been consuming alcohol since he was seventeen or eightee,n years old, he kept his alcohol consumption secret from his mother. (22 RT 4175-4176.) Dr. Monguio had opined that appellant was able to determine the rightfulness or wrongfulness of his actions on a very basic level. (22 RT 4176-4177.) She opined that when appellant shot the victim three times in the head that he understood it to be wrong, but she was not sure that he understood why it was wrong or what was wrong about it. She did not believe that appellant would think that his conduct was morally wrong. (22 RT 4183-4184.) 25 Dr. Monguio never received any medical records regarding appellant or his mother t6 confirm that the automobile accident occurred. (22 RT 4172.) 26 Dr. Monguio's only source of information about appellant's father's abuse was from appellant's mother. When she asked appellant what kind of father J. D. was, appellant said that he was a good father. Appellant also said that his father was strict and that "sometimes I deserved it if I got in trouble." Dr. Monguio never asked appellant if his father beat him. (22 RT 4173-4174.) 42 Dr. Monguio also opined that it was unlikely appellant could plan and execute a complex act, or an act that required more than one step. She said that driving a car was not a "good example" of a complex act because "when we first begin to drive a car, it is a complex act", but "[a]fter a while, it's a very automatic task. There is a subprogram at the cerebella level where you don't even have to think in order to drive." (22 RT 4176- 4177.) Dr. Monguio would consider using a particular weapon to commit a crime and then selling the weapon to get rid of it as a complex act, depending "on how difficult it was." Dr. Monguio did not believe that everyone who was abused by their father was going to become a violent individual. She opined that it was "SO/SO'"whether a person with both the impairment appellant had, and having had an abusive father, would turn out to be a violent person. (22 RT 4178-4180.) She opined that appellant's psycho-social development "seems to have been appropriate" within his family. Once appellant's father abandoned the family, appellant's personality did not "change," but his "situation and the circumstances change[d] and therefore his patterns of adjustment change[d]." (22 RT 4181-4182.) c. Dr. Patrick Barker Dr. Patrick Barker performed a mental status evaluation of 'appellant on behalf of the defense. (22 RT 4209-4212.) Part of the evaluation involved interviewing appellant. Dr. Barker found appellant to be cooperative, friendly, and oriented as to person, place, time, and situation. Appellant knew who Dr. Barker was and the purpose for the interview. Appellant's speech was quite limited, and he did not demonstrate an extensive vocabulary. Appellant described moderately grandiose fantasies and spoke in exaggerated ways about his ability or potential. Appellant also showed persistent aggressive and homicidal impulses. Appellant described his own mood as being sometimes fearful, anxious, depressed, and short-tempered. During the interview, Dr. Barker did not observe appellant showing feelings of depression or anxiety. (22 RT 4213~4214.) 43 During the interview, Dr. Barker spoke to appellant about his upbringing. Dr. Barker also spoke to appellant's mother and one of appellant's sisters about his upbringing. (22 RT 4214-4215.) Appellant told Dr. Barker that J.D. had left the family approximately four or five years earlier, and that he did not know why he had left. Appellant was angry with J.D. for leaving the family. He said that he did not remember much about his upbringing, but he did not do much together with J.D. He did not believe that he was physically, emotionally, or sexually abused as a child. He did not use of drugs or alcohol until after high school. Appellant said that J.D. would have kicked him out of the house had he done so. (22 RT 4215-4217.) Appellant's mother and sister told Dr. Barker that appellant had been badly abused by J.D. from early on in appellant's life.27 Onereason J.D. hated appellant was for having limited intellectual abilities and physical developmental problems. He also hated that appellant had to wear braces and corrective shoes for a number ofyears. He hated that appellant wet the bed until he was ten to twelve years old. He also hated the fact that appellant performed poorly both in school and at church functions. J.D. had appellant watch violent and X-rated videos with him in the family's home. (22 RT 4217-4220.) J.D. abused appellant more than his siblings. While appellant's siblings could console each other regarding their father's abuse, appellant did not have anyone to turn to. Appellant's siblings also would turn on appellant and make him the scapegoat as a way to vent their own frustrations and anger about what was happening to them. (22 RT 4233-4234.) At a subsequent interview with appellant, Dr. Barker asked appellant whether the report from his mother and sister was true. Appellant confirmed that his mother and sister were being truthful. It made him uncomfortable to speak of J.D. in this way. Appellant said that he watched violent videos and X-rated videos with J.D. Appellant 27 Before J.D. left "the family, appellant's mother had obtained a restraining order against J.D. and executed a declaration recounting acts of physical abuse that appellant's father committed against her and their children. (22 RT 4222-4223.) 44 said that he remembered seeing movies where people were being killed and cut Up.28 He was angry with J.D. for acting in a way that was contrary to the what he had been preaching all of their lives. (22 RT 4218-4220,4224,4234.) Dr. Barker opined that it was possible for appellant to obtain moral guidance from persons other than his father. (22 RT 4258-4259.) When J.D. left the family, appellant had freedom to do things, such as buy weapons, that he was not allowed to do before.29 He also was angry with his father for acting in a way that was contrary to the what he had been preaching all of their lives. Dr. Barker opined that J.D. leaving the family would have confused appellant because of his limited intelligence, and because of J.D.'s inconsistent behavior. (22 RT 4224-4225.) Appellant told Dr. Barker that he joined the Southside Gang a few months after graduating high school in 1987, which was before J.D. left the family in early 1989. At a later date, appellant became affiliated with a Long Beach gang through his friendship with Bobby Rollins. Appellant would sell drugs to people and then rob them of the drugs that they had just bought. He then would turn around and sell the drugs to another customer. (22 RT 4248-4249.) Dr. Barker described this gang involvement and criminal activity as a complex act and one that would take a certain amount of planning. Appellant had engaged in this 28 Dr. Barker opined that appellant did not have the intellectual ability to evaluate the appropriateness of the videos he watched with J.D. Because appellant both respected and feared J.D., he would be confused about the content of the movies. Watching the movies with his father gave him a sense of power. Appellant identified with the people who were doing the killing or cutting. That made him have feelings of strength and power. He indulged in these kinds of fantasies. They became part of his daydream life. (22 RT 4234-4235.) 29 Appellant had told Dr. Barker that he began consuming alcohol sometime after he graduated high school. He also began to use drugs sometime after graduating high school. Dr. Barker understood appellant's statements to mean that while he may have engaged in some of this conduct after high school, he did not do very much of it until J.D. had left the family. Dr. Barker did not believe that appellant's mother knew he was engaging in such activity. Appellant's concealment of these activities shows his awareness that the activity was improper. (22 RT 4257-4258.) 