PEOPLE v. MICKEL (ANDREW)

Appellant’s Reply Brief

Cal.January 22, 2013

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) No. 8133510 CALIFORNIA, ) ) [Automatic Appeal] Plaintiff, ) . ) v. ) | a ) _ ANDREW HAMPTONMICKEL,» ) : ) Defendant. ) ) Tehama» County Superior Court No. No. CR45115 - The Honorable S. William Abel, Judge APPELLANT*S REPLY BRIEF court LAWRENCE A. GIBBS (SBN 98866) . _ P.O.Box7639 Berkeley, California 94707 Tel: (510)525-6847 Email: lawgibbs@gmail.com| Attorney for Defendant/Appellant ANDREW HAMPTON MICKEL DEATH PENALTY TABLE OF CONTENTS INTRODUCTION 2...cece cee e tent aeeaes 1 I, THERE WAS SUBSTANTIAL EVIDENCE OF APPELLANT’S INCOMPETENCE BEFORE THE TRIAL COURT ............... 4 The Parties’ Contentions ..........0. 000. ccc cece ccc ee eee eee ae 4 A. The Trial Court Was Aware Of The Contents Of Dr. Drukteinis Report ...........0. 00.000 cc cee eee eee 6 B. The Trial Court Also Knew That The Prosecution Had Provided Dr. Drukteinis’ Report To the Defense In Discovery . 11 C. Even If Dr. Drukteinis’ Report Was Not Filed In TheTrial Court, The California Court Is Chargeable With Knowledge of The New Hampshire Extradition Proceedings Since They WereInstituted Pursuant To California Court’s Process ....... 17 D. Dr. Drukteinis’ Report Constituted Substantial Evidence Of Appellant’s Incompetence ...............0...0. 000.0. 23 l. In Preparing The Report, Dr. Drukteinis Had A Sufficient Opportunity To Examine Appellant ........ 23 2. Dr. Drukteinis’ Report Was Not Equivocalor Conclusory ..... 0... cece cence eens 29 3. The Report Did Not Have To Be Under Oath ......... 33 E. The Other Facts Respondent Cites As Indicia Of Appellant’s Il. Competence Do Not Overcome The Substantial Evidence Before The Court ..... 0.0.0... ccc cece cee cece eee e en eees 35 APPELLANT WASDEPRIVEDOF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSELBY HIS ATTORNEY’S FAILURE TO INFORM THE TRIAL COURT OF THE RECENT DRUKTEINIS REPORT STATING THAT APPELLANT’S COMPETENCE TO STAND TRIAL WAS HIGHLY QUESTIONABLE..... 0.1ccc ccc cence eee eae 4] Il. IV. The Parties’ Contentions ..............00. 0c eee eee eee eee eens 41 A. The Claim May Be Adjudicated On Direct Appeal Since There Could Be No Tactical Reason For Withholding The Report .... 42 B. The Drukteinis Report Contained Substantial Evidence Of Appellant’s Incompetence. ........... 0... eee eee eee 47 C. The Error Was Prejudicial Because, At The Very Least, It Would Have Precluded The Trial Court From Permitting Appellant To Waive His Right To Counsel. ................ 50 THE INFORMATION THE TRIAL COURT RECEIVED IN THE PRE- SENTENCE REPORT, FILED PRIOR TO JUDGMENT, RAISED A DOUBT REGARDING APPELLANT’S COMPETENCE. ......... 51 The Parties’ Contentions ............0.0 02 eee eee cece eee eee ee 51 A. The Trial Court May Rely On Hearsay Evidence Of Incompetence ...... 0.0... eeeceeees 51 B. The Letters Pertained To Appellant’s Trial Competence. ...... 53 APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE THES52 TRIAL COURT VIOLATED PENAL CODE SECTION 686.1 BY PERMITTING APPELLANT TO WAIVE COUNSEL WITHOUT FIRST ASSESSING WHETHER HE WAS COMPETENT TO PRESENT HIS DEFENSE WITHOUT THE ASSISTANCE OF COUNSEL. 0.0...ccceee ene eens 56 The Parties’ Contentions .............. 00.0 ee eee eee eee eens 56 A. There Was Substantial Evidence That Appellant Was Incapable of Presenting A Defense Without The Assistance Of Counsel. . 58 B. The Trial Court Failed To Consider Any Factors Required By People v. Johnson Bearing On Whether Appellant Was Capable Of Presenting A Defense Without Counsel. ................ 62 -li- VI. VIL. THE JUDGMENT OF DEATH MUSTBE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY PERMITTED APPELLANT TO WAIVE COUNSEL AT THE PENALTY PHASEIN VIOLATION OF PENAL CODE§ 686.1 0.0...0.eee 69 The Parties’ Contentions ............. 0.0.0 cece eee eee eee en ees 69 A. Denial Of The Right Of Self-Representation At The Penalty Phase In The Instant Case Is Consistent With Indiana v. Edwards And Required By People v. Johnson ........ 0.000. e cee eee 70 THE JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO OBTAIN AN UPDATED WAIVER OF COUNSEL AFTER THE STATE ELECTED TO SEEK THE DEATH PENALTY 2...eeeeeeee eens 75 The Parties’ Contentions ............. 00. e eee eee eee eee ae 75 A. At The Time Appellant Waived His Right To Counsel, The State Had Not Provided Adequate Notice OfIts Intent To Seek The Death Penalty. ....................220 0005 76 B. The Trial Court Completely Failed To Advise Appellant Of Any Of The Risks Of Self-Representation In, Or Complexities Of, A Death Penalty Case, And His Waiver Of Counsel Was Therefore Involuntary. ...........0. 000 cece eee eee eee 82 THE CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AND FOURTEENTH AMENDMENTRIGHTS TO AN IMPARTIAL JURY BY FAILING TO ADEQUATELY VOIR DIRE AND REMOVE JURORS WHO STATED ON THEIR QUESTIONNAIRES THAT THEY WOULD AUTOMATICALLY VOTE FOR DEATH IF A DEFENDANT WERE CONVICTED OF THE MURDEROF A POLICE OFFICER. ....... 88 The Parties’ Contentions .................. 0. cee eee eee eee eee 88 A. The Claim Was Not Forfeited BecauseIt Involves Seated Jurors Who Were Actually Biased. ................. 89 -iii- B. The Record Does Not Show That the Jurors Would Refrain from Automatically Imposing the Death Penalty on a Defendant Who Murders a Police Officer in the Performance of His Duty. ..... 92 1. Juror 7877...cette neces 92 2. Juror 7017 2...eeeeens 93 3. Juror 10155 2...ceeeee 94 4, Juror 9466 2...cee96 VIN. THE JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN DEFENSE, WHICH TESTIMONY COULD HAVE PROVIDEDA BASIS FOR REDUCTION OF THE CRIME TO SECOND-DEGREE MURDER. ................0... 98 The Parties’ Contentions ............0 00.00 e eee ee eee eee 98 A. Appellant’s Testimony Was Relevant To A Defense That Could Have Negated Premeditation And Reduced His Crime To Murder Of The Second Degree. ................. 99 B. A Trial Court May Not Exclude, Under The Guise Of Evidence Code Section 352, The Defendant’s Testimony About The Crime And His Motive For Committing It, Where These Matters Are Relevant To A Defense. .............. 