PEOPLE v. DANIELS (DAVID SCOTT)

Respondent’s Brief

Cal.August 30, 2012

¢ APs pm ee DY ne gE ce Gases 8 ao 5 . wygedeA Mu the Suprente Court of the State of Caltfarnia C O P Y THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CAPITAL CASE V. Case No. S095868 DAVID SCOTT DANIELS, Defendant and Appellant. | SUPREME COURTFILED Sacramento County Superior Court, Case No. 99F 10432 The Honorable James L. Long, Judge AUG 3 02012 RESPONDENT’S BRIEF " Erank A. McGuire Clerk | KAMALA D. HARRIS Deputy Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General WARD A. CAMPBELL . Supervising Deputy Attorney General STEPHANIE A. MITCHELL Deputy Attorney General LARENDAR. DELAINI Deputy Attorney General | State Bar No. 226715 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-7590 Fax: (916) 324-2960 Email: Larenda.Delaini@doj.ca.gov Attorneysfor Plaintiffand Respondent Page TmtrOductiOn.........cccccccceccccesecceseeseeeseceeeeeeeceneceeseeeneeeceeeeeeeeseesesseusesessenseeeeeeeas l Statement of the Case .......cccccccccssccceccesececeeceeceeseneceeeesaaeeeeceteseeeecsaaeestaeeeses 2 Statement Of Facts... cececesececeeeecseeeeeeeeeeeeeeseeneeeeceennneaaees veteeteteeeeteeetteeaees 7 I. Guilt phase trial...eeeeceeeeebeerneeeesneeneeeeeesneeceententeegs 7 A. Armedrobberies and carjacking........cccccceecseceeeeeseeeeees 7 l. Count I: November 26, 1999, Bank of America robbery .........cccccecceesceeeeeeneeeeeeeeseeeeeens 7 2. Count Il: November 29, 1999, Circle K TODDETY.....ceceeeccccceceeeeeeeeeeeeseneceeneeecseeeeeeeeeenaeees 8 3. Count II: November 30, 1999, Rite Aid TODDCLYoo.eee ceeceee cece tees seeeeseeeterseeeseseseeeneeraas 8 4. Count IV: December L, 1999, Subway * Sandwiches robbery.0......eseceeeseeeeseeeeeereeeneeees 9 5S. Count V: December3, 1999, Anderson Pharmacy robbery ....... eee eeeceeeseceeeeeeeseeeeeeseees 9 6. Count VI: December10, 1999, Kragen Auto Parts robbery .........::ccecceeeeneeeeseeeeeeneeeens 10 7. Count VII: December 10, 1999, Baskin Robbins robbery .......ceeecceeeeeeeeeeeneceseseneeeneees 10 8. Count VIII: December 21, 1999, Kragen Auto Parts robbery ..........:cecceeeeccesseeeeeeneeeens 11. 9. Counts [X and X: December 25, 1999, 99 Cents Plus Store and Michael Lewis TODDECTIES 00... eeeceeecceteeeteeeneceeeteeaeeeteneeeesaeeeneees 11 10. Count XI: December 27, 1999, Kragen Auto Parts robbery .........:cceescceessseeneeeeceneereess 12 11. Counts XVII and XIX: January 1, 2000, Gabriel Tovar carjacking and vehicle theft 0.0.0.0... ceeceeeceeeeceeseeeteeseeereereeneees 12 B. December 28, 1999: Incidents surrounding Lewayne Carolina murder ......c.ccceceeeeeeseeeeeeeeeees 13 TABLE OF CONTENTS (continued) Page 1. Conduct before the shooting 0.0...eee 13 2. Shooting of Carolina and Hillian ........... 15 3. Conductafter the shooting ..0.....cece 19 4. Appellant’s statements to O’Neal and Martina in the hotel room............eceeeeeeeeeeeees 20 C. January 2, 2000: Incidents surrounding LaTanya McCoy murder........c:ccceeseseeeetseneeesneereees 22 1. High speed pursuit and crash ........cceeeeeee 22. 2. Shootout with police officers ......cere24 Il. Penalty phasetrial...cccseeseteneseneteneeenene veeeeeneeseaes 26 A. ProSeCCUtiON’S CASE ....ccceececcereeneeeeetetseeeeeeneeseesenaeerens 26 l. PriOr CONVICCIONS .......ccecceeeseeeeeeeteeeerseeeeeeeees 26 2. December 11, 1999: Washington Mutual | Dank eakhar: 26 DALIN svuULLy Preerrr errr reer errr eee ee eee dA 3. December 22, 2009: Lim’s Market LODDETY.....ceeeceeeeeeeeeeeeeeeeeeecseeeseeesesereeeeeeeeresees 27 4. December30, 1999: Shantel Little carjacking 0.0...ceecussesseceaceececaeeeesaceereeeesees 27 5. ~° December 30, 1999: High speed pursuit with Merced County Sheriff's Department ......cccccccccseeeeeceetereeeereeteeeeeenens 28 6. December30, 1999: Pursuit and shootout with Turlock Police Department.....29 7. December 30, 1999: Jose Campos vehicle theft .........cecc ce eeseeeseseeseeeeeeeenseaeesavedO 8. January 19, 2000: Threats while receiving treatment at UC Davis Medical Center oo... cececccesecesreceeeneeeesuceeseceeeseesseeeeseneeeees 31 9. April 19, 2000: Appellant’s letter to NAKKG ooo eccecccccecseceseeeeeeceteeeeanenseeeeeseaeeesaeeereetey 32 TABLE OF CONTENTS il TABLE OF CONTENTS (continued) Page 10. June 18, 2000: Appellant’s letter to his AUN ooo eeceeccccceceessncaceceeeeecseceseeeeeseeeeseaeesenaneeeeeess 32 B. Defense Case ......cccccccccceceneceseneeeeeeeeensessesesereeteeeenaaes 33 ALBUMEN0.eee ce ce cecneeene reste eeeneeeeeecneeteeeeeteneeeereseeeceeeeeseeeeeteetesseeasenegans 35 I. Appellant made a knowing,intelligent, and voluntary waiverof the right to counsel oo...eeeee eeeseeeeeeteeeeenteeeees 35 A. Background .........cceeeccceeeeseeeeeereceeeseneeeeeseeneetieeereeeeaes 36 1. Judge Gary Ransom Faretta proceedings......36 2. Judge James Long Faretta proceedings......... 39 B. Standard of review.......cccccccccecccsceceseesceseesessseterenteenes 49 C. DISCUSSION ........ceeecceceeeceeeeeteeeetseeeeeeeneeeeeteenesseesesnensats 49 1. Appellant was thoroughly admonished . concerning the dangersofself- TEPTESENtatiOn ......ceccceeeceseeeeeeeeececteseeeeeeeeaeees 53 2. Noneof appellant’s claims regarding Judge Ransom showthat the Faretta advisements were defective...55 3. None of appellant’s claims regarding Judge Long showthat the Faretta advisements were defective.......... ccc eeeeeeeeee 58 4. Any inadequacy in the admonitions given to appellant was harmless...............0. 61 5. COnclusiOn.......ceceeceesceeteceeneeenenetsecieeeneesseersenss 62 I. Appellant made a knowing,intelligent, and voluntary waiverofthe right to a jury trial...eeeeeeeeee eerie 63 A. Background sevens sesecsessesssseseasacaneescsescsescsceteuesuseseseaeaeens 64 B. DiSCUSSION .......scsceseseecseeeeeeeeeeeseeteeecaeeeeeteneeeenenenenetieass 68 l. Appellant was aware ofthe nature of a _ jury trial and the consequences of abandoning it when he waivedjury for the guilt and penaltytrials 00.0...eee71 ill (continued) Page 2. Any inadequacy in the admonitions given to appellant was harmlessin light of the totality of the circumstances surrounding the Waiver ........ cece eeeereeeees 74 Ill. Appellant did not enter a guilty plea in violation of Penal Code section 1018 and the Eighth and Fourteenth Amendments;instead, he put the stateto its PLOOLLo. eeceeceesceeeeseseeeeeesceesescscseesessseseseneceessseeesieneeseesarssseneneess 80 A. Background ........cecececcecssersessseeseeeeeeeeeecnenesseneneneeneteens 81 B. Standard Of reView........:cccccceeesssseeseeesesssseeeeesseeanenees 85 C. DUSCUSSION .......cccccesseeeeeceneeeestesesseesesaeeessseeetseesenereneaaee 85 1. This Court has neverheld that section 1018 prevents a capital defendant from discharging counsel, representing himself, and entering a guilty plea...85 2. Regardless, the application of section 1018 is not relevant in this matter because appellant did not engage in conduct tantamountto a guilty plea .............. 86 3. Noneof appellant’s contentions establish that he engaged in conduct tantamountto a guilty pleaeeeeee cseeeeeeeeeeeeeeeeeenenereeeees 90 4, The death judgmentis reliable becauseit wasentered in conformity with the _ rigorous standards of California’s death perialty Law oo. eeeecesereeeetereeenecseetseesereeenees 93 5. Conclusion..........ceceesecessceeeesssaseaesessecesseseenseeney 95 IV. The trial court properly considered appellant’s drug use whenevaluating the mitigating factors ............s sere96 A. Backgroung .......ccccceeeeecenereeee re eseesseeeeeeseneeaceneneeneaens96 B. DISCUSSION ......eccceesececeeceeeeeeeeeeeeeeceueaesseneceneeeneneeengs 97 TABLE OF CONTENTS iv TABLE OF CONTENTS (continued) Page 1. The court was not requiredto find appellant’s drug use a per se mitigating CIPCUMSEANCE.... ee eeceeeeececeseeseeeteeseeeteeeeeeeetnes 97 2. The court did not refuse to consider drug usage or impairmentas a mitigating LACCOL....eeecccceecceeececnececeeeetenceecesennneeeceeenseneeneeess 99 3. In any event, any error was harmless beyond a reasonable doubt............eee 103 Appellant forfeited his claims regarding the motion to modify the verdict; moreover, appellant received a proper hearing underthe statute during which the court provided a detailed statement ofits reasons for the death Verdict ......cccccececseeeseceeeeececseereeeeeeeeeereeees seeseseteeneeeaees 105 A. Background oo... eceeeceeseneeeeeeeereeneneneneneeeneeeeneeees 106 B. Discussion .........:eeeeceeeeevesuaeeaeeseeseeseesueecetereneeeensers 110 l. By failing to object to the automatic | motion to modify death verdict proceduresutilized by the court, appellant has forfeited the claim on APPOAL 0... eeeceeeeeceseeeeseeeeeesssseecsseeeseessesssseeeees 110 2. . Appellant received a proper modification hearing underthe statute during which the court gave a detailed statementof its reasonsfor the verdict, thus allowing for meaningful appellate review «0.0... 110 3, Failure to provide a separate and independent review doesnotconstitute a due process Violation ......ceceeseseneeeenee 114 4. Failure to provide a separate and independent review doesnotviolate Equal ProtectiOn ........ccscceeeeseseeeeneeessevetss 114 5. COmCIUSION....ssseseeceseeeeeseeeeseeeseeeseesserreeeeeeeen 116 (continued) Page VI. There was no cumulation of errors which undermined the fundamental fairness of thetrial and the reliability of the death judgment ......ceceerent reee tee eeeeteneteetens 117 VII. California’s death penalty statute is constitutional on its face and as applied in this Case .........ecece117 A. The application of section 190.3, factor (a)is CONSTITUTIONAL oo... ceeccc cece sere eeeteneeeeeetenatesteeseeaes 118 B. The death penalty statute is constitutional even. though it does not include a burdenof proof.......... 118 C. The death penalty determination does not turn on an impermissibly vague and ambiguous ~— . Standard. .......cececcecssscccssceeeesssneeeceeneeeesseeneeeseenseeeeeeeenns 120 D. The death penalty statute permissibly refers to whetherthe deathpénalty is “warranted”............... 121 E. There is no constitutional requirementthatthe sentencer consider the presumption oflife.............. 122 F. The useofrestrictive adjectives in thelist of potential mitigating facts does not violate the eighth and fourteenth amendments.............ceee 122 G. The prohibition against intercase proportionality review does not guarantee arbitrary and disproportionate imposition of the death penalty ....123 H. The California capital sentencing scheme does not violate the Equal Protection Clause...............+. 123 I. California’s use of the death penalty does not violate international normsor the federal Constitution .......:csecsseeessesseeeseeenateesaecessapeneerednanteses 124 VIII. The sentence of death imposed for second degree murder must be vacated .......ccccsssceseceeseesesseeceeeeseeseeeeeteees 125 COnCIUSION ....cccccceeeceeeeeseeeeeeseneeeeeeerseeseeeesaeneneneaes secaecnucarssecessasanecsecseeeeatees 126 TABLE OF CONTENTS vi TABLE OF AUTHORITIES Page CASES Adamsv. United States ex rel. McCann (1942) B17 US. 269 oeeecccceeeseeeenecnseesecnecsseeseeessetseseseiseentestienseens 51, 69 Apprendi v. New Jersey (2000) 530 U.S. 466 oooeeccececececceeneeseeeeeesecaeensessecseeseeeseeeneestesseeeaaens 120 Bell v. Ohio (1978) 438 U.S. 637 ooecceccccccccsceseeeesseeeeeseeeeeaeeseesesenenscerecsesseseeeesteaes 99, 100 Blakely v. Washington (2004) 542 U.S. 296 ooeeiececcccesceceeneeceeeeseeseeesesseceeeeseesseeceaeeaeeeaeeenesseeeatens 120 Boykin v. Alabama (1969) 395 U.S. 238 ooeeeeeceseeeesereteeeslecaceeaeeseeeteveecaceseeersueeeeeeessteeens 75, 86 Brady v. United States (1970) 397 U.S. 742 woccecccccccccscsessssesecscscsescsesavsesesacecseseseseeseseseesesesdeseaeeeeeeaes 78 Bunnell v. Superior Court (1975) 13 Cal.3d 592 ooeeeeeeeeneeeeeseeeeeseceeeeeeestveceeeceeceaseaeceseeeuseeteaseeates 90 Chapmanv. California (1967) 386 U.S. 18 cece ececeeseeseeseeetseceeaeetaeseecnetereereeeas Leveeeteeeeeeeeees 62, 103 City ofCleburne, Tex. v. Cleburne Living Center | (1985) 473 U.S. 432 ooo ececececcesceeeeeeceseeeseceeeeacensceaesseneeeneneeesneeenseaneeatees 116 Colorado v. Spring (1987) 479 U.S. 564 .oecceceeceecesecseceesctecceeeesseeneessesereeestecseeneeeseeseeseeneeteeey 69 - Cooley v. Superior Court — (2002) 29 Cal.4th 228oeeeceereeneeeeesneescenseaeeeseeeessesnseneneeserneeey 115 Donnelly v. DeChristoforo (1974) 416 U.S. 637 occccccceeceneceeecceeeeceeeceecneeraesecesecaecesecaeeeaeeeneeeseneras 117 Duncanv. Louisiana (1968) 391 U.S. 145 oiecccecceneceeeceeeeceseceeseaeeeresseecessecuseeaeesaetssneeeeenes 68 vii Eddings v. Oklahoma (1982) 455 U.S. 104 occ cceeceteeee tee teeeeeeeeeeceeesescesecsseeeseseseeseesteneeneeniees 100 Edwardsv. Arizona (1981) 451 US. 477 eceeecereceeesenecaeneseesecesseeeseessseessecssenssiseeceees 78 Faretta v. California (1975) 422 U.S. 806 oo.ceecece cee eceneneneeeesesesesseeeesneesraeeneeeneeypassim Godinez v. Moran (1993) 509 U.S. 389 occ ecccceeecereeeereeecnsescneesseseeesesesssesseesenastesersneetees 50, 51 Inve Eric J. (1979) 25 Cal.3d 522 voecceccccccescsseeecsersecerseeesssssesessessenessetenssesseeesseeeeneeas 115 In re Gary W. (1971) 5 Cal.3d 296.eebases aeessecseeseeseesaeeneecsecereseeenseeeeenecaeeseeees 115 Inre Tahl (1969) 1 Cal.3d 122.0000:dacevesecseseeascsaeessesaesaeeeeesaesseeeeestseesessserttetertees Dy 86 Iowa v. Tovar (2004) 541 U.S. 77 cic ceeccsececcseeeseescnsescssenesesseesecseaecessenenecsenesieererereieneeaees 49 Johnson v. Zerbst (1938) 304 U.S. 458 occccccssseeececsssececessnseessnseecesnunseeesnnnsessnneeteceesneesennes 70 McCarthy v. United States (1969) 394 U.S. 459 weeteste eeeeseeaneseenenenenennennees eceeceeesceseeeetereees 69 Moranv. Burbine (1986) 475 U.S. 412ccccectceceesseteescseneneeseeeeseseneseenseeseseceereeeeesereerscnseness 78 Patterson v. Illinois | (1988) 487 U.S. 285eectcree“eencesaeesecaeeeseaneceeesseesereeersceeesseeseeeens 50 Patton v. United States (1930) 281 U.S. 276 ..eeceeccscesseeneeeneneseseseeeeeeneneeeneneeieenseseeeserneneeeenees 69 People v. Alfaro oe (2007) 41 Cal.4th 1277 1 o.ccccecceccscsesesesecessenesenenseenenetereneeateeesserssseenesentenseens 85 People v. Anderson (2001) 25 Cal.4th 543ooceeeeeeneeeeesseeuasesecscassseseeceoseseecececseseeseaaenes 120 People v. Arias (1996) 13 Cal.4th 92.0eeecseceseseteseseeceeeneseneeeeeseneeeseteeessnensseeasees 121 viii People vy. Arnold (2004) 33 Cal.4th 294 oooceceeeeceeeensecseessteetsuseeesecsseenseneteneeses 79 People v. Avila (2006) 38 Cal.4th 491 oiiccceccceecceesseseeenseseseessssessseetesesesensesseeseess 122 People vy. Blair (2005) 36 Cal4th 686oo.ccceeecceeeeceeeceseeesetecseeeeeeeeeeeenees 55, 60, 119 People v. Bloom (1989) 48 Cal.3d 1194cececcceecececeseeneseneseseseeeeceeeseesnaeeiees passim People v. Box (2000) 23 Cal.4th 1153ccc ceeeccscceseeeeecescescneesesesusseeeeeeeseeeneeeseeeeaes 119 People v. Boyette (2002) 29 Cal.4th 381 oe ecccecceccsecceseeceseeereeseneesececseseeseeeseeeeeseteneseesaeeees 121 People v. Bradford (1997) 15 Cal4th 1229occcetenesesceesceseeseneasseanenenseeceenssenes+ 90, 51 People v. Bunyard (1988) 45 Cal.3d 1189oeeecceneeneceeretteeeeeeeneeeseeceaceeseeseesecteeseenerers 117 People v. Burgener oo . (2009) 46 Cal4th 231 ooo ececeneceeeseeeetseeeneneeereteesVeeaaaeeeateneesereaeenes 49, 62 People v. Carpenter (1997) 15 Cal.4th 312occcccccccnessecneeseetseceeeeseceneeeeeeeeneeeeesenrenes 90, 115 People v. Castaneda (1975) 52 Cal.App.3d 334 oo. ceccceccesseccssessesseeseeseseeececeaesneseneeeseseeeseeseeeetees 70 People v. Castaneda (2011) 51 Cal.4th 1292ooceeceeeeeeeeecteeeeetereeeeeeeneees besesteceterseeseeneens 123 People v. Chadd - ° (1981) 28 Cal.3d 739 voicesseneeeseecereceneeeereessaeseeeaseaseesenseeseseececereseees 85 People v. Clark (1990) 50 Cal.3d 583 oo. ceecececeeccecceeceeceeeseeceseeseeesseceaeseeeeesnseeeeretsereres 50, 95 People v. Clark (1992) 3 Cal.4th 40 occcc ccccceececseenscseesesecnesesseeesseseeseceeeeseseetersatete 57,91 People v. Collins (2001) 26 Cal.4th 297 oo... cccccccceenecseceecececneceecseeseeeeeeaeecneeeneeeteseeeeaeespassim 1X People v. Cook (2006) 39 Cal4th S66 oo.cececece tense ceensieeesnenenscaceeteneneneneneeeeaees 87 People v. Cook (2007) 40 Cal.4th 1334occceeeccerecenecerreeeeeeneeeeraeesesseesieteneeceetey 69 People v. Cunningham (2001) 25 Cal.4th 926 oo. cccecceccssceeececeeeceereeeceeeneseeeseeeseeseseeeesaeseeseeeees 117 People v. D’Arcy (2010) 48 Cal.4th 257eeeecceccerecsseeceesecssseeseeeseeeeeaeeeeaeeeeseeescreseseages 118 People v. Deere (1985) 41 Cal.3d 353ee ciceeeceeeecceceneeesseeteseessseneecenrerseneaeensens 70, 73, 74 People v. Demetrulias (2006) 39 Cal.4th Diicccceccecceeceecseeeesteeeeeeeeeeresseeseesseesseessaseseseneesnesseenes 125 People v. Diaz . (1992) 3 Cal4th 495eeeeseeecaeessecensececeeeeteecsateesennees 111; 112, 113 People v. Dykes (2009) 46 Cal.4th 73] ooo.cccee cee ceeseetaeceeenesseecsesesseeseaeseeeesessenees 119 People v. Ernst (1994) 8 Cal4th 441 ooceceeere testes ernaesecseeseeeeneseseees 69, 74, 76, 77 People v. Floyd (1970) 1 Cal.3d 694 oo. eccceeeseceeeeceeeeeeeeceseetaecersetsetesssesesseeeeessesseeeseeentes 55 People v. Foster (2010) 50 Cal.4th 1301.........ssaaeseseeaesesseseucsasseseuassnssesesseseaeeecacereesssesaeseetes 123 _ People v. French (2008) 43 Cal.4th 36 ..c.ccececccccceseeseteeseeeetecsensesenseneeeseesserensseeesensseseeaeesenseees 69 People v. Frierson (1979) 25 Cal.Bd 142 oe eeccccscscceesesteeecceeseneceeeeecneecsesnerseseeeeaseeesetees 110, 114 People v. Fudge (1994) 7 Cal.4th LOTS vcccccsecccssecssseessesssesssssesseessusesssvessesssseesasssesesseeesseceesees 103 People v. Garcia (2011) 52 Cal.4th 706... eecececeecsececsesesescseseesesesscseessssessessenessnerseeerens 122 People v. Gaston (1999) 74 Cal.App.4th 310occcceseceeecneeessseneeneessesneseeneeeeneraeenes99 People v. Goslar (1999) 70 Cal.App.4th 270 ooo ccccececeenceceeccnecieessessatsecsecstescnserensenses 116 People v. Gray (2005) 37 Cal4th 168 occcceccecsccseesecssesessecsccsecsscacsescesesseesevsrsaseeenes 120 People v. Griffin (1988) 46 Cal.3d LOUD oocctesceeseecssecessesessenesssessreesseentens 86, 87, 90 People v. Griffin (2004) 33 Cal.4th 536.0...ecaeceeeeteeeeesetseeeeetseesaeeseescsatenatees 119 People v. Hartsch (2010) 49 Cal.4th 472occecccccccsscseeseececesecescecsessessssseeessesesssessecseevseess 12] ~ People v. Hawthorne (1992) 4 Cal4th 43 ooo ceceeeccesecseecssecseeeessseseseesecsesaeceusesessesessesssssceeas 119 People v. Hendricks (1987) 43 Cal-3d 584 oeeccceeesseeteeteeseeseeeneeseceeceeeeeeneeeeeetetensens 86, 87, 90 People v. Holt . | (1984) 37 Cal.3d 436 oeeccesceccessessessssseseesseesseessessecseessseseeasenseeaseas 117, 119 People v. Horning (2004) 34 Cal.4th 871oceeeceeeeneeteeeneeeeeseseessenesenneanenes 110, 112, 114 People v. Hovarter (2008) 44 Cal4th 983 ooo cccccecercseesessecessssesesseesecssesssseesseentesseseceeessesese 68 People v. Howard (1992) 1 Cal4th 1132... eeeeeceeseeeeeeerssseetensseeenssesseenseseseeneacs 74, 75, 76, 77 People v. Ibarra (1983) 34 Cal.3d 277 oo. ccceeseccsecsssceeseeseseeessecessessecsteasseasesessssesessessaseaaees 75 People v. Jones (2011) 51 Cal.4th 346occececececessesecsssesesseeeseeesaesessessesseeseesssssesseeeens 119 People v. Joseph (1983) 34 Cal.3d 936oceceeeceseetsceseseceseesaceseeeesseesseeeeeeeesessesscseeees 58 People v. Kennedy (2005) 36 Cal4th 595 occcsesesceseesssseseeseeeceeeeeeeeeeeaecesaceecseeseeaeeeeveeaecaes 99 People v. Koontz (2002) 27 Cal4th 1041 ooccecceeseesceeseeseceseeeesseseseseeseseseesesseeeespassim Xi People v. Kronemyer (1987) 189 CalApp.3d 314oo.eeeneenter terent 117 People v. Lang (1989) 49 Cal.3d 991ieeecc creeeee tenets eeneneneeeeeseeneneneceteeeeneeees 95 People v. Lawley (2002) 27 Cal4th 10200cececence cee seeeetereeeeeneene teeny 49, 55,59, 126 People vy. Lenart (2004) 32 Cal4th 1107. .ecicccec cece cece eteteneeeneceneeneee sense rrieneeesies 119 People v. Lewis (2006) 39 Cal4th 970...ccceccceeeietee crete ener eieneeseeenereseseseesesseeenees 111 People v. Lindberg (2008) 45 Cal4th Doocececseceeecrecsneneeneceeeeneesseeeeeeneeseeseeaeseessneeennes 124 People v. Lopez (1977) 71 Cal.App.3d S68 oo. ccceseecteeeeeteeseteiseseseneeeneesanens 51, 53, 54, 56 People v. Loy ; (2011) 52 Cal.4th 46...eee ceccececeeeneerceceeeeeeeeeceteneereneseeeereneersnenensenenenees 121 People y. Lucero . (1988) 44 Cal3d 1006occcccec esc eeee ee tecee estes teneeeaseenaseeneneneenens 103, 104 People v. Marsden (1970) 2 Cal.3d 118 vic ceecsceneecessscersecteceerencseeensisseessnenessessensseenenessrersgeees 58 People v. Marshall (1997) 15 Cal4th Doieccceeseecceseeseecseseeeeaseneasnsasseesteessseneseeneasssenees 49,57 People v. Martinez (1999) 71 Cal.App.4th 1502... cccceseeeteeeeeseeeerestssseesessessenenenenenenenseenens 99 People v. McKenzie (1983) 34 Cal.3d 616 ..eccecccsessessseessessseessesenscneecseeeneeceesntenneeveenetssnsessseanansaes 92 People v. Memro . (1995) 11 Cal.4th 786... escecceeeseseesseceeeenenecsestersseseneasasneesaneaseneneneensaenees 87 People v. Mendoza . (2007) 42 Cal4th 686 .......cccccceccesesceeeeeteeeeeeeeessiescaterseeesseeeensnsasearsnsensenteey 121 People v. Mickey (1991) 54 Cal.3d 612... eectccceteeneeeectecneeereceesteatenerensersssesseeseeeenseneeseees 102 _ Xil People v. Mil (2012) 53 Cal.4th 400eeecece cece eeeeceeesescsssaseascstsessevestcsterveseeeviens 79 People v. Monterroso (2004) 34 Cal 4th 743 ooo cccccccceceeeccseseeseeessecssessesesscrseesssesevaes 114, 120 People v. Mosby (2004) 33 Cal4th 353 ooo cccceecceceescesecesesesesecesecseesssesescssersecseeeesesesavaras 85 People v. Mungia (2008) 44 Cal.4th LLOQ)occccseenseteessecssesscssecssevressenssscstesessreened 111 People v. Murphy (1972) 8 Cal.3d 349icccsceeecececseeecsscnesessesesseseeessscusessueecscesevecenseaees 87 People v. Nelson (2011) 51 Cal.4th 198 ooceceeneceeeeseeesesessenesssessstseseseeessesessaserseeaes 118 People v. Panizzon (1996) 13 Cal4th 68oocccceeeceseeecteeesneeetseeceesseeneessesesseeeeeseveeeneees 79 People v. Perry (2006) 38 Cal4th 302occcesceeressecereseceeesseenseeseeseeeeeeseseseteeeeesseeses 12] People v. Prieto (2003) 30 Cal4th 226 oo. cccccccccscsseceseesseseseccscsenecsessesecsseeeeaesasaeeseesates 120 People vy. Riel (2000) 22 Cal 4th 1153.00.00.sesteaeeeeseesecsecasneaeeeaeeaeaeseneeeeeetauesseeeneeeeeeateas 110 People v. Riggs (2008) 44 Cal4th 248occcesses cesseesneserseeseeseeenesarerseeteseesss 59, 60 People v. Robertson . (1989) 48 Cal.3d 18occeesceseceeeseeceetseceaeeeaetseeeeeceecsereieeseasereserespassim People v. Robinson (2005) 37 Cal4th 592.0.eeeveceacecesecsceeeecaeeaceasaecaeeaeucsaeeeesaeeseaeseeneesees 118 People v. Rogers (2009) 46 Cal4th 1136...see ceaeeeseeeenseceaceaeesasenetseeaueeststecesseesatens 126 People v. Sanders (1990) 51 Cal.3d 471cccceneesecceetecsecseseeseseeesetecerseeseesseesaeeaeees 88, 89, 95 People v. Schmeck (2005) 37 Cal4th 240 ooo ccccccecceceseeseecseseeeseeceeeseesesaecsscsceseeessseseeseenees 118 Xill People v. Scott (1997) 15 Cal.4th L188 occcece cece teeteretterreerteeereetes 90, 98 People v. Snow (2003) 30 Cal.4th 430eseeceesceseceaceaeeeceaeeeecesteeeecesessevesesereeseneeensees 119 People v. Stanley (2006) 39 Cal.4th 913oeeeececseceenecesenesseeesnserestenseneeeeneenecseeerseerieeeegs 50 People v. Stansbury (1993) 4 Cal.4th LOD 7ccccece ees cenenessececeseeecienecneneeneeienteeeerseenenenas 93 People v. Taylor (2009) 47 Cal.4th 850...seccsetseessesenesesenecseecsesienenesieeesiciseersenteeees 50 People y. Taylor (2010) 48 Cal.4th 574occccseseeeseceeesenenecteneeeeeecienenreesieeeeneresstenseeeees 122 People v. Teron (1979) 23 Cal.3d 103 oo. ccccecccsssceseneesesesceeneeeceseeeecieneienereenetenes 56, 91, 92 People v. Terry (1970) 2 Cal.3d 362 oc scececesssescsesereeeeeeeneereseeteceereerenentiteesnetsseneneeeeeceses 90 People v. Thomas . (2011) 51 Cal.4th 449occseceenseeseeseneeneeretetenteeerene tees 118, 122, 124 People v. Thomas (2012) 53 Cal.4th 771 ...........seeeteseesseeeceeaeenesecereneesececeeseesseeeesstentes 125, 126 People v. Tijerina (1969) 1 Cal.3d 41eceecceseseeeneseectereeeneneneeerensestenenersnssseeseneeenes 70, 73 People v. Tran (1984) 152 Cal.App.3d 680 oo... ccccseeteeeeenereerneneneneeeteneeseseaeneseseenees 86; 89 People v. Traugott (2010) 184 Cal.App.4th 492 oo. ccesseeesessseseeeeenensesetsessensnenesnereenseesereenes 71 People v. Vines (2011) 51 Cal.4th 830.ceeeseneeeeneseeesensenesscserssessesesseeeeerenessenetas 118 People v. Wader (1993) 5 Cal.4th 610... ccceceeeceeneeeeseeseeneeerseeseeenetesssssessesssseneensenenensess 103 People v. Weaver (2012) 53 Cab.4th 1056.0... ccccceseseseeeeeteteneeeceereeteneeetsnenees 69, 110, 113, 114 XiV People v. Welch (1999) 20 Cal. 4th 701 occ cceecccereeseeeeseseeeeeeeneecereceresnisceneecenesesennseeees 119 People v. Whisenhunt (2008) 44 Cal.4th 174 ooccccccccccceeeeeeceeeeeesenreeeeeesneecnecnaeeseeeeneneeneees 122 People v. Wilder (1995) 35 Cal.App.4th 489 oooeeceeeecesne ene teecesseerecnetnessessesneseeenes 62 People v. Wrest (1992) 3 Cal.4th 1088 ooo. ececceeeeeneeeeeeeeeteeceeeeneeeeeseneeeeeeereetirenseneretaees 70 People v. Wright (1987) 43 Cal.3d 487 occceccceceeeereeene ee eeneeeneeretenreeneentescnieesteeeseeneees 85, 90 People v. Wutzke (2002) 28 Cal.4th 923 oo. ccccececsceseeeceeeeeteeeeesetseeeessereeseseseesssenessecsesees 115 Ring v. Arizona (2002) 530 U.S. 584 ooo eceeceeeseeceeeeeeeeesecseeeaeeseeeseeaeeeeesetieeeeeaeeneseoneeeees 120 Santa Clara County Local TransportationAuthority v. Guardino (1995) 11 Cal.4th 220oeeeeeceeseeeeeeeecserseeecseseseesecesteeseseessesssesesieeseenaes 116 Savage v. Estelle ; . (9th Cir. 1990) 924 F.2d 1459 occeeeecs cess ceenecesseeesesseteeeenseseseeenes 93 Schneckloth v. Bustamonte . (1973) 412 U.S. 218 ooececccceceeneeerenessceseeeesesseeserscsecsessegeeeeesressenenesseneseaees 78 Skipper v. South Carolina . (1986) 476 U.S. ccc ecceeteeeeeeeneeeeeeeseeessessaeserseenesecsesesennersees 99, 102, 103 Sullivan v. Louisiana (1993) 508 U.S. 275 .oeccccesseeceteesecesseseesesceeseesersecseeeseeessesseenesseersaeesseenets 68 United States v. Clark oo (7th Cir. 1991) 943 F.2d 775 oocesescessesesescseeeesesseesescssereseeseeneeessseseensesncess 92 United States v. McDowell (6th Cir. 1987) 814 F.2d 245oeeeeee ssessesseseseeeceetsnesesseessessseseeesseees 93 United States v. Ruiz (2002) 536 U.S. 622 weccccccccccsececeeteteteeeeseeeeteeseeesesssssessseteesssssssssnesesereees 1 Verdin v. Superior Court (2008) 43 Cal.4th 1096 ......ccccceceeeeeeceeeeeeetseeeeseeeeeeneeessaaeeaceseaececeeesaensae 115 XV Von Moltke v. Gilllies (1948) 332 U.S. 708 occcettecece ie enereeieeeteneeteeenetieeeeenieess 55, 56 STATUTES Evidence Code § 520 .....ccecececcecceeceeseenereteeseeenecnneeseeenessntesenieeenteeenseseensetnrees 119 Health and Safety Code § 11350 ceecccccecccceceseeeeeeeeeseeeseessecseneescssnecseseeeseasnecseeseereieeeserenesecneeeserees 26, 71 § L1352 cccccececceeeeeeeeeceeeeceeseesssestessssenssiensetesteceeieneseceeretteseesenees 26, 71, 104 Penal Code SST iccccccccccceeeeeceeesceeeceeceeeeesescaeceesesessstensenessesesienecsieeeversereneeesereseses 3, 5,6 § 187, subd. (8) ccceectcece scene c eee ceeneeneneenenne teres tneeeeeeeseeenes 2,3, 125 § 190.2, subd. (a)(3).... cece cceeeeceereeteeseescnecteneenecereenttsernesneererts 3,5, 6, 125 § 190.2, subd. (€)(17)0.ceeereceteeeceeecnetapeeeeceseneneneteeeseeasens 2,3, 5,6 § 190.3 oeccceccccceeeeereeeereeeccestseesceseseeeesecseeseeeseetieeaeneeneteeneessesiesrscseaseaeypassim § 190.3, SUDd. (8) eee ceeecceeeeneeseeceetecseseseeseneteetieneseceeersereeeereeaseeeesenenaey 125 § 190.3, subd. (A) eecteeeceecseseeesenenenseeeeseeteneereaseeaeretsereessscaseeneneenes 102 § 190.3, Subd. (K) eee eceeeeecses ec eeeecseenseseneesenserecieeersenerersarsensersessines beteseeee 102 § 190.4, SUDA. (€) .oecceecceceeceeseseseesesseseeseseseescesassnesneeeeisaeeeeieieasetetsseereesspassiin SQ eccecceeeeeeceesseescesessescseeessensenenseeseneeueeeeseeeneeeeessesseessssseseenesetspassim § 215, SUb. (A) ..eeeeceeeeeceesseceseseceseseenseseneneeeeseeecseneeeeerenstseseresenseeesseseens 3,4, 6 § 459eeents eee neeeteeeeeeesseeceneseecacecseaceeeeaeeeeesuceeseneesensedeeseenneseseeeespassim § 654 ooccccccceeececsecceneceeeeseseeeseesenscsecneeseeneseeseeeseaeenecsererents seeeeeseeetereeeeaeespassim § 667, SUDG. (A) ..eeeeeecccsseeecestecseseseeseseneeneresaetaeesesesersenesecsecsaesenesesaeneneneasattes 3 § 667, Subds. (D)-(i) oe.cseeeeeeeseeeseneneneeeesaeneeeeteeeenstasscnneeteeeeseneneseteaes 3 § LOLS oecceceeeceseecceseeecseesesesseceeseesenenaceaenecnecenenseenenenetenseceessaseeenessengespassim S 1170.12 oe ccceecesescccesceeeeseeeseeesssesesesenebenesaeeesieneeeseeasersenensasressssseneeenen ees 3,4 § 1260 ceeecccccecesecescneeeeseesesessecscseseecseseasseseeeessesaeeecuesacacisaetersessssssenscessneeaes 125 § 1368 Lecce ceeeeeeeeeeeeeteeteeeeeneseaceusaucenscesseeeeeeseceaeeedeceaaeecesceesscereeeseeeeses 56 § 12022.7, Subd. (2) oo... eecccccseeseseseseseceeeeeereceeeeerseneneseneteeecatnseesessensesaees 3,5,7 § 12022.53, SUD. (C) o..eeeeecccccseecesereneeeeeeeeereeneeepeerecenerecressaenasseneeesensene tages 3 § 12022.53, subd. (d) oe. eeceeeeeteeeeteeteene ecneeacsscscsececacacaesnetateeeetaraespassim Vehicle Code _. § 2800.3 o.ceececcscecscsctseseeesesesseseesneseseneseceseneatareeeessrsseracsersessssesaseanetessestaneeses 3,5. § 10851, subd, (a) eeeeee eeceeeseceeceeceeeeneenenenenssenesssersnecassenerrneneerrereties 3,4 Xvl CONSTITUTIONAL PROVISIONS United States Constitution” Fourth Amendment 0.2... cecceccecceeceeseseceeeeeeeeeeeeeeceseeseteneeseeseeresteeeeesseserees 78 Fifth Amendment...ccccecesenseneececseeesseeseeseaeseeereeeeseeeseesersneenseseesiees 69 Sixth Amendment ......cececeeceeceeecseceeeeeeeeeeessaeeeaeeeseeneesneenesseeeeeeespassim Eighth Amendment...icc cceceeceseecerceeeneeeseeetteetesenneeeesieseeeenees 119, 124 Fourteenth Amendment .00..... ieee eceeececeeeeeeeenneeeeeeeesneeeaeesesecseeeseteespassim California Constitution _ Art. LS LG.ccccccccsesesssesssessecececsucacacsvssesescscatessessessesesesenessesescaeieees 68, 90 OTHER AUTHORITIES CALIJIC NO. 8.88 oon. ceccecceeceeceeescececseceneeeseceseseseessseseeseceseaetasessneeseeeeaaes 120, 121 XVil INTRODUCTION In Sacramento County, from November 26, 1999, to January 2, 2000, appellant, David Scott Daniels, a five-time convicted felon, went on a crime spree, admittedly robbing every bank andstore in sight and vowing notto be taken alive by law enforcement. Whenhis violent crime spree finally ended, appellant had murdered LeWayne Carolina and Lafanya McCoy, attempted to murder Tamarra Hillian and Sergeant Steven Weinrich, committed nearly one dozen armed robberies, and evaded arrest. His considerable violence wasnot limited to Sacramento County; however. As established at the penalty phase, during the same period, appellant had robbed a bank and a market in Stockton, carjacked a Camaro,stole a car, and evadedarrest on two occasions. The second evadingarrest incident finished with a collision and a shootout with the Turlock Police Department, during which appellant shotat officers at least seven times. While he had some remorse for killing Carolina and McCoy,appellant expressed that he wished he “would have killed every last one”of the“punk ass police” he had shot. . ‘The Sacramento County District Attorney charged appellant and soughtthe death penalty. After receiving representation from the Public Defender’s Office for nearly one year, appellant exercised his rights under Faretta v. California (1975) 422 U.S. 806. He knowingly and voluntarily waivedhisright to a jury for both the guilt and penalty phases. Appellant also entered a guilty plea to each charge unrelated to.the capital offense. Thereafter, he chose to defendhis case by nonparticipation. Appellant was convicted offirst degree murder with the special circumstances of robbery, burglary, and multiple murder. Thetrial court sentenced him to death. Appellant challenges the conviction and sentence in this automatic appeal. STATEMENT OF THE CASE On December 30, 1999, the Sacramento County District Attorney requested an arrest warrant and filed a complaint charging appellant with special circumstance murder of LeWayne Carolina (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)),' attempted murder of Tamarra Hillian (§§ 664/187, subd.(a)), and attempted robbery of Carolina and Ray Jedkins (§§ 664/211), offenses alleged to have occurred on December28, 1999. (ICT 23-28.)’ The complaintalso alleged that appellant personally used and discharged a firearm causing great bodily injury to Carolina and Hillian (§ 12022.53, subds. (b) & (d)). (ACT 23-25.) On January 2, 2000, following a pursuit and shootout with the police and a traffic collision that caused the death of LaTanya McCoy, appellant was arrested. On January 11, 2000, the court arraigned appellant on the complaint and appointed the Public Defender’s Office.’ (ICT 1; IRTL 1-9.) On December20, 2000, after receiving representation from the Public Defender’s Office for nearly one year, appeliant sought to represent himseif pursuant to Faretta.’ (1CT 6;1RTS 12-15.) The court (Judge Ransom) ' All further statutory references are to the California Penal Code, unless otherwise indicated. * “CT”refers to the Clerk’s Transcript on Appeal; “CAT”refers to the Clerk’s Augmented Transcript on Appeal; “RTL”refers to the Reporter’s Transcript in the Lower Court; “RTS”refers to the Reporter’s Transcript in the Superior Court; the numerals preceding “CT,” “RTL,” and “RTS” denote volume number; “AOB”refers to Appellant’s Opening Brief. 3 On March 3, 2000, the Sacramento County District Attorney filed an amended complaint charging appellant with crimesrelating to the December 28, 1999, murder, attempted murder, and robbery (counts XIV through XVIII), the January 2, 2000, murder and attempted murder (counts XXII through XXIV), and a string of armed robberies, vehicle theft, and a carjacking that occurred between November26, 1999 and January 1, 2000 (counts I through XIII and counts XIX through XXI). (1CT 64-75.) ‘ Faretta v. California (1975) 422 U.S. 806 (Faretta). granted appellant’s Faretta motion. (ICT 6; IRTS 15.) Appellant declined the court’s offer to appoint advisory counsel. (1CT 6; IRTS 15-16.) On January 5, 2001, the Sacramento County District Attorney filed an amendedinformation charging appellant in counts | through XI and counts XIV and XVII with robbery (§ 211), in count XT with special circumstance murder of LeWayneCarolina (§§ 187, subd. (a), 190.2, subds. (a)(17)), in count XIII with attempted robbery (§§ 664/211), in count XV with attempted murder of Tamarra Hillian (§ 664/187, subd. (a)), in count XVI with residential burglary (§ 459), in count XVII with carjacking (§ 215, subd.(a)), in count XIX with vehicle theft (Veh. Code, § 10851, subd. (a)), in count XX with evading arrest causing serious bodily injury (Veh. Code, § 2800.3), in count XXIwith special circumstance murder of LaTanya McCoy(§§ 187, subd. (a), 190.2, subd. (a)(3)), and in count XXII with deliberate and premeditated attempted murder of Sergeant Steven Weinrich (§§ 664/187). (ICT 194-204.) With regard to countsII through XVIII and count XXII, the amendedinformation alleged that appellant personally used a firearm within the meaning ofsection 12022.53, subdivision (b). bid.) The amended information further alleged, with regard to counts XI, XIII, XV, XVI, and XXII, that appellant personally discharged a firearm resulting in great bodily injury (§ 12022.53, subds. (c) & (d)). (ICT 198- 204.) Also, with regard to counts XV and XXII,the amended information alleged that appellantpersonally inflicted great bodily injury (§ 12022.7, subd. (a)). (1CT 200, 204.) Finally, the amendedinformation alleged that appellant had suffered two priorstrike convictions within the meaning of California’s Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12), and that oneof the prior strike convictionsalso qualified for the habitual offender sentencing enhancement(§ 667, subd. (a)). (ICT 204-205.) > The information wasfiled on August 24, 2000. (1CT 5, 164-165.) The same day, following arraignment on the amended information, the court (Judge Long) obtained another Faretta waiver from appellant. (1CT 11; IRTS 34-43.) Appellant declined the court’s offer to appoint advisory counselor a defense investigator. (ICT 11; IRTS 41, 47.) Then, appellant waivedhisright to a jury trial for the guilt and penalty phases of trial. (ICT 11; IRTS 43-46.) He also expressed a desire to plead guilty to all counts unrelated to the special circumstance murder charges. (IRTS 48- 51.) The parties agreed that the court could review the preliminary hearing transcript to determine whethera factual basis existed for appellant’s ‘desired pleas. (ICT 11; IRTS 60-61.) On January 8, 2001, appellant pleaded guilty to 11 counts of robbery (§ 211; counts I through XI). (ICT 10, 12; IRTS 68-74.) With regard to - each count, appellant admitted that he had personally used a firearm (§ 12022.53, subd. (b)). (/bid.) Appellant also pleaded guilty to carjacking (§ 215, subd. (a): count XVIII), and vehicle theft (Veh. Code, § 10851, eahA faN- AA i subd. (a); count XIX). (CT 19, f 75.) He admitted that he had aadem J LL GQULLILLUOWU ELLIE LAN Lite personally used a firearm (§ 12022.53, subd. (b)) during the commission of the carjacking. (1CT 10, 12; IRTS 74.) Finally, appellant admitted thathe . had suffered twoprior strike convictions within the meaning of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). (1CT 10, 12; IRTS 75-76.) The court granted the People’s motionto dismiss count XVII, robbery (§ 211), which was madeafter the court indicated that the preliminary hearing transcript did not contain a sufficient factual basis for that charge. (1CT 12; IRTS 65-66.) On January 16, 2001, a court trial began on the remaining charges. (1CT 286; IRTS 79-86.) Appellant again rejected the court’s offer to appoint defense counsel, a defense investigator, or advisory counsel. (ICT | 286; IRTS 87-88.) He also reaffirmed his waiver ofthe right to a jury trial for the guilt and penalty phasesoftrial. (1CT 286; IRTS 88-89.) The trial concluded on January 19, 2001. Regarding the December 28, 1999 incident, the court found appellant guilty of count XII, murder (§ 187), and found true the special circumstance allegation that the murder occurred while appellant was engaged in the commission of robbery and burglary (§ 190.2, subd. (a)(17)). (ACT 13; 2CT 310; 2RTS 307-308.) The court also found appellant guilty of count XIII, attempted robbery (§§ 664/211), count XIV,first degree robbery (§ 211), count XV, attempted murder (§§ 664/187), and count XVI, residential burglary (§ 459). The court foundtrue the allegations that appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) as alleged in counts XIII and XV, personally used a firearm (§ 12022.53, subd. (b)) during the robbery charged in count XIV, andpersonallyinflicted great bodily injury (§ 12022.7, subd. (a)) as alleged in count XV. (ICT 13; 2CT 310-311; 2RTS 309-310, 313.) With regard to the January 2, 2000 incident, the court found appellant guilty of count XXI, second degree murder (§ 187), and found true the multiple murder special circumstance allegation (§ 190.2, subd. (a)(3)). (ICT 13; 2CT 311; 2RTS 312-313.) The court also found appellant guilty of count XX, evading arrest causing serious bodily injury (Veh. Code, § 2800.3), and count XXII, deliberate and premeditated attempted murder (§§ 664/187).° (ICT 13; 2CT 310-311; 2RTS 307-3 14.) The court found true the allegations that appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) as alleged in count XXII. (1CT 13; 2CT 311; 2RTS310, 313.) °On January 18, 2001, the court granted the People’s motion to dismiss the personal discharge of a firearm causing great bodily injury enhancement(§ 12022.53, subd. (d)) associated with count XVI, residential burglary (§ 459). (2CT 307; 2RTS 297-298.) On January 23, 2001, the penalty phase trial began. (LCT 13; 2CT 315.) Appellant again rejected the court’s offer to appoint defense counsel, a defense investigator, or advisory counsel and reaffirmed his waiver ofthe right to a jury trial for the penalty phase. (2RTS 316-317.) The penalty phase concluded on January 31, 2001, when the court determinedthat the punishmentshall be death. (1CT 14; 2CT 335-337, 338-340; 2RTS 462.) On February 14, 2001, the court denied the automatic motion to modify the death verdict and motion for new trial. (ICT 14; 2CT 353-357; IRTS 469.) | On February 28, 2001, the court sentenced appellant to the penalty of death plus a consecutive indeterminate term of 45 yearsto life, to be served consecutive to an indeterminate term of 445 years to life, to be served consecutive to a determinate term of 125 years. (2CT 444; 2RTS 513.) The sentence consisted of the following: on counts XII and XXI, special circumstance murder(§§ 187, 190.2, subds. (a)(3)& (a\(17)), death plus a consecutive indeterminate term of 25 yearsto life for the personal discharge of a firearm allegation (§ 12022.53, subd. (d)) associated with count XII; on counts I through XI and count‘XIV, robbery (§ 211), a consecutive indeterminate term of 25 years to life for each count pursuant to the Three Strikes Law,plus an additional consecutive determinate term of 10 years for each personaluse ofa firearm allegation (§ 12022.53, subd. (b)); on _ count XV, attempted murder (§§ 664/187), a consecutive indeterminate term of 39 yearsto life pursuant to the Three Strikes Law,plus a consecutive term of 25 yearsto life for the personal discharge of a firearm allegation (§ 12022.53, subd.(d)); on count XVUI, carjacking (§ 215, subd. (a)), a consecutive indeterminate term of 27 yearsto life pursuant to the Three Strikes Law, plus a consecutive determinate term of 10 years for the personaluse ofa firearm allegation (§ 12022.53, subd.(b)); and on count XXII, deliberate and premeditated attempted murder (§§ 664/187), a consecutive indeterminate term of 45 years to life pursuant to the Three Strikes Law, plus an additional indeterminate term of25 years tolife for the personal discharge ofa firearm allegation (§ 12022.53, subd. (d)). (ICT 15-20; 2RTS 510-512.) The court stayed imposition of the great bodily injury enhancement (§ 12022.7, subd. (a)) associated with count XXII. (ICT 15; 2CT 442-444; 2RTS 510-511.) The court further imposed and stayed sentence pursuant to section 654 on the remaining counts and allegations. (ICT 16-17; 2CT 442-444; 2RTS 510-513.) Finally, the court imposedfines and fees and awarded appellantcredit for time served of 424 days. (ICT 18, 22; 2CT 444-445, 514; 2RTS 513-516, 518.) STATEMENT OF FACTS I. GUILT PHASE TRIAL A. Armed Robberies And Carjacking After the case had been assigned to Judge Longfor all purposes, appellant pleaded guilty to each count in the amended information that was unrelated to the capital murder offenses. The preliminary hearing transcript, which the court reviewed in consideration of the factualbasis, revealed the following factual basis for the guilty pleas: 1. Count I: November 26, 1999, Bank of America robbery On November26, 1999, around 2:00 p.m., Juan Velasquez was working at Bank of America on Stockton Boulevard in Sacramento. (IRTL 177.) He called the next customer, appellant, to his teller window. (IRTL 177, 179.) Appellant “seemed disoriented” and “didn’t know howto go about making a withdrawal.” (IRTL 177.) Velasquez offered to help. (IRTL 178.) Appellantretrieved a note from his wallet and gaveit to Velasquez. (IRTL 178, 181.) The note indicated that appellant wanted “all the hundreds.” (IRTL 178.) Velasquez told appellant that he was outof hundred dollar bills. (/bid.) He gave appellant the money that remained in the cash register, no more than $700 or $800. (Ibid.) While reaching under his jacket, appellant said, “I’m not playing with you, I will blast you.” (Ibid.) Velasquez did not actually see a firearm. (/bid.) Appellant took the money and left the bank. (/bid.) 2. Count II: November29, 1999, Circle K robbery Bonnie Welch, an officer with the Sacramento Police Department, interviewed Raynette Martin regarding a robbery that occurred at Circle K on P Street in Sacramento. (IRTL 94.) According to Officer Welch, Martin explained that on November 29, 1999, around 6:00 p.m., she was working the cash register when she noticed appellant and a female in the candy aisle. (IRTL 94-95, 219.) Martin saw the female put a bag of M&Msin her pocket and appellant kept touching a Snickers candy bar. (RTL 95.) The female then approached the counter and placed a different | bag of M&Msonthe counter. (/bid.) When appellant askedherif that was all she wanted, the female grabbed a pair of sunglasses from a display and placed them on the counter. (IRTL 95-96.) The female tried to pay with a food stamp, and Martin explained that Circle K did not accept food stamps. - (IRTL 96.) Atthat point, appellant removed a .22 caliber firearm from his jacket and pointed it at Martin. (/bid.) He demandedthat Martin put money in the bag. (Ibid.) Once Martin had placed all the dollar bills and about four handfuls of quarters in the bag, appellantsaid, “That’s enough.” (Ibid.) Martin gave the bag to appellant, and he and the femate calmly left the store. (Ibid.) | . 3. Count III: November 30, 1999, Rite Aid robbery Jeffrey Gardner, a detective with the Sacramento Police Department, investigated an armed robbery that had occurred at Ride Aid Pharmacy on Freeport Boulevard in Sacramento. (IRTL 188.) He obtained a statement ~ from Madeline Thompson, who explained that on November 30, 1999, around 7:30 p.m., appellant asked her for some lotion. (ARTL 189, 190, 192.) Heleft and returned a few minutes later to purchase chips. (IRTL 189.) When Thompson openedthe register, appellant pointed a silver revolver at her and said, “Don’t move.” (IRTL 189-190.) Thompson gave appellant money from the cash register. (IRTL 190.) 4. CountIV: December1, 1999, Subway Sandwiches robbery Rod Guerra, a detective with the Sacramento Police Department, interviewed Paul Catlett regarding a robbery. (2RTL 380.) According to Detective Guerra, Catlett explained that on December 1, 1999, he was working at Subway Sandwiches on Mack Road in Sacramento. (/bid.) Between 7:30 and 8:00 p.m., appellant ordered a sandwich. ORTL 381, 382-383.) Catlett made the sandwich andtold appellant how muchit cost. (2RTL 381.) Appellant gave Catlett money. (/bid.) Catlett opened the register to make change and, when he looked up, appellant was pointing a firearm at him. (bid.) Appellant said, “Back away from the cash register.” (Ibid.) Catlett complied. (/bid.) Appellant reachedinto the register and took the money. (/bid.) He then walked outofthe store. (/bid.) 5. Count V: December3, 1999, Anderson Pharmacy robbery Detective Gardner investigated'a robbery that occurred at Anderson Pharmacyon Florin Road in Sacramento. (1RTL 192.) He spoke with Terrence Clark, who explained that on December 3 1999, he approached appellant, who looked as though he planned to make a purchase. (IRTL 193, 194-195.) Appellant pulled out a silver revolver and demanded money. (IRTL 193, 194.) Clark gave appellant money. (IRTL 193.) Because Clark was apparently moving too slow, appellant reached overthe counter and took money from underneath the cash tray. (IRTL 194.) He then took moneyoffthe counter andleft the store. (/bid.) 6. Count VI: December 10, 1999, Kragen Auto Parts robbery Roy Messer, a detective with the Sacramento County Sheriff's Department, interviewed Sharon Hunter regarding a robbery. (2RTL 301.) According to Detective Messer, Hunter said that on December 10, 1999, she was working at Kragen Auto Parts on Bradshaw Roadin Sacramento. (Ibid.) Appellant approached the counter to purchase a candy bar. (2RTL 302-304, 310.) He produced a small gray firearm and demanded money. (2RTL 310.) After he obtained the money, appellant told Hunter not to push any buttons. (/bid.) Thereafter, appellantleft the store. (Ibid.) 7. Count VII: December10, 1999, Baskin Robbins robbery On December 10, 1999, around 5:30 p.m., Sherri Allen was working at Baskin Robbins on Watt Avenue in Sacramento. (IRTL 253.) Appellant entered and asked for a coffee drink, though he referred to the drink as a bananasplit. (IRTL 253, 255, 263, 268.) ‘Allen made the drink and then told appellant that he owed $2.75. (IRTL 254.) Appellant gave her a $5 bill. (Zbid.) As Allen wasputting the moneyin the cash register, appellant said something to her. (/bid.) Allen did not hear him, so she asked for clarification. ([bid.) Appellant said, “Give me all your money.” (/bid.) He pointeda firearm at her. (/bid.) Allen froze, and appellant reached over and grabbedall the money from the register, including the moneythat soundsthe alarm. (/bid.) He also yelled, “Open the safe, open the safe.” (IRTL 267.) Allen thought appellant was high or on drugs because his eyes were “real beadie” andthe whites of his eyes were yellow. (IRTL 259.) His eyes were also bloodshot. (IRTL 263.) 10 8. Count VIII: December 21, 1999, Kragen Auto Parts robbery Danny Minter, a detective with the Sacramento County Sheriffs Department, interviewed Daniel Ageero regarding a robbery. (2RTL 290- 291.) According to Detective Minter, Ageero explained that, on December 21, 1999, he was working at the Kragen Auto Parts on Watt Avenue in Sacramento. (2RTL 291, 293.) Appellant entered the store and asked for fuses. (2RTL 293, 376.) Ageero took appellant to the fuse display and gave appellant some fuses. (2RTL 293.) Appellant indicated that he did not wantthe fuses because they were too expensive. (/bid.) He brought a candybar to the counter instead. (/bid.) Ageero rang up the candy barand, whenheturned back to appellant, appellant was pointing a handgunat him. (/bid.) Appellant demanded money. (2RTL 293-294.) Ageero gave him - moneyand then appellant left the store. (2RTL 294.) 9. Counts IX and X: December25, 1999, 99 Cents Plus Store and Michael Lewis robberies On December 25, 1999, around 3:00 p.m., Shaunda Davis, an officer with the Sacramento Police Department, respondedto a robbery at the 99 Cents Plus Store on Mack Road in Sacramento. (2RTL 347.) She obtained a statement from Said Hans, whoexplained that appellant entered the store and asked for a few items. (2RTL 347-348, 325-326.) Hans showed him where the items were located in the store. (2RTL 348.) Appellant walked to that area of the store before approaching the counter. (/bid.) He then displayed a Tec-9 firearm and demanded money. .(2RTL 348, 327.) Appellant took Hans and Michael Lewis, a customer, to the back of the store. (2RTL 348, 353.) Lewis offered his wallet to appellant andsaid, “Please don’t hurt us.” (2RTL 353.) Appellant told Lewis to remove the money from the wallet. (Jbid.) Lewis complied and gave appellant $25. (2RTL 353-354.) Then, appellanttied up Hans and Lewiswith cable wire. li (2RTL 348, 354.) He wentto the front of the store. (2RTL 348.) In the meantime, Lewis freed himself and ran out the back door. (/bid.) Subsequently, appellant returned to the back of the store and asked Hans where Lewis went. (2RTL 348.) Hanstold appellant that Lewis had gone out the back door. (/bid.) Appellant went out the back door. (/bid.) Whenhedid, Hans called the police from the front of the store. (Jbid.) He noticed that $1,000 was missing. (2RTL 349.) Hansalso observed that the television that contained the surveillance tape had been broken. (/bid.) 10. Count XI: December 27, 1999, Kragen Auto Parts robbery On December 27, 1999, Robert Whitehurst was working at Kragen Auto Parts on Mack Road in Sacramento. (2RTL 356.) He wasgetting ready to do a cash drop when appellant entered the store. (2RTL 356-357, 359.) Appellant walked to the back ofthe store before returning to the front with a Pepsi drink. (2RTL 357.) Once the other customers hadleft, apnellant approached the counter and said something to the cashier, Desiree Russell. (2RTL 357, 358.) He also pulled up his jacket and displayed a firearm. (2RTL 357.) Russell picked up the cashregister drawer, and appellant reached across and grabbed about $930. (2RTL 358-359.) Then, _ appellantleft the store. (2RTL 359.) 11. Counts XVIII and XIX: January1, 2000, Gabriel Tovar carjacking and vehicle theft On January 1, 2000, around 9:50 p.m., Gabriel Tovar andhis friend Lisa Lovado were leaving Blockbuster Video in Stockton. (IRTL 228, 230.) As Tovar was about to open the driver’s doorofhis silver 1995 Chevrolet Camaro, appellant approachedwith a firearm. (LRTL 228-229, 231.) Tovar thought the firearm was a machine gunor “oozie.” (IRTL 229-230.) Appellant pointed the gun at Tovar and said, “Give me the keys.” (IRTL 230.) Healso asked Tovar, “Do you want to die for your 12 car?” (IRTL 232.) Tovar backed up and gave appellant the keys. (IRTL 229.) Appellanttold Lovadoto get out of the car. (IRTL 230.) Then, he asked for Lovado’s purse and Tovar’s wallet. (/bid.) Lovado and Tovar complied. (/bid.) Appellant entered the Camaro and took off. (/bid.) To Tovar, appellant “didn’t seem like he was there.” (IRTL 251.) Appellant’s eyes were big, as though he may have been nervous or scared. (IRTL 252.) B. December 28, 1999: Incidents Surrounding LeWayne ~ Carolina Murder 1. Conduct before the shooting Jennifer O’Neal and appellant were in a dating relationship and had knowneach other for about four years.’ (IRTS 171.) Their relationship was very rocky. (/bid.) Appellant had paroled to O’Neal’s mother’s house in late July 1999, but O’Neal’s mother asked appellant to leave when he started getting into trouble again. (IRTS 171-172.) By December 1999, O’Neal had movedout of her mother’s house and wasliving in Sacramento. (IRTS 171.) She saw appellant “on and off.” (IRTS 172.) O’Neal was pregnant with appellant’s child at the time, but the pregnancy did not cometo full term. (IRTS 173.) On December 28, 1999, around 5:30 p.m., O’Neal spoke with appellant. (IRTS 173.) He wanted to see O’Neal, and she told him that he would needto pick her up. (RTS 173-174.) Appellant arrived around 6:30 p.m. (IRTS 174.) O'Neil met him onthestreet corner; not at the house. (/bid.) They talked for a minute and then picked up O’Neal’s eight- year-old daughter. (/bid.) Appellant and O’Nealtook O’Neal’s daughterto get something to eat. (/bid.) | 7 Q’Neal was given full immunity for any criminalactivity that she may have been involved in on December 28, 1999. (LCT 290.) 13 O’Neal noticed that appellant had a Tec-9 firearm tied around his neck with a shoelace. (IRTS 177.) The firearm was under appellant’s clothing. (/bid.) O’Neal asked appellant why he hadthe firearm, and he said he neededit for protection. (IRTS 178.) Appellant explained that he was “‘on the run” and was not going back to prison. (/bid.) He added that he was wanted for some robberies and was not goingto be taken alive. (bid.) The magazine in the Tec-9 firearm held 33 bullets. (IRTS 243.) Around 8:00 p.m. or 9:00 p.m., appellant, O’ Neal, and O’Neal’s daughter went to the Ramada Inn on Auburn Boulevard. (ARTS 153, 174.) O’Nealrented the room. (1RTS 174.) Appellant did not comeinside; instead, he dropped off O’Neal and her daughter. (/bid.) Appellant later came back to the hotel and he and O’Nealtalked awhile. (IRTS 175.) He left to make a telephonecall in the lobby, but returned to the room a few minutes later. (/bid.) He made a few more telephone calls from the room. (/bid.) During the last conversation, 1 39O’Neai heard appeliani say, “Okay, Pli-be over there soon.” (/did.) O’Neal did not wantappellant to leave because they were supposed to spend the evening together. (IRTS 175-176.) She decided to go with appellant because she did not know when she would see him again. (/bid.) Sometime before 10:00 p.m., appellant, O’Neal, and O’Neal’s daughter drove to a house in Oak Park. (1RTS 176.) Despite being high, appellant drove “okay,a little fast.” (IRTS 195-196.) Heleft the car running and wentinside the house. (1RTS 176.) About ten minutes later, appellant exited the house. (Ibid.) A girl named Marcie walked up and asked appellant for a ride. (/bid.) O’Neal told appellant no. (/bid.) Appellantinitially told Marcie that he was not going to take her; however, after a discussion, she ended up in the car. (IRTS 176-177.) 14 After dropping by another housein Oak Park, appellant drove to Martina Daniels’s houseat 7912 Whitestack Way in South Sacramento.* (IRTS 142-143, 177.) O’Neil waited in the car with her daughter and Marcie. (1RTS 179.) About 20 or 30 minutes later, O’Neal asked Marcie to go inside and get appellant. (/bid.) Marcie complied. (/bid.) Appellant came out with Marcie, Martina, and Lamar (unknownlast name). (/bid.) O’Neil had never met Martina. (/bid.) Apparently, Martina’s car had broken down and appellant was going to take her to get it. (IRTS 143.) Appellant, Marcie, Martina, and Lamarall got in the car. (IRTS 144, 180.) 2. Shooting of Carolina and Hillian O’Neal overheard appellant and Lamartalking about drugs. (IRTS 180.) Lamarsaid, “It’s cool, I have been there before. I go thereall the time. There is no problem. I know whereit is.” (/bid.) Appellant replied, “All right, cool.” (/bid.) Then, he suddenly made a U-turn and drove to an apartment complex on Mack Road. (IRTS 144, 145, 180.) Martina asked where they were going. (IRTS 145.) Appellant did not respond. (Ubid.) Whenthey arrived at the apartment complex, appellant backed into a parking stall. (ARTS 146, 181.) He exited the car and indicated that he would be right back. (IRTS 182.) Lamaralso got out of the car. (IRTS 146, 182.) Appellant was “very high” and acting “very hyper.” (IRTS 193.) He was “very aggressive” and, to O’Neal, “he wasnot in a normal state of mind. He wasnot rationally thinking.” (LRTS 195.) Martina, Marcie, O’Neal, and O’Neal’s daughter waited in the car. (IRTS 146.) ® Martina Daniels and appellant were friends and had known each other for less than a year. (IRTS 140-141.) Appellant dated Martina’s cousin. (IRTS 140.) He had been at Martina’s houseearlier in the day. (IRTS 142-143.) She did not see him using any drugs duringthattime. (IRTS163.) Because Martina Daniels and appellant have the samelast name, respondentrefers to Martina Daniels by herfirst name. 15 In the meantime, around 9:00 p.m., Tamarra Hillian, and her friend Ray Jedkins, returned to Jedkins’s apartment. (IRTS 114.) Jedkins’s cousin, LeWayne Carolina, was in the kitchen talking on the telephone. (ARTS 113-115.) Jedkins introduced Hillian to Carolina, and then offered Hillian a placetosit down.’ (ARTS 115.) Hillian sat down on the couch and began watching television. (IRTS 114.) Jedkins wentinto the kitchen and then sat down on a block in the living room. (IRTS 115-1 16.) Aboutfive minutes after Hillian and Jedkins had returned to the apartment, someone knocked on the door. (IRTS 116.) Jedkins answered the door; appellant was outside the door. (/bid.) Hillian heard Jedkins ask, “how do you know meor who are you or whatnot.” (/bid.) Jedkins and appellant talked at the door for a while. (/bid.) Then, appellant entered the apartment. (/bid.) He and Jedkins walkedinto the kitchen and spoke with Carolina. (IRTS 116, 118.) Hillian had never seen appellant before. (IRTS 127.) She kept watching television. (IRTS 117.) Hillian could not see what they were doingin the kitchen or hear their conversation. .( iRTS 117-119.) She did not know whether there was marijuanainside, or being sold from, the apartment.” (RTS 127.) Hillian did not drink alcohol or use drugs. (/bid.) Next, Jedkins returned to the living room and spoke with Hillian. -(IRTS 119.) Appellant started walking out the apartment door, but stopped and asked to use the bathroom. (/bid.) Jedkins told appellant that he could use the bathroom, and pointed in the direction of the bathroom. (IRTS 120.) Although appellant walked in the direction of the bathroom,Hillian could not see where appellant went. (/bid.) ” Hillian had not met Carolina before that night. (IRTS 127-128.) '° Troy Woodward, a homicide detective with the Sacramento Police Department, found a baggy of marijuana behind chair in the living room and two baggies of marijuana near the chair. (IRTS 95-96.) 16 Whenappellant returned to the living room area, he walked directly towards Jedkins and demanded money. (IRTS 121.) He had a big firearm and waspointingit in Jedkins’s direction. (IRTS 121-122.) Jedkins reached into his pocket and gave appellant a “wad of money.” (IRTS 122- 123.) Hillian could not see Carolina at the time. (IRTS 124.) Appellant did not demand money from Hillian. (RTS 128.) Appellant stepped away from Jedkins and Hillian and moved towards ~ the door. (IRTS 123.) Then, Hillian heard gunshots and covered herface. (/bid.) Hillian could not estimate how many gunshots she heard, thoughit was more than one or two.'’ (IRTS 125.) She heard Jedkinstrying to climb out a window. (IRTS 124.) After the gunshots, Hillian saw appellant run out of the apartment. (IRTS 125.) Hillian never saw appellant point the gun at her or Carolina. (IRTS 125, 128.) After appellant ran out of the apartment, Hillian stood up. (RTS 125.) At that point, she realized she had been shotin the hand. (Ibid.) She attempted to use the telephone, but her leg “crumpled”andshe fell to the floor. (/bid.) Hillian tried to crawl and pull the telephone to her; however, the telephone cord was stuck on Carolina, who was dead and curled up in the fetal position. (IRTS 125-126.) -Hillian was eventually able to get the telephone. (IRTS 126.) As she wasin the middle ofdialing 9-1-1; Jedkins | returned to the apartment and called 9-1-1. (/bid.) Vincent Francois, an officer with the Sacramento Police Department, wasoneofthefirst officersto enter the apartment. (IRTS 165.) Officer Francois saw Hillian lying on the floor. (/bid.) Hillian told him that she had been shot. (IRTS 166.) As Officer Francois and Officer Baptista were '' Angela Tia, an identification technician with the Sacramento Police Department, collected six nine-millimeter shell casings and three .380-caliber shell casings from inside the apartment. (IRTS 106-111; see also IRTS 95-101.) . 17 securing the apartment, Officer Francois saw Carolina lying on the kitchen floor. (/bid.) Carolina had what appeared to be a gunshot woundto the head. (/bid.) Officer Francois noticed blood pooling near Carolina, and observed debris on the kitchen wall. (/bid.) The debris was probably brain matter and bone. (/bid.) Hillian was taken to UC Davis Medical Center for treatment. (IRTS 165, 167.) She had beenshotin the left thigh about three or four inches above the knee which caused her boneto shatter. (IRTS 126-127.) The bullet exited on the right side toward her pelvic bone. (IRTS 126.) She had steel rod placed in her leg and screwsin her knee. (/bid.) The bones in her hand were also shattered. (/bid.) Hillian no longer had a knuckle in one ofherfingers, lacked full flexibility in her wrist, and experienced arthritis pain in her hand. (/bid.) Officer Francois spoke with Hillian in the emergency room at UC Davis Medical Center. (IRTS 165, 167.) As Hillian was being transferred from the stretcher to a hospital table, a nine- miilimeter bulict feii out of the siretcher. (IRTS 167-168.) | Dr. Gregory Reiber,the forensic pathologist who performed an autopsyon Carolina, determined that Carolina had suffered two gunshot wounds; one to the head with an entrance woundalmost on top of the head and one ontheleft side of his back. (IRTS 131-132.) The gunshot wound on the backwas a “graze wound,” meaning the bullet merely scraped the body. (IRTS 132.) The wound wasabout one to one and one-half inches long. (IRTS 134.) According to Dr. Reiber, the gunshot woundto the head caused internal bleeding within and around the brain and destroyed someofthe central areas of the brain that are responsible for maintaining a level of consciousness in many of the autonomic functions of the body. (IRTS 134.) Dr. Reiber expected that unconsciousness would result almost instantaneously, at least within a few seconds, given the track of the bullet 18 and the internal damage suffered by the brain. (/bid.) This gunshot wound, fired at a range of 12 to 18 inches, caused Carolina’s death. (IRTS 135.) 