45 activity on his own rather than as a result of manipulation. His participation also showed a certain amount of conscious choice on his part. Appellant told Dr. Barker that he liked being in a gang because he felt that he belonged. It gave him feelings of power and it provided him ways of making money. Appellant enjoyed telling Dr. Barker about his criminal activity. Appellant had considerable amounts of money, $600, $900 a day. Appellant spoke with pride at the money he had. (22 RT 4248-4250, 4260-4261.) Appellant described two favorite fantasies to Dr. Barker. One was that he would develop his own type of Mafia organization and engage in all kinds of criminal activities such as selling drugs and weapons, engaging in extortion, and attacking police officers. What appealed to appellant more than the terrorizing of the police or making money, was that people would look up to him. Appellant said that he "would be the boss" and that he would "hav[e] power" and be "[i]ncontrol." (22 RT 4241-4242,4245-4246.) The other fantasy was "Getting away with something like stabbing somebody or bashing something over the head just to see if I could get away with it, like on Unsolved Mysteries." Appellant had thought a lot about this fantasy and showed pleasure in discussing it. Dr. Barker believed the fantasies were influenced by watching the videos with his father. The "seeds of these fantasies" were planted by watching the videos. Dr. Barker believed that appellant must have felt a tremendous lack of power and respect while growing up. The fantasies were a way for appellant to feel better about himself. His low intelligence kept him from engaging in critical thought about the fantasies, to consider that these were thoughts that he should not be having. His lack of self monitoring made it difficult for him to evaluate his own thinking. (22 RT 4241-4242.) Dr. Barker had two conversations with appellant about the current murder. In the first conversation, appellant said that the crime "just happened." Dr. Barker was unable to determine whether appellant was unable to discuss the crime or was refusing to discuss the crime. (22 RT 4251.) In the second conversation, appellant said that he shot the victim because Jackson had told him to. Someone inside the car with Jackson and the victim had said Jackson's name. Because the victim knew Jackson's name, Jackson became scared because he had 46 other criminal charges pending. Jackson told appellant to shoot the victim, and appellant complied. Appellant did not say that he was forced to kill the victim. (22 RT 4252- 4253.) Appellant told Dr. Barker that he did not rape the woman because "[t]hat's not my style" and "1 don't do that to women." Dr. Barker did not believe that appellant would rape someone, even though he is easily manipulated, and even if someone he looked up to had raped a woman. However, by stating that rape is not his "style," appellant also was demonstrating his conscious decision not to do a particular act.30 (22 RT 4253,4255- 4256.) Dr. Barker believed that appellant got the moral values regarding rape because he had six or seven sisters and had feelings about women based on that experience. He also was able to glean moral values from his sisters. It was possible that committing the current murder was appellant living out one of the fantasies that he had described to Dr. Barker. (22 RT 4277-4278.) Dr. Barker also opined that appellant knew when he shot the victim that the shooting would kill her and that doing so was wrong. Dr. Barker did not know whether appellant knew that the victim would be dead for all time because he did not ask appellant about his feelings or understandings about death. (22 RT 4263.) Dr. Barker had not been informed that the police interviewed appellant after the murder occurred. Dr. Barker opined that if appellant had denied involvement, it would have indicated an awareness of the wrongfulness of his actions. Disposing of the murder weapon and his shoes also would be consistent with an awareness of the wrongfulness of the act. (22 RT 4281.) Making a statement after the murder saying that he always 30 Dr. Barker had been informed that appellant, Jackson, and Rollins confronted a young couple on Oxnard Beach, and that Jackson and Rollins raped the young girl. Dr. Barker opined that appellant's lack of participation in the rape could show a conscious decision to not engage in that type of conduct. Appellant understood that participating in the robbery of the young couple at the beach was wrong. Participating in the rape/robbery at the beach also could have been a manifestation of one of his fantasies. (22 RT 4256,4263,4278.) 47 wanted to do something like that would be consistent with his homicidal fantasies. (22 RT 4282.) Dr. Barker administered the WRAT Test, which is a test of reading ability. Appellant's reading ability was borderline sixth grade. (22 RT 4225-4226.) Dr. Barker administered the Wechsler Adult Intelligence Scale. The test measures different cognitive and intellectual functions. Appellant's full scale IQ was 73. The score qualified as borderline mental retardation. An IQ scale of 70 is the first cutoff for mental retardation. 31 Dr. Barker opined that appellant's score indicated that his knowledge of general information, vocabulary, comprehension, abstract reasoning ability were all significantly lower than would be average for a person his age. Because of the score, Dr. Barker was concerned that appellant had brain damage.32 (22 RT 4226-4227.) Dr. Barker also opined that appellant could easily be manipulated by someone who could perceive appellant's low intelligence and need for self esteem resulting from being a victim of abuse?3 (22 RT 4243-4244.) Dr. Barker administered the Luria-Nebraska Neuropsychological Screening Test. The test helps to indicate if the subject should be referred for a full evaluation of whether he or she has brain damage. Appellant's score on the Luria-Nebraska test indicated clearly that appellant should be referred for a full evaluation ofpossible brain damage. (22 RT 4227.) Dr. Barker administered the Minnesota Multiphasic Personality Inventory (hereinafter "MMPI") and the Millon Clinical Multiaxial Inventory (hereinafter 31 Dr. Barker explained that appellant's IQ fit within the category of borderline intellectual functioning in the DSM-III. (22 RT 4279.) 32 Dr. Barker offered examples of appellant's limited intelligence. Appellant was asked, "Where does the sun set?" Appellant replied, "I don't know." Appellant was asked, "How many weeks in the year?" Appellant replied, "84." (22 RT 4238-4239.) 33 Dr. Barker opined that if appellant were at a store and someone he respected told him to take some beer, appellant would do so. Dr. Barker opined that appellant would not go in and take the beer if a police car were parked in front of the store. His decision to not take the beer under these circumstances would be the result of a conscious decision. (22 RT 4262-4263.) 48 "MCMI"). These tests measure intellectual.and psychological functioning. (22 RT 4227.) Dr. Barker found that appellant's score on the MMPI was "elevated," which showed that appellant answered the test questions distin.ctly differently from how normal people would answer the questions. Dr. Barker believed that the elevated score could have been due to appellant's low intelligence, appellant's attempt to fake his answers to demonstrate that he was mentally ill, or appellant not giving any thought to answering the questions seriously. (22 RT 4227-4229.) Appellant's score on the MMPI also was consistent with appellant believing he was in a stereotypical masculine role. The score on this scale was so high that it could show that he wanted to portray himself as very masculine and in a very stereotypical way. Dr. Barker opined that appellant had enough ability to understand these questions. (22 RT 4229.) Dr. Barker opined that appellant's overall MMPI scores indicated that he was very angry, anti-social, suspicious, periodically delusional, anxious, agitated, confused, and alienated. The overall scores showed that appellant had poor judgment and very poor impulse control. (22 RT 4229-4230.) Like appellant's responses to the MMPI, his responses to the MCMI questions also could show that he was faking his answers to magnify his mental illness. Dr. Barker opined that appellant's responses indicated a tendency to complain and be self pitying. Appellant's responses also showed that he had tremendous lack of trust, a paranoid orientation towards life, lack of identity, strong anti-social tendencies, strong aggressive tendencies, and an inability to relate to other people in normal ways. (22 RT 4230-4231.) Dr. Barker opined that all of the tests showed that appellant's intellectual functioning was borderline mentally retarded, and that he had a mixed personality disorder, and strong elements of anti-social and schizotypal traits. The doctor also had no doubt that appellant had some brain damage. (22 RT 4213-4214,4231,4236-4238, 4282.) 