100 C. The Erroneous Exclusion Of Appellant’s Testimony Was Either Structural Error Requiring Automatic Reversal, Or Prejudicial Error Under Chapman v. California. ......... 101 CONCLUSION 2.0.0.0... ccccette eee e tne neee 104 Certificate Per Cal. Rules of Court, rule 8.204(c) Proof of Service -iv- TABLE OF AUTHORITIES FEDERAL CASES Arizona v. Roberson (1988) 486 U.S. 675 ..ccccecscecssecesneecenseecesseeeseaeecseeessseeeseeeees 17,19 Chapmanv. California (1967) 386 U.S. 18 oceccecssescessecsseeeseseeesseseaeeseeteesnesaeeeseaaeens 98 Crawley v. Dinwiddie (10th Cir. 2009) 584 F.3d 916 oie eeceseecstecseeteeetteeeeeetseees 30 Drope v. Missouri (1975) 420 U.S. 162. ...... eee 26, 31, 33, 34, 36, 40, 48, 52, 54, 55 Faretta v. California (1975) 422 U.S. 806 ....eeesccsscsessececeseseecestsneeeseeneeensees 56, 77, 80 Ferguson v. Georgia (1961) 365 U.S. 570 oii eecceesseeeesceceeseeeeseeeeeneeeseseesenaeenes 101, 102 Giglio v. United States (1972) 405 U.S. 150 woeeecececceeceesteeseeeteeeesurseseenectsesteeeeees 17, 19 Gregg v. Georgia (1976) 428 U.S. 153 icecescesesceeseceeeeeeteetesesseeseeesseeeseseeeeestaaees 74 Griffith v. Kentucky (1987) 479 U.S. 324 iccccceesessessesscecseeeseeseesseeeeaeseeeesesesseeeseatees 58 Harrison v. United States (1968) 392 U.S. 219 oiccccccccccccssseccessesesteeeeseseteeesseeeeeeeens 83 Holmes v. South Carolina (2006) 547 U.S. 319 iccccccccsscccssseecetsseesseeceseesssesenseesenees 101 Indiana v. Edwards (2008) 554 U.S. 164ecccceccscecceseeesseseeeseeeens 56, 59, 63, 71, 74 Jermyn v. Horn (3d Cir. 2001) 266 F.3d 2575 ooocecccceescesseccecceeeseceeeeceneteneteeeeeeseaes 30 Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748 woececcccssscccesececesseeeesesesens 89 Kyles v. Whitley (1995) 419 U.S. 419 oocecesessceeseseceeeeseeeeeesesseeseeessesersesessneeessaes 17 Martel v. Clair (2012) 132 S.Ct. 1276 v.eccccccccccsssessseesecneceseeesteneeseseeusesecseesseseaees 84, 85 Martinez v. Yist (9th Cir. 1991) 951 F.2d 1153ececceeseseeeeeeseceseseeeeseeesneeeees 102 Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084 cccccecscccseeeceecsseseestessetenteeeenes 37 Pate v. Robinson (1966) 383 U.S.375 w.cceccccsccsssscesscecessecessseesseseeesenees 36, 40, 45, 54 Patterson v. Illinois (1988) 487 U.S. 285 oie ceeeesceeseseseseeesseseeerseeenessssssessesseeeseneenegs 82 Rock v. Arkansas (1987) 483 U.S. 44 iceseeccsesesesccscseesseceseeseseneesesneeeeseeeseeeeensen 101 Rock v. Arkansas (1987) 483 U.S. 44 ciccceccceessssseessscseeeeessesessseeessersreeseseeeeseenaees 102 Rompilla v. Beard (2005) 545 U.S. 374 ciccesecesssscsseseseeeesseenenseeceeereneeeeasneneneesenaeeneney 72 Strickland v. Washington (1984) 466 U.S. 668 ...cccceeececteeteeteeeteeteetetteeereneterersans 48 United States v. Bagley (1985) 473 U.S. 667 w.cccsccsccescesesesseeserseseceneeeerenestereeeneesertees 15 United States v. Boigegrain (10th Cir. 1998) 155 F.3d 1181 w.ecceeeeteeeteeeteeees 47 United States v. Moore (9th Cir. 1972) 464 F.2d 663 ...cceccccceessseeseeteesteereestetereeeeens 34 United States v. Scheffer (1998) 523 U.S. 303 c.eccsecseesseseseeseeseesseneeeeereeeeenerereees 100 Wiggins v. Smith (2003) 539 U.S. 510 ccccccescsessesceseneeeesenenseeeseenereeseersesteenasesees 48, 72 STATE CASES Gardner v. Superior Court (2010) 185 Cal.-App.4th 1003 o..cccseecseeeseneseereeeeees 77 Hart v. Burnett (1860) 15 Cal. 530 oe eeeeesceccessessessecssessesessenseeseeeeseesesnesneeesestseneeey 71 In People v. Johnson (2012) 53 Cal.4th 519 ...cccecssesssenecseneeeeecrereeestecerenersseessenes 58 In re Brown (1998) 17 Cal.4th 873 co.cccccccccesccssseeseeseneeesecnessecneesesneseeesetseeseneeeseeass 17 In re Johnson (1965) 62 Cal.2d 325 ive eesscscesssesesesseseesscseesseeseseeeeesereetsesseesegseeaes 77 In re Littlefield (1993) 5 Cal.4th 122 iiceccccssccesessereneesseserenecnseeenenesensneeteerssessenes 14 Inre Reno (2012) 55 Cal.4th 428 cececeesesseensessssecsecesenesneereeseterseseaaseeegs 46 Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719 w.eeeeceseseretesessereeeretensieees 70 People v. Blair (2005) 36 Cal.4th 686 ....cecccscccccsseesseeseeseteseeereeteres 22, 69, 70, 80, 81, -vi- 85, 86 People v. Bloom (1989) 48 Cal.3d 1194 wo.ccccccccsccccssessessccseccsscsscsscssssessessessesaveneens 69 People v. Bradford (1997) 15 Cal.4th 1229 ovisceccssecsssscsscsscssceseseeeees 22, 69, 70 People v. Burgener (1986) 41 Cal.4th 505 ooo. cccccccsecseeseeeseecssssscssccsssessssesseessnaees 90 People v. Burnett (1987) 188 Cal.App.3d 1314 o.ccccccccccssccsesssssessessccscssesessseeneess 61 People v. Carrera (1989) 49 Cal.3d 291 ooecccccccccsessssscseeseescesessessssssscsessessssassesseseess 59 People v. Clark (1990) 50 Cal.3d 583 oo.ccceccscsscssssssessesscserseeseseesesesssescsesessessesseceees 69 People v. Conrad (1973) 31 Cal.App.3d 308 o..ccccccccscccsscsscessecessessssssseccsssssessreesssees 77 People v. Danielson (1992) 3 Cal.4th 691 occ cccccscsccsssssssscseecssesseressecssssscsecsessasenees 22 People v. Davis (1995) 10 Cal.4th 463 o...cccccccscccccscssessessecsseessesscssssssscsscsessssenseeess 22 People v. Floyd (1970) 1 Cal.3d 694 ooo.cccsccccscsssssscsessesseeesecesesesesecsessesssesscsscesecees 59 People v. Foster (2010) 50 Cal.4th 1301 wcccececccsscsscsssescssssscsscsesseeseesneseas 89,91 People v. Frye (1998) 18 Cal.4th 894 ooo cccceccccccccessvssscsssccsssessssesesssecssessessaeeeses 22 People v. Gallego (1990) 52 Cal.3d 115 cocccccceccccscssssecsscsesscsecssessessssssscserscaesscssensevees 22 People v. Halvorsen (2007) 42 Cal.4th 379 o...ccccccccssccsessessessessesscsessssessesssssesvasensees 21 People v. Hayes (1999) 21 Cal.4th 1211 occccccccecsssecsessssscssccssesesscsesssscscssesseasseseess 22 People v. Hillhouse (2002) 27 Cal.4th 469 oooccccccccccccscssssscssssseserscsssssnecseeaeeres 89, 91 People v. Hopkins (1974) 39 Cal.App.3d 107 w..ccccccccscsscscssesecssssvscsssssesscsscserssseaseaes 83 People v. Howard (1992) 1 Cal.4th 1132 vociciicceccscecsscsssscceceescessecssecseeesees 16, 22, 39 People v. Howard (2010) 51 Cal.4th 15 .occccccceccsesesssssesssscsecsssssssssssvacsscssscsetseseeeaes 21 People v. Johnson (2012) 53 Cal.4th 519 iciiccecssseccsscescesscesseeees 56, 58, 59, 61, 62, -Vii- 63, 64, 67, 68, 73 People v. Koontz (2002) 27 Cal.4th 1041 w..ccececcseeeereteeerenereeeeenes 22, 39, 69, 70 