3. Conduct after the shooting Aboutten minutes after they had arrived at the apartment complex, Lamarreturned to the car without appellant. (IRTS 182.) In Martina’s opinion, Lamar looked scared. (IRTS 146.) He entered the car “like he was prayingabout something.” (IRTS 147.) Martina asked Lamar where appellant was, and Lamar did not respond. (/bid.) | A few minuteslater, appellant returned to the car. (/bid.) O’Neal did not see appellant with any weaponsat that time. (IRTS 183.) To O’Neal, appellant lookedlike he was hurt. (IRTS 182.) He was holding hisleft side and seemedto be gasping for air. (Jbid.) O’Neal asked appellant what happened, and he responded, “I’ve been shot. That guy shot me.” (IRTS 183.) They drove out of the parking lot. bid.) Appellant “started to drive real funny on the road,” scaring Martina. (IRTS 148.) Martina asked appellant what was going on. (/bid.) The car swerved “andit lookedlike [appellant] was going to nod out on the road or something.” (/bid.) Appellant drove to Martina’s house. (IRTS 148.) They all went inside. (IRTS 184.) Martina and Lamartried to stop appellant’s bleeding. (RTS 149, 184.) He had bullet woundsonhis left arm andleft side (almost on his back). (IRTS 184.) Appellant put downhis firearm sothat his woundscould be taken care of. (/bid.) He asked Lamarto “unjam”the firearm. (JRTS 151.) O’Neal was freaking out because of her daughter. (IRTS 185.) She wanted to leave. (/bid.) Appellant asked O’Nealto grab his clothing and other belongings that were at Martina’s house. (/bid.) She did. (/bid.) Appellant appeared upset, and said something about needing to get out of there. (IRTS 150.) Asthey were walking out of the house, appellant told O’Nealto catch a cab because he planned to leave without her. (IRTS 185.) Appellant got 19 in the car and left. (/bid.) He returned to the house between two and five minutes later. (/bid.) Appellant said that he could not drive because hefelt as though he was goingto pass out. (IRTS 152, 185.) Martina, Marcie, and Lamar came out of the house. (IRTS 185.) O’Neal thought Martina had a small silver firearm in her hand. (1RTS 187.) Appellant told Martina that she needed to drive him back to the hotel. (IRTS 185.) Marcie, Martina, appellant, O’Neal, and O’Neal’s daughter drove to the hotel. (IRTS 186.) When they arrived, O’Neal had Marcie and Martina take her daughter to the room. (/bid.) Martina encouraged appellant to go to a hospital, but he did not want to go. (IRTS 154.) O’Neal helped appellant get out of the car. (IRTS 186.) Shealso helped him puton his jacket so the hotel clerks would not see that he had bloodall over him. (Ibid.) Whenthey gotto the hotel room, Marcie used a sheetto try and stop appellant’s bleeding. (/bid.) They all sat there andtried to figure out what to do with appellant. (Ubid.) The Tec-9 firearm was on the bed next to appeliant. (iRTS 187.) Appeiiant calied his brother, Marvin. (iRTS 186.) He told Marvin to come and get him because he had beenshot. (Ibid.) 4. Appellant’s statements to O’Neal and Martina in the hotel room O’Neal remained in the hotel room for about five hours. (ARTS 187- 188.) Appellant told her about the shooting. (IRTS 188.) According to O’Neal, appellant said that he entered the apartmentand, after a discussion, asked to use the restroom. (/bid.) When he cameout of the bathroom,he told the people in the house “you mother fuckers need to break yourself.” (Ibid.). A manin the kitchen started shooting, and appellant returnedfire. (IRTS 188-189.) Appellant “blew that mother fucker’s brains out because he didn’t give [appellant] what he wanted.” (IRTS 191.) There were two men and a womanin the living room. (IRTS 188.) One of the men jumped — out of the window whenthe shooting started. (/bid.) The female yelled 20 and appellanttold her to shut her mouth or he would shoot her. (/bid.) She kept yelling, and he shot-at her. (IRTS 191.) Appellant shot the man who wassitting on the couch. (IRTS 189.) He thought he shot the manin the chest and up. (/bid.) Appellant told O’Neal that he would “go back and finish them off” “if he didn’t do the job right the first time.” (IRTS 192.) Healso said that “he would not be taken alive” by law enforcement. (1RTS 194.) “[T]here would be a shootout. There would be a fight. He wasnot going withouta fight.” bid.) Appellant was “actually pretty calm” when he spoke with O’Neal. (IRTS 192.) He was smoking cocainein a cigarette, as he had been doing earlier in the day. (/bid.) He removed the tobacco from the cigarette, crushed up rock cocaine and putit in the cigarette paper. (1RTS_193.) Then,he rolled up the cigarette, took out a portion ofthe filter and smoked. (Ibid.) Appellant had smoked aboutthree of these cigarettes earlier in the day. (IRTS 193, 195.) O’Neal was not underthe influence because she waspregnant. (IRTS 194.) Martina sat on the opposite side of the bed with O’Neal’s daughter. (RTS 154.) She heard appellant talking about what happened. (IRTS 155.) Initially, Martina claimed that she could not recall whether appellant said anything about shooting a woman, committing a robbery, or his attitude about being apprehendedbythe police. (/bid.) However, after further questioning, Martina admitted that, about one week before the shooting, appellant had said “things like he was not goingto be taken alive,” he was “not going out,” and “he’d rather die than go backto the penitentiary.” (IRTS 156.) Appellant told Martina that he knew he was | wanted by police. (IRTS 157.) He specifically said, “They are going to haveto kill me to take me.” (/bid.) Regarding the shooting, appellant said that he went to the bathroom. (IRTS 161.) Whenhe exited the bathroom, he asked for money or weed. (/bid.) Appellant told Martina that he shot a 21. girl. (IRTS 162.) Martina assumed that appellant shot the girl because she would not stop screaming. (IRTS 163.) To Martina, it soundedlike appellant was speaking Swahili; “something wasn’t there.” (IRTS 161.) She had not been drinking alcohol or using drugs. (IRTS 163.) Martina remained in the hotel room with appellant for “probably almost two hours.” (IRTS 160.) She saw appellant with a smaller gun inside the hotel room. (IRTS 159.) He told Martina that he obtained the firearm from an apartment. (1RTS 160.) She thought appellant said he obtained the firearm from the male that had shot him. (/bid.) C. January 2, 2000: Incidents Surrounding LaTanya McCoy Murder 1. High speed pursuit and crash On January 2, 2000, Michael Kaye, a detective with the Sacramento Police Department, was conducting surveillance in front of Martina’s house in regard to the Carolina homicide.'” (IRTS 142, 227-228.) Around 6:00 a.m., a silver 1995 Chevroiet Camaro approached and siowed downdirectly in front of the house.’? (IRTS 228, 233.) Then, the driver of the Camaro, later identified as appellant, made a right turn and the Camaro disappeared ‘into the fog. (ARTS 224, 228.) Within seconds, appellant returned to the area and stopped directly in front of the house. (IRTS 228.) Less than a minute later, appellant turned on the Camaro’s headlights and drove away. (IRTS 229.) Detective Kaye followed appellant for aboutthree blocks. (Ibid.) When appellant turned . down whatappearedto be a dead endstreet or cul-de-sac, Detective Kaye " Detective Kaye indicated that he was conducting surveillance at 7912 Whitestag Drive. (IRTS 227.) Martina Daniels lived at 7912 Whitestack Drive. (IRTS 142.) '3 The Camaro wasregistered to Gabriel Tovar. (IRTS 233.) 22 stopped following him. (/bid.) He broadcasted appellant’s direction to marked patrol! units that were in the area. (/bid.) Shaunda Davis, an officer with the Sacramento Police Department who wason patrol driving a marked police car and wearing a full uniform, received a radio call to look out for the Camaro. (IRTS 198-199.) It was foggy outside andtraffic was light. (ARTS 199.) Visibility was limited to ‘about two or three car lengths on the roadway. (IRTS 199-200.) As Officer Davis was positioned on the side of the road, appellant passed by her. (ARTS 200.) He wasdriving without headlights, and stoppedat the traffic signal at the intersection of Deer Creek and Mack Road. (/bid.) Officer Davis got behind appellant and, just as the traffic signal turned green, anotherpatrol car pulled in behind Officer Davis. (IRTS 201.) After clearing the intersection, Officer Davis decided to conduct a felony vehicle stop. (/bid.) She and the other officers activated their patrol car’s overhead lights. (/bid.) Appellant pulled over, but drove off at a high rate of speed before officers could get positioned for the felony vehicle stop. (IRTS 202.) Officer Davis followed appellant and turned onthe patrol car’s siren. (IRTS 203.) Traffic was getting heavier because people were leaving for work. (Ibid.) It was still foggy outside. (/bid.) Appellant reached speeds of 80, 90, and 100 miles per hour on Mack > Road. (ARTS 203.) He made a U-turn near Detroit Boulevard. (IRTS 204.) He lost control of the Camaro and hit something on theside of the road. (Ibid.) Once appellant regained control of the Camaro, he continued eastbound on Mack Roadreaching speedsas high as 80 miles per hour. (Ibid.) He weavedin and out of cars. (IRTS 205.) Althoughtraffic was not heavy or moderate,traffic was not light. (/bid.) It wasstill foggy and, while it was getting lighter outside, the fog limited the light. (IRTS 210.) 23 Appellant drove through the intersection at Mack Road and Franklin Boulevard at a high rate of speed.'* (IRTS 205.) There wasa carin the numberone lane moving at a slow rate of speed, as thoughit had just exited the nearby apartment complex. (IRTS 210.) Appellant hit the car while driving at a minimum speedof 80 miles per hour. (JRTS 205, 209.) The car spun, crossed the embankmentthat divided the roadway, andburst into flames. (IRTS 205-206.) Officer Davis drove through the flames, and stopped once she had crossed the divider. (IRTS 206.) She attempted to remove the driver, LaTanya McCoy,from the car, but was unsuccessful because ofthe fire. (/bid.) Officer Davis’s hands burned on the driver’s door and she could feel the heat. (IRTS 207.) Thefire killed McCoy and burned 100 percent of McCoy’s body. (1RTS 138.) 2. Shootout with police officers Brian Ellis, an officer with the Sacramento Police Department, had also been involved in the pursuit. (IRTS 261-262.) Whenthe pursuit ended, Officer Ellis maintained cover from a nearby apartment complex. (IRTS 262.) He turned on his patrol car’s high beams, take downlights, and spotlights so that he could see insidethe Camaro. (IRTS 263.) Officer Ellis thought appellant was “taking in the whole scene.” (/bid.) He told appellant to put his hands up and outside the Camaro. (Ibid.) Appellantput his left hand outside the Camaro. (/bid.) He claimedthat his right hand was stuck. (IRTS 263-264.) The driver’s door was open. (IRTS 217.) Steven Weinrich, a sergeant with the Sacramento Police Department, believed that appellant may have been pinned inside the Camaro based on the Camaro’s extensive damage. (IRTS 213, 218.) He put together an extraction team. When Lieutenant Kane arrived with a megaphoneand '4 Officer Davis was unsureif the traffic signal was red or green whenappellant drove throughtheintersection. (IRTS 205.) 24 another body bunker, four officers approached the Camaro. (IRTS 219- 220.) Sergeant Weinrich, who was wearing a full police uniform, told appellant that they plannedto get him out of the car. (ARTS 213, 220.) Appellant did not respond. (IRTS 220.) Once they were inside the opendriver’s side door, Sergeant Weinrich went around the body bunkerandstarted to reach into the Camaro. (IRTS 221.) Just as Sergeant Weinrich broke the plane, appellant “jerked really fast” and shot him. (IRTS 222.) Sergeant Weinrich heard one gunshot. (/bid.) He felt the muzzle blast on his face, a big thumpto his chest, and a burning sensation in his leg. (/bid.) Sergeant Weinrich returned fire and then wentto the ground behind the car. (/bid.) Lieutenant Kanetold officers to stop firing, and they complied. (bid.) Lieutenant Kane took Sergeant Weinrich’s firearm andstarted cutting his shirt. (IRTS 223.) Lieutenant Kane discoveredthat a bullet had gone through Sergeant Weinrich’s badge and lodged in his bullet proof vest. (IRTS 223, 247-248.) Sergeant Weinrich suffered a bruise on his chest. (IRTS 223.) Another bullet entered his upper thigh, traveled across his body, and endedupin his right hip. (/bid.) Bruce Moran,a criminalist with the Sacramento County District Attorney’s Crime Lab, recovered the bullet from Sergeant Weinrich’s vest. (IRTS 238, 248.) He determinedthat the bullet had been fired from the Tec-9 firearm. (LRTS 249.) Moran viewed an x-ray of Sergeant Weinrich’s pelvic region. ([bid.) He comparedthe general shapeofthe bullet to the profiles of the various bullets that were used by police officers involved in the shooting. (/bid.) The nine-millimeter bullets had the samelength ratio and a similar shape in terms of overall morphologyas the bullet in the x- ray. (IRTS 250.) While Moran could not eliminate the ammunition used in the Tec-9 firearm, he confidently eliminated the ammunition used by officers involved in the shooting. (IRTS 250-251.) 25 Sergeant Weinrich wasin the hospital for about nine days. (1RTS 224-225.) Once he was released from the hospital and ready to return to work, doctors discovered he “had an AVfistula and an aneurysm.” (1RTS 225.) He had three more surgeries, resulting in much nerve damage.(/bid.) Ul. PENALTY PHASE TRIAL A. Prosecution’s Case 1. Prior convictions The court found true beyond a reasonable doubt that appellant had suffered the following felony convictions: a January 17, 1986, conviction for attempted residential burglary (§§ 664/459); a March 16, 1988, conviction for possession of a controlled substance (Health & Saf. Code, § 11350); an October 22, 1990, conviction for cocaine sales (Health & Saf. . - Code, § 11352); a July 29, 1991, conviction for robbery (§ 211); and a February 19, 1998, conviction for second degree burglary (§ 459). (2CT 332; see also CAT 816-850.) — 2. December 11, 1999: Washington Mutual Bank robbery On December11, 1999, around 9:00 a.m., Keisha Pierre was working at Washington Mutual Bank in Stockton. (2RTS 372.) When shefinished | helping her first customer, she called appellant to her window. (2RTS 372- 373.) He was wearing a shiny wig that had braids. Pierre thought that appellant was wearing a wig becausethe hair looked unnatural. She noticed the wig as soon as appellant entered the bank. (2RTS 375-376.) Appellant hesitated, but then approached the window andasked Pierre for a quarter roll. (2RTS 373.) Because he wanted the paper wrapper, instead ofa roll of quarters, Pierre had to go to the back of the bank. (/bid.) As Pierre was returning to her window, appellant pointed a firearm in her direction. (2RTS 373.) Pierre noticed that the teller next to her was. 26 giving appellant “a lot of cash,” probably around $6,000, from theteller cash dispenser. (2RTS 374-375.) Appellant left the bank after he received the money. (2RTS 375.) 3. December 22, 2009: Lim’s Market robbery On December 22, 2009, Junda Chan was working with her father, Vorn Chan, at Lim’s Market in Stockton. (2RTS 369.) She was behind the register when appellant entered the store.'’ ([bid.) Junda thought he was going to make a purchase;instead, appellant approachedthecash register and pulled out a firearm. (/bid.) He told Junda that he wasnot going to hurt her. (/bid.) Appellant said that he just needed a car. (2RTS 363, 369.) Junda walked to the back of the store where Vorn wasputting beer insidethe freezer. (2RTS 361, 370.) Appellant pointed the gun at Vorn and demandedhis necklace and watch. (2RTS 362-363.) Vorn wasscared. (2RTS 362.) Appellant took Vorn’s necklace, watch, and keys. (2RTS 363, 370.), He also took money from the cash register before leaving the store. (2RTS 363.) Vorn followed appellantoutofthe store. (2RTS 365.) Appellant drove away in Vorn’s son-in-law’s Toyota pick up. U/bid.) Vorn heard two gunshots as appellant drove away. (2RTS 365-366.) 4. December 30, 1999: Shantel Little carjacking On December30, 1999, Manuel Reyes wasdriving on Junction 14 in Merced County. (2RTS 337, 346.) He had just crossed the bridge when he noticed a car comingat him at a high rate of speed, which he estimated to be 80 or 90 miles per hour. (2RTS 338.) Reyes drove off the roadway to > Neither Vorn nor Jundaidentified appellant as the person who had robbed them. (2RTS 368, 370-371.) However, in letter to his aunt, appellant admitted committing the robbery. (CAT 809; 2RTS 424.) 27 avoid a collision. (/bid.) He looked behind him, and watched the car miss the turn, veer off the roadway, and roll into a vineyard. (2RTS 338-339.) Reyes stopped to see if everyone was okay. (2RTS 339.) When he exited his car, Reyes noticed that the driver, later identified as appellant, wasalready out of the car. (2RTS 339, 340.) Appellant was in a daze. (2RTS 339.) He wasacting “really loopy, like his equilibrium wasoff, he was not there, spaced out.” (/bid.) There was a female on the passenger side of the car. (/bid.) She was holding something and appeared to be in pain. (/bid.) Shantel Little also stopped to see if anyone needed assistance. (2RTS 402.) She was driving her mother’s white Camaro. (2RTS 401.) Appellant took out a firearm and walked overto Little. (2RTS 402.) He pointed the firearm at her head and told her to scoot over. (2RTS 403-404.) Little exited the car instead. (2RTS 403.) Appellant and the female entered the Camaro and drove off. (/bid.) Appellant was driving. (2RTS 344.) 5. December 30, 1999: High speed pursuit with Merced County Sheriff's Department On December30, 1999, after 5:00 p.m., Mark Goddard, a deputy sheriff with the Merced County Sheriff's Department, was on patrol in a markedpatrol car. (2RTS 347, 349.) Dispatch advised him ofa carjacking that had occurred near the river. (2RTS 348.) As Deputy Goddard was responding to the area with lights and sirens, he saw the suspect Camaro. ([bid.) Appellant pulled over, and Deputy Goddard made a U-turn to get . behind the Camaro. (/bid.) When Deputy Goddardpulled in behind, | appellant drove off. (Jbid.) Deputy Goddard followed. (2RTS 348-349.) At speeds of 70 to 80 miles per hour, appellant split traffic and drove on the shoulder. (2RTS 349.) Traffic was very congested, andthe pursuit lasted for several minutes. (Jbid.) About half way throughthe pursuit, appellant turned off the Camaro’s headlights and parking lights. (2RTS . 28 349-350.) Deputy Goddard lost sight of the Camaro at Lander and Highway 99. (2RTS 349.) Subsequently, the Turlock Police Department advised that they were in pursuit of the Camaro. (2RTS 350.) Deputy Goddard saw the Camaroagain after appellant crashed. (/bid.) 6. December 30, 1999: Pursuit and shootout with Turlock Police Department On December30, 1999, around 5:00 p.m., Brandon Bertram, an officer with the Turlock Police Department, was on duty whenhe heard a broadcast about a stolen white Camaro. (2RTS 390.) Officer Bertram started checking the area, and found the Camaro at a gas station. (/bid.) Appellant was fueling the car and Officer Bertram noticedthat a female wasin the passengerseat. (2RTS 390-391; CAT 810.) Officer Bertram drove past the Camaro and madeeye contact with appellant. (2RTS 391.) Hecircled around the building and parked. (/bid.) Officer Bertram advised anotherofficer, Craig Bothe, that he could see the Camaro. (2RTS 391.) They remained parked out of view until appellantleft the gas station. (/bid.) Officer Bertram and Officer Bothe had been following appellant for about six blocks when hepulled to the side of the roadway. (/bid.) Though appellant slowed the Camaroto about five miles per hour, he did not actually stop. (/bid.) Appellant accelerated, and Officer Bertram and Officer Bothe turned on their emergencylights and sirens and pursued the Camaro. (2RTS 392.) Appellant reached speeds of 60 to 65 miles per hour. (2RTS 392.) Officer Bertram noticed that there was a high volume of commutertraffic and decreased his speed. (/bid.) Appellant failed to stop at the stop sign at West Main, and collided with a Chevy Tahoe. (2RTS 384, 393.) He was traveling between 55 and 60 miles per hourat the time ofthe collision. (2RTS 393.) The impact caused the Camaro to spin around. (J/bid.) 29 Officer Bertram and Officer Bothe illuminated the Camaro with their spotlights and began to exit their patrol cars. (2RTS 393.) Secondslater, they observed muzzle flashes coming from the driver’s door of the Camaro. (2RTS 386, 393-394.) Appellant was pointing a gun in the direction of Officer Bothe’s patrol car. (2RTS 394-395.) Appellant fired between two and four rounds. (/bid.) Officer Bothe finished exiting his patrol car and went to the ground. (2RTS 386, 395.) When Officer Bertram exited his patrol car, appellant started shooting in his direction. (2RTS 395.) Officer Bertram heard between four and six gunshots. (/bid.) Hetried to return fire, but he could not get a sight on appellant dueto the steam coming from the Camaro’s engine. ([bid.) Officer Bertram advised that appellant was running from the scene. (2RTS 388.) Officer Bothe heard additional gunshots, and saw a female “moreor less fall out of the right side” of the Camaro. (/bid.) Officer Bothe approached the passengerside of the Camaro. (Ibid.) The female appeared to be injured. Ubid.) Other officers were coming to the scene, so Officer Bothe went to look for appellant. (/bid.) He did not locate appellant. ([bid.) Although the female passenger complained of total body pain, she did not have any visible lacerations. (2RTS 396.) Moran compared the shell casings that had been given to him by the Turlock Police Department with the Tec-9 firearm recovered from appellant. (2RTS 378.) He concludedthat the seven casings had beenfired from the Tec-9 firearm. (2RTS 380.) 7. December 30, 1999: Jose Camposvehicle theft On December 30, 1999, Jose Campos was doing laundry inside the garage at his home in Turlock when appellantentered with a big firearm. (2RTS 352, 356-357.) Appellant asked Camposfor his car keys. (2RTS 353.) The keys were inside the house, and Campossaid, “I will give them to you, I will go get them.” (/bid.) Camposretrieved the keys and gave 30 them to appellant. (2RTS 353-354.) Appellant asked Campos which car belonged to him. (2RTS.354.) Campospointed to the Buick Century, and then entered his house. (2RTS 354, 356.) Appellant did not point the gun at Campos. (2RTS 355.) 8. January 19, 2000: Threats while receiving treatment at UC Davis Medical Center On January 19, 2000, Michael Hulsey, a deputy sheriff with the Sacramento County Sheriff's Department, was guarding appellant in the surgical intensive care unit at UC Davis Medical Center. (2RTS 320-321.) The nurse brought appellant apple juice, and appellant wanted another blanket or pillow. (2RTS 321-322.) Appellant, who wasagitated, threw the apple juice across the room. (/bid.) The juice splashed on Deputy Hulsey and Deputy Toyama. (2RTS 322.) - . Thereafter, appellant grabbed a stand that had catheters and medical equipment hanging on it. (2RTS 322.) He knocked overthe stand and held onto one ofthe catheter bags. (/bid.) Deputy Hulsey grabbed appellant’s right hand and put him into a control hold. bid.) Healso told appellant to release the catheter bag and behave himself. (/bid.) Appellant complied after the third commandto release the bag, but only after Deputy Hulsey had gained control of his wrist. (/bid.) | Appellant said, “Fuck all you mother fuckers. You wantto break my wrist, you mother fucker? Go ahead. You all mother fuckers wantto get down? Wecan get down my waywith fifty calibers mother fucking machine guns. I will finish this, mother fucker. I could have killed all of you, especially that short mother fucker on five east. We can do this my way.” (2RTS 323.) With the help of nurses, Deputy Hulsey and Deputy Toyama put appellant in soft restraints so that appellant would not be able to engage in additional outbursts. (2RTS 323; see also CAT 857-860.) 31 9, April 19, 2000: Appellant’s letter to Nikki On April 19, 2000, Beckie Hind, a deputy sheriff with the Sacramento County Sheriffs Department, was working the subacute medical floor at the Sacramento County Main Jail. (2RTS 324-325.) After collecting the outgoing mail, Deputy Hind reviewed a six-pageletter that appellant had written a female named Nikki. (2RTS 324-327.) . In the letter, appellant commented on the murder of Carolina, writing, “Yes I did kill that young black man. J drop a tear everytime I think about it. But the most High is my witness he shot me 3 times in my back! That’s why he’s dead right now. That young nigga just didn’t know who he was fucken with.” (CAT 852.) Appellant also wrote about the murder of McCoy,stating, “An [sic] the lady in that car, who burned to death, the police hit her car, but being that they were chasing me, that makesit my falt [sic]. [{]] Deep down inside I feel responsible for her death. I wish that it could have been me instead of her.” (CAT 852-853.) With regard to his dealings with law enforcement, appellant wrote, “These people here really think they could do something to me or that ?m_ scared an [sic] I’m going to kiss ass in court because of the Death Penalty. They got D’Nice fucked up! An [sic] all them punk asspolice I shot, I wish I would have killed every last one! I meanthat, on the love of my 4 boys who I-will never see again.” (CAT 853.) | | Appellant also wrote that he knew he would get caught, “that’s why [he] robbed every bankan[sic] store in sight.” (CAT 853.) 10. June 18, 2000: Appellant’s letter to his aunt On June 18, 2000, Tina Burow, a deputy sheriff with the Sacramento - County Sheriff's Department, was working the subacute medical floorat © the Sacramento County Main Jail. (2RTS 328-329.) After collecting the 32 outgoing mail, Deputy Burow revieweda letter that appeared to have been written by appellant. (2RTS 330.) Theletter included an attachmentlabeled, “Daniels Investigation Time Line,” whichlisted offenses committed by appellant between November16, 1999 and January 1, 2000. (CAT 809-810.) Thelist of offenses included six bank robberies, 17 robberies, two carjackings, and a shoot out with the Turlock Police Department. (/bid.) Appellant noted that he “hit big” during the robberies of Washington Mutual Bank and Bank of the West. (bid.) B. Defense Case Appellant declined to present evidence or make a closing argument ‘during the penalty phasetrial. However, appellant offered the following apology to the Carolina and McCoy families: . Yes. At this time I am not up hereto try to justify or defend | myself of any of my wrong-doings. You know, I am a man, and I can admit my wrong-doings, and my crimes against Lewa[y]ne and Latanya. You know,itreally hurts me. You know, I think aboutit every day. You know, no matter what people say, you know,I know what goes through my mind, and | think about these two all the time. And so I got up here today to apologize, you know,to the families. I know it’s not much, may not mean much to you, but it means a lot to me, and I haveto live with this for the rest of mylife. So at this time, you know,I wouldlike to just say I would like to apologize to the families. I’d like to say to Warren Lee, Rochelle Carolina, to Lewayne’scousin, and hissisters, and brothers,I apologize, and I am sorry. I can’t give his life back. There is nothing I can do aboutit. 33 I wish there was something I could do, and I hope that you have understanding and believe that, you know,I really am sorry for what I did to him. I didn’t mean it. I had no intention on doing anything to him. I have four boys myself, and as a father, you know,I wouldn’t want anybodyto do that to any of my children, or harm any of my kids in any kind of way. So Warren Lee, to you especially, I apologize. I am sorry. (2RTS 452.) To the Anderson family, to the McCoy family, Zefre Anderson, Cynthia Anderson, and Tremel, I think about Latanya lot, and I never saw her. | saw picture of her. And I am mentally - - this one really hurts also. [ stare at her picture all the time, news clippings that I have, andit really hurts, because I get letters from people, you know, whotell me, you know, that-it’s not my fault, or whatever, but I do accept some responsibility for that accident. And I keep her in mind all the time, and I constantly stand in prayer for both Lewayne and Uatanya, but I also get a lot of negative things, ietters from peopie, especially my own sisters because of Latanya, and that hurts. So whatever it means to you,I just want you to know I am really sorry, and I apologize for that. There is nothing I can do aboutit. And whatever time they give me, you know,it’s not worth the two lives that were taken. And it-really doesn’t matter - - doesn’t matter to me,either, or. . I sit in this courtroom knowing some of the family members who were present, always here, and I can hear you guys crying. I can hear someofthe things, you know,that go on, you know,andI listen to everything. And whenI leave here and I go backto that jail, and go to mycell, I think about it all the time, andit’s hard to sit up here and look at you face to face. 34 First time [ have ever really got a chanceto get a view of all of you who are family members,andit hurts. Andit took a long time for me to really prepare myself to say this to you, becausethere is [sic] no words. I can’t even find words to even describe how I feel, you know, or show that I am really sorry. AndI ask that you guys not hate me, and I ask that you will forgive me. Thank you. (QRTS 453-454.) ARGUMENT I. APPELLANT MADE A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVEROF THE RIGHT TO COUNSEL Appellant contendsthat the guilt and penalty judgments must be . reversed because the record does notaffirmatively reflect a knowing, intelligent, and voluntary waiverofthe right to counsel. (AOB 23-49.) ~ Specifically, appellant contendsthat the Faretta waiverhe provided Judge Ransom wasinvalid because Judge Ransom failed to discuss the charges and complexities ofa capital trial and made no inquiry into whether appellant’s waiver was knowing and voluntary. (AOB 39-43.) He further contendsthat the Faretta waiver he provided Judge Long wasdefective because Judge Long failed to meaningfully inquire into his understanding of the elements and possible defenses, neglected to explain the nature of capital proceedings, and ignored his commentthat self-representation was not disadvantageous. (AOB 43-48.) Appellant concludes that a defective Faretta waiveris reversible per se. As more fully set forth below, appellant’s contentions are meritless. The record as a whole demonstrates that appellant was amply warned of the dangers and disadvantagesofself- representation such that his choice to proceed without counsel was made with eyes open. Moreover, any error was harmless beyonda reasonable 35 doubt because appellant was determined to waive counsel regardless ofthe warnings provided. Thus, the judgment and sentence should be affirmed. A. Background 1. Judge Gary Ransom Faretta proceedings On April 28, 2000, after defense counsel requested that the matter be continued for further proceedings, appellant asked if he could speak with the court. (IRTL 20.) Judge Ransom told appellant that he had to speak through his lawyer. (/bid.) Appellant expressed that he disagreed with what had occurred in court. (/bid.) The proceeding ended without further discussions. (/bid.) In a letter dated December7, 2000, appellant advised the court: I am Respectfully Requesting that I be allowed To withdraw my “Not Guilty” plea and enter a “Guilty Plea.” I am also requesting that I Be allowed to. Represent myself. MyFeretta [sic] rights. ‘ | fully understand that | am charged with the capitol [sic] offense of Murder penal code section 187 with the special circumstances. (1CT 180, underscore in original; see 1CT 181-183 [signed, undated Faretta motion].) On December20, 2000, the following colloquy occurred bbetween appellant and Judge Ransom: THE COURT: Do yourealize you’re facing the death penaltyin this ma{tt]er? [APPELLANT]: Yes, I do. THE COURT:Let me give you this advisement. Mr. Daniels, you have a right to be represented by an attorney at all stages of the case, and if you cannot afford to hire your own attorney, the Court will appoint one to represent you. 36 Do you understand that? [APPELLANT]: Yes, your Honor. THE COURT: It is generally not a wise choice to represent yourself in criminal matters. Do you understand that? [APPELLANT]: Yes, your Honor. THE COURT: Do yourealize if convicted and this things [sic] goes to the ultimate conclusion, you’re facing the death penalty? [APPELLANT]: Yes, your Honor. THE COURT: The Court cannot and will not help you present your case or grant you any special treatment. Do you understand that? [APPELLANT]: Yes, I do. THE COURT: Do you realize you will be opposed by a trained prosecutor. [APPELLANT]: Yes, your Honor. THE COURT: You must comply with all rules of criminal procedure and evidence just as a lawyer must. Do you understand that? [APPELLANT]: Yes, I do. THE COURT: If you are convicted, you cannot appeal based uponthe claim of having an incompetent lawyer, namely you? [APPELLANT]: Yes, your Honor. THE COURT: If you are disruptive, you will be removed from the courtroom and an attorney will be brought in to finish the case. Do you understand that? [APPELLANT]: I do now. Yes, I do. 37 THE COURT: You havea right at any time to hire your own attorney, however, the Court will not delay your case to allow an attorney to prepare to represent you. Do you understand that? [APPELLANT]: Yes. THE COURT: What kind of education do you have, Mr. Daniels? [APPELLANT]: High school. THE COURT: Okay. You can read and write? [APPELLANT]: Yes, I can. THE COURT: What do you wish to do, Mr. Daniels, in regards to your right to be represented by a lawyer? . [APPELLANT]: I want to exercise my Faretta. THE COURT: Doyou wantto represent yourself? [APPELLANT]: Yes,I do. | THE COURT: I’m satisfied he’s doing this knowingly and intelligently. I am going to grant the motion. There is other paperwork that has to be done. This is not it. I’m going to [sign] a sheet that explains what rights you have in regards to youraccess in regards to runners andto the law library. (IRTS 12-15.) Appellantrejected Judge Ransom’s offer to appoint advisory counsel. (1RTS 15.) The same day, appellant signed a “Record of Faretta Warnings” form acknowledging that he had been personally advised ofthe following: 1. You have the right to be represented by an attorney atall. stages of this case and if you cannot afford your own attorney the Court will appoint one to represent you. 2. It is generally not a wise choice to represent yourself in a criminal matter. 