49 d. Dr. David Benson Dr. David Benson and the members of his clinic at UCLA performed a full mental status evaluation and a neuropsychiatric evaluation of appellant on behalf of the defense. The evaluation took place at UCLA on the afternoon of December 9, 1993. Records concerning appellant were reviewed34 and appellant was interviewed by one of the individuals in training in Dr. Benson's clinic. Then, the various assessments were performed. Afterward, the entire body of information obtained about appellant was reviewed by a group of members of the clinic. Dr. Benson personally interviewed appellant before the group of clinic members. Lastly, the group of clinic members evaluated appellant's case. (22 RT 4283-4288.) Dr. Benson observed that appellant was "slow, very definitely cooperative and was very pleasant." There was "no agitation" and "no signs of depression" during the interview. Appellant denied being depressed, but he "sometimes felt angry" at members of his gang. Appellant's sleep, flex drive, and appetite were all within normal limits. He was not concerned about his future. Dr. Benson and the group of clinic members opined that appellant had "impairment in insight and judgment." (22 RT 4288-4289, 4292- 4294.) Appellant was given the Folstein Mini Mental State Exam. This examination is usually administered to older individuals with dementia rather than persons such as appellant. The examination measures the subject's attention level and memory recall ability. Appellant scored slightly below normal (23 where 24 is a normal score). Appellant was unable to perform many of the test items regarding his memory and recall. Although appellant had a limited vocabulary and had difficulty expressing himself, Dr. 34 Dr. Benson did not receive any police records or other documentation about the car accidents involving appellant's mother while she was pregnant with appellant. Also, no medical records for appellant's mother were provided. (22 RT 4305-4306.) Dr. Benson reviewed Dr. Monguio's report, which described one car accident as a minor motor vehicle accident. (22 RT 4306-4307.) 50 Benson opined that the exam results showed that he did not have a significant language disorder. (22 RT 4290-4291.) A neurological assessment was also done which examined the individual cranial nerves in appellant's head as well as appellant's gait, stance, coordination, motor strength, motor development, reflexes, and sensation. Dr. Benson opined that appellant had a "mild abnormality" which was a "little droop on the left side of his face." Dr. Benson further opined that the abnormality showed a weakness of brain level in the nerves for the left side of appellant's face. The group believed that their findings, as well as appellant's school history and physical development, showed that appellant was "brain abnormal." The car accident that his mother was in while pregnant with him could possibly have led to the brain abnormality. (22 RT 4294-4297.) Appellant was given a CAT Scan. The results of the scan were considered normal. Dr. Benson, however, opined that the normal results did not eliminate the possibility that appellant had brain damage. There are abnormalities that the CAT Scan does not detect. 35 (22 RT 4297-4298.) Dr. Benson opined that appellant was suffering from significant brain damage. (22 RT 4299-4300,4316-4317.) Dr. Benson further opined that appellant did not have the ability to think abstractly as a normal person does. He had difficulty processing complex information due to the brain damage. Appellant could perform simple tasks, but the more complex the task, the more difficulty appellant would have in performing the task. Appellant would have 35 Appellant's defense attorney, Willard Wiksell, had asked Dr. Benson to perform an EEG or an MRI on appellant. Dr. Benson testified that an MRI is a more accurate test of brain damage than the CAT Scan. Dr. Benson decided to not administer the MRI due to its cost, which is three or four times the cost of the CAT Scan. The EEG is best utilized when attempting to detect seizure disorder. Because there was no evidence of such disease in appellant's history, the EEG was not given. The CAT Scan was believed the to be the most appropriate test because they were looking for "evidence of just general or diffuse abnormality." (22 RT 4301-4302.) Dr. Benson knew of appellant's medical history, including the history about one car accident involving appellant's mother, before he decided to only perform the CAT Scan. (22 RT 4303-4304.) 51 difficulty discerning right from wrong on a considerably less complex level. (22 RT 4298-4300.) C. Prosecution Rebuttal Dr. Ronald Markman testified for the prosecution on rebuttal as an expert regarding the psychiatric issues in the case. (23 RT 4418-4422, 4425-4426.) Dr. Markman reviewed the "murder book" that was prepared by the prosecution. The "murder book" included police reports, reports from independent third parties, a probation report, reports regarding interrogation of people associated with the case or people associated with appellant personally. The "murder book" included the expert's report regarding appellant's competence to stand trial. There also were reports of direct interrogation of appellant. (23 RT 4426.) Later, Dr. Markman received reports from Drs. Crinella, Monguio, Benson, and Barker. (23 RT 4426-4427.) On March 11, 1994, Dr. Markman attempted to interview appellant pursuant to a court order. The prosecutor and appellant's trial attorney were presented when he attempted to interview appellant. Dr. Markman introduced himself, explained who had hired him to conduct the interview, and explained the purpose of the interview. He explained to appellant that he was there to perform a psychiatric evaluation which would assess his condition in relationship to the charges. He would provide a report which could help him or could hurt him depending on what his findings were. Dr. Markman also explained that although the trial judge ruled that appellant should submit to an evaluation, it was appellant's choice whether to comply with the court's order. Dr. Markman asked appellant whether he would be willing to be interviewed. Appellant looked at his attorney and then said that he refused to be interviewed. (23 RT 4427- 4428.) Dr. Markman heard the entire testimony of the defense experts with the exception of one hour's worth of Dr. Monguio's testimony due to being delayed arriving at court. He had the opportunity to review all of the reports and raw data collected by the defense experts. (23 RT 4428.) 52 With respect to Dr. Crinella's opinion that appellant suffered from borderline mental retardation due to a chronic brain syndrome, an opinion based on appellant's full scale IQ of 74 and that he had poor adaptive behavior, Dr. Markman opined that there was information from testimony and available reports that did not support Dr. Crinella's opinion. Appellant demonstrated an ability to adapt to his role in the Sattiewhite family within the confines of a very authoritarian father. Appellant adapted in school situations. Appellant was not a problem child in high school or elementary school, even though there were times when he was reprimanded by the school principal. (23 RT 4429-4430.) Appellant also adapted in work situations, evidenced by the testimony of Otani and Carbajal who both thought appellant was a very good worker. (23 RT 4430.) Appellant also adapted in the structure of his gang relationships to the point where he had continuous "friendship behaviors" with specific members of the gang. He did not adapt "superiorly," but he did an adequate job of adapting. (23 RT 4430.) Dr. Markman also disagreed with the assessment that appellant was borderline mentally retarded because he had the full scale IQ of 74. There was a more specific diagnosis in the DSM-Ill-R. There was a range of IQ numbers that relate to mental retardation in the DSM-III-R. Mild retardation required an IQ score of 50-55 to 70. There was moderate retardation, which was 35-40 to 50-55. Severe retardation was 20- 25 to 35-40. In the DSM-III-R, there was a diagnosis called borderline intellectual function. That had an IQ score of 71-84. Borderline intellectual function was not considered a mental disorder in the DSM-III-R. It was considered