People v. Laudermilk (1967) 67 Cal.2d 272 ccccccscecssescesereceretentesessensenenersesesenenees 52, 54 People v. Lawley (2002) 27 Cal.4th 102 oo. cccecseeceeteteeeeteneeetssseaenererensenenens 53, 80, 85 People v. Lewis (2006) 39 Cal.4th 970 ..cccccssececeseeeterseeeeerreresterseerssecasenensnenessenees 37 People v. Lewis (2008) 43 Cal.4th 415 o..ccccceeceeeterener sneer nenserneteneeeeesenees 21, 33 People v. Lightsey (2012) 54 Cal.4th 668 .....ccccceeesetseeneteeereetseineens 36, 59, 72, 87 People v. Luick (1972) 24 Cal.App.3d 555 ..cccccceeseeseteeseneeserstetenseecssseseestenseseeseneens 83 People v. Mendoza Tello (1997) 15 Cal.4th 264 ..eceecceeeesereneeserensrseneeseeeeeeenes 42 People v. Murdoch (2011) 194 Cal.App.4th 230 oo...tenenseens eieeereeseeaes 54 People v. Padilla (2003) 103 Cal.App.4th 675 ...ccccccscceeseeeceseeenerertistseseseetseneens 99 People v. Panah (2005) 35 Cal.4th 395 ..ecccccescssseeereeeseenenssseeresereneesenecseseeseseens 22 People v. Pennington (1967) 66 Cal.2d 508 o.ececeeeeeteeerseteterniees 23, 25, 28, 34, 48 People v. Price (1991) 1 Cal.4th 324 o..cccccssesceseneesereteneeeeeissesserseessessessesesenseeaes 22 People v. Price (2004) 120 Cal.App.4th 224 oo.tenastteesenseeessieseees 58 People v. Ramirez (2006) 39 Cal4th 398 o..ecccccseseeceseteteeeeeeienenenecteneneeeneeeeeey 21, 29 People v. Ramos (2004) 34 Cal.4th 494 occteesseeseneeesseeseneeees 22, 39 People v. Ray (1965) 238 Cal.App.2d 734 ...ccccccsesceessseeeerenersteesienerstenscsseeresennes 83 People v. Reyes (1998) 19 Cal.4th 743 .occcccseseeseeeeeenseeeseseseeeesssensserestesensesseenaees 58 People v. Rodrigues (1994) 8 Cal.4th 1060...ccccseseteeeeeenetrerensssereeeseeeenenes 22 People v. Rogers (2006) 39 Cal.4th 826 ....cccecceseseseseeeeeerersensessesseeeenesnernes 21, 37,51 -Vili- People v. Rollins (1967) 65 Cal.2d 681 ...cccccccccccscccccssccessccsseseecsessesenssscssesesssesseveaees 58 People v. Rundle (2008) 43 Cal.4th 76 oo.ccccccccccccccscsccscccsscssesccsscseescssesscsssssasereeeseeases 21 People v. Sedeno (1974) 10 Cal.3d 703 oo. seccccsescsssssessseesesssseesesecessecsseecseseseseseestes 102 People v. Sharp (1972) 7 Cal.3d 448 ooccccccscsccsscesscssesseccseccscssscesssstessessssssscsssessesesees 59 People v. Soojian (2010) 190 Cal-App.4th 491 occcccccccccssesscseseesesscsesecsssssstsessseees 15 People v. Stankewitz (1982) 32 Cal.3d 80 o.occcccccccsccssecsscsscsecsscseeseesecsesssessessasesseees 32 People v. Stewart (2004) 33 Cal.4th 425 oiccccecssceeeeseseseesssesesesesessesesseessecenes 22 People v. Superior Court (McPeters) (1985) 169 Cal.App.3d 796 wo.ccccecceseeeeeee 15 People v. Taylor (2009) 47 Cal.4th 850 wo.cccccccccccscssccssccsessessecssssecsscesessseens 29, 58, 70 People v. Tomas (1977) 74 Cal.App.3d 75 ciccccccscssscsssecsessssssesscsecsesseesessscsserats 34, 52 People v. Visciotti (1992) 2 Cal.4th bo oeeceeeseseesesssscesecseesesessecseseeseeseseesesaeeescreseees 78 People v. Walker (1959) 170 CalApp.2d 159 occcccccccscsscsessesecsesecscsscsesssesssseseresens 83 People v. Watson (1956) 46 Cal.2d 818 v.ccccccccccccsssssecssecseescseesesscsesscsssssssvesecssssseass 101 People v. Welch (1999) 20 Cal.4th 701 icccccccsssssscssecsscsessesscsessssecesesseees 22, 25, 33 People v. Young (2005) 34 Cal.4th 1149 ooiccccccsceccssccsessesssssesscssessenseneees 21, 22,35 People v. Floyd (1970) 1 Cal.3d 694 icccccccccsccssssesccssecsscsscsscssessessessessessesesssssseneens 77 Sand v. Superior Court (1983) 34 Cal.3d 567 o..ceccscccssessesesscseesssessesessessessessessesseaes 77 Telegram-Tribune, Inc. v. Municipal Court (1985) 166 Cal.App.3d 1072... 12 -iX- OUT-OF-STATE CASES deShazer v. State (Wyo. 2003) 74 P.3d 1240, 1248 ooceccscccserteeesrecesteesssteeeeees 47 Barnes v. State (Fla. 2010) 29 So.3d 1010, 1025-1026 ooo. eeccccesseceseeeeteeees 73, 74 Inre Fleming (Wash. 2001) 16 P.3d 610 ooo. ececceeseeeseeerentecteeeteeeenteenettreeteeereneneens 43 State v. Connor (Conn. 2009) 973 A.2d 627 oie. ceeeseeeeseeceseeeeseeeeeesueesnnesesseeceseeeeees 58 State v. Drope (Mo.App. 1973) 498 S.W.2d 838 ooo eeccesceeseeeerereneeereeeseeeenerenetenees 34 State v. Jason (Lowa 2009) 779 N.W.2d 66 o..eceeecsescceesceeseeteeeeeseeesseeestseenaeeesnetens 58, 59 State v. Johnson (Wis. 1986) 395 N.W.2d 176 and In re weeceeeeeeseeeeneeeneceseeeeeeeeeeees 43 State v. Reddish (N.J. 2004) 859 A.2d 1173 coeeeeeeeccesseeceeceesetseeseceseeneeeesaeeaeeatentens 73, 74 State v. Veale (N.H. 2009) 972 A.2d 1009 ooo eeeeeceessetseeeeteeeeeeeenaeecesneeseseasenaneess 47 State v. Wray (N.C. App. 2010) 698 S.E.2d 137 occececceessseeeeeseeeeetsesettenteneeens 58 STATE STATUTES Code of Civil Procedure section 233 oo... ciccecssccesecesseceeseeeneeceeteesaeersaneeseeessesesesesuaeees 90 Evidence Code Section 352 ciiccccicicccscsssssssssecesecescesceeevsseceecececcesueeansesersees 98, 100, 101 Evidence Code section 805eecceecscesesseesesssersnerssecesesenteeccsseeseeseaeseaeeseesesesaeseeseeeeees 30 Penal Code section 1054.1 oie. ceceessceseeeseeeecsneessecseseseesseenseeaecnseesaeeseeeseeseeesseeneeeens 14 Penal Code section 1054.5 oceeeeeeceeesceeeeseeessneeeteneeeeeeneeerneeeensneeseeneeesesaaeeeaesesereeeees 14 Penal Code section 1089 oo.eeeceeececceseeeeseeceereseseeenneesneresaeecssseesesessscnsesenescenags 90 Penal Code section 1368. .....cccicccccccscscceccessessseesssaesesceccccsesesserseseseeeseccenseseanens 4, 15,51 -X- Penal Code section 190.3 wo....cccccccccccsscssssscssesscevevesetecsesseseseserssssessseeseecseers 72, 75, 103 Penal Code section 686.1 o....cccccccccsessssscssccessescusceesesssssssssescessesssseseesonsna 2, 56, 57, 69 Penal Code section 987.2 oicccccccccccssssececsessscesseeecssessscecsssucvseserscessusussecssnaceeesteeeeereens 20 Penal Code sections 1368 i.eeeceeeeccssneeseeserseceneeneeeseceaeeeaeeeeeeeseesescseeseetaseaeens passim MISCELLANEOUS Blume & Clark,Unwell’: Indiana v. Edwards and the Fate of Mentally Ill Pro Se Defendants," (Fall 2011) 21 Cornell Journal ofLaw & Public Policy 151 ........ 