3. Penalties for offense if found guilty are {left blank]. 38 4. The Court cannot help you present your case or grant you any special treatment. 5. You will be opposed bya trained prosecutor. 6. You must comply with all the rules of Criminal Procedure and Evidencejust as an attorney must. 7. If you are convicted you cannot appeal based on the claim that you were not competentto represent yourself. 8. If you are disruptive you will be removed from the courtroom and an attorney will be broughtin to finish yourcase. 9. You have the right at anytime to hire your ownattorney. Howeverthe Court will not delay your case to allow an attorney ~ to prepare to represent you. (ICT 186, underscore in original.) 2. Judge James Long Faretia proceedings On January 5, 2001, after the case had been assigned to Judge Long for all purposes, appellant and Judge Long engagedin the following colloquy: THE COURT: Mr. Daniels, as I understand it, you are representing yourself, sir? [APPELLANT]: Yes, sir. THE COURT: The file discloses that on December the 20th of last year, that Superior Court Judge Gary Ransom advised you relative to yourright to represent yourself; is that true? [APPELLANT]: Yes. THE COURT: And healso advised you of yourpitfalls in terms of representing yourself; is that not true, sir? [APPELLANT]: Yes. THE COURT: And do you remember, you know, what he told you about the pitfalls of representing yourself? [APPELLANT]: Yes. 39 THE COURT: Andatthat time despite that you agreed that you would represent yourself and not proceed by way of having a lawyer; is that true? [APPELLANT]: Yes. THE COURT: Andthe file discloses that you signed a waiver indicating that you basically didn’t want a lawyer and that you would represent yourself. Do you remember signing such a waiver? [APPELLANT]: Yes, I did. (IRTS 18-19.) Thereafter, Judge Long arraigned appellant on the amended information. (IRTS 19-34.) After each count, Judge Long confirmed with appellant that he understood the nature of the charges. (/bid.) Judge Long also stressed to appellant the seriousness of the charges. For example,after arraigning appellant on count XII, special circumstance murder, Judge Long inquired, Do you understand that all the charges are serious, but this is specifically serious because they have alleged a specialWasawiias circumstance which means that in a guilt phase, if you were found guilty, you would proceed to a penalty phase, andit is my understanding andit has been represented that the People would be seeking the death penalty. (RTS 26.) Appellant indicated that he understood. (/bid.) Judge Long provided a similar admonishmentafter arraigning appellant on count XXI, special circumstance murder. (IRTS 32.) Judge Long addedthat, upon a finding of a special circumstance, the sentencing options wouldbelife in prison withoutthe possibility of parole or death. (/bid.) Appellantlater indicated that he did not have any questions for Judge Long regarding the nature of the charges. (IRTS 34.) Then, the following colloquy occurred: THE COURT: It has been brought to my attention and | referenced earlier that late last year, sometime in December, you appeared before a judge of the Superior Court, Judge Gary — Ransom, and you waived yourright to have a lawyer represent 40 you. And you indicated that you wanted to represent yourself, and you further told me that you remember signing such documents. : Do you remembertelling me that? [APPELLANT]: Yes. THE COURT: Now, I wantto tell you that these charges are very, very serious charges, and upon convictions in terms of the guilt phase and the finding of special circumstance and going to the penalty phase, finding that the aggravating circumstances outweigh those mitigating circumstances could well result in you being put to death by the People of the State of California. Do you understand meso far? [APPELLANT]: Yes. THE COURT: Is there any problem at all in terms of you understanding what I have said to you thus far? [APPELLANT]: No, your Honor. THE COURT: Do. you understand that this prosecutor, Mr. Curry, has prosecuted a number of death penalty cases? [APPELLANT]: Yes. THE COURT: And that, in fact, he is probably one of the experts in this county in prosecuting such cases? I don’t know if you knew that, but I’m making these representations. Now, with that in mind, does that make any differenceatall in terms of whether you wish a lawyer appointed or whether you wantto continue to represent yourself? [APPELLANT]: Continue. THE COURT: You understand that these are very, very serious matters and that whatever yourlegal training is and I don’t know what it is, I’m going to get into that, that you, sir, are placing yourself at a severe disadvantage? Do you understand that? [APPELLANT]: Yes, your Honor. I don’t look at it as a disadvantage. 4] THE COURT: Youdo not look at it as a disadvantage? [APPELLANT]: No. THE COURT: All right. Do you further understand that you are going to have to conduct yourself in these proceedings in a lawyer-like manner? Meaning, that you are going to have to comein here and function as a lawyer would function, meaning that I cannot assist you in any way by wayofasking questions to you, questions for you, or suggesting any strategy at all to you and that you would have to formulate the proper questions to witnesses. And if you did not do that, then of course, the questions that you might wish to ask would be subject to an objection. And if I sustain the objection and you do notclarify or make amends where the question can be lawfully asked, then that might be a very, very big problem for you. Do you understand that? . [APPELLANT]: I understandthat. THE COURT: Do youfurther understand and I want to ask you again, that the consequences in this case are enormousnot only for you but for the People of the State of California? Do you understand the very enormous consequences of charges that have been lodged against you and you representing yourself? Do you understand that? [APPELLANT]: Yes, I do. ‘THE COURT: Do you understandit is never wise, for although you havethe right to represent yourself, for a person unskilled to represent themselves? You know it is said that he who represents himself is a fool. Do you understand that? You have heard that saying, haven’t you? [APPELLANT]: Yes. THE COURT: And despite what I have told you and what you have heard, youstill want to represent yourself? [APPELLANT]: Yes,sir. THE COURT: Do you understand it could get so bad in here based upon yourlack of skill and you may haveskill, that if this were a professional [sporting] event in the legal sense, it might 42 be like a flag football team going up against the Tennessee Titans? You understand what I’mtryingto tell you? [APPELLANT]: I hear you. THE COURT: You understand that? [APPELLANT]: Yes. THE COURT: Anddespite metelling you that, you still want to represent yourself; is that true? [APPELLANT]: Yes, sir. THE COURT: Do you further understand that any incompetence claim that you might otherwise have if a lawyer were to represent -you, you will not have the right to raise the question of competency of counsel and matters such asthatif, in ~ fact, you represent yourself. Do you understand that? [APPELLANT]: I understand. THE COURT: Because there will be no counsel and you will _ have brought about your own competency by virtue of you possibly representing yourself and not knowingall the rules that go on in a court - - ina trial. Do you understand meso far? [APPELLANT]: I understand you. THE COURT: Let me ask you this: Do you represent to me that you are thinking clearly? Are you thinking clearly? [APPELLANT]: Yes, I am. THE COURT: And you know what youare doing? [APPELLANT]: Yes,I do. THE COURT: Howold are you? [APPELLANT]: Thirty-three. THE COURT: Canyouread and write? [APPELLANT]: Yes. 43 THE COURT: Well, can you read and write? [APPELLANT]: Yes? THE COURT: Howfar did you go in school? [APPELLANT]: High school. THE COURT: Did you graduate? [APPELLANT]: Yes. THE COURT: Where did you graduate from? [APPELLANT]: Galileo High Schoolin San Francisco. THE COURT: Have you had regular employment? [APPELLANT]: Off and on. THE COURT: When you were employed, what generally was the line of work you were involved in? [APPELLANT]: Mailroom clerk. THE COURT: Mailroom clerk? [APPELLANT]: Yes. THE COURT: That required reading and understanding of documents? . [APPELLANT]: Right. THE COURT: Have you ever insofar as you know, have you ever had any problemsin terms of mentalillness? [APPELLANT]: No. THE COURT: Are you presently taking any form of medication? [APPELLANT]: Yes. THE COURT: What do youtake? [APPELLANT]: Neurontin. 44 THE COURT: Whatis it? [APPELLANT]: Called Neurontin for nerve damage. THE COURT: You mean nerve damage in somepart of your body? [APPELLANT]: Yeah, for my hand. THE COURT: Let me ask you this: In terms of this decision to represent yourself, is whatever medication you are taking interfering with in any way whatyoufeel to be a choice of yours to represent yourself? Is it clouding your mind in any way? [APPELLANT]: No,sir. THE COURT: So really in terms of today you are not under the influence of any drug, narcotics, or alcohol that clouds your mind in any wayin termsofthis colloquy we are havingrelative to you representing yourself? Would that be correct? [APPELLANT]: No,sir. THE COURT: You are not under the effect of anything like that? [APPELLANT]: No. THE COURT: And youunderstand that while you. are here today, basically this case has been assigned herefortrial. I have read all the charges to you. You understand the nature of the charges. I’ve told you what potentially could happen. You understandall those things; is that true? [APPELLANT]: Yes, I understand. THE COURT: Anddespite the admonition that you should not represent yourself, you still want to represent yourself? You understand? [APPELLANT]: Yes, I do. THE COURT: Now,Mr. Daniels, are you doing this freely and voluntarily? [APPELLANT]: Yes. 45 THE COURT: Have any threats been made against you or any members of your family to get you to waive your right to have a lawyer represent you and proceed to represent yourself? [APPELLANT]: No. THE COURT: Have you been subject to any force to get you to waive your right to have a lawyer and for you to represent yourself? [APPELLANT]: No. THE COURT: Is there something that I am not aware of, some pressure or something that someone has put on you to make you waive yourright to a lawyer and elect to represent yourself? [APPELLANT]: No. THE COURT: Andyouare satisfied that you know what you are doing? [APPELLANT]: Yeah. THE COURT: Could youtell me, please, if you are found oyyilte: te thn oiiilt nahn aed tha aeenin P oAdenuimctannans are fauguily i tiie Bulut pnase aia wie speciai Circumstances are found to be true and you proceed to the penaltyphase, do you have an understanding of what could happen to you? And if you do, would you tell me what you think could happen to you? [APPELLANT]: Yes. I could be put to death. THE COURT: Are there other areas that you think I need to explore at this time? Oh, and further, if you did want a lawyer, do you understand that I would appoint a lawyer for you and give you what additional time you need to prepare for this trial? Do you understandthat? [APPELLANT]: Yes, I do. THE COURT: And even with that offer, you still want to represent yourself and proceed totrial? [APPELLANT]: Yes, your Honor. [PROSECUTOR]: There is one thing, and I know whenhefirst gave his waiver back in December Judge Ransom did offer him 46 advisory counsel, and at that time the defendant at that time turned that offer down. THE COURT: Well, that is not - - it is kind of like discretionary. Do you understand what advisory counselis? [APPELLANT]: Yes, I understand whatitts. THE COURT: Basically that would be a lawyer that would assist you in terms of possibl[e] strategy, different things during the trial, but he would only be advisory, she or she [sic] would only be advisory, but you would, in fact, be the lawyer that would kind oflike drive the ship. Do you understand that? [APPELLANT]: Yes,I do. THE COURT: Do you wantmeto do that? [APPELLANT]: No. THE COURT: All right. What I think ’'m going to do, I’m going to take about a ten, fifteen minute recess. [’m going to bring you back up, and then what I’m going to ask you, Mr. Daniels, is to consider what I have told you about representing yourself. And then I’m going to rule on your motion that you be allowed to represent yourself. Do you understand what I’m saying? I want to give you fifteen minutes to think aboutit. Is that okay? [APPELLANT]: All right. THE COURT: All right. We are again on.the record. Mr.- Daniels, have you had an opportunity to think about, you know,. the colloquy we have gone through relative to you representing yourself? [APPELLANT]: Yes. THE COURT: Now,let me ask you this: You have told me that you understand the nature of the all these charges and what could happen to you, right? [APPELLANT]: Yes, I understand. 47 THE COURT: And if you wish to present a defense, that is kind of like up to you, but if you wish to do that, your mind is clear and your thoughts and you understand the charges where if you wish to do that, you feel you could do that? [APPELLANT]: Yes, I do. THE COURT: You do? [APPELLANT]: Yes, I do. THE COURT: All right. Is there anything else? [PROSECUTOR]: No, your Honor, not on that issue. THE COURT: All right. The Court makes findings as follows: One, the defendant, Mr. Daniels, is competent, he understands the nature of the charges, he understands and represents that his mind is clear whereby if he wished to present a defense, he would know howto do that to these charges. The Court also finds that Mr. Daniels understands and is aware of the risk and dangers of representing himself, and I further find that he is waiving his right to a lawyer and proceedingto trial by way ofseif-representation. And find that this choice for him to. represent himself is done knowingly, freely, and intelligently, and without any force or coercion. The Court then will grant you yourright to represent yourself.. i (IRTS 18-19, 34-43.) Thereafter,appellant acknowledged that he had read and considered the court order regarding pro per privileges. (IRTS 47.) Healso signed another “Record of Faretta Warnings” form. (1CT 207.) Appellant rejected Judge Long’s offer to appoint advisory counsel or a defense investigator. (IRTS 41, 47.) OnJanuary 8, 2001, Judge Longrevisited the Faretta motion. (IRTS 77.) Appellant confirmed that he knew what he was doing, was thinking clearly, and wanted to continue with self-representation. (/bid.) He again rejected Judge Long’s offer to appoint advisory counsel or a defense investigator. (IRTS 78.) 48 On January 16, 2001, before receiving evidence, Judge Long revisited the Faretta motion. (IRIS 87.) Appellant confirmed that he wanted to continue with self-representation. (LRTS 88.) Healso rejected Judge Long’s offer to appoint advisory counsel or a defense investigator. (ICT 286; IRTS 88.) On January 19, 2001, before the penalty phasetrial began, Judge Longrevisited the Faretta motion again. (2RTS 316.) Appellant confirmed that he wanted to continue with self-representation and did not want advisory counsel or a defense investigator. (2RTS 316-317.) B. Standard of Review Onappeal, the reviewing court examines “de novo the whole record- not merely the transcript of the hearing on the Faretta motionitself-to determine the validity of the defendant’s waiver of the right to counsel.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz); accord Peoplev. Marshall (1997) 15 Cal.4th 1, 24.) “No-particular form of wordsis required in admonishing a defendant who seeks to waive counsel and elect self-representation.” (Koontz, supra, 27 Cal.4th at 1070; see People v. Burgener (2009) 46 Cal.4th 231, 241.) Rather, the test is “whether the record as a whole demonstrates that the defendant understood the disadvantagesofself-representation, including the risks and complexities of the particular case.” (People v. Lawley (2002) 27 Cal.4th 102, 140 (Lawley), internal quotation marks omitted.) “[T]he information a defendant musthave to waive counselintelligently will ‘depend, in each case, upon the particular facts and circumstances surroundingthat case.””, (Iowa vy. Tovar (2004) 541 U.S. 77, 92.) C. Discussion “A defendantin a criminal case possesses two constitutionalrights with respect to representation that are mutually exclusive. A defendant has 49 the right to be represented by counselat all critical stages of a criminal prosecution.” (Koontz, supra, 27 Cal.4th at p. 1069.) At the same time, a defendant may waivehis right to counsel and represent himself during the criminal proceedings. (Faretta, supra, 422 U.S. 806.) Therightofself- representation “is not limited to the conduct of a defense during the guilt phaseoftrial, but extends to the penalty phase in a capital case.” (People v. Bradford (1997) 15 Cal.4th 1229, 1364; accord People v. Clark (1990) 50 Cal.3d 583, 618 [“state’s interest in ensuring a reliable penalty determination may not be urged asa basis for denying a capital defendant his fundamental right to control his defense by representing himselfat all stages of the trial’”}.) This is true even whenself-representation at the penalty phase permits the defendant to preclude the presentation of mitigating evidence. (People v. Taylor (2009) 47 Cal.4th 850, 865.) “When an accused manages his own defense, he relinquishes, as a purely factual matter, many ofthe traditional benefits associated with the right to counsel. For this reason, in order to represent himseif, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” (Faretta, supra, 422 US. at p. 835.) The trial court mustsatisfy itself that a defendant whoseeks to waive counsel is competent to chooseself- representation and that the waiver is knowing and voluntary. (Godinez v. Moran (1993) 509 U.S. 389, 400 (Godinez); accord People v. Stanley (2006) 39 Cal.4th 913, 933.) The purpose of the “knowing and voluntary” inquiry “is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the | decision is uncoerced.” (Godinez, supra, 509 U.S.at p. 401 fn. 12; see Patterson v. Illinois (1988) 487 U.S. 285, 298 [an accused’s waiver ofhis right to counsel is “knowing” whenhe is made aware of the usefulness of counsel and the dangers of proceeding without counsel.].) In contrast, “the competence that is required of a defendant seeking to waivehis right to 50 counsel is the competence to waive the right, not the competence to represent himself.” (Godinez, supra, 509 U.S. at p. 399,italics in original.) The United States Supreme Court has madeclear that a defendant’s “technical legal knowledge”is not relevant to an assessment of his knowing exercise of the rightto self-representation. (Faretta, 422 U.S. at p. 836; see People v. Bradford, supra, 15 Cal.4th at p. 1364.) Indeed, “a defendant need not himself have the skill and experience of a lawyerin order competently and intelligently to choose self-representation.” (Faretta, supra, 422 US.at p. 835; see Godinez, supra, 509 U.S. at p. 400 [“while [i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts,’ a criminal defendant’s ability to represent himself has no bearing uponhis competence to choose self-representation.”].) However, a defendant “should be made aware of the dangers and disadvantagesofself- representation, so that the record will establish that ‘he knowswhatheis doing and his choice is made with eyes open.’” (Faretta, 422 U.S. at p. 835, quoting Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279.) In People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez), the court enumerated a set of suggested advisements designed to ensure a clear record of a defendant’s knowing and voluntary waiver of counsel, which this Court has cited with approval. (See Koontz, supra, 27 Cal.4th at pp. 1070-1072.) The advisementsfall into three general categories: First, 1t is necessary, as Faretta says, that the defendant “be made aware of the dangers and disadvantages of self- representation.” Under this category, we suggest that the defendant be advised: (a) That self-representation is almost always unwise and that he may conduct a defense “ultimately to his own detriment.” [Citation.] 51 (b) That he is entitled to and will receive no special indulgence by the court, and that he must follow all the technical rules of substantive law, criminal procedure and evidence in the making of motions and objections, the presentation of evidence, voir dire and argument. ... (c) That the prosecution will be represented by an experienced professional counsel who, in tum, will give him no quarter because he does not happen to have the same skills and experience as the professional. In other words, from the standpoint of professional skill, training, education, experience, and ability, it will definitely not be a fair fight. _ (d) That he is going to receive no morelibrary privileges than those available to any other pro. per., that he will receive no extra time for preparation and that he will have no staff of investigators at his beck andcall. Second, we feel it would certainly be advisable to make some inquiry into his intellectual capacity to make this so-called “intelligent decision.” In this category, inquiry might be made of: ~ Bae WwGesvas Gisre sGasssaaGn ary(a) His education and familiaritv with legal procedures. ... (b) If there is any question in the court’s mind as to a defendant’s mental capacity it would appear obvious that a rather careful inquiry into that subject should be made - probably by wayof a psychiatric examination. ... (c) In order to show that his choiceis an intelligent one, he must be made aware of the alternative, i.e., the right to counsel. He should be made aware of just what that means including, of course, his right to court-appointed counselat no cost to himself. (d).Perhaps some exploration into the nature ofthe proceedings, the possible outcome, possible defenses and possible punishments mightbe.in order. (e) It should be made clear that if there is misbehaviorortrial disruption, the defendant’s right of self-representation will be vacated. 52 Third, he should definitely be made aware that in spite of his best (or worst) efforts, he cannot afterwards claim inadequacy of representation. ... (Lopez, supra, 71 Cal.App.3d at pp. 572-574.) As indicated above, the categories identified in Lopez are merely suggested admonitions. They are not designedto create a threshold of competencyorintelligence to waive counsel. (Koontz, supra, 27 Cal.4th at p. 1071.) 1. Appellant was thoroughly admonished concerning the dangersofself-representation Asthe record amply demonstrates, appellant was warnedof the pitfalls of self-representation such that his choice to proceed without counsel was made with eyes open. In terms of the “dangers and disadvantages”identified in Lopez, supra, 71 Cal.App.3d at pp. 572-573, - appellant was advised thatit is generally unwise to proceed with self- representation; that it has been said that he whorepresents himselfis a fool; and that he wasplacing himself at a severe disadvantage. (1CT 186, 207; IRTS 13, 35-36.) He wasfurther advised that the court would not grant him anyspecial treatment; that he must comply withall rules of criminal procedure and evidenceas a lawyer must; that he must function as a lawyer would function; and that it could be “a very, very big problem”if he did not ask questions in a lawful manner. (1CT 186, 207; IRTS 13-14, 35-36.) . Judge Ransom and Judge Long both admonished appellant that he would be opposéd bya trained prosecutor. (/bid.) Judge Long addedthat the prosecutor was“one of the experts in [Sacramento] county in prosecuting {death penalty] cases” andthat “if this were a professional [sporting] event in the legal sense, it might be like a flag football team going up against the Tennessee Titans.” (IRTS 35, 37.) Finally, appellant was given a form which explainedhis library privileges as a self-represented inmate. (1CT 53 185, 206; IRTS 15, 47.) Thus, Judge Long and Judge Ransom clearly advised appellant of the “dangers and disadvantages” ofself-representation. Additionally, in terms of the factors concerning “intellectual capacity” identified in Lopez, supra, 71 Cal.App.3d at pp. 573-574, Judge Ransom inquired into appellant’s education. (IRTS 14.) Appellant stated that he could read and write and possessed a high school education. (/bid.) Appellant later told Judge Long that he was 33 years old, could read and write, had graduated from Galileo High School in San Francisco, and had been employed “off and on” as a mailroom clerk, which required that he read and understand documents. (IRTS 38.) Judge Ransom told appellant that he had the right to counsel, and appellant acknowledged that he was aware of such right. (1CT 186, 207; IRTS 13.) In fact, appellantwas offered advisory counsel multiple times, whichhe rejected. (ARTS 15, 41, 47, 78, 88.) Further, Judge Ransom and Judge Longboth told appellant that he was facing the death penalty if convicted. (IRTS 13, 26, 32, 34-35, defense and he waspresentduring the preliminary hearing when counsel argued that the Carolina murder involvedself-defense. (ARTS 42; IRTL 400.) And, appellant wastold that his right to self-representation would be terminated if he was disruptive in court. (1CT 186, 207; IRTS 14.) Given these advisements, Judge Longand Judge Ransom clearly inquiredinto all areas concerning appellant’s “intellectual capacity” to waive the right to counsel. Moreover,in line with the third category of admonishments suggested in Lopez, supra, 71 Cal.App.3d at p. 574, appellant was told that he would not be able to raise appellate claims concerning ineffective assistance of counsel. (1CT 186, 207; IRTS 14, 37.) What’s more, before receiving guilt and penalty phase evidence, Judge Long confirmed with appellant that he wanted to continue without counsel, and appellant rejected Judge Long’s 54 offers to appoint advisory counsel. (LRTS 87-88; 2RTS 316-317.) Thus, the record as a whole sufficiently demonstrates that appellant was clearly and repeatedly warned ofthe dangers and disadvantagesofself- representation such that his choice to waive counsel was voluntarily made with eyes open. Accordingly, appellant’s Faretta claim is wholly meritless. 2. None of appellant’s claims regarding Judge Ransom show that the Faretta advisements were defective Appellant contends that Judge Ransom’s Faretta advisements were deficient because he failed to explore the nature of the proceedings, potential defenses, and potential punishments, except to confirm that appellant knew hefaced the death penalty if convicted. (AOB 39-40.) His contention fails for several reasons. Initially, these particular advisements are not required by Faretta (Koontz, supra, 27 Cal.4th at 1070), and the failure to inquire into appellant’s awareness ofpotential defenses or the precise nature of the proceedings does not automatically invalidate a waiver (Peoplev. Blair (2005) 36 Cal.4th 686, 709, fn. 7 (Blair) [failure to explore potential defenses]; Lawley, supra, 27 Cal.4th at p. 142 [waiver of counsel found to be knowing andintelligent even though the court did not advise him ofthe possibility of a penalty phase].). Further, at least one case relied on byappellant for the assertion that a defendant must understand “the nature of the offense, the available pleas and defenses and the possible punishments” (see People v. Floyd (1970) 1 Cal.3d 694, 703) is a pre- Faretta case, which seemsto be of limited significance given the United States Supreme Court’s finding that a defendant’s “technicallegal knowledge”is irrelevant to an assessmentof his knowing exercise ofthe right to self-representation.'° (Faretta, supra, 422 U.S. at p. 836.) Finally, '© Another case that appellant cites, Von Moltke v. Gilllies (1948) 332 U.S. 708, 723-724, is a pre-Faretta plurality opinion wherein, contrary (continued...) 55 appellant’s contention ignores that the reviewing court considers the record as a whole, “not merely the transcript of the hearing on the Faretta motion itself.” (Koontz, supra, 27 Cal.4th at p. 1070.) By focusing on Judge Ransom’s advisementin isolation, appellant misses, amongotherthings, the thorough advisements given by Judge Long andthe fact that he was presentat the preliminary hearing when counsel suggested the Carolina murder involved self-defense and he alluded to self-defensein letter to Nikki. (CAT 852.) Appellant further contends that Judge Ransom’s Faretta advisements _ were defective because he did not ask whether appellant was competentto waive counsel. (AOB 40-41.) His contention is unpersuasive. Asan initial matter, although Judge Ransom did not ask appellant questionsrelated to mental capacity, nothing occurred during the proceedings that would have caused concern about appellant’s competency. (People v. Teron (1979) 23 Cal.3d 103, 114; Lopez, supra, 71 Cal.App.3d at p. 573 [if thereis any quesiion in the couri’s mind, a rather careful inquiry into mental ce pacity should be made].) Indeed, defense counsel had not declared a doubt(see § 1368) and appellant did not engage in incomprehensible outbursts and groundless diatribes or otherwise manifest an inability to understand the nature and object of the proceedings against him. Also, Judge Long asked appellant about his mental health. (1RTS 37-39.). Appellant respondedthat he was thinking clearly, knew what he was doing, and had neversuffered from mentalillness. (IRTS 37-38.) And, during later proceedings, Judge (...continued) to his suggestion (AOB 34), a majority of the justices did not hold that a valid waiver must “be made with an apprehensionofthe nature of the charges, the statutory offenses included within them,the range of allowable punishments, possible defenses to the charges and circumstances in mitigation thereofandall other facts essential to a broad consideration of the whole matter.” (See Von Moltke v. Gillies, supra, 332 U.S.at p. 724.) 56 Long confirmed with appellant that he was “okay” and “thinking clearly.” (IRTS 76-77.) The record as a whole supports appellant’s representation that he was mentally competent and able to validly waive his right to counsel. By focusing on Judge Ransom’s advisementin isolation, appellant again misses the relevant standard of review which requires the reviewing court to consider the record as a whole, rather than a single advisement in isolation. (Koontz, supra, 27 Cal.4th at p. 1070.) | | Again viewing Judge Ransom’s advisementsin isolation, appellant contends that Judge Ransom’s Faretta advisement was defective because he failed to ask whether the waiver was voluntary. (AOB 40-41.) His contention is meritless.. While Judge Ransom maynot haveinquired into voluntariness, nothing suggested that appellant’s waiver was involuntary. Moreover, appellant told Judge Long that he wasfreely and voluntarily waivinghis right to counsel. (IRTS 40.) Appellant denied that he had been subjected to threats, force, or pressure to get him to waive counsel. ([bid.) Thus, the record as a whole demonstrates that an appropriate inquiry was madeinto the voluntariness of appellant’s waiver. Appellant further suggests that Judge Ransom failed to determine whetherappellant “truly desired” to represent himself. (AOB 41-43.) His contention lacks merit. Judge Ransom asked the precise question, and appellant responded that he wanted to represent himself. (IRTS14-15.) Also, appellant’s words and actions did not create any ambiguity as to his desire to represent himself. His motion was not ambivalent, “made in passing angeror frustration,” or made “for the purpose ofdelayorto frustrate the orderly administration ofjustice.” (People v. Marshall, supra, 15 Cal.4th at p. 23.) Consequently, Judge Ransom hadno reason to deny the timely motion or appoint different counsel, particularly where there had been no requestto relieve counsel. (AOB 41-43; see e.g., People v. Clark (1992) 3 Cal.4th 41, 105 {a Faretta request doesnot trigger a duty to 57 conduct an inquiry pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123-124 or to suggest substitution of counsel as an alternative]; People v. Joseph (1983) 34 Cal.3d 936, 944, fn. 3 [describing difference between a Faretta motion to waive counsel and a Marsden motionto relieve counsel.) 3. Noneof appellant’s claims regarding Judge Long show that the Faretta advisements were defective Appellant contends that Judge Long’s Faretta advisements were “insufficient to assure that appellant actually understood what the state was required to prove andthe possible defenses.”'’ (AOB 43.) Appellant suggests that Judge Long should have asked abouthis legal experience, discussed the possible defenses, defined malice aforethought, explained the difference between express and implied malice, described first and second degree felony murder, defined attempted murder, explained the elements of premeditation and deliberation, and discussed lesser included offenses. (AOB43-45.) His contention is unpersuasive. Asstated earlier, appellant’s “technical legal knowledge”is not relevant to an assessment of his knowing exercise of the right to self-representation. (Faretta, supra, 422 U.S.at p. 836.) “One need not pass a ‘mini-bar examination’ in order to exhibit the requisite capacity to make a valid Faretta waiver.” (People v. Joseph, supra, 34 Cal.3d at p. 943.) Indeed, it would have been improper for Judge Long to quiz appellant on topics other than the dangers and disadvantages arising from self-representation and then draw on appellant’s “lack of '7 Appellant indicates that if he wanted to waive counsel because “counsel refused to permit him to plead guilty, then a comprehension of whatthe prosecutor would be required to prove to convict him ofcapital murder, and an understanding of possible defenses and the existence of lesser included offenses, would likely have affected appellant’s decision.” (AOB 45.) However, Judge Ransom told appellant at the outset, “It’s true. You can’t voluntarily take - - you cannot plead guilty to a death penalty case and get the death penalty.” (IRTS 12.) Thus, appellant knew he could not plead guilty to the capital offenses even if he waived counsel. 358 knowledge ofthe substantive law as a basis for denying the right to proceed without counsel.” (People v. Riggs (2008) 44 Cal.4th 248, 277-278, fn. 10.) Moreover, there is no binding precedent from this Court or the United States Supreme Court holding that the Sixth Amendmentrequires the specific advisements appellant contends should have been given. People v. Riggs, supra, 44 Cal.4th 248 (Riggs) is instructive. In Riggs, defendant represented himself duringtrial in a capital case. On appeal, he claimed that thetrial court should have advised him “(1) that defenses offered in the guilt phase must be carefully considered because they may conflict with potential penalty phase defenses; (2) that there are different burdens ofproof in the guilt and penalty phases; (3) that evidence that would not be admissible at the guilt phase might be admissible at a penalty phase; and (4)that if defendant were convictedat the guilt phase, there would be a separate penalty phaseofthe trial.” (/d. at p. 276.) This Court found that each area wasan “aspect[] of the substantive law of a capital case, not dangers and disadvantages arising from a decision to representoneselfin a capital trial.” (Ud. at p. 277.) This Court also found that a trial court is not required to ensure that a defendant is aware of substantive law “before the trial court can determine that a defendant has been made awareofthepitfalls of self-representation, such that he.. can make a knowingandintelligent decision whether to waive theright to counsel.” (/bid.) | Similarly, here, contrary to appellant’s assertion, Judge Long wasnot required to inform appellant of the substantive law concerning murder and attempted murder before accepting a waiver ofthe right to counsel. (AOB 43-44.) Instead, Judge Long wasobligated to sufficiently warn appellant of the hazards and disadvantagesofself-representation such that his choice to proceed without counsel would be made with eyes open. (Lawley, supra, 27 Cal.4th at p. 142 [Faretta waiver not defective wheretrial court failed to 59 explain in any detail the rules and procedures that defendant would be expected to follow].) Judge Ransom and Judge Long’s remarks, taken together, adequately admonished appellantof the significant pitfalls and consequencesofself-representation. Furthermore, with respect to defenses, the failure to query appellant on his understanding of potential defenses does not invalidate his Faretta waiver. (Blair, supra, 36 Cal.4th at p. 709, fn. 7.) Besides, appellant indicated that he felt as though he could present a defense; he was present during the preliminary hearing when counsel argued that the Carolina murder involved self-defense; and he alluded to a self-defense claim in a letter he wrote to Nikki. (IRTS 42; IRTL 400; CAT 852.) Thus, “the whole record-not merely the transcript of the hearing on the Faretta motionitself,” demonstrates that appellant was amply advised of the hazards ahead. (Koontz, supra, 27 Cal.4th at p. 1070.) Appellant further contendsthat there is no showing he understood ' whatthe assistance of counsel would meanat the penalty phase, at least in part, because Judge Long did not define “aggravation” and “mitigation” or provide examples of each. (AOB 46.) The record belies his contention. Asan initial matter, Judge Long was not required to educate appellant on | the substantive law related to aggravating and mitigating factors. (Riggs, supra, 44 Cal.4th at p. 277.) Furthermore, Judge Long explained the two phasesofa capital trial. During the arraignmentthat occurred just before the Faretta waiver, Judge Longtold appellant that the special circumstance allegations meant that he would proceed to a penalty phase if found guilty. (IRTS26.) Judge Long also indicated that “upon a finding of a special circumstance[],” the penalty could be “life in prison without the possibility of parole, or death. And the People have represented that they are seeking the death penalty.” (IRTS 32.) Indeed, in responding to Judge Long’s question about what could happen during the penalty phaseif the guilt and _ special circumstances were foundtrue, appellantsaid, “I could be putto 60 death.” (RTS 40-41.) Judge Long further explained the guilt and penalty phases whenaccepting appellant’s jury trial waiver. (IRTS 44-45.) Thus, the record as a whole showsthat appellant understoodat least the purpose of a penalty phasetrial. Appellant finally contends that Judge Long had a duty to clarify what appellant meant whenhesaid,“I don’t look at [self-representation] as a disadvantage.” (AOB 46-47.) He is wrong. Appellant’s statement does not suggest that he “did not really understand the disadvantages,” operated under a mistaken belief, or understood that he would receive some “undisclosed benefit.” (/bid.) Instead, appellant’s statement simply repeats whathe had previously indicated—he had accepted responsibility for the charged offenses and knew that death was a potential punishment. (See CAT 805-815.) Presumably, appellant did not view self-representation as a disadvantage becausehepreferred death to life in prison. (CAT 853 [“I can see death around the corer... . I’m not afraid to die. I would muchrather be dead, then spendlife in prison with punks & fagets.”]; see e.g., People v. Bloom (1989) 48 Cal.3d 1194, 1223-1225 [elaborate catalog of dangers and pitfalls was unnecessary where defendant announcedintention to seek the death penalty].) Also, appellant apparently viewedself-representation — 1.e., being the “captain of the ship,” as an advantage. While that may not have been the best decision, the decision certainly was not uninformed or _ unknowing. Thus, appellant’s statement does notinvalidate the waiver. _ 4. Any inadequacyin the admonitions given to appellant was harmless While the United States Supreme Court has not yet decided whether a defective Faretta waiveris reversible per se, some California courts have determinedthat the failure to obtain a knowing andintelligent waiveris prejudicial unless the People can show beyonda reasonable doubt that the defendant would have waived counsel even with proper advisements. (See 61 People v. Burgener, supra, 46 Cal.4th at pp. 244-245.) The Chapmanv. California (1967) 386 U.S. 18, 24 standard of prejudice should be applied here because “[t]he constitutional error in the present case had no effect on the decision to proceed in propria persona and thoughtful observers of the justice system would honestly question the intelligence and sensibility of an automatic reversal rule in such circumstances.” (People v. Wilder (1995) 35 Cal.App.4th 489, 503.) Appellant did not desire to be represented by counsel, and he made that desire knownto the court at a relatively early stage of the proceedings. He wasthoroughly advised by different judges regarding the substantial pitfalls and consequences of proceeding without counsel. Still, having been so warmed and advised, appellant opted for self-representation. There is | nothing in the record which suggests that appellant would have elected to proceed with counsel had Judge Ransom or Judge Long educated him on | malice aforethought, the difference between express and implied malice, first and second degree felony murdez, aii¢mptea muraer, t premeditation and deliberation, or lesser included offenses. (See AOB 43- 45.) To be sure, as the guilt and penalty phases proceeded andthe pitfalls of self-representation presented themselves, appellant denied offers for advisory counselandinsisted that he wanted to continue with self- representation. (IRTS 77-78, 87-88; 2RTS 316-317.) Hence, a recitation of the specific advisementsthat appellant contends should have been given would haveled to the sameresult; he would have voluntarily proceeded without counsel. Consequently, any inadequacy in the advisements provided appellant was harmless beyond a reasonable doubt. 5. Conclusion In sum,the record is replete with instances in which appellant was wamedofthe pitfalls of self-representation such that his choice to proceed without counsel was made with eyes open. The lengthy advisements given 62 told appellant that it was unwise to proceed with self-representation; that he wasplacing himselfat a severe disadvantage; that he would need to follow technical rules and would not receive any special treatment; that he would be opposed bya trained prosecutor; and that his right to self-representation would be terminated if he was disruptive in court. Moreover, the record showsthat appellant understood the possibility of a penalty phase that might result in a death sentence and wastold that he would notbe able to raise claims concerning ineffectiveness of counsel. And, Judge Long found appellant competent and determined that his waiver was voluntary. Thus, when viewedas a whole — as it must be — the record amply demonstrates that appellant was warnedofthe pitfalls of self-representation suchthathis choice to proceed without counsel was voluntarily made with eyes open. Regardless, any error was harmless beyond a reasonable doubt because appellant was determined to waive counsel no matter the warnings given. Accordingly, appellant’s Faretta claim is meritless and should be rejected. II. APPELLANT MADE A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVEROF THE RIGHTTO A JURY TRIAL Appellant contends that his express jury trial waivers were not knowingandintelligent because they were made without receiving any admonitions concerning the nature ofthe right being waived. (AOB 50- 67.) Specifically, appellant contends that thetrial court failed to inform him ofthe “essential elementof unity in the verdict.” (AOB 52-53.) He further contends that he was “never informedthat a direct consequence of his waiver would bethe loss of the right to an independenttrial court review ofthe penalty imposed by the jury.” (AOB 66.) Appellant concludesthat the guilty and penalty determinations must be reversed regardless of prejudice. (AOB 63-64, 67.) As set forth below morefully, appellant’s contentions are meritless. The totality of the circumstances under which the expressjury trial waivers were made showsthat appellant 63 entered knowingandintelligent waivers ofthe right to have a jury decide the guilt and penalty phases. Moreover, any error in the admonitions given is harmless under any prejudice-based standard. Accordingly, the judgment and sentence should be affirmed. A. Background On January 5, 2001, after Judge Long granted appellant’s Faretta motion, the following exchange occurred: THE COURT: Theother question I think I might raise with you. is do you intend to proceed in terms of the guilt phase, and if there is a penalty phase, by way ofjury trial or by way of court trial? [APPELLANT]: Court trial. THE COURT: Are you satisfied that that’s what you want to do? [APPELLANT]: Yes. THE COURT: Do you understand that you have an absolute right to proceed by way ofjury trial both in the guilt phase and at penalty phase, if there is a penalty phase, if you want to do that? Do you understand me? [APPELLANT]: Yes. THE COURT: What youare telling me then is that you wish to waive yourright to jury trial in the guilt phase and in the penalty phase whichbasically meansif there is two phases, you will not have a jury determine your fate, but rather the Court will make certain findings based upon what you have been charged with? Do you understand that? [APPELLANT]: I understand. THE COURT: Do you understand that it you go by way of court trial rather than jury trial, I will decide whether the prosecution has provenits case beyond a reasonable doubtin the guilt phase ofthetrial, it will be my job to determine whether you are guilty or not guilty of the charges and allegations made against you? Do you understandthat? 64 [APPELLANT]: Yes. THE COURT: Do you understand if I find you guilty of murder, of special circumstances, in the guilt phaseofthetrial, I will also determine whether the punishmentis life without the possibility of parole or the death penalty in the penalty phase of the trial? You understandthat? [APPELLANT]: Yes, I understand. THE COURT: Have you understood everything that I have told you relative to your right to proceed by wayofjury trial or by- wayof court trial? [APPELLANT]: Yes. PROSECUTOR: If I could just interject one thing. You did touch on it, but he would also have the right to have the jury determine the truth or not truth of the special circumstances. I think you did mention that. THE COURT: Yes. If you waived jury, then the jury will not determine the truth and validity. of the special circumstances, that will be my job to determine whether they are true or not true. Do you understandthat? [APPELLANT]: I understand. THE COURT: Now,in terms of waiving yourrightto jurytrial in both the guilt and if there is a penalty phase, that phasealso, are you doing this of your ownfree will? [APPELLANT]: Yes. THE COURT: Have anythreats been madeagainst you or any members of your family to get you to waive yourright to a jury trial? . [APPELLANT]: No. THE COURT: Have you been subject to any force to get you to waive yourrightto a jury trial? [APPELLANT]: No. 65 THE COURT: Is there some consideration or secret promise or deal or something that | am not aware ofthat’s making you or forcing you to waive yourright to jury trial and proceed by way of court trial? [APPELLANT]: No. THE COURT: Are you presently under the influence of any substance that would cause you not to be able to think clearly? [APPELLANT]: No. THE COURT: Do you know what you are doing? [APPELLANT]: Yes. THE COURT: All right. Do the People join, also? PROSECUTOR:Yes. THE COURT: Also in the waiver of jury trial rights as to the guilt phase and also if there is a penalty phase, that the People waivetheir right to a jury trial in the penalty phase? PROSECUTOR:Yes, People join. THE COURT: All right. Do you know what you have just done, sir? [APPELLANT]: Yes. THE COURT: All right. The Court finds that Mr. Daniels understands and freely and voluntarily waives his right to jury trial and has elected to proceed by way of court trial in the guilt phase and also by way ofcourt trial in the penalty phaseif, in fact, there is a penalty phase. And these waivers are now made part of the records of this Court. (IRTS 43-46.) On January 16, 2001, before receiving guilt phase evidence, Judge - Long inquired, THE COURT: Wealso talked about your right to a jury trial with members of these communities that would determine 66 whetheror not - - the question of guilt or innocence. [{] Do you rememberthat? [APPELLANT]: Yes. THE COURT: And you would have a right to a jury trial, certainly in terms of the guilt phase, and if we get beyond the guilt phase, you would have that sameright if you wish to have that right as it pertains to the question of penalty. [{] Do you understand what I am telling you at this stage? [APPELLANT]: Yes, Your Honor. THE COURT: Anddespite that, it is still your request andstill your view that you wish to waive any jury in this matter and proceed by wayofcourt trial, is that true? [APPELLANT]: Yes, I do, Your Honor. THE COURT: And_if, in fact, we go to a penalty phase, that I will, in fact, try the question about whether or not aggravating factors outweigh those mitigating factors. [] Do you understand - - do you understand that? [APPELLANT]: I do. THE COURT: Anddespite metelling you all of this, you still wish to proceed in the legal posture that you are presently in? [APPELLANT]: Yes, Your Honor, I do. CIRTS 88-89.) On January 19; 2001, prior to receiving penalty phase evidence, the following colloquy occurred: THE COURT: All right. [§] Do you understand now that what will occur is that we will go into the penalty phase ofthis trial? [§]] Do you understand? [APPELLANT]: Yes, sir, Your Honor. THE COURT: Do you understand that when one goesinto a penalty phase of this type of legal proceeding that the consequences are the gravest consequences in the criminal law in terms of punishment. [§{] Do you understand? 67 [APPELLANT]: Yes, understand, Your Honor. THE COURT: Do you understand that the court will consider whether or not you should be imprisoned for the rest of your life without the possibility of parole, or whether you shall suffer death. [{] Do you understandthat? [APPELLANT]: I understand, Your Honor. THE COURT: Do you understand that you have the right to present what is known as mitigating evidence, that the - - I would consider relative to aggravating factors versus mitigating factors? [{]] Do you understand? [APPELLANT]: I do. [1]... [9 THE COURT: Doyourealize, although you have waived your right to a jury trial, that I would empanela jury to try these questions in the penalty phase, you have that right, but heretofore you have waived that right, and said you wanted a court trial. [§] Do youstill feel that way? (2RTS 315-317.) B. Discussion The Sixth Amendmentto the United States Constitution provides that “Tijn all criminal prosecutions, the accused shall enjoy the right to a speedy © and publictrial, by an impartial jury of the state and district wherein the crime shall have been committed.” The Sixth Amendmentjurytrial right has been madeapplicable to the states by the Fourteenth Amendment. (Duncan vy. Louisiana (1968) 391 U.S. 145, 148-149.) Similarly, our state Constitutionprovides that “[t]rial by juryis an inviolate right and shall be secured to all.” (Cal. Const., art. I, § 16; People v. Hovarter (2008) 44 Cal.4th 983, 1026.) The right to a jurytrial is considered a fundamental right under federal and state law. (Sullivan v. Louisiana (1993) 508 U.S. 68 275, 281-282; People v. Ernst (1994) 8 Cal.4th 441, 448-449 (Ernso), overruled on another ground as recognized in People v. French (2008) 43 Cal.4th 36, 53, fn. 8.) However, a criminal defendant may waivehis right to a jurytrial. (Patton v. United States (1930) 281 U.S. 276, 312; Adams v. United States ex rel. McCann, supra, 317 U.S. 269, 281; People v. Collins (2001) 26 Cal.4th 297, 305 [“the practice of accepting a defendant’s waiverof the right to jury trial, common in both federal and state courts, clearly is constitutional.”] (Collins).) This is true even where the defendant is facing the death penalty. (People v. Cook (2007) 40 Cal.4th 1334, 1342-1343 [Capital defendants are permitted to waive ‘the most crucialofrights,’ including therights to counsel, to a jurytrial, to offer a guilt phase defense, ~ and to be presentat variousstagesoftrial.”], citing People v. Robertson (1989) 48 Cal.3d 18 (Robertson).) To be effective, a jury trial waiver must be the express andintelligent choice of the defendant. (Patton v. United States, supra, 281 U.S.at p. 312; see Collins, supra, 26 Cal.4th at p. 305.) As with the waiver of other constitutional rights, a defendant’s waiverofthe right to jury trial must be knowing andintelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandonit, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. (People v. Weaver (2012) 53 Cal.4th 1056, 1071-1072; see Collins, supra, 26 Cal.4th at p. 305, citing Colorado v. Spring (1987) 479 U.S. 564, 573 [requiring a knowing,intelligent, and voluntary waiverofthe Fifth Amendmentprivilege against self-incrimination; see also McCarthy v. United States (1969) 394 U.S. 459, 465-466 [an “intentional revocation of a knownright or privilege” must accompanya guilty plea, whichin effectis a waiverofthe rightto trial by jury, the right to confront witnesses, and the 69 privilege againstself-incrimination]; Johnson v. Zerbst (1938) 304 U.S. 458, 464, 468 [requiring knowing andintentional waiver of the Sixth Amendmentrightto the assistance of counsel].) “[I]n determining whether there has been an effective waiver of a jury trial in favor of a court trial, the cases do not require a specific formula or extensive questioning beyond assuring that the waiveris personal, voluntary andintelligent.” (Peoplev. Castaneda (1975) 52 Cal.App.3d 334, 344.) A waiveris ordinarily considered knowingand intelligent when the defendant fully understands the nature of the right and how it would likely apply in general under the circumstances, even though the defendant may not knowthe specific detailed consequencesof invoking it. (United States v. Ruiz (2002) 536 U.S. 622, 629.) “A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, whowill likely serve on the jury, or the particular lawyer the State 29 fT nt mee LYON LINN Tlaen tax en ebb etl en Ud. at pp. OZ9-Gou.) 1might otherwise provide. requirement that a defendant understand “all the ins and outs”of a jury trial in order to waive his right to one. (People v. Wrest (1992) 3 Cal.4th 1088, 1105.) And, in some circumstances, a waiver may be deemed knowing and intelligent despite the absence of admonitions concerning the burden of proof (People v. Wrest, supra, 3 Cal.4th at p. 1103), unanimity requirement (People v. Tijerina (1969) 1 Cal.3d 41, 44-46), consequencesof a jury deadlock (Robertson, supra, 48 Cal.3d at pp. 35-37), or loss of an independentreevaluation of the verdict by the judge (People v. Deere (1985) 41 Cal.3d 353, 359-360). 70 1. Appellant was awareof the nature of a jury trial and the consequences of abandoning it when he waived jury for the guilt and penalty trials In the instant case, contrary to appellant’s assertion, his express jury trial waivers for the guilt and penalty phases were knowingandintelligent. (AOB 57, 60-61.) Judge Long did nottell appellant that a jury consisted of 12 persons who had to reach a unanimousverdict. (See People v. Traugott (2010) 184 Cal.App.4th 492, 500 [essential elements ofa jury trial include that a jury consist of 12 persons who reach a unanimousverdict through consensusafter deliberation].) However, at the time he entered the express waiver, appellant was aware of the essential elements ofa jury trial. His criminal history spanned nearly 13 years and includedatleast five prior felony convictions. (2CT 332; CAT 816-850.) In October 1990, when he pleaded to a violation of Health and Safety Code section 11352, defense counsel confirmed that she had discussed with appellant his right to be tried by ajury, including that he could not “be convicted unlessall twelve jurors agree that the prosecution has provedhis guilt beyond a reasonable doubt.” (CAT 828-829.) Also, in March 1988, when appellant pleaded to a violation of Health and Safety Code section 11350, defense counsel advised thathe had told appellant that he had the right to betried by a jury, including that he could not be “convicted unlessall twelve jurors agree that the prosecution has proved his guilt beyond a reasonable doubt.” (CAT ~ 840.) The court indicated, “you have a rightto have trialby jury of ~ twelve people who must unanimously find you guilty beyond a reasonable doubt for conviction to stand.” (CAT 842.) Thus, appellant was aware of the nature ofa jury trial when he waivedtheright in the instant case based on his prior experience of waiving that right when pleading guilty to prior offenses. 71 Asfurther proof of appellant’s knowledge of the nature ofa jury trial, before receiving guilt phase evidence, Judge Long confirmed with appellant that he wished to proceed with a court trial. (ARTS 88-89.) During the exchange, Judge Long said “[w]e also talked about yourrightto a jury trial with members of these communities that would determine whetherornot- - the question of guilt or innocence.” (1RTS 88.) Although Judge Long apparently misspoke because there were no on the record discussions of a jury trial being with membersof the community, appellantstill responded that he understood the right. (/bid.) He did not express confusion or ask questions about a jury consisting of members of the community. (/bid.) And,each time Judge Long explained that appellant could have a jury or the court decide guilt or innocence,the truth of the special circumstances, and the penalty, appellant declined to ask Judge Long what he meant by a “jury.” (IRTS 43-46, 88-89; 2RTS 315-317.) Instead, appellant repeatedly stated that he understood and wished to proceed with a court trial. (/bid.) Heasserted that he knew what he was doing. (IRTS 46.) Additionally, on September 1, 2000, when appellant’s matter wasset for jury trial, he was represented by counsel and had been for about nine months. (IRTS 11; see IRTL 7 [counsel appointed on January 11, 2000].) Counsel hadhired experts and wasinterviewing people in preparation for — the penalty phase. (See 2RTL 406.) Respondent presumesthat competent counsel would have informed appellant of the nature ofa jury trial when discussing the need for experts and requesting the names of people who may provide helpful testimony. (See Robertson, supra, 48 Cal.3d at p. 36 [when represented by counselat the time of an express waiver, “absent an assertion or evidence to the contrary, we presume that competent counsel would have informed defendant of the effect of a jury deadlock.”].) No doubt, competent counsel would have discussed with appellant the nature _ of a jury trial, including the unanimity requirement, when urging that a jury 72 trial was more beneficial than a guilty plea. (People v. Tijerina, supra, | Cal.3d at pp. 45-46 [when represented by counsel and defendanttold the court what a jurytrial was, the court was not required to explain further to defendantthe significance of his waiver]; see 1CT 180; 2RTL 405 [appellant’s desire to enter a plea].) Accordingly,the totality of the circumstances surrounding appellant’s express jury trial waivers shows that they were knowingly andintelligently entered for both phases of trial. Moreover, appellant was informed of the consequencesof his express jury trial waiver. Judge Long madeclearthat he would decide appellant’s fate if appellant waived the right to a jury trial. Judge Long specifically _ advised appellantthat if he waived jury, he would “not have a jury determine[his] fate, but rather the Court will makecertain findings based upon what you have been charged with.” (IRTS 44.) Judge Long added, “it will be my job to determine whether you are guilty or not guiltyof the charges and allegations made against you” and “to determine whether[the special circumstances] are true or not true.” (IRTS 44-45.) “{I]fI find you guilty of murder, of special circumstances, inthe guilt phase ofthetrial, I will also determine whether the punishmentislife without the possibility of parole or the death penalty in the penalty phase ofthetrial.” (/bid.) Judge Long reiterated these consequences before receiving penalty phase evidence. (2RTS 315-317.) Thus, the record proves that appellant was _ advised that JudgeLong, rather than a jury, would be decidingthe case. In addition to the absence of an explanation regarding the essential elements, appellant contendsthat his jury trial waiver for the penalty phase was not knowing andintelligent because Judge Longfailed to inform him “that a direct consequence of his waiver would bethe lossof the right to an independenttrial court review ofthe penalty imposed by a jury.” (AOB 66- 67.) His contention is meritless because this Court has already rejected the same argument. In People v. Deere, supra, 41 Cal.3d 353, defendant 73 complained “that he was never told his waiver of a penalty jury would necessarily preclude an independentreevaluation of the verdict by the judge.” (/d. at p. 360.) Without mentioning that defendant had been represented by counsel, this Court rejected defendant’s claim and, finding the point frivolous, noted: “Defendant is deemed to have knownthat by waiving a jury trial he would lose his statutory right to a penalty decision by both the jury and the judge.” (/bid., overruled on another ground in People v. Bloom, supra, 48 Cal.3d at p. 1228, fn. 9 (Bloom).) Four years later, in Robertson, supra, 48 Cal.3d 18, this Court rejected defendant’s claim that his jury trial waiver was invalid becausethe trial court failed“to inform him that it would automatically review any verdict of death returned by ajury.” (/d. at p. 38.) Thus, Judge Long’s omission ofthe independent review provision of the death penalty law does not invalidate appellant’s express jury trial waiver, and appellant’s claim should berejected. 2. Any inadequacyin the admonitions given to appellant was harmlessin light of the totality of the circumstances surrounding the waiver Although this Court has not squarely decided the issue, its precedent suggests that an expressjury trial’ waiver should not be reversible per se if the record affirmatively shows that the waiver is voluntary andintelligent underthetotality of the circumstances. (See People v. Howard (1992) 1 Cal.4th 1132, 1175 [considering standard of review for Yurko error involving Boykin/Tahi admonitions].) Respondent does not dispute that an expressjury trial waiver involuntarily obtained is reversible per se (Collins, supra, 26 Cal.4th at pp. 3 10-3 12), or that thedenialofthe right to a jury trial constitutes a structural defect requiring reversal (Ernst, supra, 8 Cal.4th at pp. 448-449). However, appellant’s case does notfall within eitherline of cases. Instead, the circumstances of appellant’s case reveal that the validity of his expressjury trial waiver should be determined by 74 examining the totality of the circumstances under which it was made. (See Collins, supra, 26 Cal.4th at p. 313 (conc. opn. Brown,J.).) Following the United States Supreme Court’s decision in Boykin v. Alabama (1969) 395 U.S. 238, this Court held that a defendant must be expressly advised of and waivehis self-incrimination, confrontation, and jury trial rights before a guilty plea may be accepted. Un re Tahl (1969) | Cal.3d 122 (Tahl).) Tahl did not hold that error involving the Boykin/Tahl admonitions wasreversible per se. Still, later cases suggested that such error wasreversible regardless of prejudice. (See e.g., People v. Ibarra (1983) 34 Cal.3d 277, 283, fn. 1 [failure to obtain express waiver of Boykin/Tahl rights requires automatic reversal on direct appeal].) The lower courts adopted varying approaches, with somefinding Boykin/Tahl errot to be reversible per se and others finding the error to be reversible only upona finding of prejudice. (People v. Howard, supra, | Cal.4th atp. 1175, fn. 17, cases cited therein (Howard).) In People v. Howard, supra, | Cal.4th 1132, this Court addressed which standard of review should apply to error involving Boykin/Tahl admonitions. It concludedthat “the overwhelming weight of authority no longer supports the proposition that the federal Constitution requires’ reversal whenthe trial court has failed to give explicit admonitions on each of the so-called Boykin rights.” (Jd. at p. 1175.) Instead, [E]rror involving Boykin/Tahl admonitions should be reviewed underthe test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.] In the exercise of our supervisory powers, we shall continue to require that trial courts expressly advise defendants on the record of their Boykin/Tahl rights. However, errors in the articulation and waiver of those rights shall require the plea to be set aside only if the plea fails the federaltest. 