a "V-Code" which meant that it was a condition not attributable to a mental disorder that could be the focus . . of attention or treatment. Appellant was very close in the range of borderline intellectual function and mild retardation. (23 RT 4430-4434.) With regard to Dr. Crinella's opinion that appellant was unable to project himself in the future, Dr. Markman opined that there was both written material and testimony that suggested otherwise. Appellant made an attempt to join the armed services, which showed that he was willing to undertake that obligation for the future. Appellant also discarded the murder weapon and his shoes, suggesting that he understood the potential 53 future criminal consequences of his behavior. Appellant participated in drug sales with a desire to obtain financial gain, suggesting he understood the future consequences of his behavior. (23 RT 4434-4436,4439.) Dr. Markman disagreed with Dr. Crinella's description of appellant as a "moral imbecile." Dr. Markman opined that morality was not a technical term. Imbecile was a term that was used in the DSM-I which described a level of retardation for someone who had an IQ in the 30' s. Dr. Markman disagreed with the suggestion that appellant had no value structure in understanding right and wrong. There was data concerning his family relationships which showed that appellant was capable of understanding the consequences of his behavior. Appellant feared punishment from his father. His performance in his final two years of high school improved. He received positive reinforcement because of his improved performance. As a result, negative behavior was held to a minimum. This indicated a certain awareness of positive and negative reinforcement. (23 RT 4436-4438.) Dr. Markman opined that appellant's history and other information about appellant suggested that he has a superego. The superego was the part of the individual's personality or mind that provided the internal control mechanism that allowed the individual to function successfully in society. Appellant's superego was shown in his statement that he would not participate in rapes because he had sisters and would not do that to a woman. Such a choice showed a "right/wrong phenomena way of thinking," which is "an internalized limitation on one's behavior that falls within the framework of superego development." Dr. Markman opined that there was no data suggesting appellant lacked the understanding of right and wrong. (23 RT 4440-4441.) Dr. Markman was unable to render an opinion whether appellant had a mixed personality trait, one being schizotypal, without doing a direct examination. There was evidence that appellant had an antisocial relationship with his environment due to his repetitive criminal behavior. "Antisocial behavior" was a d~scription that fit most criminals who ha a history of criminal repeated violent crimes. "Antisocial" suggested that the person had either an absent or defective superego so that there were not internal 54 limitations. The person was functioning under the "pleasure principle," where the person did what made him or her feel good at the time, notwithstanding the consequences. People with antisocial personalities needed external controls over their behavior because they lacked internal limitations or an effective superego to police themselves. (23 RT 44423-4444.) Although Dr. Markman agreed with Dr. Barker's assessment that appellant had poor self-monitoring, poor self-correction, and poor judgment, Dr. Markman opined that there was data inconsistent with Dr. Barker's opinion that appellant was easily manipulated. Appellant's refusal to participate in raping the victim in concert with the others indicated that appellant chose some behavior, despite the pressure being put on him by Rollins and Jackson. The report of appellant selling drugs, stealing the drugs back, and then reselling the drugs showed that he actually was capable of manipulating others. Appellant also demonstrated a lack of being manipulated in his interrogation by Detective Gatling where appellant initially denied involvement in the crime. (23 RT 4444-4445.) Contrary to Dr. Monguio's opinion, Dr. Markman opined that there was data showing appellant was capable of planning and executing a complex act. Appellant was able to drive a car. Driving is a complex act. Although it could become second nature once the activity was learned, the person still must learn to perform the complex act in the first place. Appellant's criminal activity was complex, especially his drug sales. For the drug sales, he had to plan his operation selling the drugs, retrieve them, and then resell them. He also had to handle money. Additionally, the tasks that appellant had to perform at the fish market went beyond simply sweeping and emptying waste baskets. His understanding of what he had to do for his job there, and being told what he had to do by his employer, would qualify as complex. (23 RT 4446-4447.) Dr. Markman opined that there is no data, outside appellant's results on the MMPI, suggesting that appellant lacked or had an improper understanding of reality. However, there was data that suggested that appellant was capable of relating to others such as his sisters and other members of his family. Appellant was particularly close to one of his 55 sisters. He got along well with peers in school. He got along well with his fellow gang members. He got along well with supervisors in his work situations. He seemed to have gotten along well with his teachers at school. (23 RT 4448-4449.) Dr. Markman opined that a person with a mental deficit such as appellant's was not more likely to commit violent crimes than someone without that type of mental deficit. As the individual's IQ lowers, the "frequency of violence diminishes." Dr. Markman observed that there was much more violence in the average population than there was in a hospital for the developmentally disabled. There may seem to be chaos in such hospitals because they have some profound and very retarded individuals that have to be cared for on a one-to-one or two-to-one situation. (23 RT 4455-4456.) Dr. Markman also opined that while there were some people who abused others after having been subjected to the type of abuse thatl.D. inflicted on appellant, the "overwhelming majority of people who are abused will not abuse as they get older." Also, of those with the same mental deficits that appellant had, and who were subjected to the type of abuse JD imposed on appellant, the overwhelming majority would not commit violent acts of abuse as they get older. (23 RT 4456-4457.) Dr. Markman found material in appellant's data that showed appellant was able to control his behavior. Appellant would not go along with certain types of acts in concert with others such as the Oxnard Beach rape. Appellant even left the scene of the rape, suggesting that he did not want to be involved in that type of a situation, and which clearly demonstrated the capability of controlling one's activity. (23 RT 4460.) Dr. Markman opined that there was every indication that appellant suffered from brain damage. He would have been more comfortable rendering an opinion after having seen EEG results which showed electrical activity. The CAT Scan showed structural abnormality. Most brain damaged people would have electrical abnormality present. Dr. Markman did not dispute the expert testimony that appellant suffered from brain damage and that the brain damage was consistent with the automobile accident appellant's mother testified about. (23 RT 4470, 4472-:-4473.) He agreed with the expert testimony that 56 appellant operated on a second grade level, had below average comprehension and judgment, and had brain dysfunction. He agreed with Dr. Barker that appellant had below average comprehension and judgment. He agreed with Dr. Monguio that appellant had brain dysfunction. (23 RT 4482-4484.) I. APPELLANT'S COMPETENCY WAS CORRECTLY EVALUATED AT TRIAL In Claim 1, appellant claims that his competence was not correctly evaluated at trial because he is developmentally disabled and therefore, the trial court erred in failing to have his competence evaluated by the director of the local regional center for the developmentally disabled pursuant to Penal Code section 1369. Consequently, he claims he was deprived his rights to due process, a fair trial, a jury trial, equal protection, and reliable jury