73, 84 Johnston, Representational Competence: Defining the Limits ofthe Right to Self- representation at Trial, (2011) 86 Notre Dame L.Rev. 523, 595 .iccccceseeseesseeeees 61 Leibman, The Overproduction ofDeath (2000) 100 Columbia L.R. 2030 ww... 84 Marks, State Competence Standardsfor Self-Representation in a CriminalTrial: Opportunity and Dangerfor State Courts after Indiana v. Edwards (2010) 44 ULS.F.L.Rev. 825, 847 iiiicecceseescserseseeeseeeseececsaeensceeesnetsesetecnereateanessssesesteeearenatess 61 -xi- IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) No. $133510 CALIFORNIA, ) Plaintiff, [Automatic Appeal] v ANDREW HAMPTON MICKEL, Defendant. | Introduction On December 17, 2002, psychiatrist, Dr. A.M. Drukteinis, wrote a report, filed in a New Hampshire proceeding, stating that appellant’s competence to stand trial was highly questionable. In a petition filed January 8, 2003, appellant’s New Hampshire counsel, MarkSisti, told the court that he also believed appellant was not competent. Some22 dayslater, andafter only one meeting with appellant, James Reichle, appellant’s California counsel, disagreed with Dr. Drukteinis and Mr.Sisti regarding appellant’s competence. Reichle went further: he told the California court at his first appearance that he fully supported appellant’s motion to represent himself in this capital case. The trial court, mistakenly believed the right to self-representation was absolute. It therefore granted appellant’s motion for self-representation. As the opening brief recounts, the results were as disastrous as they were predictable. At the guilt phase, Mr. Mickel sought to rely on a strange, non-existent defense, arguing that he wasentitled to shoot a police officer who wasrefueling his patrol car because -l- it was “an appropriate act in defense ofliberty.” Whenthe trial court precludedthat defense, Mr. Mickel was overcome with emotion and vowedto remainsilent at the guilt phase. True to his word, appellant called no witnesses and put on no defense. Hedid not cross-examine 17 ofthe 26 witnesses. What cross-examination appellant did was perfunctory. His closing argumentat the guilt phase consisted of a few sentences in which he advised the jury to find him guilty. It did not get better at the penalty phase. There, Mr. Mickel offered the jury a rambling description ofthe principles that motivated his actions, touching on the Declaration ofIndependence,the Federalist Papers, the Constitution, Paul Revere’s Midnight Ride, the Colonists’ battles against the British Redcoats, the Shot Heard ‘Round the World, the Patriot Act, the development of professional police forces and the FBI, Prohibition, the St. Valentine’s Day Massacre, andhistravels to Israel and the Occupied Territories. He told the jury that what he wastrying to accomplish was “for you guys to get this liberty and have this liberty.” He concluded by asking the jury to “give me liberty or give me death.” Echoing Mr. Reichle’s assessment ofappellant, respondent takes the position that appellant was not only competent to stand trial, and competent to represent himself, but that he was a cogent,intelligent advocate. The record does not support this characterization. TheState ofCalifornia has in independentinterest in the integrity of its death judgments and, for that reason, has required counsel in all capital cases. (Penal Code section 686.1.) While the trial court believed that appellant’s right to self- representation was absolute, provided he was competent to stand trial, we now -2- know,thanks to Indiana v. Edwards, that is not the case — particularly for a “gray- area” defendantlike appellant who, due to mental illness, may not be competentto represent himself without the aid of counsel. Based on the trial court’s failure to require counsel in this capital case, together with other errors described in the opening brief, appellant respectfully requests that the judgmentbe reversed. I. THERE WAS SUBSTANTIAL EVIDENCE OF APPELLANT’S INCOMPETENCEBEFORE THE TRIAL COURT The Parties’ Contentions Appellant has argued that the trial court violated appellant’s right to due process when, despite having substantial evidence of appellant’s incompetence,it failed to suspend criminal proceedings pursuant to Penal Code sections 1367 and 1368. (AOB 39-58.) In particular, the trial court knew that scarcely six weeksprior to his arraignmentin California, appellant had been examined by a psychiatrist in connection with the New Hampshire extradition proceedings. Based on the report of this mental health expert (Dr. A.M. Drukteinis), appellant’s New Hampshire attorney informedthat court that appellant “could not even identify himself, could not understand the court proceedings, and could not understand the difference between the Judge, the Prosecution, and the Defense." The trial court also knew that appellant was uncooperative with authorities in New Hampshire and had appeared in court wrapped only in a blanket; that appellant had madepretrial statements explaining his defense to murder based on bizarre notions of corporate immunity; and that appellant offered a non-existent defense at trial based on the “defense of liberty” in which he fashioned himself an American revolutionary fighting against the “Redcoats” ofEngland. (AOB 39-44.) Appellant has arguedthat the Drukteinis report, alone, constituted substantial evidence of appellant’s incompetence, and required suspension of the proceedings under Penal Code section 1368. If the contents of the Drukteinis report alone did not constitute substantial evidence,it surely did when pieced together with the other evidence recited above. The State responds that the evidence before the trial court of appellant’s incompetence wasinsufficient, for three reasons: -4- First, it was not clear that the trial court was aware of the contents of the Drukteinis report (RB 36, 45), or that the prosecution had providedit to the defense in discovery (RB 46). Second, evenifthe trial court had the Drukteinis report, or had been aware of its contents, that report wasstill insufficient to raise a doubt of appellant’s incompetence. This was because the report waspreliminary only (RB 48);it was not subscribed under oath (RB 49); and it was equivocal and conclusory (RB 51). Third, notwithstanding the Drukteinis report, other factors showed that appellant was fully competent. These facts included that appellant’s advisory counsel, James Reichle, never