75 (/bid.) This Court reaffirmed that explicit admonitions and waivers are an important part of the process of accepting a guilty plea or admission of a prior conviction because “[t]hey are the only realistic means of assuring that the judge leaves a record adequate for review.” (/d. at pp. 1178-1179.) Two years later, in People v. Ernst, supra, 8 Cal.4th 441, this Court addressed whetherthe rule announced in Howard should apply when a court trial is conducted in a criminal prosecution without an express jury trial waiver. In Ernst, defendant wascharged with two counts of murder, among otheroffenses. (Ernst, supra, 8 Cal.4th at p. 444.) When the matter wascalled in the master calendar court, the People informed the court that both sides were ready, and added, “There is a waiver.” (/bid.) Defense counsel confirmed, “We are prepared to waive jury as to both issues.” ([bid.) Defendant did not personally enter an express waiver; however, and the case wasassignedoutfortrial. (Ibid) On appeal, the People urged that the totality of the circumstancestest 4h ntannnrinnanA FT A.,; al A - AADQYN QAlJTUL al Pp. Tt.) aes aay yee on GLIVUNU Th dO ONpply. (Ernst, supra, This Court found Howarddistinguishable: “The question before us does not involve the validity of a plea of guilty, but instead whether a judgment in a criminal case must be reversed because a court trial was conducted without the defendant expressly having waivedhis or herrightto a trial by jury as required byarticle I, section 16, of the California Constitution.” (/d. at p. 446.) This Court was mindful [O]f the People’s contention that requiring reversal of the judgment in the present case would create ‘an anomaly in the law,’ because an ‘omission of an express waiver of a jury trial by a defendant who pleads guilty or admits a prior conviction would -be reviewed under the federal totality of the circumstances test, while a similar omission involving a defendant who gives up only his right to a jury, and proceeds to a court trial with all other rights intact, would be reversible per > se. 16 (/d. at p. 446,italics in original.) However, this Court stated, “whether or not such a result is anomalous, reversal of a conviction resulting from a court trial not preceded by an express waiverofthe right to jury trialis required by the terms of our state Constitution.” (/bid.) Subsequently, in People v. Collins, supra, 26 Cal.4th 297, this Court considered the validity of an express jury trial waiver obtained bythe trial court’s assurance of an unspecified benefit. There, defendant was charged with various sexual offenses and expressly waived his right to a jury trial. Whenthe trial court asked defendant if he understood that he was not being promised anything to waive jury, defendantreplied, “I was told that it would-that it was some reassurance or sometype of benefit.” (/d. at p. 302.) The trial court responded,“I indicated to counsel when somebody mentioned that this issue is going to be discussed with you that there might well be a benefit in it. Just by having waivedjury, that has some effect on the court. Do you understand that? By not taking up two weeks’ time to try the case, but rather giving-just having it in front of a judge alone.” (Ibid.) Thetrial court later said, “I didn’t specify and I’m notspecifying that there’s any particular benefit, but that by waiving Jury, you are getting somebenefit, but I can’t tell you what that is because I don’t know yet.” | (Ibid.) When asked, defendantsaid that he had not been promised anything to waive jury. (/d. at p. 303.) Thetrial court accepted the jury trial waiver findingit “free, knowing andintelligent.” (/bid.) The Court of Appeal determined that the issue was analogous to the question of the sufficiency of a defendant’s waiverofthe rightto trial considered in Howard, supra, | Cal.4th 1132. (Collins, supra, 26 Cal.4th at p. 304.) Consequently, it employed the totality of the circumstancestest and reached a split decision. (/bid.) After granting review,this Court held that ‘‘a harmless error standard does not, and cannot, apply in the present case.” (/d. at p. 311.) Although defendant had sufficient knowledge of the 71 right being waived, he relinquished the right only after having been told that he woudd receive a “benefit of an undetermined nature to be determined by the court at a later time.” (/bid.) Under the circumstances, defendant’s express waiverof his right to jury trial could not be deemed voluntary. (/d. at p. 312.) This Court found, “{IJike a trial court’s denial of the right to jury trial by an outright refusal to provide sucha trial,” “improperly inducing a waiverofthat tight amountsto a ‘structural defect in the proceedings’” requiring reversal regardless of prejudice. (/d. at pp. 312-313.) In a concurring opinion, Justice Brown agreed that defendant’s waiver could notbe deemed knowing andintelligent in light of the trial court’s promise of some unspecified benefit. (Collins, supra, 26 Cal.4th atpp. 313-314.) However, Justice Brown would have evaluated the validity of the jury trial waiver underthe totality of the circumstancestest. (Id. at p. 313.) Justice Brown indicated, It is difficult to imagine how else we would determine the waiver’s validity other than by examining the circumstances under which it was made. Indeed, the majority alludes to such an approach in parts of its analysis. [Citations.] Moreover, this is the standard the parties and both the majority and the dissent in the Court of Appeal agree should apply in the context ofjury trial waivers, andit is the standard for the waiver of numerous,if notall, constitutional rights. [Citations.] (Id. at pp. 313-314; see also Moran y. Burbine (1986) 475 U.S. 412, 421, [validity of Miranda waiver depends on whetherthetotality of the circumstances surrounding the interrogation reveals an uncoerced choice and the requisite level of comprehension]; Edwardsv. Arizona (1981) 451 U.S.-477, 482 [validity of waiverofthe right to counsel depends on the “particular facts and circumstances surroundingthat case, including the background, experience, and conductof the accused.”]; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [validity of Fourth Amendment waiver depends onthetotality of the surrounding circumstances]; Bradyv. 78 United States (1970) 397 U.S. 742, 747-749 [validity of guilty plea requires consideration ofall the relevant circumstances surroundingit]; People v. Arnold (2004) 33 Cal.4th 294, 306-308 [validity of custody credit waiver dependsontotality of circumstances]; People v. Panizzon (1996) 13 Cal.4th 68, 84 [validity of waiver of appellate rights requires consideration of the surrounding circumstances].) “Plainly, not every violation of the state and federal rightto a jury trial is a structural defect requiring reversal without regard to whether the defendant suffered actual prejudice.” (People v. Mil (2012) 53 Cal.4th 400, 411 [addressing whetherstructural defect occurs where a jury instruction omits more than one element of the offense].) Given the above precedent, where, as here, an express jury trial waiver is voluntarily entered without the promise of an undisclosed benefit, the matter should not be reversible if the totality of the circumstancesreveals that the waiver was knowing and intelligent. Even though Judge Long did not advise appellant of the essential element of unity, appellant was awareofthe nature ofa jury trial. He graduated from a California high school (1RTS 38) and his criminal career included manycriminal convictions by plea where he had been expressly told that he had the right to a trial by jury of twelve people who must unanimously find him guilty beyond a reasonable doubt for conviction to stand (CAT 828-829, 840, 842). Also, Judge Long advised appellant of the consequences of abandoning his jury trial right, including that Judge Long would decide his guilt or innocence andthetruth of the special circumstanceallegations. (IRTS 43-46; 2RTS 315-317.) Judge Longalso informed appellant that he would decide the ultimate penalty, choosing betweenlife in prison without the possibility of parole and death. (/bid.) Appellant never expressed confusion or asked for clarification regarding his jury trial right. Instead, at all times, appellant indicated that he understood and desired to have Judge Long decide his fate. Thus, a reading ofthe 79 specific advisements that appellant contends should have been given would have led to the same result; appellant would have proceeded with a court determination of guilt and penalty. As a result, any inadequacyin the admonitions given to appellant was harmless. In sum, appellant’s express jury trial waivers were knowing and intelligent. The totality of the circumstances under which the express jury trial waivers were made demonstrates that appellant entered a knowing and intelligent waiver of the right to jury trial. While he may not have been advised of the essential element of unity in these proceedings, throughout his lengthy criminal history, appellant had repeatedly been advised of the nature of a jury trial right. Here, Judge Long advised appellant of the consequencesofchoosing to proceed without a jury. Still, appellant clearly expressed his preference to have Judge Long decide both phasesofthetrial. Moreover, appellant cannot establish that he would have proceeded with a jury trial had the suggested advisements been given. Thus, appellant’s claim is meritless and the judgment and sentence should be affirmed. II. APPELLANT DID NOT ENTER A GUILTY PLEA IN VIOLATION OF PENAL CODE SECTION 1018 AND THE EIGHTH AND FOURTEENTH AMENDMENTS; INSTEAD, HE PUT THE STATE TOITS PROOF - Appellant contendsthat “[b]y waiving counsel andhis right to a jury trial on guilt and penalty, by not presenting any evidence or argumentin his behalf or cross-examining any witness, after his efforts to plead guilty had been rejected becausehis counsel did not consent, appellant was allowedto do what Penal Codesection 1018 prohibits for defendants charged with | capital offenses — pleading guilty without the consent of counsel.” (AOB 71, 72-84.) He also contends that, because his slow plea violated section 1018, the judgmentand sentence must be reversed withoutreference to prejudice. (AOB 85.) Appellant further suggests that his slow plea violated the Eighth and Fourteenth Amendmentsto the federal Constitution 80 becauseit inhibited a just and reliable imposition ofthe death penalty. (AOB 85-87.) As morefully set forth below, appellant’s contentions are meritless. First, even if section 1018 is applicable to defendants who discharge counsel and proceed withself-representation, appellant’s conduct was not tantamountto a guilty plea because he did not surrender any rights in consequenceofa stipulation or negotiated disposition. Instead, appellant underwent a court trial and maintained the opportunity to challenge the evidence, to cross-examine witnesses, and to refuse to incriminate himself. Moreover, having waived counsel, appellant had no duty to present a defense, but rather could simply putthestate to itsproof. The court could not require anything more.of appellant. Finally, the reliability required by the Eighth and Fourteenth Amendments wasattained because the judgment was entered in conformity with the rigorous standardsof California’s death penalty law. Accordingly, the judgment and sentence should be affirmed. A. Background On April 28, 2000, whenappellant’s matter was continuedfor nearly one month for further proceedings, appellant asked if he could speak with the court. (IRTL 20.) Judge Ransom told appellant that he had to speak through his lawyer. (/bid.) Appellant responded, “I’m not agreeing with nothing that’s going on. I’m not agreeing with nothing that’s going on here - - I’m not agreeing with nothing that’s going on here.” (/bid.) The hearing ended thereafter. ([bid.) . On August 7, 2000, when defense counsel requested a preliminary hearing, appellant said, “Your Honor, I wishto - - J wish not to plead not guilty at this stage; I wish to plead guilty.” (IRTL 44.) Defense counsel indicated that appellant did not mean that he wished to plead guilty, and the following colloquy occurred: | [APPELLANT]: I know exactly what I am saying. We discussedthis already. 81 [DEFENSE COUNSEL]: Wehave explained to Mr. Daniels the necessity of havinga not guilty plea entered on the record so we can move the case forward for a preliminary hearing. THE COURT: Doyou understand that, Mr. Daniels? [APPELLANT]: I understand exactly what she is saying. What I am saying I am preparedto enter a plea ofguilty. THE COURT: Whatare the possible consequencesofhis plea? [DEFENSE COUNSEL]: Heis facing the death penalty because the way the prosecution has chargedthe case. [S] --- [0 THE COURT: You are not allowed to do this without your lawyers agreeing onit, sir. . (IRTL 44-45.) Whenthe prosecutor indicated that the People were not willing to accept life without possibility of parole, the court entered not guilty pleas on appellant’s behalf. (IARTL 45.) On August 23, 2000, the court (Judge Crossland) asked appellantif he . _ wouldbe willing to waivehis right to a continuous preliminary hearing. (IRTL 377.) Appellant replied, “at this timeI’m willing to waive all of my rights at this present time and go nofurther in this matter.” (/bid.) The next day, after appellant was held to answer, the court asked appellantif he wishedto reaffirm his denials and not guilty pleas. (IARTL 404-405.) He responded, “No, I do not. I wish to enter a guilty plea.” (IRTL 405.) The matter was continued without entry ofaplea. (IRTL 406.) On September1, 2000,after arraignment, appellant asked to address ‘the court in private. (IRTS 11.) The court (Judge Ransom) denied appellant’s request and set the matter for jury trial. (Jbid.) In a letter dated December 7, 2000, appellant advised the court: I am Respectfully Requesting that I be allowed To withdraw my “Not Guilty” plea and enter a “Guilty Plea.” 82 I am also requesting that I Be allowed to Represent myself. My Feretta [sic] rights. . I fully understand that I am charged with the capitol [sic] offense of Murder penal code section 187 with the special circumstances. (1CT 180, underscorein original.) On December 20, 2000, defense counsel indicated that appellant had filed a Faretfa motion and requested to set aside his not guilty plea. (ARTS 12.) Defense counsel further indicated that he had explained to appellant that he could not plead guilty while in pro per status. (/bid.) The court advised appellant that he “can’t voluntarily take - - you cannotplead guilty to a death penalty case and get the death penalty.” (/bid.) Appellant proceeded with the Faretta motion, which the court granted. (IRTS 13-16.) On January 5, 2001, after the matter had been assigned to Judge Long for all purposes, appellant reiterated that he wanted to proceed without counsel. Judge Long warned appellant ofthe pitfalls and dangersofself- representation. (IRTS 18-19, 34-43.) Ultimately, Judge Long granted | appellant’s Faretta motion, finding that his waiver of counsel was knowing, intelligent, and voluntary. (IRTS 43.) Immediately thereafter, appellant informed Judge Longthat he wished to proceed with a court trial for the guilt and penalty phases. (/bid.) Judge Long advised appellant of his rights relative to a jury trial, and inquired into the voluntariness of appellant’s waiver. (IRTS 43-46.) After a discussion, Judge Long found appellant’s waivers to be knowing,intelligent, and voluntary. (1RTS46.) Then, the clerk noted that appellant had not entered a plea following the arraignment. (IRTS 47.) Atthat time, appellant reiterated his desire to plead guilty. (IRTS 48.) Judge Longtold appellantthat he could not plead guilty to the special circumstances. (/bid.) Appellant suggested that he wanted to plead guilty to the counts unrelated to the murder charges. (Jbid.) 83 The prosecutor stated that he had discussed with appellantthe possibility of having Judge Long review the preliminary hearing transcript for the factual basis. (IRTS 52.) The prosecutor also asked Judge Long to makesure that appellant understood that the People “may ask the Court to take notice of the facts underlying those robberies that he is pleading guilty to in either the guilt or penalty phase as they maybelegally relevant.” (/bid.) Judge Long responded, “Well, you knowthe rule is that that may well be - - when you read just a transcript, that may well be tantamountthey say to a slow plea, but it is in a different context, you understand?” (/bid.) The prosecutorsaid, “Yes,” and the court recessed without further discussion on the issue. (/bid.) On January 8, 2001, Judge Long accepted appellant’s pleatoall charges unrelated to the capital offenses. (IRTS 68-76.) On January 16, 2001, a court trial began. (1CT 286; IRTS 79-86.) The prosecutor prPresence 13 witnesses and introduced more than 90 Libits AVL f1T 29 CALL loqiedlo deemedthatclarification or elaboration was needed. (See e.g., IRTS 117- 118, 128, 148, 154-155, 159, 194-196.) Judge Long also sustained his own objections to someofthe prosecutor’s questions (see e.g., IRTS 139, 145, 155, 183) and orderedstricken certain testimony (see e.g., IRTS 157, 160). Thetrial concluded on January 19, 2001. Appellant did not present an opening statement, ask questions,or object to any of the People’s evidence. ({RTS 265.) He rested the defense case withouttestifying or presenting evidence onhis behalf. (/bid.) | On January 23, 2001, the penalty phase court trial began. (2RTS 319.) The prosecutorpresented 14 witnesses and introduced more than 20 exhibits. (2CT 321-322.) When the prosecutorfinished the People’s case, appellant asked for a “couple days to use the law library” to “look at a couple tapes that [he had] not seen.” (IRTS 405.) Helater rested without 84 presenting evidence in mitigation or closing argument. (IRTS 419.) However, appellant offered an apology to the Carolina and McCoy families. (2RTS 453-454.) B. Standard of Review In deciding whether a course of conductis a slow plea or tantamount to a guilty plea, an appellate court “must assess the circumstances of the entire proceeding. It is not enough for a reviewing court to simply count the numberof witnesses whotestified at the hearing... .” (People v. Wright (1987) 43 Cal.3d 487, 496, overruled on another ground as recognized in People v. Mosby (2004) 33 Cal.4th 353, 360.) C. Discussion 1. This Court has neverheld that section 1018 - prevents a capital defendant from discharging — counsel, representing himself, and entering a guilty plea Appellant contendsthat “in California, the trial court doesnot have the authority to accept a plea of guilty to a capital crime from a defendant who has waived counsel.” (AOB 72-78.) At the time of appellant’s trial, Penal Code section 1018 provided, in relevantpart, No plea of guilty of a felony for which the maximum punishmentis death, or life imprisonmentwithout the possibility of parole, shall be received from a defendant who does not ' appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel. This Court has never squarely considered the issue of whether a defendant in a capital case may discharge counsel, engage in self- representation, and enter a guilty plea. (See People v. Chadd (1981) 28 Cal.3d 739, 746-747; People v. Alfaro (2007) 41 Cal.4th 1277, 1299, fn. 4 (Alfaro).) Resolution of this automatic appeal; however, does not require consideration of the issue because appellant did not enter a guilty plea. 85 2. Regardless, the application of section 1018 is not relevantin this matter because appellant did not engage in conduct tantamountto a guilty plea A “slow plea” or conduct tantamountto a guilty plea is “an agreed- -upon disposition of a criminal case via any one of a numberof contrived procedures which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment.” (People v. Tran (1984) 152 Cal.App.3d 680, 683, fn. 2.) It must be defined by the rights a defendant surrenders. (Robertson, supra, 48 Cal.3d at p. 40.) There is no surrender ofrights, and thus no need for Boykin/T.ahi waivers, when a defendanthasa trial and the opportunity to cross-examinethe witnesses against him and to refuse to incriminate himself.'® (/d. at p. 40; People v. Hendricks (1987) 43 Cal.3d 584, 592-593 (Hendricks); People v. Griffin (1988) 46 Cal.3d 1011, 1029.) In Hendricks, supra, 43 Cal.3d 584, a special circumstance murder case where the penalty wasfixed at death, defendant claimed that counsel’s defense was tantamounttoa guilty plea, requiring a waiver ofrights under Boykin, supra, 395 U.S. 238-and Tahl, supra, | Cal.3d 122. (Ud. at p. 592.) Duringtrial, defense counsel did not present an opening statement; cross- examinedonly a few ofthe prosecution’s witnesses; stipulated to the admissibility of defendant’s confession;failed to call defendant or any other witnesses; stipulated to defendant’s prior convictions for murder; and did not present a closing argument. (/bid.) In rejecting defendant’s claim, this Court focused on two points. First, Boykin/Tahl waivers are necessary only when the defendant agreesto a submission procedure,“by virtue of '8 Under Boykin, supra, 395 U.S. 238 and Tahl, supra, | Cal.3d 122, a guilty plea cannot stand unless the record in some mannerindicates a free andintelligent waiver of the three enumerated rights necessarily abandoned by a guilty plea, namely, the privilege against self-incrimination, the right to trial by jury, and the right to confrontation. 86 which he surrenders one or moreofthe three specified rights.” (Hendricks, supra, 43 Cal.3d at p. 592.) “Second, there is no such surrender when the defendant undergoes ~ and thereby exercises his right to — a jury trial and has the opportunity to cross-examine the witnesses against him and to refuse to incriminate himself.” (/d. at pp. 592-593; see Peoplev. Murphy, (1972) 8 Cal.3d 349, 365-366 [presentation of a “minimal defense” was not tantamountto a guilty plea].) Given that defendant had’a jury trial, cross- examined the People’s witnesses, and exercisedhis right against self- incrimination, this Court concluded that counsel’s defense was not tantamountto a guilty plea requiring Boykin/Tahl waivers. (Ibid.; see People v. Griffin, supra, 46 Cal.3d at p. 1029; People v. Memro (1995) 11 Cal.4th 786, 857-858 [concession during closing argument wasnot tantamountto a plea]; People v. Cook (2006) 39 Cal.4th 566, 590 [same].) Subsequently, this Court decided Robertson, supra, 48 Cal.3d 18, and ~ extended the principles highlighted in Hendricks to a penalty phase tried without a jury. In Robertson, defendant was found guilty of special circumstance murder and the penalty was fixed at death. (Robertson, supra, 48 Cal.3d at p. 28.) This Court reversed the judgmentas to penalty. (/bid.) Onretrial, defendant waived jurytrial and defense counselstipulated that the court could read and considerthe formertestimony of 21 specified witnesses addressing the circumstances ofthe crimes, the backgroundto defendant’s statements to police, the special hearing on the admissibility of defendant’s confession, andthefirst trial. (/d. at pp. 38-39.) The parties understood that either side could call any of the witnesses for additional testimony. (/bid.) In fact, the parties called three of the 21 witnesses whoseprior testimony had been submitted, along with 20 additional witnesses. (/d. at p. 39.) On appealafter retrial of the penalty phase, defendant claimed the procedure constituted a submission which required Boykin/Tahlwaivers. 87 (Robertson, supra, 48 Cal.3d at pp. 39-40.) This Court rejected defendant’s claim, noting that a “‘submission’ is defined by the rights a defendant surrenders”and reiterating that there is no surrender when the defendant undergoesa trial and has the opportunity to cross-examine witnesses and refuse to incriminate himself. (/d. at p. 40.) This Court observed that a capital defendant has “no constitutional right at the penalty phase to a jury trial.” (/bid.) This Court further observed that even though defendant waivedhis statutory right to a jury trial, “[h]is waiver of the statutory right, ..., was not a consequenceofhis stipulation to admission ofthe witnesses? former testimony, but precededit.” (/bid.) Turning tothe facts, this Court found that counsel’s conduct was not tantamountto a guilty plea requiring Boykin/Tahl waivers because defendant had the opportunity in the prior proceedings to cross-examine the witnesses whose former testimony was admitted and preserved that opportunity in the new penaltytrial. bid.) Similarly, in People v. Sanders (1990) 51 Cal.3d 471, counsel failed to cross-cxaminc tie prosecu offered no mitigating evidence, and presented no closing argument. (/d. at p. 527.) On appeal, defendant urgedthat “his decision to forgo presentation of evidenceat the penalty phase ofhis trial was tantamount to a guilty plea without the consent of counsel.” (/bid.) This Court found the premise faulty: his decision to refrain from offering evidence is not tantamount to a guilty plea and is thus not governed by - section 1018. His choice did not amountto an admissionthat he believed death was the appropriate penalty, nor did he give up his right to confront or cross-examine those testifying against him at the penalty phase. (Cf. Boykin v. Alabama (1969) 395 USS. 238,243 [23 L.Ed.2d 274, 279, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122, 130-133 [81 Cal.Rptr. 577, 460 P.2d 449].) Moreover, his decision refusing to take part in the penalty phase did not necessarily make it any more likely that his jury would find death was the appropriate penalty. The jury could, for example, have found mitigating factors from evidence presented at the guilt phase. We conclude the scope of section 1018 is not 88 | so broad as to embrace defendant’s decision of nonparticipation in the penalty phase ofhis trial. (People v. Sanders, supra, 51 Cal.3d at p. 527.) In the instant case, the circumstances of the proceedings demonstrate that appellant did not enter a slow plea or engage in conduct tantamountto a guilty plea. Initially, as defined by the court in People v. Tran, supra, 152 Cal.App.3d 680, a slow plea typically involves “an agreed-upon 39 66disposition,” “a finding of guilt on an anticipated charge,” and a “promised punishment.” (/d. at p. 683, fn. 2.) None of these characteristics is present in appellant’s case. Indeed, the record lacks any discussion or negotiation betweenthe parties concerning the disposition, charges for which appellant likely would be convicted, or a promised punishment. Therefore, the circumstances of appellant’s matter are outside the definition ofa slow plea. More importantly, this Court has repeatedly stated that a submission constituting a slow plea or conduct tantamountto a guilty plea is defined by the rights a defendantsurrenders. (Robertson, supra, 48 Cal.3d at p. 40.) In this matter, appellant was repeatedly told he could not plead guilty without consent of counsel and he wastold at the time the court granted his Faretta motion that he could not plead guilty and get the death penalty. (IRTL 44-45; IRTS 12.) He wasalso advisedofhis right to a jurytrial, and knowingly and intelligently waived his constitutional right to jury for the guilt phase andstatutory right to jury for the penalty phase. (IRTS 43- — 46, 88-89; 2RTS 315-317.) The waiver preceded the presentation of the prosecution’s witnesses and was not the consequenceof any negotiated agreement with the prosecution concerning the disposition, punishment, or evidence to be presented. (See Robertson, supra, 48 Cal.3d at p. 40.) Further, appellant received a trial during which the court, as finder of fact, ensured that the prosecution properly discharged its burden ofproofat the guilt phase and presented substantial aggravating evidenceat the penalty _ 89 phase. Appellant had the opportunity to challenge the prosecution’s evidence, to cross-examine the witnesses against him, andto call witnesses on his behalf; he simply refused to do so. Moreover, appellant preserved his right against self-incrimination by declining to testify during the guilt and penalty phases. Since appellant did not surrender any constitutional rights in consequence of any negotiated agreement, his conduct was not “a bargained-for submission”on thetranscripts from prior proceedings which may constitute a slow plea or conduct tantamountto a guilty plea. (People v. Wright, supra, 43 Cal.3d at p. 496; see Hendricks, supra, 43 Cal.3d at pp. 592-593; Griffin, supra, 46 Cal.3d at p. 1029; see also Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602-603.) 3. None of appellant’s contentions establish that he engaged in conduct tantamountto a guilty plea Appellant contends that, under the circumstances, the court should have inquired into his intentions before commencing trial. (AOB 81-82.) | He further suggests that if the parties “confirmed that the court trial was tantamountto a guilty plea to capital murder,”“the court could have averted error by refusing to accept the jury waiver.” (AOB 82.) His contention fails for several reasons. First, as previously indicated, appellant’s conduct was not tantamountto a guilty plea. He simply chose to defend himself by nonparticipation. In addition, the court had no authority to overrule the consentofthe parties to waivetrial by jury. (People v. Terry (1970) 2 Cal.3d 362, overruled on another ground in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.) According to our state Constitution, “[a] jury may be waived in a criminal case by the consent of both parties expressed in open court... .” (Cal. Const., art. I, § 16.) Once a defendant has knowingly and voluntarily waived jury trial, and both parties have consented, the court must accept the waiver. (People v. Scott (1997) 15 Cal.4th 1188, 1209.) Even ifthe court could have refused 90 to accept the jury waiver, appellant fails to explain how that would have materially changed the mannerin which he chose to defend himself. (AOB 81-82.) Besides, this Court has already determined that a submission ts defined by the rights surrendered, regardless of whether the defendant proceeds before the court or a jury. (See Robertson, supra, 48 Cal.3d at p. 40.) Here, appellant did not surrender any constitutional rights as a consequence of a stipulation or negotiated agreement. Appellant further contends that, before submitting the case for decision, the court should have appointed counsel to determine how to proceed given appellant’s lack of participation at trial. (AOB 82.) His contention is unpersuasive. Asan initialmatter, having determined that appellant made a knowing, voluntary, and intelligent waiverofthe rightto counsel, the court lacked authority to force counsel upon appellant absent some disruption or manipulation of the proceedings. (Faretta, supra, 422 US.at p. 834, fn. 46; see People v. Clark, supra, 3 Cal.4th at pp. 114-115.) Also, the court could not compel appellant to do anything more than put the state to its proof. (People v. Teron, supra, 23 Cal.3d at p. 115; see Bloom, supra, 48 Cal.3d at p. 1227 [A rule requiring a pro se defendantto present mitigating evidence would be unenforceable, as the court has no meansto compela defendantto put on an affirmative defense”].) Indeed, appellant had a fundamental right to control and present a defense of his choosing, even if that meant refusing to participate actively. ([bid.) As the Supreme Court hassaid, “[t]he right to defend is personal. The defendant, and not his lawyeror the State, will bear the personal consequences of a conviction. ... And although he may conduct his own defense ultimately to his own detriment, his choice must be honored... .” (Faretta, supra, 422 USS. at p. 834.) The court cannot revoke a defendant’s right to engage in self-representation simply becausethe court dislikes the defensestrategy. 91 For example, in People v. Teron, supra, 23 Cal.3d 103, defendant was charged with murder andthe prosecution sought the death penalty. (/d.at p. 108.) Thetrial court granted defendant’s Faretta motion and, the day before trial was scheduled to begin, defendant waived jury. Ud. at p. 110.) During the prosecution’s case, defendant asked no questions of witnesses and presented only one objection. (/bid.) Defendant suggested thatthe trial court admit the transcripts of his taped confession, rather than the tape itself. (/bid.) When the prosecution rested, defendant advised the trial court that he did not wish to present evidence. (/d. at p. 111.) He also said that he did not want to present evidence regarding his intoxication level on the nightin question, despite that defendant had mentionedit during his confession. (/bid.) Defendant offered no closing argument. (/bid.) Thereafter, the trial court found defendantguilty of first degree murder. (/bid.) Before starting the penalty phase, defendant again entered a Faretta waiver and waived a jury trial. ([bid.) He presented no evidence or argument on penalty. (/bid.) Thetriat court sentenced defendant to death. (/d. at pp. 111-112.) On’ appeal, counsel urged “that once it had becomeclear during the guilt trial that defendant did not intend to present a defense, the court should have revokedhis right to represent himself.” (People v. Teron, supra, 23 Cal.3d at’p. 115.) This Court rejected the contention, finding that a defendant “bears no duty to present a defense.” (/bid.) “A fortiori, having put the state to its proof, {a defendant] has noobligationto try to rebutit.” (bid) Similarly, here, appellant endureda trial during which the prosecution satisfied its burden of proof. He had the opportunity to cross-examine the witnesses against him andto present evidence, but declined to do so. His personal choice to proceed by nonparticipation did not morphthetrial into a slow plea. (People v. Teron, supra, 23 Cal.3d at p. 115; see People v. McKenzie (1983) 34 Cal.3d 616, 628; United States v. Clark (7th Cir. 1991) 943 F.2d 775, 782 [defendant has a personal constitutional right to face the 92 charges alone by standing mute and forcing thestate to its proof]; Savagev. Estelle (9th Cir. 1990) 924 F.2d 1459, 1464, fn. 10 [same]; United Statesv. McDowell (6th Cir. 1987) 814 F.2d 245, 250 [same]; cf People v. Stansbury (1993) 4 Cal.4th 1017, 1041-1047 [when a defendant stands mute because of a desire to disrupt or manipulate the proceedings,thetrial court may threaten to terminate his pro per status].) Thus, appellant did not engage in conduct tantamountto a guilty plea in violation of section 1018. 