determinations of guilty and penalty. (AOB 29-45.) Respondent submits that there was no evidence that appellant was developmentally disabled at trial and that his competence was evaluated correctly pursuant to Penal Code 1367, 1368, and 1369. A. Relevant Proceedings On August 10, 1993, appellant's trial counsel asked for a hearing to declare a doubt as to appellant's competence. (l CT 25.) On August 27, 1993, a hearing was conducted where appellant's trial counsel declared a doubt as to appellant's competence. (1 RT 214.) Kathryn M. Davis, Ph.D was appointed to examine appellant pursuant to Penal Code section 1368. (l RT 215; CT [IA Exhibits and Jury Questionnaires] 18-24.) The trial court ordered that it would "set the matter for further proceedings" as to appellant's competence, that" 1368 proceedings" would not be "instituted" yet, and that the "criminal proceedings still stand." (l RT 215.) The trial court was "merely ordering a report in light of the doubt that [appellant's trial counsel] articulated" and that it would "order the matter on for further proceedings in that regard." (1 RT 215.) The trial court ordered that the next hearing would be held on September 24, 1993. Appellant's trial counsel agreed to the hearing date. (1 RT 215- 216.) The trial court also advised the parties as follows: 57 Should criminal proceedings go forward on [September 24, 1993], we can discuss trial dates rather than have it come back the following week. On the other hand should the court suspend proceedings for further 1368 proceedings, that's another matter, and then the trial date is moot. So my suggestion is that we look into it on the 24th at eleven o'clock. (l RT 217.) The trial court thereafter vacated a readiness conference that had been set for October 1,1993. (l RT 217.) Due to Dr. Davis's prior engagements, she informed the parties that she would not be able to examine appellant and prepare a report by the September 24, 1993, hearing date. The parties asked that the hearing be taken off calendar and said they would inform the trial court when a new hearing date could be scheduled. (l CT 38.) On October 18, 1993, the parties informed the trial court that Dr. Davis had examined appellant, but would need to examine him "at least one more time" and would need to review "certain documents and information." (l RT 218.) The court ordered the parties back on November 8, 1993 for the 1368 proceeding. The parties agreed to the continuance.36/ (l RT 219-220.) Dr. Kathryn Davis's report is dated November 1, 1993. In it, she details the reason for the examination, her methods of assessment, a brief history for appellant, and the test results and assessment. She concluded that appellant appeared to understand the nature and the purpose of the proceedings at trial, that appellant is capable of cooperating in a rational manner with his trial counsel, and that he "does not demonstrate a formal thought disorder" or "mental illness which would make him incapable of presenting himself in a rational manner without counsel. However, he is not interested in doing so." (CT [IA Exhibits and Jury Questionnaires] 18-24.) On November 8, 1993, the trial court conducted a hearing where it informed the parties that it had received a copy of Dr. Davis' report. Counsel for the prosecution and 36 Proceedings were not suspended. On October 19, 1993, at the request of the prosecution, the trial court issued a warrant for Anna Lanier. The trial court also ordered that the warrant be held until the trial date of November 29, 1993. (1 RT 221-222.) 58 appellant also had reviewed the report. The parties submitted the issue of appellant's competence without argument. (1 RT 223.) The trial court found appellant competent within the meaning of Penal Code section 1368, et seq. B. Relevant Legal Principles Under the due process clause of the Fourteenth Amendment and state law, 'a criminal defendant cannot be tried while mentally incompetent. (People v. Rogers (2006) 39 Ca1.4th 826, 846-847; Pen. Code, § 1367, subd. (a); Drope v. Missouri (1975) 420 U.S. 162, 181 [95 S.Ct. 896,43 L. Ed.2d 103].) A defendant is mentally incompetent if, due to a mental disorder, he or she is unable to understand that nature of the proceedings or assist counsel in the conduct of the defense. (Pen. Code, § 1367, subd. (a); see Dusky v. United States (1960) 362 U.S. 402, 402 [80 S.Ct. 788, 4 L.Ed.2d 824].) Whenever a trial court becomes aware of substantial evidence which raises a reasonable doubt regarding a defendant's competence to stand trial, the court must suspend criminal proceedings and order a mental competency hearing. (People v. Rogers, supra, 39 Ca1.4th at pp. 847-848; People v. Alvarez (1996) 14 Ca1.4th 155, 211; Pen. Code, § 1368.) In determining whether there is substantial evidence of a defendant's mental incompetence, a trial court must consider all of the relevant circumstances, including the defendant's demeanor and behavior. (People v. Rogers, supra, 39 Ca1.4th at p. 847.) Where a defendant produces evidence regarding his present mental competence which is less than substantial, a trial court exercises its discretion whether to order a competence hearing. (People v. Welch (1999) 20 Ca1.4th 701,742.) A defendant is presumed to be competent to stand trial, which may be rebutted by a preponderance of the evidence. (People v. Castro (2000) 78 Ca1.AppAth 1402, 1418.) If a court orders a hearing into a defendant's mental competence, Penal Code section 1369 sets forth the procedure by which the court appoints psychiatrists to evaluate a defendant's competency. That section requires that the trial court appoint the director, of the regional center for the developmentally disabled to examine the defendant if it suspects that the defendant is developmentally disabled. (Pen. Code, § 1369.) Developmental disability that may result in mental incompetence is defined as, 59 a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual, and shall not include other handicapping conditions that are solely physical in nature. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term 'shall also include handicapping conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but shall not include other handicapping conditions that are solely physical in nature. (Pen. Code, § 1370.1(a)(1)(H); Baqleh v. Superior Court (2002) 100 Cal.AppAth 478,487.) C. The Trial Court Was Not Obligated To Appoint The Director Of The Regional Center For The Developmentally Disabled To Examine Appellant's Competence Because No Evidence Presented Prior To, Or During, Trial Shows That Appellant Has A Developmental Disability Appellant mistakenly argues that the record shows that he had a developmental disability. In support of the claim, appellant relies on trial counsel's declaration of a doubt of his competence and evidence presented at the penalty phase of the trial regarding his mental health. (AOB 37-38,41-45.) The record is clear that the trial court had not expressed a doubt about appellant's mental competency. He appointed Dr. Davis to provide an opinion as a preliminary matter. (See People v. Visciotti (1992) 2 Ca1.4th 1, 35-36.) Counsel's opinion or concern about appellant's mental competency was not substantial evidence requiring the initiation of a mental competency hearing. (People v. Rodrigues (1994) 8 Ca1.4th 1060, 1111-1112.) Appellant also may not rely on penalty phase evidence, for such evidence was not before the trial court when it found him competent. (See People v. Welch, supra, 20 Ca1.4th at p. 739 [trial court's ruling is reviewed for correctness when it was made without reference to evidence produced later].) As explained earlier, Dr. Davis's report stated that appellant was capable of cooperating in a rational manner with his trial attorney, did not demonstrate a formal 60 thought disorder, and did not have a mental illness that would make him incapable of presenting himself in a rational manner without counsel. (CT [IA Exhibits and Jury I Questionnaires] 18-24.) No evidence of incompetence was presented. Consequently, the trial court was not required to order Penal Code section 1368 hearings, suspend criminal proceedings, or appoint any psychiatrist or director of the regional center for the developmentally disabled to examine appellant. Insofar as he further argues that the evidence is similar to that presented in People v. Castro, 78 Cal.AppAth 1402, where the court found that the