expressed a doubt of appellant’s competence. (RB 58.) Appellant appeared to be an intelligent and rational advocate. (RB 58-59.) And, appellant’s confession of guilt and preference for the death penalty (when he told the jury to “give meliberty or give me death”), does not show incompetence. (d.) Asappellant explains below, none of these points have merit. The record showsthat the court was,in fact, informed of the contents of the Drukteinis report. That report was based on a sufficient examination and wassufficiently detailed to meet the requirements of section 1368. And, once substantial evidence was before the trial court, the fact that there was contrary evidence did not relieve the court of its obligation to suspend proceedings. That contrary evidence may only be considered when presented at a competency hearing. In sum, respondent misperceives the factual record and confuses appellant’s burden at the competency hearing with the lower burden required to obtain such a hearing. -5- A. The Trial Court Was Aware Of The Contents Of Dr. Drukteinis’ Report The People’s contention that “it is not clear” that the contents of the Drukteinis report was conveyed to the court (RB 36), is belied by the record. The record quite clearly discloses that the trial court was informedboth ofthe Drukteinis report and its contents. Respondent does not dispute most of the relevant, underlying facts regarding the Drukteinis report. These facts disclose the following: (1) On April 25, 2003, appellant’s counsel, James Reichle,filed a motion in the trial court to prevent the public disclosure of eight categories of evidence including, “any mention of the extradition proceedings in New Hampshire or any information presented therein, including the contents or sealing of the Drukteinis report as to much of which Defendant asserts was divulged in violation of his attorney-client and psychotherapist privileges.” (3 CT 643B-C.) (2) On April 22, 2003, the court and the parties discussed Reichle’s request to prevent disclosure of this evidence. (1 RT 66 et seq.) Reichle told the court that in New Hampshire“a lot ofpeople were interviewed,anda lot ofmaterial wasprovided, some ofwhich could be significantly inflammatory.” (1 RT 68.) In that hearing, however, Reichle did not describe the substance of the Drukteinis report. (3) On July 7, 2004, appellant filed a motion for change ofvenue. (4 CT 862-904.) Oneofappellant’s reasons for moving to change venuewasthe publicity that the local press had given the case had “undermin[ed] the credibility of the Defendant....” (4 CT 866.) In particular, appellant was concernedby publicity that -6- indicated that he was mentally incompetent or insane. Appellant himself thus told the trial court that in the New Hampshire proceedings, "[defense] attorney Sisti, without Defendant’s consent and against his express instructions, attempted to lay a foundation for an insanity defense, making dramatic, unsubstantiated claims that the Defendant could not even identify himself, could not understand the court proceedings, and could not understand the difference between the Judge, the Prosecution, and the Defense." (4 CT 864-865.) Appellant further told the trial court in the venue motion that Sisti’s “approach”to his case “solidified a belief in the community”that appellant was“actually insane and that he did not even know his name.” (4 CT 866.) This sort of local publicity resulted in “the perceived deterioration of [appellant’s] credibility [which] has becomethe central point to the local feelings and discussions regarding the case.” (4 CT 866-867.) (4) On August 25, 2004, the trial court conducted the hearing on appellant’s motion to change venue. (2 RT 295 et seq.) Appellant introduced into evidence a large number of newspaperarticles to support his contention that the community had been saturated with negative publicity about appellant. These articles were collected in three “News Books” and were admitted at the venue hearing as Exhibits D-1, D-2 and D-3. (See 2 RT 296 [Index to Venue Hearing]; 297 [minute order noting three News Books markedfor identification) News Books One, Two and Three comprise the whole ofVolumes5, 6 and part of7, respectively, of the Clerk’s Transcript. The NewsBookswere admitted into evidence without objection. (2 RT 397.) At the end ofthe venue hearing,thetrial court told the parties that “the Court has not had an opportunity to look at the exhibits, which I just got this morning.” (2 RT -7- 408.) The matter was therefore put over to give the court a chance to review those documents, and produce a written ruling. V/d.). On September 10, 2004, thetrial court filed a written ruling granting the change of venue. (7 CT 1729-1733.) The court referenced the evidenceit considered,“including [the] newspaperarticles....” (7 CT 1729.) (5) As describedin detail below, as manyas 20 ofthe newspaperarticles reviewedbythe court described the extradition proceedings in New Hampshire, and the petition for writ of habeas corpusfiled on January 8, 2003 by appellant’s New Hampshire attorney, Mark Sisti. As described in the articles, the habeas corpus petition was premised on the claim that appellant was not competentto standtrial. Thearticles noted that the claim was supported by the psychiatric report ofDr. A.M. Drukteinis, which questioned appellant’s competence. Thearticles included the following: The first article on the subject of appellant’s incompetence supporting the venue motion appeared January 10, 2003 in the Redding Record Searchlight. Entitled, “Defense Raises Mental Issue,” the article stated that appellant “may not be competentto standtrial,” according to Sisti’s New Hampshire petition. (6 RT 1234.) Thearticle stated that, “Sisti wrote that he had ‘legitimate concerns’ about [appellant’s] mental state, including his sanity and ability to understand the legal process.” (/d.) Sisti “quoted a doctor who performeda preliminary psychological examination of McCrae,” and concluded that “Mr. McCrae’s competency to stand trial, or to rationally participate in other court proceedings, is highly questionable becauseofhis irrational thinking.” (/d.) -8- The next day the Chico Enterprise-Record published a similar article, also contained in the venue motion, which quoted Sisti as saying “‘his client should not be extradited because he can’t understand the court proceedings against him, according to the Concord [New Hampshire] Monitor.’” (5 CT 1235.) Similar articles describing the extradition proceeding and containing the sameallegation, i.e., that appellant could not “understand the proceedings against him,” appeared on January 11, 2003 in the Red BluffDaily News (5 CT 1236); again in the same paper on January 15, 2003 [reciting Sisti’s argument that “his client should not be extradited based on claims ofmental incompetence.”] (5 CT 1240); in the Oroville Mercury Register on January 15, 2003 (5 CT 1244); and in the Redding Record Searchlight on January 22, 2003 [reporting that Sisti was fighting extradition because “he questions McCrae’s understanding of court proceedings andhisability to participate.”’]