4. The death judgmentis reliable because it was entered in conformity with the rigorous standards of California’s death penalty law Appellant contends that the death judgmentis arbitrary and unreliable because he proceeded without counsel and failed to participate actively in his defense. (AOB 85-87.) His contention is meritless. The constitutional standardsfor the reliability of a death judgmenthave been satisfied. In People v. Bloom, supra, 48 Cal.3d 1194, this Court considered whether a death judgment maybe regarded as unreliable in a constitutional sense whena self-represented defendant chooses not to present mitigating evidence. (/d. at p. 1227.) There, when the jury returned guilty verdicts, defendant made a Faretta motion. (/d. at p. 1214.) He chose to proceed as “co-counsel” during the penalty phase. (/d. at p. 1215.) Defendant urged the jury to impose death, explained that he deservedto die, andsaid that he wanted to die. (/d. at pp. 1216-1217.) He also suggested that there were no mitigating factors, but said, “Every man onthejury, if you knew the facts on mylife, you’d kill him too.” (dd. at p. 1217.) The jury returned a death verdict. On appeal, defendant claimed that the death verdict was unreliable because he withheld substantial mitigating evidence. (/d. at p. 1227.) This Court rejected the argument, finding practical and theoretical flaws. A rule requiring a pro se defendant to present mitigating evidence would be unenforceable, as the court has no means to compel a defendant to put on an affirmative defense. [Citation.] 93 The threat of appellate reversal would be not merely ineffective but counterproductive. A knowledgeable defendant desiring to avoid the death penalty could make a timely request for self- representation under Faretta, supra, 422 U.S. 806, and then decline to present any mitigating evidence at the penalty phase, secure in the knowledge that any death judgment would be reversed by this court, while a defendant genuinely desiring death could circumvent the rule by presenting a bare minimum of mitigating evidence. A rule so easily evaded or misused is clearly unsound. The sanction of appellate reversal is not the answer, nor has any alternative method been suggested to compel an unwilling defendant to present an effective penalty defense. While the United States Supreme Court has frequently stated that the Eighth Amendment and evolving standards of societal decency impose a high requirementofreliability on the determination that death is the appropriate penalty in a particular case [citations], the high court has never suggested that this heightened concern for reliability requires or justifies forcing an unwilling defendant to accept representation or to present an affirmative penalty defense in a capital case. Indeed, the lack of any legal or practical means to force a pro se defendant to present mitigating evidence, or indeed any defense at all, compels the conclusion that the death-verdict-reliability requirement cannot meanthat a death verdict is unsound merely because the defendant did not present potentially mitigating evidence. Rather, the required reliability is attained when the prosecution has discharged its burden of proofat the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendmentreliability requirements. [Citations.] (Bloom, supra, 48 Cal.3d at pp. 1227-1228, footnote omitted.) The same considerations apply here. The death verdict was rendered only after theprosecutor discharged its burden ofproof at the guilt phase and presented aggravating evidence at the penalty phase that substantially 94 outweighed the relevant mitigating evidence. Although appellant did not present evidenceat the penalty phase, the court, as trier of fact, considered evidence of appellant’s drug use that was presented during the guilt phase as a potentially mitigating circumstance, and also considered appellant’s apologies to the victims’s families and showing of remorse whenselecting the appropriate punishment. (2RTS 468-469; see People v. Sanders, supra, 51 Cal.3d at p. 527.) The court followed the demanding guidelines of California’s death penalty law throughout the proceedings. And, the court could not compel appellant to present a defense, offer mitigating evidence, or forego his right to self-representation. (See People v. Clark, supra, 50 Cal.3d at p. 618 [“It follows that the state’s interest in ensuring a reliable penalty determination may notbe urgedas a basis for denying a capital defendant his fundamentalright to control his defense by representing himselfat all stages of the trial.”].) Consequently, the judgment of death does notviolate the reliability requirements of the Eighth and Fourteenth Amendments, and should be affirmed. (Bloom, supra, 48 Cal.3d at p. 1228; People vy. Lang (1989) 49 Cal.3d 991, 1029-1030.) | 5. Conclusion In sum, appellant did not enter a slow plea in violation of section - 1018, thereby rendering the death judgmentunreliable. Initially, even if section 1018 prevented a capital defendant from entering a guilty plea after discharging counsel! and proceeding with self-representation, appellant’s conduct wasnot tantamountto a guilty plea because he did not surrender any constitutional rights in consequenceofa stipulation or negotiated | agreementas to the presentation ofthe evidence. Instead, he endureda trial and maintained the opportunity to challenge the evidence, to cross-examine witnesses, and to refuse to incriminate himself. Appellant had no duty to present a defense, and the court could not require him to do anything more than put thestate to its proof. Moreover, the reliability required by the 95 Eighth and Fourteenth Amendments was attained because the death judgmentwas entered in accord with the rigorous standards of California’s death penalty law. Thus, the judgment and sentence should be affirmed. IV. THE TRIAL COURT PROPERLY CONSIDERED APPELLANT’S DruG USE WHEN EVALUATING THE MITIGATING FACTORS Appellant contends thatthe trial court erroneously refused to consider his drug use as a mitigating circumstance in violation of state law and the Eighth and Fourteenth Amendments. (AOB 88, 89-98.) Appellant further urges that the court committed Lockett error by refusing to consider his impairmentat the time of the offenses. (AOB 98-104.) He finally contends that the court’s refusal to consider mitigating evidence requires reversal without an inquiry into prejudice. (AOB 104-106.) Alternatively, appellant suggests that the court’s error was not harmless beyond a reasonable doubt. (AOB 107-111.) As morefully set forth below, appellant’s contentions are meritless. First, appellant’s claim is premised on the erroneous assumption the court did not refuse to consider mitigating evidence. Rather, the court consideredall of the evidence offered during the guilt and penalty phases, and determined that appellant’s drug use was not mitigating. That the court did not mention appellant’s drug use or impairment more particularly under factor (k) does not mean that the evidence was not considered. Moreover, to the extent the court erred, the error was harmless beyond a reasonable doubt. Therefore, the judgment and sentence should be affirmed. A. Background Whenrendering the penalty phase verdict, the court declared that, amongotherthings, it had considered “[a]ny other circumstances which extenuates the gravity of the crime and any sympathetic or other aspect of [appellant’s] character or record that [appellant] offers as a basis for a sentence less than death, whetheror not related to the offense for which he 96 is on trial.” (2RTS 461.) The court also “considered mercy, sympathy and/or sentiment in deciding what weight to give each factor.” (/bid.) During the motion for modification of the death verdict, the court addressed appellant’s drug use or other circumstances extenuating the gravity of the offenses as follows: Factor H: Whetheror notat the time of the offense the capacity of Mr. Daniels to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect or the affects of intoxication. There. was evidence that prior to the killing of Mr. Carolina, Mr. Daniels had ingested three cigarettes laced or filled with cocaine. As stated on the record during the guilt phaseof the trial, Mr. Daniels’ other actions on the night of Mr. Carolina’s death indicate that he was able to understand the nature and the criminality of his actions. The facts do. not ~ constitute a mitigating circumstance. [W] --- (4 Factor K: Any other circumstance which extenuates the gravity of this crime even though it is not a legal excuse for the crime. During the penalty phase, Mr. Daniels addressed the families of the victims. At that time, Mr. Daniels did express some remorse for his actions and took some responsibility for the crimes. These facts may constitutea mitigating factor. _ RTS 464-469.) The court noted that it had taken into consideration the evidence presented during the guilt and penalty phases. (2RTS 464.) B. Discussion 1. The court was not required to find appellant’s drug use a per se mitigating circumstance Appellant contends that the court erroneously refused to considerhis- drug use in mitigation. (AOB 88-111.) His contention is premised on the faulty assumption that voluntary and repeated ingestion ofillegal drugsis 97 per se mitigating. (See AOB 91-104.) In reality, after proper consideration of the evidence, the court was not required to find that appellant’s drug use does in fact mitigate. Thus, appellant’s contention mustfail. For example, in People v. Scott, supra, 15 Cal.4th 1188, defendant wascharged with special circumstance murderafter he raped a woman and set her on fire. (/d. at p. 1198.) He waived jury for the guilt and penalty phases, and the court reached a death verdict. (/d. at pp. 1198-1199.) The court declined to find defendant’s drug use mitigating, noting “that even though there was drug use, that [defendant] was not impaired bythe effects of intoxication.” (Ud. at p. 1222.) On appeal, defendant alleged that the court erroneously refused to consider his cocaine use shortly before the crime as a mitigating factor. (/bid.) This Court rejected defendant’s claim: The court did not refuse to consider any evidence. It merely found that some evidence did not, in fact, mitigate. As defendant argues, the court may not be precluded from considering any potentially mitigating evidence the defendant offers. (Skipper v. South Carolina (1986) 476 U.S. 1, 4 [106 S.Ct. 1669, 1670-1671, 90 L.Ed.2d 1].) California’s death penalty statute does not preclude any such consideration. Once the sentencer considers the evidence, however, it is not required to find that any particular evidence does in fact mitigate. “Defendant appears to assume that the court was required to conclude that the evidence he had offered in mitigation did in fact amount to a mitigating circumstance. The assumption is unsound.” (People v. Berryman (1993) 6 Cal.4th 1048, 1107 [25 Cal.Rptr.2d 867, 864 P.2d 40].) There was no evidence that defendant’s cocaine use affected the crime or that his references to “Tony” were genuine or showed any mental impairment. The court properly considered the evidence and then found it not mitigating. (People v. Scott, supra, 15 Cal4th at p. 1222.) Similarly, here, the court was not requiredto find that appellant’s drug _ use doesin fact mitigate. Appellant had prior felony convictions for drug use and sales (2CT 332), and there was evidence that appellant had ingested 98 three cocaine cigarettes before the Carolina murder (IRTS 192). During his closing argument, theprosecutor noted appellant’s drug use and possible intoxication as a potentially mitigating factor. (2RTS 445.) The court considered this evidence and foundthatit was not mitigating. (See 2RTS 464 [noting consideration of evidence presented during guilt and penalty phases]; 468 [consideration under factor (h)].) Since there is no rule that drug useis per se mitigating, appellant’s claims mustfail. (See People v. Kennedy (2005) 36 Cai.4th 595, 639 [court found evidence of _ defendant’s drug use to be the only mitigating factor, but noted that it was unmoving and inconclusive]; People v. Gaston (1999) 74 Cal.App.4th 310, 322 [drug abuseis not mitigating circumstance whenthe defendant has not made efforts to “root out” the dependency]; People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment”].) .2. The court did not refuse to consider drug usage or impairmentas a mitigating factor It is settled that the sentencerin a capital case may not be precluded from considering, as a mitigating factor, any aspect of the defendant’s _ character or record and anyofthe circumstancesofthe offense that the defendantproffers as a basis for a sentence less than death. (Skipperv. South Carolina (1986) 476 U.S. 1, 4.) The corollary ofthis rule is that the sentencer may notrefuse to consider any relevant mitigating evidence presented by the defendant. (Ibid.) These principles were derived from prior decisions of the Supreme Court. . | In Lockett v. Ohio (1978) 438 U.S. 586 (Lockett), the Supreme Court invalidated an Ohio statute which limited mitigating factors to three and did not include consideration of any mitigating aspects of a defendant’s character and background. (/d. at pp. 597-605; see also Bell v. Ohio (1978) 99 438 U.S. 637 [same statute, which limited consideration of mental state to psychosis or mental deficiency (not amounting to insanity) and precluded consideration of mental deficiency because of low intelligence and use of drugs].) Thus, once the sentencer determined that the victim did not induce or facilitate the offense, that the defendant did not act under duress or coercion, and that the offense was not primarily the productofthe defendant’s mental deficiency, a death sentence was mandated. (Lockett, supra, 438 U.S. at p. 608.) The Supreme Court found the limited range of mitigating circumstances to be incompatible with the Eighth and Fourteenth Amendments, and determinedthat, “[t]o meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.” (/bid.) | In Eddings v. Oklahoma (1982) 455 U.S. 104, the Supreme Court addressed a statute which provided,*‘evidence may be presentedas to any mitigating circumstances or as to any of the *aeravating circumstances enumerated in this act. concerning his troubled youth and emotionaldisturbance. (/d. at pp. 107- 108.) However, the sentencer refused to consider the substantial evidence stating, “Nor can the Court in following the law, in my opinion, consider the fact of this young man’s violent background.” (/d. at p. 109.) Finding Lockett error, the Supreme Court concludedthat “[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencerrefuse to consider, as a matter of law, any relevant mitigating evidence.” (/d. at pp. 113-114.) Accordingly, the | sentencer may determine the weightto be given relevant mitigating evidence, but cannot, as a matter oflaw, exclude the evidence from consideration. (/d. at pp. 114-115, italics in original.) California’s death penalty law does not preclude consideration of any | relevant mitigating circumstances. Undersection 190.3, in determining the 100 penalty, the trier offact shall take into accountany ofthe following factors if relevant: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1. (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absenceof any prior felony conviction. (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. (e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act. (f) Whether or -not the offense was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation for his conduct. (g) Whether or not defendant acted under extreme duress or under the substantial domination of another person. (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication. (i) The age of the defendantat the time of the crime. (j) Whether or not the defendant was an accomplice. to the offense and his participation in the commission of the offense wasrelatively minor. (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime. In the instant case, adhering to the requirements of section 190.3, the court did notrefuse to consider appellant’s drug usage or impairmentin 101 violation of Lockett.'? (AOB 91-103.) Instead, appellant chose to proceed by nonparticipation, leaving the court to scour the record in search of “possible mitigating circumstances presented by the evidence” during the guilt and penalty phases. (2RTS 469.) In doing so, the court expressly considered “[a]ny other circumstances which extenuate[d] the gravity of the crime and any sympathetic or other aspect of [appellant’s] character or record that [appellant] offer[ed] as a basis for a sentence less than death, whether or not related to the offense for which [appellant] is ontrial.” (2RTS 461, referring to § 190.3, subd. (k).) The court also considered whether appellant’s drug impairment prevented him from conforminghis conductto the law or appreciating the criminality of his behavior. (2RTS 467, § 190.3, subd. (h).) Based on appellant’s drug-related convictions and the court’s questions to O’Neal during the guilt trial, this clearly encompassed appellant’s drug use and impairmenton the night of the Carolina murder. (See IRTS 194-196.) The court stated, There was evidence thai prior to the killing of Mr. Carolina, Mr. Daniels had ingested three cigarettes laced or filled with cocaine. Asstated on the record during the guilt phase ofthe trial, Mr. Daniels’ other actions on the night of Mr. Carolina’s - death indicate that he was able to understand the nature and the criminality of his actions. The facts do not constitute a mitigating circumstance. . (2RTS 468.) That the court did not refer to appellant’s drug usage more particularly under section 190.3, subdivision (k), does not meanthat the court refused to consider such evidenceorthat its consideration was limited to the portion of section 190.3, subdivision (h) related to appreciating criminality. The most reasonable inferenceis that the court simply found '? Lockett erroris also referred to as Skipper error basedon the Supreme Court’s decision in Skipper v. South Carolina (1985) 476 U.S. 1. (See e.g., People v. Mickey (1991) 54 Cal.3d 612, 692.) 102 that the “mitigation evidence wasinsufficient to vitiate” the penalty determination. (People v. Wader (1993) 5 Cal.4th 610, 668.) 3. In any event, any error was harmless beyond a reasonable doubt Appellant contends that Lockett error requires reversal without regard to prejudice. (AOB 104-106.) Alternatively, he suggests that the trial court’s error was not harmléss beyond a reasonable doubt. (AOB 107-111.) He is mistaken. This Court has already determined that Lockett error is subject to the harmless error analysis announced in Chapman v. California (1967) 386 U.S. 18. Based on the circumstancesofthis case, if the court — committed Lockett error, the error was harmless beyond a reasonable doubt. In People v. Lucero (1988) 44 Cal.3d 1006, this Court noted that the exclusion of potentially mitigating evidence is federal constitutional error subject to a harmlesserror analysis. (/d. at p. 1031.) This Court presumed that the test of Chapmanv. California, supra, 386 U.S. 18 governed, and noted that, underthattest, “error is reversible unless the state proves ‘beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained.” (Ud. at p. 1032, quoting Chapman v. California, supra, 386 US.at p. 24; see Robertson, supra, 48 Cal.3d at p. 57 [applying Chapman to Skipper error.) Thereafter, this Court held that reversal of the penalty was required because, Defendant offered a substantial showing in mitigation: the absence of any prior acts of criminal violence, the absénce of any prior felony convictions, a deprived and harrowing childhood, a traumatic military experience, and a serious mental illness. In contrast, the prosecution presented no affirmative evidence in aggravation at the penaltytrial. (People v. Lucero, supra, 44 Cal.3d at p. 1032; see People v. Fudge (1994) 7 Cal.4th 1075, 1119 [finding Skipper error harmless beyond a reasonable doubt “after considering the strong aggravating evidencein the form ofthe 103 circumstancesofthe offense, other mitigating evidence, and the strength of the improperly excluded evidence’’].) Unlike the defendant in People v. Lucero, supra, 44 Cal.3d 1006, appellant did not make any showing of mitigation. Instead, the court was presented with the prosecutor’s affirmative evidence in aggravation, including the circumstancesof the offenses. Appellant murdered Carolina with a gunshot woundto the head after Carolina refused to give appellant what he wanted. (IRTS 191.) Then, appellant shot Hillian because she would not stop screaming; the gunshot woundscaused extensive injuries to her hand and leg. (IRTS 126-127.) Dayslater, appellant attempted to evade officers by driving at high speeds even thoughit was foggy outside. (RTS 199, 203.) While fleeing from officers, appellant smashed into McCoy’s car at a minimum speed of 80 miles per hour, causing the’car to burst into flames. (IRTS 205-206.) McCoyultimately burned to death after attempts to removeher from the car were unsuccessful. (ARTS 138, 206.) Contending that he was stuck in the car he had beendriving, appellant lured officers closer to him. (1RTS 263-264.) As soon as Sergeant Weinrich broke the plane of appellant’s car, appellant shot him in the chest and thigh. (ARTS 222-223.) Sergeant Weinrich wasleft with extensive injuries, remained in the hospital for about nine days, and required at least three surgeries. (IRTS 224-225.) The prosecutor also presented evidence which demonstrated that appellant had five prior felony convictions, including convictions for attempted residential burglary (§§ 664/459), possession of a controlled substance (Health & Saf. Code, § 11350), cocaine sales (Health & Saf. Code, § 11352), robbery (§ 211), and second degree burglary (§ 459). (2CT 332; see CAT 816-850.) In addition, appellant had pleaded guilty to nearly one dozen armed robberiesprior to the guilt phase trial. And, the prosecutor proved during the penalty phase thatappellant had committed 104 several uncharged violent crimes, including robbery and carjacking. He had also assaulted a police officer with a firearm and threatened police officers while being treated at UC Davis Medical Center. Though appellant expressed some remorsefor killing Carolina and McCoy, he wrote that he wished he would have “killed every last one”of the “Spunk ass police [he] shot.” (CAT 852-853.) In sum,the court was presented with strong aggravating evidence, * including the circumstances of the offenses, five felony convictions, nearly one dozen armed robberies that appellant pleaded to before the start oftrial, and numerousunchargedviolent offenses that the court found true. Given the strength of this evidence, any error in the mannerin which the court considered appellant’s drug use and impairment was harmless beyond a reasonable doubt. Hence, the judgment and sentence should be affirmed. V. APPELLANT FORFEITED HIS CLAIMS REGARDING THE MOTION TO MODIFY THE VERDICT; MOREOVER, APPELLANT RECEIVED A PROPER HEARING UNDER THE STATUTE DURING WHICH THE COURT PROVIDED A DETAILED STATEMENT OF ITs REASONS FOR THE DEATH VERDICT Appellant contends that he was denied an independent review ofhis automatic motion for modification of the death verdict in violation of section 190.4, subdivision (e), and the Eighth and Fourteenth Amendments. (AOB 112.) Specifically, appellant claims that independent review ofthe penalty verdict at the trial court level prevents the arbitrary and capricious imposition of the death penalty — a protection that the Legislature intended to provide. (AOB 114-122.) He further claimsthatfailing to have the penalty verdict reviewed by an unbiased judge violates due process andthat depriving judge-sentenced capital defendants from such independent review violates the Equal Protection Clause. (AOB 122-131.) Finally, appellant claims that the error was harmless under any prejudiced-based standard of review. (AOB 132-133.) As morefully set forth below, appellant’s claims 105 lack merit. Initially, appellant has forfeited any claim regarding the motion to modify the death verdict by failing to object in the trial court. Further, appellant was not entitled to separate review by a different judgeat thetrial - court level; accordingly, he recetved a proper modification hearing under the statute when giving the plain language its most expansive reading. Also, the court gave a detailed statementofits reasons for the verdict, and thus the record is adequate for meaningful review ofthe propriety of the death verdict, which is the statute’s purpose. Finally, appellant forfeited the due process and equal protection claimsby failing to object; in any event, the claims are meritless. Hence, the judgment and sentence should be affirmed. A. Background On January 31, 2001, the court rendered a death verdict. (2RTS 462.) On February 14, 2001, the court decided theautomatic motion to modify the death verdict. It denied the motion for the following reasons: The Court has taken into consideration the evidence in this case that wac nrecented durina the onlt and nenalty nhace and anly VLAFY US pPiwvewittws MUA LAE eri trae ais priiairy piieduw a4, ave NWaany that evidence. In doing so, the Court has made certain findings that are necessary to properly evaluate the circumstancesof the case, including the findings on evidence presented at the guilt phase and the penalty phase. The Court’s evaluation of the evidence and findings concerning the evidenceare as follows: Factor A: The circumstances of the crime of which Mr. Daniels was convicted in the present proceeding and the existence of any special circumstances foundto betrue. The circumstances of the crimes committed by Mr. | Daniels show an indifference to and callous disregard for human ~ life. In the killing of LeWayne Carolina, Mr. Daniels entered the residence with the intent to commit armed robbery. When Mr. Carolina responded with gunfire, Mr. Daniels returnedfire, killing Mr. Carolina with a gunshot in the head. Mr. Daniels later made the statement that he shot Mr. Carolina because he did not give Mr. Daniels what he wanted. 106 Mr. Danicls then shot at and seriously wounded Tamarra Hillian for no reason other than Ms. Hillian was screaming. In the killing of Latanya McCoy, Mr. Daniels was engaged in a dangerous and reckless high speed chase, attempting to evade capture by police officers. His excessive speed on a dark and foggy road, driving without headlights, led to his collision with Ms. McCoy. Ms. McCoy’s car was then engulfed in flames, killing Ms. McCoy. Mr. Daniels’ lack of remorse and disregard for the effects of his actions were demonstrated when police officers surrounded his car after the collision. Rather than giving himself up, he lied to police officers to lure them closer to him so that he could execute his express plan of killing as many police officers as possible and not being recaptured alive. But for his badge and bullet proof vest, Sergeant Steven Weinrich likely would have been another casualty in Mr. Daniels’ increasingly dangerous and violent crime spree. During the guilt phase, the Court found that the special circumstances of murder during the commission of a robbery, murder duringthe commission of a burglary, and multiple murder wereall true. These facts constitute an aggravating circumstance. Factor B: The presence or absence of any criminal activity by Mr. Daniels which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. Before trial on these charges, Mr. Daniels pled guilty to numerous crimes, all of which occurred in a two-month time period before and after the murders in this case. Of these crimes, ten were armed robberies, one was a robbery, one was an armed carjacking, and one was a theft of a vehicle. The underlying basis for the armed crimes demonstrated an express or implied threat to use force or violence. In addition to the crimes to which Mr. Daniels pled guilty, during the penalty phase of the trial, the Court found true beyond a reasonable doubt that Mr. Daniels committed additional crimes. Mr. Daniels committed four armed robberies, assaulted a peace officer with a semiautomatic firearm, and attempted to murder a peace officer outside Sacramento County during the same two- month time period. Even after Mr. Daniels was taken into custody and was being treated for his injuries, he made threats against police officers. These facts constitute an aggravating circumstance. 107 Factor C: The presence or absence of any prior felony convictions. At the penalty phase the prosecutor proved beyond a reasonable doubt that Mr. Daniels has been convicted of a felony on five prior occasions. These facts constitute an aggravating circumstance. Factor D: Whether or not the offense was committed while Mr. Daniels was under the influence of extreme mental or emotional disturbance. There was no evidence of this factor; it is therefore neither an aggravating nor a mitigating circumstance. Factor E: Whetheror not the victim was a participant in Mr. Daniels’ homicidal conduct or consented to the homicidal act. There was evidence to suggest that Mr. Carolina fired the first shots and that Mr. Daniels responded with gunfire that killed Mr. Carolina. As stated in the record during the trial phase, this action by Mr. Carolina did not justify Mr. Daniels’ actions as Mr. Carolina was likely authorized to use deadly force to repel Mr. Daniels’ armed robbery attempt. Nor was Mr. Carolina an accomplice to Mr. Daniels’ crimes. Similarly, Ms. McCoydid not participate in or consent to Mr. Daniels’ conduct. The facts therefore do not constitute a mitigating circumstance. Factor F: Whether or not Mr. Daniels acted under extreme duress or under the. substantial domination of another person. : There was no evidence of this factor; it is therefore neither an aggravating nor a mitigating circumstance. Factor H: Whether or not at the time of the offense the capacity of Mr. Daniels to appreciate the criminality of his — conduct or to conform his conductto the requirements of the law was impaired as a result of mental disease or defect or the affects of intoxication. There was evidence that prior to the killing of Mr. Carolina, Mr. Daniels had ingested three cigarettes laced or filled with cocaine. As stated on the record during the guilt 108 phase ofthe trial, Mr. Daniels’ other actions on the night of Mr. Carolina’s death indicate that he was able to understand the nature and the criminality of his actions. The facts do not constitute a mitigating circumstance. Factor I: Mr. Daniels’ age at the time of the crime. There was no evidence of this factor; it 1s therefore neither an aggravating nor a mitigating circumstance. Factor J: Whether or not Mr. Daniels was an accomplice to the offense and his participation in the commission of the offense was relatively minor. All of the evidence shows that Mr. Daniels was the principal and the sole perpetrator of these crimes. Contrary to merely being an accomplice, Mr. Daniels actually engaged others as accomplices and endangered passengers during the various reckless exploits. These facts do not constitute a mitigating factor. Factor K: Any other circumstance which extenuates the gravity of this crime even thoughit is not a legal excuse for the crime. During the penalty phase, Mr. Daniels addressed the families of the victims. At that time, Mr. Daniels did express some remorse for his actions and took some responsibility for the crimes. These facts may constitute a mitigating factor. Throughout the trial phase of this case, Mr. Daniels has represented himself after numerous admonitions on the dangers of self-representation. Mr. Daniels exercised his constitutional right to self-representation and chose to neither present a defense nor put forth any mitigating evidence, as was also hisright. Having reweighed the aggravating circumstances presented by the prosecutor and having independently examined the possible mitigating circumstances presented by the evidence, the Court has determined that the aggravating circumstances justify the imposition of death. The weight of the evidence supports the verdict in this case, and the verdict is not contrary to the law or the evidence presented. Therefore, the Court denfies] the motion to modify the verdict. (2RTS 464-469.) 