director of the regional center for the developmentally disabled should have been appointed to evaluate the defendant's competence, respondentdisagrees. In Castro, the defense requested that the defendant be examined by a psychiatrist to determine the appropriateness of pleading not guilty by reason of insanity. (People v. Castro, supra, 78 Cal.AppAth. at p. 1410.) The psychiatrist's report indicated, among other things, that the defendant was developmentally disabled. (Id. at p. 1410-1411.) The defense then requested that the director for the regional center for the developmentally disabled examine the defendant. The court denied that request without prejudice on the basis that the defendant seemed "perfectly normal" in its own observation. (Id. at p. 1411.) Subsequently, the defense filed a declaration with the court along with records from the Department of Rehabilitationreflecting that the defendant had a developmental disability which had been classified as "most severe." (Ibid.) The court suspended the criminal proceedings pursuant to Penal Code section 1368, but refused to refer the defendant to a regional center and instead appointed a psychiatrist. (Ibid.) The report of that psychiatrist found that the defendant had a learning disability, but no psychiatric disorder. Criminal proceedings were reinstated. Later, the court suspended the proceedings again to examine competence, but still did not appoint the director of the regional center. (Id. at p. 1412.) The Court of Appeal in Castro reversed because it found the trial court's failure to appoint the director of the regional center for the developmentally disabled deprived the 61 court of the jurisdiction to proceed: (People v. Castro, supra, 78 Cal.App.4th at p. 1413.) The Court of Appeal stated that the trial court: ignored the substantial, objective evidence that [the defendant] had a developmental disability, impermissibly substituted its own subjective observations for the requirements of the statute and declined to appoint the regional center director to conduct an evaluation as specifically requested by the defense. (People v. Castro, supra, 78 Cal.App.4th atp. 1417.) Because the court was required under section 1369 to consider a report from the regional center director when there was substantial evidence that raised a suspicion that the defendant was developmentally disabled, it acted in excess of its jurisdiction because the competency question had not been properly addressed. (People v. Castro, supra, 78 Cal.App.4th at p. 1417.) The differences between this case and Castro are significant. First, as previously noted, the trial court here was not presented with substantial evidence that appellant was either mentally incompetent or developmentally disabled, so it was not required, as was the trial court in Castro, that was presented with such evidence, to suspend criminal proceedings and appoint experts to examine appellant. Moreover, appellant's trial counsel never made a request to have appellant examined by the regional center for developmental disability. (l CT 25, 38; 1 RT 214-223.) Appellant has failed to identify any indication in Dr. Davis's report that she believed appellant had a developmental disability or any other information that should have raised a doubt as to whether appellant had a developmental disability, or was otherwise mentally incompetent. (AOB 43-44.) The following observations from Dr. Davis's report indicates a lack of developmental disability: [Appellant] states he was born August 31, 1969 in Oxnard, California. ... His father worked as a psychiatric technician at Camarillo State Hospital and as a minister of a church until he suddenly left the family at the time [] [appellant's] youngest sister was born. He states he does not know the current whereabouts of his father. He was devastated by his father's disappearance and the 62 abandonment it meant. He describes his problems as beginning shortly thereafter. He describes his mother as a homemaker. [Appellant] stated he did not remember much about his early school experience. He states he was in special education "something to do with a learning disability". He did not elaborate on this. As he progressed in school he was mainstreamed for physical education, reading, and some English classes (he continued in special classes for math, science and history). He states he earned mostly C's. At one time he participated in track. His real interest was music. He wrote and performed songs, mostly rap but also regular songs. He graduated from high school in 1987. (CT [IA Exhibits and Jury Questionnaires] 19.) In stating her test results and assessment, Dr. Davis observed that appellant "appears to function within a Low Average to Borderline level of intelligence. He states that he has learning disabilities but was unable to elaborate. He was generally able to express himself adequately both verbally and in writing." (CT [IA Exhibits and Jury Questionnaires] 20.) Dr. Davis observed that "[t]here was no evidence of thought disorder throughout the interview process." (CT [IA Exhibits and Jury Questionnaires] 20.) Appellant said that any "abnormal perceptual experiences" he had "occurred only during periods of substance abuse or during flashbacks to periods of substance abuse." (CT [IA Exhibits and Jury Questionnaires] 20.) Appellant's reading level was "generally adequate." (CT [IA Exhibits and Jury Questionnaires] 20.) With respect to appellant's responses to the Rorschach Inkblot Technique, "[t]here is no evidence of thought disorder or impaired reality testing. [Appellant] demonstrates little interest in or effort to organize or integrate data, to relate parts to a whole, or to formulate a global view. However, when he chooses to do so he is able to discriminate essential from non-essential information in an effective manner." (CT [IA Exhibits and Jury Questionnaires] 22.) With respect to appellant's understanding of the charges and the court proceedings, Dr. Davis observed as follows: [Appellant] was interviewed regarding his understanding of the charges against him. He was able to describe the allegations against him. He was clear about the difference between a felony 63 and a misdemeanor. He knows that the charges against him are felony charges. He explained the possible sentence alternatives should he be found guilty. He discussed some plea bargaining proposals suggested and his thoughts about these proposals. He was able to describe the roles of the jury, the district attorney, his (defense) attorney, the bailiff, the judge, and witnesses. He was able to discriminate appropriate from inappropriate behavior in the courtroom. He was able to define several terms/words used in a courtroom situation. When discussing the role of his attorney he was able to discuss working with his attorney and what he can do if he does not feel comfortable with his attorney. He expressed a preference to rely upon his attorney's expertise and lack of interest in representing himself or presenting his own case. He knows who his attorney is and expressed confidence in him. He understood the principle of confidentiality with his attorney. (CT [IA Exhibits and Jury Questionnaires] 23.) None of Dr. Davis's observations or her opinion would even establish a doubt that appellant had a developmental disability within the meaning of Penal Code section 1370.1, subdivision (a)(l)(H). As previously noted, appellant may not rely on penalty phase evidence to attack the trial court's earlier ruling. (See People v. Welch, supra, 20 Ca1.4th at p. 729.) Moreover, the penalty phase testimony of the psychological experts who examined appellant was insufficient to create a doubt as to whether appellant had a developmental disability within the meaning of Penal Code section 1370.1(a)(l)(H). (21 RT 3955-3966.) Dr. Crinella reviewed information about appellant's education (which included information that appellant had learning disabilities), criminal history, and family history (which included information that appellant suffered brain damage at birth). He also gave appellant a battery of neuro-psychological tests. (21 RT 3968-3970, 3975-3990,4006, 4010-4017.) Dr. Crinella opined that the results of the Wechsler Assault Intelligence Scale showed that appellant was borderline mentally retarded. (21 RT 3974.) He opined that the results of the Bender Visual Motor Gestalt Test showed appellant's neuro- developmental age