. The venue motion also contained an article published on January 15, 2003, in the Redding Record Searchlight, which reprised the story about appellant’s challenge to extradition based on his incompetence. It noted that the habeaspetition was supported by a statement from a “psychiatrist who examined McCrae. The doctor concluded that McCrae’s ability to participate in court is ‘highly questionable becauseofhisirrational thinking.’” (5 CT 1242.) Sisti was quoted after a hearing on his petition as saying, “The issue of competency was raised by us ... We submitted a psychiatrist’s report indicating [appellant] was incompetent to stand trial.” (5 CT 1243.)! ' The article noted, however, that appellant insisted that he was competent and was angered byhis lawyer’s petition. (/d.) -9- The venue motion wasalso supported by newspaperarticles which described the New Hampshire judge’s denial of the habeas corpus petition. On January 23, 2003, an article in the Chico Enterprise Record recountedSisti’s claim that appellant was“mentally unfit to standtrial,” and that he was “not competent to proceed.” (5 CT 1252.) Thearticle noted that the New Hampshire court ruled that a defendant’s competence wasnot necessary for extradition. (Jd.) Several otherarticles noted the New Hampshire court’s rejection ofthe claim that extradition should not be granted because appellant “could not understand the legal proceedings against him.” (5 CT 1253 [Redding Record Searchlight, Jan. 23, 2003]; 1255 [Red Bluff Daily News, January 23, 2003], 1257 [Sacramento Bee, Jan. 23, 2003].) Newspaperarticles attached to the venue motion picked up on the case when appellant was returned to Tehama County. On January 30, 2003, the Red Bluff Daily News quoted the Tehama County district attorney as saying that “McCrae’s attorney in New Hampshiretried to use the tactic that he was not competent,” but that appellant insisted he was competent. (5 CT 1266.) Thearticle noted that Sisti resisted extradition on the groundthat “hisclient ‘is not competent to proceed,’” and described appellant’s disagreement with Sisti’s tactics. (5 CT 1267) A similar article appeared in Red Bluff Daily News on February 6, 2003, again recounting Sisti’s efforts to prove that appellant was incompetent. (5 CT 1305.) Several other articles attached to the venue motion reported on appellant’s return to Tehama County and noted the New Hampshire court’s rejection of his claim that an incompetent defendant could not be extradited. (5 CT 1270-1271 [Oroville Mercury Register, Jan. 31, 2003]; 5 CT 1275 [Redding Record Searchlight, Jan. 31, 2003] [noting that appellant’s lawyer “fought extradition, -10- questioning McCrae’s sanity.”’]; 5 CT 1269 [Chico Enterprise Record, Jan. 31, 2003] [reporting that appellant’s previous public defender argued appellant “was not competentto standtrial]; 5 CT 1291 [Sacramento Bee, Feb. 5, 2003] [noting that appellant’s New Hampshire lawyer “fought extradition, questioning McCrae’s sanity.”’] Finally, on February 26, 2003, after appellant’s arraignment at which he admitted to killing Officer Mobilio, an article appeared in the Corning Observer, stating that appellant “is no longer on suicide watch ....”. (5 CT 1326.) Thetrial court acknowledgedthatit had read these exhibits which clearly and repeatedly reported that appellant’s New Hampshire attorney believed appellant was incompetent, and that a psychiatrist, Dr. Drukteinis, had examined appellant and produced a written report stating that appellant’s competence was “highly questionable.” Thus, in its written ruling on the motion to change venue, the court specifically stated that “{t]he evidence presented by Defendant[in support of the motion to change venue] consists of expert testimony by Edward Bronson and supporting documents, including newspaperarticles ....” (7 CT 1729.) Based on these newspaperarticles, the conclusion is inescapable thatthe trial court was fully aware of the substance of the Drukteinis report. B. The Trial Court Also Knew That The Prosecution Had Provided the Drukteinis Report To the Defense In Discovery Thereis further reason the trial court was chargeable with the knowledge of the New Hampshire proceedings containing Mr.Sisti’s opinion that appellant was -11- incompetent, and Dr. Drukteinis’ report supporting that opinion. The record in the instant case clearly disclosesthat the trial court understood that the prosecution had provided the Drukteinis report from the New Hampshireproceedingsto the defense in the course of discovery. The People dispute this fact (RB 46), but they are wrong. Here is what the record shows. In defense counsel James Reichle’s declaration in support of his April 7, 2003 motion to seal the New Hampshire documents, Reichle stated that he had received 1100 pages of discovery from the prosecution, and that “a review of the discovery reveals potential evidence with little or no probative value for purposes of the preliminary examination that would, if announced publicly, undoubtedly and irrevocably prejudice the Defendantin the eyes of potential jurors.” (3 RT 573, emphasis added.) On April 22, 2003, the trial court conducted a hearing on various motions including Reichle’s motion to seal the New Hampshire documents. (1 RT 32-80.) In proceeding on that motion to seal the documents, the trial