109 B. Discussion 1. By failing to object to the automatic motion to modify death verdict procedures utilized by the court, appellant has forfeited the claim on appeal Appellant contends that he was denied an independentreview ofhis automatic motion to modify the death verdict because it was heard by the same judge that determined guilt and penalty at trial. (AOB 112-127.) Becausehe failed to make a specific objection at the modification hearing, the claim is not cognizable on appeal. (People v. Weaver (2012) 53 Cal.4th 1056, 1090-1091; People v. Horning (2004) 34 Cal.4th 871, 912; People v. Riel (2000) 22 Cal.4th 1153, 1220.) Nevertheless, the claim lacks merit. | 2. Appellant received a proper modification hearing underthe statute during which the court gave a detailed statement of its reasons for the verdict, thus allowing for meaningful appellate review “(T]Jo assure thoughtful and effective appellate review” (Peoplev. 79) 25 Cal i]Frierson (197 13d 142 provides, In every case in whichthetrier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemedto have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11[81]. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating - and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whetherthe jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons forhis findings. The judge shall set forth the reasonsfor his ruling on the application and direct that they be entered on the Clerk’s minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be 110 reviewed on the defendant’s automatic appeal pursuant to subdivision (b) of Section 1239. ... In ruling on the application for modification of the verdict, “thetrial court reweighs the evidence, considers the aggravating and mitigating circumstances, and determines whether, in its independent judgment, the weightof the evidence supports the jury’s verdict. (People v. Mungia (2008) 44 Cal.4th 1101, 1139.) “The trial court must make an ‘independent’ determination concerning the propriety of the death verdictin light of the evidence andthe applicable law. [Citation.] The court need not, however, recount ‘every detail’ supporting its determination. [Citation.] The ruling need only be sufficiently articulated to assure meaningful appellate review.” (People v. Lewis (2006) 39 Cal.4th 970, 1063-1064.) This Court has never decided whether a defendant who waivesa jury trial on the issue of penalty is entitled to a modification hearing under section 190.4, subdivision (e). However, this Court has observed that the statutory language is ambiguous: Section 190.4, subdivision (e) states in relevant part: “In every case in which the trier offact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding .... In ruling on the application, the judge shall ... make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.” (Italics.added.) The italicized reference to the “trier of fact” suggests that the statute applies regardless of whether the penalty phase wastried by a judge or by a jury, buttheitalicized reference to the “jury’s findings” suggests that the statute is applicable only when a jury has madethe penalty determination. (People v. Diaz (1992) 3 Cal.4th 495, 576, fn. 34, italics in original.) 111 After discussing the ambiguity in the statutory language, this Court noted that a modification motion after a penalty phase court trial serves an important function: Although at first glance a modification motion after a penalty phase court trial appears to be an exercise in futility, there is one aspect of the modification motion that is significant even when the penalty issue has been determined by a court rather than a jury: the requirement in section 190.4, subdivision (e) that the trial court “state on the record the reasons for his [or her] findings.” As we have discussed (ante, p. 571), this requirement is one of the “safeguards for assuring careful appellate review” that played a significant role in our conclusion that the federal Constitution does not require such findings at the penalty phase. (See People v. Frierson, supra, 25 Cal.3d 142, 179.) The statutory requirement that the reasons be stated on the record enables us to review the propriety of the penalty determination madebythetrial court sitting without a jury. (People v. Diaz, supra, 3 Cal.4th at p. 576, fn. 34.) In People v Horning, supra, 34 Cal.4th 871, defendant had been jury of first de ecial circumstances. He waived a penalty phase jury trial and, after a contested penalty trial before the court, the court rendered a death verdict. (/d. at p. 911.) The court provided a detailed statementof reasonsforits verdict. (/bid.) Then,the court denied defendant’s motion for a newtrial, again with a statement of reasons. (/bid.) The court also permitted defendant to argue again for life sentence: (Id. at p. 912.) When defendantfinished speaking, defense counsel mentioned,“I’m told there’s some modification or something else the Court is supposedto doprior to the time... .”bid.) The court noted the decision in People v. Diaz, supra, 3 Cal.4th 495, and pointed out that it had already stated its reasons for the death sentence whenit renderedits verdict. (/bid.) After further argumentby the parties concerning the sentence, the court imposed the death sentence. (/bid.) On appeal,this Court determinedthat there wasneither error nor prejudice and that a 112 “ruling on a modification motion would have been superfluous.” (/bid.) Thetrial court provided a detailed statement whenit originally renderedits verdict, even thoughit was not required to do soat that time. (/bid.) The detailed statement of reasons wassufficient for meaningful appellate review of the penalty determination. (/bid.) Morerecently, in People v. Weaver, supra, 53 Cal.4th 1056, this Court reiterated that section 190.4, subdivision (e), serves an important function becauseit assures meaningful appellate review ofthe propriety of the penalty determination made bya trial courtsitting without a jury. (/d. at p. 1091.) There, defendant waived jury for the guilt and penalty phases. (/d. at p. 1090.) At the end of the penalty phase, before it rendered its verdict, the trial court indicated that it could not conduct an independent review pursuantto section 190.4; subdivision (e). (/bid.) However,it gave ‘a detailed explanation for the verdict. (Jbid.) About two monthslater, the court conducted a modification hearing “in an abundanceof caution,” and reviewedin detail the aggravating and mitigating evidence. (/bid.) It denied the automatic motion to modify. (/d. at p. 1091.) On appeal, this Court foundthat there was noerror because “thetrial court did stateits reasons twice—once whenit imposed the death penalty and a second time whenit denied the automatic motion to modify the verdict.” (Jbid.) | Similarly, here, the court entertained an automatic motion to modify the death verdict. (2RTS 464-469.) During the hearing on the motion, the court discussed the evidence relevant to each of the factors listed in section 190.3. (/bid.) Then, the court decided whether the evidence supporting each factor constituted an aggravating or mitigating circumstance. (/bid) Thereafter, the court found that the weight of the evidence supported the verdict. (2RTS 469.) Because the court provided a detailed statementofits reasons for imposing the death sentence, and this Court has a record from whichit can review the propriety of the court’s decision, appellant has 113 obtained the “thoughtful and effective appellate review” that the statute was designed to provide and protect. (People v. Frierson, supra, 25 Cal.3dat p. 179.) There was no error. (See People v. Horning, supra, 34 Cal.4th at p. 912; People v. Weaver, supra, 53 Cal.4th at p. 1091.) 3. Failure to provide a separate and independent review does not constitute a due process violation Appellant contendsthat his due process rights were violated when the court denied him the independent review required by section 190.4, subdivision (ce). (AOB 128-129.) His contention is meritless. Initially, appellant has forfeited his due process challenge by failing to object in thetrial court. (People v. Monterroso (2004) 34 Cal.4th 743, 759 [failure to objectin trial court forfeited due process, fair trial, and unbiased jury claim on appeal].) Regardless, his contention lacks merit. In People v. Weaver, supra, 53 Cal.4th 1056, this Court rejected the same constitutional claim that appellant presents here. There, defendant claimed that section 190.4, subdivision (e), was unconstitutional becauseit failed to provide a mechanism for an independentreview ofa trial court’s penalty phase verdict. (/d. at p. 1091.) Defendant also argued, as appellant suggests here (AOB 113), that the statute should require another judge to review the penalty verdict. (People v. Weaver, supra, 53 Cal.4th at p. 1091.) This Court declined to hold that a defendant who waivesa jury has a constitutional right to an independent review of the court’sverdict. (Ibid.) Appellant fails to offer any persuasive reason why this Court should vary from its decision in People v. Weaver, supra, 53 Cal.4th 1056. 4. Failure to provide a separate and independent review does not violate equal protection Appellant contendsthat “depriving appellant andother judge- sentenced defendants the independent review statutorily guaranteedtoall 114 capital defendants denies these defendants equal protection.” (AOB 129, 129-131.) His contention lacks merit. Atthe outset, appellant has forfeited his equal protection challenge by failing to raise it in the trial court. (People v. Carpenter (1997) 15 Cal.4th 312, 362 [an equalprotection claim mustberaised in the trial court oris forfeited], superseded by statute on another ground asstated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) Nevertheless, respondent addresses the issue to demonstrate that appellant’s contention is meritless, “Broadly stated, equal protection ofthe laws means‘that no person or class ofpersons shall be denied the sameprotection ofthe laws [that] is enjoyed by other persons orother classesin like circumstancesin their . . lives, liberty and property andin their pursuit-of happiness.’ [Citation.]” (People v. Wutzke (2002) 28 Cal.4th 923, 943.) It does not mean, however, that “‘things...different in fact or opinion [must] be treated in law as though they were the same.” [Citation.]” (nm re Eric J. (1979) 25 Cal.3d 522, 530, fn. 1.) “[N]either the Fourteenth Amendmentofthe Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law with respect to persons whoaredifferent.” (Jn re Gary W. (1971) 5 Cal.3d 296, 303.) Therefore, a threshold requirement of any meritorious equal protection claim “is a showing that the state has adopteda classification - that affects two or more similarly situated groups in an unequal manner. [Citation.]” (In re Eric J., supra, 25 Cal.3d at p. 530.) | “This initial inquiry is not whether personsare similarly situated for all purposes, but ‘whetherthey are similarly situated for purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “The ‘similarly situated’ prerequisite simply meansthat an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing thatthe twogroupsare sufficiently 115 similar with respect to the purpose of the law in question that somelevel of scrutiny is required in order to determine whetherthe distinction is justified.” (People v. Goslar (1999) 70 Cal.App.4th 270, 277.) If this initial showing is not made, then the court need not “ask the further question of whetherthis identifiable group is a suspect class or is being denied some fundamentalinterest, thus requiring the discrimination to be subjected to close scrutiny.” (Santa Clara CountyLocal Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 258.) Here, appellant has not demonstrated that he is “similarly situated” to capital defendants whose penalty phases weretried to juries. (See City of Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439 [explaining that the Equal Protection Clauseis essentially a direction that all persons “similarly situated” should be treated alike].) Unlike capital defendants who exercise their right to have a jury determination on penalty, appellant waiveda jurytrial in the penalty phase, and did so knowing that nTLic ff, + fl aQAQY ALN L WIS LOUTL. LLINDO TIO~tU.)niS te would be exclusively int Since appellant has not shownthatthe parties are similarly situated for the purposesofthe law challenged, his claim mustfail. 5. Conclusion In sum, appellant has forfeited any claim regarding the automatic motion for modification of the death verdict by failing to object in the trial court. Moreover, this Court has not decided whether a defendant who waives a jury ontheissue of penalty is entitled to a modification hearing undersection 190.4, subdivision (e). Even if that is what the Legislature intended by the ambiguousstatutory language, appellant received a proper hearing on his automatic motion to modify during which the court gave a detailed statementofits reasons for reaching a death verdict. Accordingly, the record is adequate for meaningful appellate review of the propriety of the death verdict. Finally, appellant forfeited the due process and equal 116 protection claims by failing to object in the trial court. Regardless, the claims lack merit. Thus,-the judgment and sentence should be affirmed. VI. THERE WAS NO CUMULATION OF ERRORS WHICH UNDERMINED THE FUNDAMENTALFAIRNESS OF THE TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENT Appellant contends that the cumulative effect of the errors “undermines any confidencein the integrity of the guilt and penalty phase verdicts, and warrants reversal of the judgment.” (AOB 134.) As discussed in the preceding arguments, appellant’s claims of error are meritless. Thus, he has not demonstrated any cumulative error requiring reversal. In a close case, the cumulativeeffect of multiple errors may constitute a miscarriage ofjustice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; . Peoplev. Holt (1984) 37 Cal.3d_436, 458-459.) The litmustest is whether appellant received due process and a fair trial. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) Accordingly, an appellate court reviews each claim andassesses the cumulative effect of any errorsto see if the errors “so infected the trial with unfairness as to makethe resulting conviction a denial of due process.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) Appellant is “entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, having found no error when considering appellant’s contentions individually, there can be no cumulative error requiring reversalof the guilt and penalty phase verdicts. ~ VII. CALIFORNIA’S DEATH PENALTY STATUTEIS CONSTITUTIONAL ON ITS FACE AND AS APPLIEDIN THIS CASE Appellant was sentenced to death under California’s 1978 death penalty law. He contendsthat “[m]any features of California’s capital sentencing schemeviolate the United States Constitution.” (AOB 136.) Appellant acknowledgesthat this Court has consistently rejected these 117 same challenges to California’s death penalty scheme, but repeats them here for reconsideration by this Court and in order to preserve them for federal review. (AOB 136,citing People v. Schmeck (2005) 37 Cal.4th 240.) None of appellant’s contentions warrant reconsideration by this Court. (See, e.g., People v. Vines (2011) 51 Cal.4th 830, 890-892.) Thus, the judgment and sentence should beaffirmed. A. The Application of Section 190.3, Factor (a) Is Constitutional Appellant claimsthat factor (a) of section 190.3, which directs jurors to consider the “circumstances of the crime” in determining penalty, “has been applied in such a wanton and freakish manner[that] almostall features of murder can be and have been characterized by prosecutors as ‘agegravating.’” (AOB 137.) This Court has repeatedly rejected this claim finding that “section 190.3, factor (a) is not impermissibly overbroad facially or as applied.” see also People v. Vines, supra, 51 Cal.4th at p. 891, andid.at p. 889 [discussing admissibility of victim impact evidence under factor(a)].) Section 190.3, factor (a) correctly allows the jury to consider the “circumstances of the crime.” (People v. Thomas (2011) 51 Cal.4th 449, 506; People v. Nelson (2011) 51 Cal.4th 198, 225; People v. D’Arcy (2010) . 48 Cal.4th 257, 308.) Appellant has not presented a compelling reason for this Court to reconsiderits prior decisions rejecting this same claim. Accordingly,the instant claim should also be rejected. B. The Death Penalty Statute Is Constitutional Even Though It Does Not Include a Burden of Proof In a multi-faceted argument, appellant contends that California’s death penalty sentencing statute is unconstitutional becauseit fails to set 118 forth the appropriate burden of proof. (AOB 138-140.) He submits that the prosecutor should bear the burden of proving beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances and that death is the appropriate penalty. (AOB 138-139.) Appellant further submits that the Eighth and Fourteenth Amendmentsofthe federal Constitution and Evidence Codesection 520 require some burden of proof in capital sentencing. (AOB 139-140.) This Court has repeatedly rejected any claims that focus on a burden of proofin the penalty phase. (People v. Welch (1999) 20 Cal.4th 701, 767- 768; People v. Snow (2003) 30 Cal.4th 43, 126; People v. Box (2000) 23 Cal.4th 1153, 1216; People v. Holt (15 Cal.4th 619, 683-684 [“the jury need not be persuaded beyond a reasonable doubt that death is the appropriate penalty”].) “Unlike the guilt determination, ‘the sentencing function is inherently moral and normative, not factual’ [citation] and, hence, not susceptible to a burden-of-proof quantification.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79; see People v. Lenart (2004) 32 Cal.4th | 1107, 1136-1137.) Neither the Due Process Clause nor the Eighth Amendmentrequires a different result. (People v. Blair (2005) 36 Cal.4th 686, 753; People v. Griffin (2004) 33 Cal.4th 536, 593-594.) Moreover, contrary to appellant’s claim, “Evidence Code section 520, establishing that a party ‘claiming that a personis guilty of crime or wrongdoing has the burden of proof on that issue,’ does not apply to the normative decision on penalty that is performed bythetrier of fact at the penalty phase of a capital trial.” (People v. Dykes (2009) 46 Cal.4th 731, 814; see People v. Jones (2011) 51 Cal.4th 346, 381 [rejecting claim that Evidence Code section 520 requires an instruction on the prosecution’s burden of proof].) Appellant fails to offer any persuasive reason whythis Court should vary from its prior decisions rejecting this same claim. 119 Appellant’s claim that the United States Supreme Court’s holdings in Blakely v. Washington (2004) 542 U.S. 296, 303-305, Ring v. Arizona (2002) 530 U.S. 584, 604, and Apprendi v. New Jersey (2000) 530 U.S. 466, compel a different conclusion also fails. (AOB 138-139.) This Court has determined that Ring, Blakely, and Apprendi simply have no application to the penalty phase proceduresofthis state. (People v. Gray (2005) 37 Cal.4th 168, 237; People v. Monterroso, supra, 34 Cal.4th at p. 796; People v. Prieto (2003) 30 Cal.4th 226, 263.) Asthis Court explained, [U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum _for the offense; the only alternative is life imprisonment without the possibility of parole. Hence, facts which bear upon, but do not necessarily determine, which of these two alternative penalties is appropriate'do not come within the holding of Apprendi. oo (People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn. 14; Peoplev. Prieto, supra, 30 Cal.4th at p. 263.) Appellant does not offer a valid reason why this Court should revisit these issues. Thus, the instant claims should be denied. C. The Death Penalty Determination Does Not Turn on an Impermissibly Vague And Ambiguous Standard Appellant contendsthat the death penalty determination turns on a vague and ambiguous standard because “[t]he phrase ‘so substantial’ is an impermissibly broad phrase that does not channel. or limit the sentencer’s discretion in a mannersufficient to minimizethe risk of arbitrary and capricious sentencing.” (AOB 140.) CALJIC No.8.88 [Penalty Trial—Concluding Instruction] provides that to return a judgmentof death, the fact-finder “must be persuadedthat 120 the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead oflife without parole.” This Court has repeatedly rejected claimsthat the instruction is unconstitutional because the “so substantial” language is impermissibly vague and ambiguous. (People v. Loy (2011) 52 Cal.4th 46, 78; People v. Hartsch (2010) 49 Cal.4th 472, 516; People v. Mendoza (2007) 42 Cal.4th 686, 707; People v. Boyette (2002) 29 Cal.4th 381, 465.) Appellant has failed to present a compelling reason for this Court to reconsiderits prior decisions rejecting this same claim. Accordingly, the instant claim should be denied. D. The Death Penalty Statute Permissibly Refers to Whetherthe Death Penalty Is “Warranted” Appellant contendsthat the death penalty statute violates the Eight Amendmentand Fourteenth Amendmentby failing to distinguish between the determinations of whether death is “warranted” and whetherdeath is “appropriate.” (AOB 141.) CALJIC No. 8.88 explains that to return a judgment of death, the aggravating circumstances must be so substantial in comparison with the mitigating circumstancesthat it warrants death. This Court has repeatedly rejected claims concerning the death penalty statute’s reference to whether death is “warranted,” finding that: By advising that a death verdict should be returned only if aggravation is ‘so substantial in comparison with’ mitigation that death is ‘warranted,’ the instruction clearly admonishes the jury to determine whether the balance of aggravation and mitigation makes death the appropriate penalty. (People v. Arias (1996) 13 Cal.4th 92, 171; see People v. Loy, supra, 52 Cal.4th at p. 78; People v. Mendoza, supra, 42 Cal.4th at p. 707; People v. Perry (2006) 38 Cal.4th 302, 320.) 121 Appellant does not offer a valid reason why this Court should reconsider its earlier decisions rejecting the same claim. Accordingly, the instant claim should be denied. E. There Is No Constitutional Requirement Thatthe Sentencer Consider the Presumption of Life Appellant contends that the “sentencer should be required to consider the presumption oflife.” (AOB 141.) This Court has consistently rejected such claim finding that “there is no constitutional requirementto instruct...on any presumptionthatlife withoutthe possibility of parole is the favored or appropriate remedy.” (People v. Garcia (2011) 52 Cal.4th 706, 764; see People v. Taylor (2010) 48 Cal.4th 574, 662; People v. Whisenhunt (2008) 44 Cal.4th 174, 228.) Because appellant does not offer a valid reason why this Court should reconsiderits earlier decisions, the instant claim should be denied. F. The Useof Restrictive Adjectives in the List of Potential Mitigating Facts Does Not Violate the Eighth and Fourteenth Amendments Appellant contends that the use ofrestrictive adjectivesin the list of potential mitigating factors _such as “extreme” and “substantial” — violates the federal Constitution. (AOB 142.) This Court has repeatedlyrejected this challenge to the California death penalty statute finding that use in the sentencing factors of such adjectives as “extreme”and “substantial” (§ 190.3, factors (d)’& (g)) does not act as a barrier to the consideration of mitigating evidence in violation of the federal Constitution. (People v. Thomas (2011) 51 Cal.4th 449, 506; People v. Avila (2006) 38 Cal.4th 491, 614.) Appellant does not offer a compelling reason whythis Court should reconsiderits earlier decisions, and thus the instant claim should be denied. — 122 G. The Prohibition Against Intercase Proportionality Review Does Not Guarantee Arbitrary And Disproportionate Imposition of the Death Penalty Appellant contends that the “failure to conduct inter-case proportionality review violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentprohibitions against proceedings conducted in a constitutionally arbitrary, unreviewable mannerorthat violate equal- protection or due process.” (AOB 142.) This Court has consistently rejected this argument. “The failure to require intercase proportionality does not guarantee‘arbitrary, discriminatory, or disproportionate impositions of the death penalty,’ or violate the Fifth, Sixth, Eighth, and Fourteenth Amendments.’ [Citation.] Moreover, ‘capital and noncapital defendants are notsimilarly situated and therefore may betreated differently without violating constitutional guarantees of equal protection of the laws or due process oflaw.’ [Citation.].” (People v. Castaneda (2011) 51 Cal.4th 1292, 1356; see People v. Foster (2010) 50 Cal.4th 1301, 1368.) Appellant offers no persuasive reason for this Court to reconsiderthis conclusion. Accordingly, this claim should be denied. H. The California Capital Sentencing Scheme Does Not Violate the Equal Protection Clause Appellantclaims that California’s death penalty schemeviolates the equal protection clause of the Fourteenth Amendmentto the United States Constitution because it denies procedural safeguards to capital defendants that are afforded to noncapital defendants. (AOB 142-143.) Specifically, appellant claims that the death penalty schemeis unconstitutional because there is no requirement ofjuror unanimity on the aggravating factors, no standard of proofin the penalty phase, and no reasons need be given fora death sentence. (AOB 143.) Onthe otherhand, sentencing allegations in a 123 noncapital case must be found unanimously, beyond a reasonable doubt, and a trial court mustorally state its reasons on the record for selecting an upper-term sentence. (AOB 143.) As this Court has stated, “The death penalty law does notviolate equal protection by denying capital defendants certain procedural safeguards that are afforded to noncapital defendants because the two categories of defendants are not similarly situated. [Citations.]” (People v. Lee (2011) 51 Cal.4th 620, 653.) In other words, ‘The availability of certain procedural protections in noncapital sentencing---such as a burden of proof, written findings, jury unanimity and disparate sentence review---when those same protections are unavailable in capital sentencing, does not signify that California’s death penalty statute violates Fourteenth Amendment equal protection principles. {Citations. |’ [Citation.] . (People v. Thomas, supra, 51 Cal.4th at p. 507.) Once again, appellant has presented no compelling reason forthis Court to reconsiderits prior decisions rejecting this same claim. I. California’s Use of the Death Penalty Does Not Violate International Norms Or the Federal Constitution In this argument, appellant claims that California’s use of the death penalty as a “regular” form of punishmentviolates international law and the Eighth and Fourteenth Amendmentsto the United States Constitution. (AOB 143.) This claim has also been rejected repeatedly. “California’s use of capital punishmentas an assertedly ‘regular form of punishment’ for substantial numbers of crimes, rather than as an extraordinary punishmentfor extraordinary crimes, does not offend the | Eighth and Fourteenth Amendmentsby violating international norms of human decency. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 53- 54; see also People v. Lee, supra, 51 Cal.4th at p. 654; People v. Thomas, supra, 51 Cal.4th at p. 507.) In fact, California does not usecapital 124 punishment “‘as regular punishmentfor substantial numbers ofcrimes.” (People v. Demetrulias (2006) 39 Cal.4th 1, 43, originalitalics.) Since appellant offers nothing new to cause this Court to reconsider its prior decisions rejecting this claim, the claim should be denied. VIL. THE SENTENCE OF DEATH IMPOSED FOR SECOND DEGREE MURDER MUST BE VACATED Appellant contends that the death sentence imposed on count XX], murder of LaTanya McCoy,is a legally unauthorized sentence which must be vacated. (AOB 144.) Respondent agrees. Thetrial court should be directed to issue an amendedabstract ofjudgmentreflecting the appropriate sentence for second degree murder, which is imprisonmentfor 15 years to life. In all other respects, the judgment should be affirmed. The court found appellant guilty beyond a reasonable doubt of count XXI, the LaTanya McCoy murder(§ 187, subd. (a)). (2RTS 311-312.) ~ The court fixed the degree of murder at second degree, and foundtrue the special circumstanceallegation that appellant committed multiple murders (§ 190.2, subd. (a)(3)). (2RTS 312-313.) Subsequently, the court sentenced appellant to death on count XXI basedon the multiple murder special circumstanceallegation. (2RTS 510.) The death penalty may be imposed only where the defendant has been convictedoffirst degree murder and an enumeratedspecial circumstance has been charged and found true. (§§ 190, subd. (a), 190.2, subd.(a), 190.3, subd. (a).) The offense of second degree murderis not punishable by death. (People v. Thomas (2012) 53 Cal.4th 771, 837.) Thus, underthis Court’s authority to modify an unauthorized sentence (§ 1260), the death sentence imposed on count XXI for second degree murder should be vacated andthe trial court should be directed to issue an amended abstract ofjudgmentreflecting the appropriate sentence for second degree murder of someoneother than a peace officer, which is imprisonment for 15 years 125 to life. (People v. Thomas, supra, 53 Cal.4th at p. 837 [wheretrial court imposed death sentence for second degree murder, this Court ordered the trial court to issue an amended abstract ofjudgmentreflecting the correct sentence of imprisonment for 15 years to life]; People v. Rogers (2009) 46 Cal.4th 1136, 1174 [wheretrial court imposed death sentence for second degree murder, this Court modified the judgmentto reflect the appropriate sentence]; see People v. Lawley, supra, 27 Cal.4th at p. 172 [wheretrial court imposed death sentence on conspiracy to commit murder,this Court directed the trial court to prepare an amended abstract ofjudgment reflecting the appropriate sentence].) CONCLUSION For the foregoing reasons,the trial court should be directed-to issue an amended abstract ofjudgment reflecting the appropriate sentence for _ second degreemurder on count XXI, imprisonmentfor 15 yearsto life. In all other respects, thejudgment and death sentence should be affirmed. Dated: August 28, 2012 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General ’ MICHAEL P. FARRELL Senior Assistant Attorney General WARD A. CAMPBELL Supervising Deputy Attorney General STEPHANIE A. MITCHELL Deputy Attorney General LARENDAR. DELAINI Deputy Attorney General Attorneysfor Plaintiffand Respondent SA2001XS0002; 31459141 .doc 126 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13 point Times New Roman font and contains 38,080 words. Dated: August 28, 2012 KAMALAD. HARRIS Attorney General of California LARENDAR. DELAINI Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICE BY OVERNIGHT COURIER Case Name: People v. David Scott Daniels No. $095868 I declare: Iam employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member’s direction this service is made. ] am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On August 29, 2012, I served the attached RESPONDENT’S BRIEFby placing a true copy thereof enclosed in a sealed envelope with Golden State Overnight, addressed as follows: Gail R. Weinheimer The Honorable Jan Scully Deputy State Public Defender District Attorney Office of the State Public Defender Sacramento County 1111 Broadway, 10th Floor 901 G Street / Oakland, CA 94607 Sacramento, CA 95814 Attorneyfor Appellant (2 copies) Clerk of the Court Jeannie Sternberg - County of Sacramento” Habeas Corpus Resource Center Superior Court of California 303 Second Street, Suite 400 South 720 Ninth Street, Room 611 San Francisco, CA 94107 Sacramento, CA 95814 Attorneyfor Appellant (2 copies) California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105-3672 I declare under penalty of perjury under the laws ofthe State of California the foregoingis true and correct and that this declaration was executed on August 29, 2012, at Sacramento, California. Declarant $A2001XS0002 31513234.DOC