is seven years old. (21 RT 3979-3984.) He opined that the results of the "ink blot" tests showed that appellant has "very limited imagination, limited intellectual resources, limited ability to imagine what is going to happen in the future to 64 imagine himself in a historical context or other people in a historical context." (21 RT 3987-3989.) Dr. Crinella stated in his letter to defense counsel that he believed appellant to be borderline mentally retarded due to chronic brain syndrome. (21 RT 4005, 4026- 4028,4039; People's Exhibit 13-P.) He acknowledged that the term "chronic brain syndrome" is not found in the DSM III Manual. (21 RT 4039.) Dr. Crinella's opinion was that appellant was borderline mentally retarded. (21 RT 4031-4034.) Dr. Ines Monguio interviewed appellant and appellant's mother. She administered tests designed to ascertain whether appellant suffered from a brain impairment. (22 RT 4125-4130,4189.) She observed that appellant's speech ability was "okay," but gave simplistic responses. (22 RT 4131-4134.) Dr. Monguio opined that appellant's results from the Luria-Nebraska neuropsychology battery showed that he had impaired motor performance and a chronic condition in his brain that made it difficult for him to understand and structure information that was coming into his ears and from the environment around him, so he could use the informati.on on his own. (22 RT 4145- 4134-4146.) Dr. Monguio opined that appellant's results from the Rey Complex figure test showed that he had either "severe" or "moderately severe" impaired attention. (22 RT 4148-4153.) She opined that appellant's results from the California Category Learning Test showed he had definite impairment in verbal learning. (22 RT 4153- 4155.) She opined that appellant's results from the Tri-Grams Repetition test showed that he had a chronic condition in his brain that results in a variety of intellectual cognitive impairments ranging from moderate to moderate-severe. (22 RT 4156-4159.) Dr. Monguio opined that appellant's results from the Pace Auditory Sequential Addition Task test showed that he had moderately severe to severe deficits in sustained attention and complex attention. (22 RT 4159-4161.) Dr. Monguio's opinion, based on the information she had available to her, is that appellant had a "globally impaired brain." The impairments that appellant had range from mild to moderately severe. The source of the impairment was traumatic head injury which could have been caused during the automobile accident appellant's mother was in while pregnant with appellant. The only environment where appellant could function or perform at all was one that was 65 completely unambiguous, and where the environment is highly structured. (22 RT 4165- 4171,4188.) Dr. Patrick Barker performed ~ mental status evaluation of appellant on behalf of the defense. (22 RT 4209-4212.) Dr. Barker opined that appellant's results for the WRAT Test, which is a test of reading ability, showed that his reading ability was borderline sixth grade. (22 RT 4225-4226.) He administered the Wechsler Adult Intelligence Scale on appellant and opined that appellant's results showed that his full scale IQ was 73. The score would qualify as borderline mental retardation, and a score of 70 is the first cutoff for mental retardation. Because of the score, Dr. Barker was concerned that appellant had brain damage. (22 RT 4226-4227.) He opined that appellant's results for the Luria-Nebraska Neuropsychological Screening Test indicated that appellant may have brain damage. (22 RT 4227.) Dr. Barker opined that all of the tests he administered showed that appellant's intellectual functioning is borderline mentally retarded, and that he had a mixed personality disorder, and strong elements of anti-social and schizotypal traits. He also opined that appellant had some brain damage. (22 RT 4213-4214,4231,4236-4238,4282.) Dr. David Benson and the members of his clinic at UCLA performed a full mental status evaluation and a neuropsychiatric evaluation of appellant on behalf of the defense. (22 RT 4283-4288.) Dr. Benson opined that appellant's results for the Folstein Mini Mental State Exam showed that while appellant had a limited vocabulary and had difficulty expressing himself, he did not have a significant language disorder. (22 RT 4290-4291.) A neurological assessment that examined the individual cranial nerves in appellant's head as well as his gait, stance, coordination, motor strength, motor development, reflexes, and sensation. Dr. Benson opined that appellant was "brain abnormal." The car accident that his mother was in while pregnant with him could possibly have led to the brain abnormality. (22 RT 4294-4297.) Appellant was given a CAT Scan and the results were considered normal. Dr. Benson, however, opined that appellant could have a brain abnormality that the CAT Scan did not detect. (22 RT 4297- 4300,4316-4317.) 66 Dr. Ronald Markman testified for the prosecution on rebuttal at the penalty phase. as an expert regarding the psychiatric issues in the case. Dr. Markman attempted to perform a psychiatric evaluation on appellant. Appellant, however, refused to be evaluated by Dr. Markman. Dr. Markman reviewed the "murder book," the report of Dr. Davis regarding appellant's competence to stand trial, and the reports of Drs. Crinella, Monguio, Benson, and Barker. Dr. Markman also heard the entire testimony of the defense experts with the exception of one hour's worth of Dr. Monguio's testimony due to being delayed arriving at court. (23 RT 4418-4422,4425-4428.) Dr. Markman disagreed with Dr. Crinella's opinion that appellant suffered from borderline mental retardation due to a chronic brain syndrome. Dr. Markman opined that there was evidence appellant was able to adapt to his role in the Sattiewhite family, adapted in school situations, adapted in work situations, and adapted to relationships he had with friends. (23 RT 4429-4430.) Dr. Markman disagreed with the assessment that appellant's IQ of 74 showed that he was borderline mentally retarded. The specific diagnosis in the DSM-III-R for someone with appellant's IQ is borderline intellectual function. Borderline intellectual function was not considered a mental disorder in the DSM-Ill-R. It is considered a "V-Code," which means that it was a condition not attributable to a mental disorder that can be the focus of attention or treatment. Appellant was very close in the range of borderline intellectual function and mild retardation.37/ (23 RT 4430-4434.) Dr. Markman opined that there was every indication that appellant suffered from brain damage and that the brain damage was consistent with the automobile accident appellant's mother testified about. (23 RT 4470, 4472-4473.) He agreed with the expert testimony that appellant operated on a second grade level, had below average comprehension and judgment, and had brain dysfunction. He agreed with Dr. Barker that 37 Dr. Markman disagreed with Dr. Crinella's description of appellant as a "moral imbecile." Dr. Markman opined that morality is not a technical term. Imbecile is a term that was used in the DSM-I which described a level of retardation for someone who had an IQ in the 30's. (23 RT 4436-4438.) 67 appellant had below average comprehension and judgment. He agreed with Dr. Monguio that appellant had brain dysfunction. (23 RT 4482-4484.) Thus, unlike Castro, there was no substantial evidence which would raise a suspicion that appellant was developmentally disabled. In Castro, the court had before it three different reports asserting the defendant had a developmental disability. (People v. Castro, supra, 78 Cal.AppAth. at pp. 1410-1412.) Here, on the other hand, there was no indication that appellant had any of the conditions referenced in Penal Code section 1370.1, subdivision (a)(l)(H). Because no request was made to the court, nor did any expert raise the possibility that appellant had a developmental disability within the meaning of Penal Code section 1370.1, subdivision (a)(l)(H), the trial court was under no obligation to appoint the director the regional center for developmentally disabled to examine appellant's competence at trial. D. No Reversal Is Required Due To The Trial Court's Failure To Suspend Proceedings Upon The Declaration Of Doubt Of Appellant's Competence By Appellant's Trial Counsel Appellant complains that the trial court erred by failing to suspend the criminal proceedings once appellant's trial attorney declared a doubt about his competence.38/ (AOB 39-40.) This claim is meritless. As mentioned earlier, counsel's opinion or concern about appellant's mental competency alone is insufficient to require suspension of criminal proceedings and initiation of a mental competency hearing. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1111-1112.) Moreover, in the present case, no material matters were considered by the trial court from the August 27, 1993, hearing when appellant's trial counsel declared a doubt as to appellant's competence, until the November 8, 1993, hearing where the parties submitted 38 Although appellant also complains that the November 8, 1993 hearing regarding appellant's competence to be "abbreviated," he has failed to articulate what additional procedures should have been performed. (AOB 40.) 68 the matter of appellant's competence on Dr. Davis' report. 39/ (1 RT 214-223.) Appellant has identified no proceedings that occurred from the declaration of doubt by trial counsel until the time the matter was resolved. Thus, this claim fails. II. THE PROSECUTION PROPERLY EXERCISED ITS PEREMPTORY CHALLENGE AS TO PROSPECTIVE JUROR PAUL M. DURING JURY SELECTION In Claim 2, appellant contends that the prosecution exercised a peremptory challenge as to prospective juror Paul M., an African-American, on the basis of race. During jury selection, appellant claimed the prosecution exercised a peremptory challenge as to prospective juror Paul M. on the sole basis of group bias, in violation of the federal and state constitutions. (6 RT 1081-1082, 1144-1148,1170-1171,1235-1244; see Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [106 S.Ct. 1712,90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258,276-277.) Appellant argues that the trial court erroneously denied his motion for a mistrial due to the prosecutor's conduct. He further contends that because of these errors, he was denied his federal constitutional rights to a fair trial, due process, and equal protection pursuant to the Sixth and Fourteenth Amendments, as well as his state constitutional right to a trial by a jury drawn from a representative cross-section of the community pursuant to article I, section 16, of the California Constitution. (AOB 46-57.) Respondent submits that the record shows that the peremptory challenge was properly exercised for reasons other than racial bias. A. Relevant Proceedings 1. Prospective Juror Paul M.'s Jury Questionnaire Prospective juror Paul M. was a 42-year-old teacher at the time of trial. (CT [IV Exhibits and Jury Questionnaires] 859-862; see 859-870.) He indicated he had a "sight" problem. However, when asked to describe the problem, he said, "cannot hear from left." 39 On October 19, 1993, at the request of the prosecution, the trial court issued a warrant for Anna Lanier. The trial court, however, ordered that the warrant be held until the trial date of November 29, 1993. (1 RT 221-222.) 69 (CT [IV Exhibits and Jury Questionnaires] 861.) He was"a college graduate who received a BA degree. (CT [IV Exhibits and Jury Questionnaires] 862.) He did not have any relatives or friends in law enforcement or who had applied for employment with a law enforcement agency. (CT [IV Exhibits and Jury Questionnaires] 865.) In response to the question "What are your general feelings regarding the death penalty?" the prospective juror answered, "If someone takes someone [sic] life then they should die." (CT [IV Exhibits and Jury Questionnaires] 866.) In response to the question "Do you feel that the death penalty is used too often? Too seldom? Randomly?" the prospective juror answered, "Too Seldom - so many people are killing thousands of people - and continue - that person should received [sic] the death penalty." (CT [IV Exhibits and Jury Questionnaires] 866.) The prospective juror did not belong to a group that advocated the increased use or the abolition of the death penalty. However, in response to the questions "Do you share the views of this group? How strongly do you hold these views?" the prospective juror answered, "Before the the [sic] stats [sic] to be born - I believe in abolition." (CT [IV Exhibits and Jury Questionnaires] 866.) The prospective juror belonged to an organized religion, but the religion did not take a position regarding the death penalty. He had no religious or other beliefs that would make it difficult for him to hold judgment over another person. His religious or moral beliefs would not make it difficult for him to sit as a juror on a death penalty case. On a scale of 1-10, with 10 being strongly in favor of having a death penalty law, 5 having no opinion, and 1 being strongly against having a death penalty law, the prospective juror rated himself an 8. (CT [IV Exhibits and Jury Questionnaires] 866- 867.) The prospective juror, his relatives, and his friends have not been victims of crime or have had a bad experience with a law enforcement officer or the criminal justice system. (CT [IV Exhibits and Jury Questionnaires] 868.) 70 2. Voir Dire Of Prospective Juror Paul M. During oral voir dire, Paul M. 40j was asked if he would automatically find appellant not guilty of first degree murder or find the special circumstance false to avoid a penalty phase of the trial. The prospective juror answered, "If they are proven to be guilty, that they have the evidence to prove that, I would go along with the law already about death penalty." (3 RT 476.) The prospective juror said that he would reach a verdict consistent with the evidence that he found. (3 RT 476.) When asked if he would disregard the evidence to avoid a penalty phase of the trial, the prospective juror answered, "No. Somewhere I believe there should be some evidence to prove that before I make a decision." (3 RT 476.) When asked if he would always vote for the death penalty rather than life without parole, the prospective juror answered, "Well, because, see, I would go along with both of them as options." (3 RT 476-477.) The prospective juror was asked whether he had given the death penalty much thought prior to coming to court. He answered, "Not really because, see, I had to catch up with so much of my schoolwork because I am a teacher and I am so busy with the children I try to clear that first. I don't think too much about it." (3 RT 477-478.) When asked what he thought about the death penalty and whether it is useful for society to decree that we should have the death penalty, the prospective juror answered, "As I said, if there are some facts to prove that somebody is guilty, then I think they should have one of the options that they can stay in jail for years or make some other kind of decision, but I really don't know what would be after that." (3 RT 478.) When asked to further elaborate on his questionnaire response that the death penalty was used too seldom, the prospective juror said, "Oh, okay. I be - this if someone can be 40 Appellant states that prospective juror Paul M. was the "only African-American on the jury panel." (AOB 47.) Appellant's trial counsel, however, observed during the hearing regarding the Wheeler motion that there were two other African-Americans in the jury pool. One prospective juror was excused for hardship and the other was excused during voir dire conducted pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1,69- 81. Following the prosecutor's use of the peremptory challenge as to Paul M., no other African-Americans were in the remaining jury pool. (6 RT 1147.) 71 proven that they have evidence to prove that the persons are guilty and some other people have died because of this, that I think the person should also receive - should - death penalty also." (3 RT 478.) He did not believe that the death penalty should be imposed in every case where there was a killing. (3 RT 478·A79.) The prospective juror was asked whether he had "some set of circumstances" in his mind that would "merit life without parole." He answered, "Not really. I really don't have any exactly. I just thought about what - if people lose their lives and young children or someone else, that - I think that really crossed my mind." (3 RT 479.) During questioning by appellant's trial counsel, the following exchange occurred with the prospective juror: Q: Well, excluding children for a moment, let's say that a killing that was the result or pursuant to a rape or a kidnapping. [