court stated that it would follow a procedure dictated by the case of Telegram-Tribune, Inc. v. Municipal Court (1985) 166 Cal.App.3d 1072. (1 RT 72.) That procedure provided for an ex parte hearing at which the movant has an opportunity, without the other side being present, to describe the material to be sealed. (1 RT 73.) The following colloquy then took place: THE COURT: Now,in this case you [Mr. Reichle] are not asking to not have the Prosecution present? -12- MR. REICHLE: That’s correct. THE COURT: This is Prosecution evidence; right? MR. REICHLE: Right. I have no objection to presenting it before the Prosecution. (1 RT 73-74, emphasis added.) Thetrial court then ordered Reichle to submit a list of the documents he wanted sealed. Reichle did so in a declaration filed April 25, 2003. Reichle’s declaration, intended to seal the Drukteinis report, began with the following statement: “Counsel for Defendant hereby requests that, until and unless the Court rules otherwise at an in camera hearing,all of the following items (found mainly at Discovery pages 320-397) shall not be made public by the Prosecution at the Preliminary Examination or otherwise: ..(6) Any mention of the extradition proceedings in New Hampshire or any information presented therein, including the contents of the Drukteinis report as to much of which Defendant asserts was divulged in violation of his ... psychotherapist patient privilege.” (3 CT 643B-C, emphasis added.) On May1, 2003, the trial court conducted an in camera hearing on Reichle’s request to seal theNew Hampshire documents. Priorto that hearing, the prosecution indicated that it did not intend to introduce into evidence any ofthe documentslisted in Reichle’s declaration, including the Drukteinis report or the habeas corpus petition filed in New Hampshire. (3 CT 643F-G.) The issue of sealing the documents therefore became moot. (1 RT 82-86.) The trial court, nonetheless, imposed “a continuing order to the District Attorney’s office as to the materials that -13- arise from this in-camera hearing,if there are any, that they will be sealed and will not be released to the public without further order of the Court.” (1 RT 85.) Contrary to the People’s assertion, the record is clear. The trial court was fully aware that the New Hampshire documents, including the Drukteinis report, originated as “prosecution evidence” and that the prosecution provided those documents in discovery to the defense. This fact is significant, for the following reason. The prosecution is only obligated to provide in discovery the categories of documents set forth in Penal Code section 1054.1. (Un re Littlefield (1993) 5 Cal.4th 122, 129; Penal Code section 1054.5 (a) [No order requiring discovery shall be made in criminal cases except as providedin this chapter.”’].) The discovery statute requires disclosure of five categories of evidence: the names and addresses of witnesses the prosecution intendsto call at trial; statements of the defendant; relevant real evidence obtained as part ofthe investigation; relevant statements ofwitnesses the prosecution intends to call at trial; and exculpatory evidence. (Penal Code section 1054.1, subds. (a) through (f). The opinion expressed by Dr. Drukteinis in his report and the habeas petition filed in New Hampshire, providedhere by the prosecution, do not constitute real evidence or statements of the defendant or witnesses the prosecution intended to call at trial. Indeed, in response to Reichle’s motion to seal the documents, the prosecution expressly disclaimedany intent to use the evidenceattrial. (3 CT 643F- G.) The inference thus arose that the prosecution turned over these documents in compliance with Penal Code Section 1054.1 either because the documents contained statements of appellant to Dr. Drukteinis, because they contained exculpatory -14- evidence, or both.” The fact that the trial court understood (1) that the prosecution provided the Drukteinis psychiatric report in discovery, but (2) that the prosecution had no intention of calling Dr. Drukteinis as its witness, strongly suggested — at least in the prosecution’s view — that the report, if believed, provided favorable evidence on appellant’s competenceto standtrial. It is hardly surprising that the prosecution provided the evidence in discovery — such disclosure is fully consistent with, and would have been compelled by, the prosecution’s obligation to enforce the terms ofPenal Codesection 1368. California law rejects the notion that the People have “a lesser interest in the issue of [a defendent’s] mental competenceto stand trial than defense counsel or respondent court.” (People v. Superior Court (McPeters) (1985) 169 Cal.App.3d 796, 798.) In McPeters,the trial court held that the People were not entitled to demanda jury trial on the question of a defendant’s competencyto stand trial. The court of appeal granted the People’s writ petition, affirming that, as a matter of due process, the ? Of course, a psychiatric report that states that the defendant is not competent to standtrial is in fact exculpatory evidence. Evidenceis exculpatory if there is “reasonable probability that, had the evidence been disclosedto the defense, the result of the proceeding would have been different.” (United States v. Bagley (1985) 473 U.S. 667, 682.) If the Drukteinis report were believed, appellant’s competenceto stand trial was “highly questionable.” This would havelikely resulted in a suspension of criminal proceedings, and no verdictat all — clearly an outcome ofthe proceeding that would have been different, and more favorable, than a verdict of capital murder. (See People v. Soojian (2010) 190 Cal.App.4th 491, 518-521 [holding that, to show prejudice, a hung jury is a more favorable result].) -15- People are equally obligated to ensure a defendant’s competency. Asthe court explained, “We accept defendant's premise that the purpose of section 1368is to avoid the due process violation which results from conviction of an accused person whois mentally incompetentto standtrial, but this premise does not support defendant's conclusion that petitioner [the State] has a lesser interest in an accurate adjudication of whether or not he is competentto stand trial. Neither justice nor due process of law is served if defendant is erroneously found to be incompetent to stand trial when, in fact, he is competent. It is petitioner's duty to see that the unnecessary delay in the murder prosecution which would result from an erroneous adjudication ofmental competency does not occur.” (Ud. at p. 798.) The trial court in Mr. Mickel’s case could readily have viewed the prosecution’s disclosure in discovery of the Drukteinis report and the New Hampshire habeascorpuspetition as the prosecution’s effort to fulfill its due process obligation to ensure that an incompetent defendantis not subjected to the criminal process. While an attorney’s opinion regarding his client’s incompetence to stand trial is not determinative of the issue, “it is undoubtedly relevant.” (People v. Howard (1992) 1 Cal.4th 1132, 1164 [discussing the impact of defense counsel’s opinion of defendant’s competence].) Thetrial court in the instant case knew the prosecution provided the Drukteinis report in discovery and therefore had good reason to know thatthe report, if credited, provided evidence ofMr. Mickel’s lack of competence. -16- C. Even If The Drukteinis Report Was Not Filed In The Trial Court, The California Court Is Chargeable With Knowledge of The New Hampshire Extradition Proceedings Since They Were Instituted Pursuant To The California Court’s Process Even if the trial court was not fully aware of the Drukteinis report, under well-established principles ofagency,the trial court was chargeable with knowledge of the proceedings in New Hampshireinstituted at its behest. It is axiomatic that the principal is charged with the knowledgeofhis agent “concerning a matter as to which he acts within his powerto bind the principal...” (Rest.2d ofAgency, section 272.) Agency principles have frequently been applied in analogous contexts in criminal proceedings. Thus, the United States Supreme Court has relied upon this principle of law to hold a prosecutor chargeable with knowledge of every memberofthe investigatory team “acting on the government's behalf.” (Kyles v. Whitley (1995) 419 U.S. 419, 437; Giglio v. United States (1972) 405 U.S. 150, 154; Jn re Brown (1998) 17 Cal.4th 873, 879.) Similarly, in reliance on the principles established in Giglio, the Supreme Court hasheld that all police agencies involved in an investigation are chargeable with knowledge of a defendant’s initial invocation of his right to remain silent. (Arizona v. Roberson (1988) 486 U.S. 675, 687-688 [citing Giglio v. United States (1972) 405 U.S. 150, 154].) More generally, all parties to a proceeding are chargeable with knowledge of “all subsequent steps taken in the cause, down to and including the judgment, even thoughheorshe does notin fact appear and hasno actual knowledgethereof.” (Corpus Juris Secundum (Dec. 1012), Notice, section 13 [Notice of Judicial Proceedings], and cases cited therein.) -17- Here, the record shows that the New Hampshire court was expressly acting on the behalf of the California courts in the same case against Mr. Mickel. In the lexicon of agency law, the New Hampshire court had “actual authority” to act on appellant’s case. As the Restatement (Third) of Agency, § 2.01, explains: “An agent acts with actual authority when, at the time of taking action that has legal consequencesforthe principal, the agent reasonably believes, in accordancewith the principal's manifestationsto the agent, that the principal wishesthe agentsoto act.” As described below,that was precisely the relationship between the California and New Hampshire courts. On December 12, 2002, the Tehama County Superior Court filed an “Amended Felony Complaint for Extradition” and issued a warrantfor appellant’s arrest for the murder of Officer David Mobilio. (2 CT 435-436.) Pursuantto that warrant, appellant wasarrested in New Hampshire. (2 Supp.CT 129.) Extradition proceedings, based on the arrest warrant issued by Tehama County Superior Court and the complaint for extradition filed in the Tehama County Superior Court, were commenced in the Merrimack County Superior Court in New Hampshire. Appellant’s attorneyfiled a petition for writ ofhabeas corpus in the New Hampshire court on the ground that appellant was not competent to assist counsel in the proceeding. (2 Supp.CT 128 et seq.) That petition was based on counsel’s opinion that appellant was not competent, and was supported by Dr. Drukteinis’s six-page. single-spaced psychiatric report stating that appellant’s competence was “highly questionable.”(2 Supp.CT 147-152.) The New Hampshire proceedings resulted in -18- appellant’s extradition and return to the Tehama County Superior Court for arraignment. In conducting the extradition proceedings, the New Hampshire court was acting at the behest of, and on behalf of, both the Tehama County Superior Court and the California executive. Under the agency principles applied by the United States Supreme Court in analogoussituations (see Giglio v. United States, supra, 450 US.at p. 154; Roberson, supra, 486 U.S.at pp. 687-688), the Tehama County Superior Court was chargeable with knowledge of the proceedings, including the filings, in its agent court in New Hampshire. Those filings included Mr. Sisti’s petition for writ of habeas corpus, supported by the full Drukteinis report. Considering the foregoing, a clear picture emerges ofthe totality of the evidencebeforethe trial court of appellant’s mentalstate: the trial court knew from Reichle’s motion to seal documents that appellant had been examined by a psychiatrist, who produced a written report on appellant’s mentalstate, shortly after his arrest in New Hampshire. The court knew from appellant’s venue motion and exhibits to that motionthe contents ofthat psychiatric report -- that both appellant’s New Hampshire attorney and Dr. Drukteinis had opined that appellant was not competent to stand trial, and had resisted extradition on that ground. Finally, the trial court knew that the prosecution had obtained these documents and had turned them over to the defense in discovery. -19- In addition to the facts from the New Hampshire proceedings,the trial court was aware of other facts showing appellant’s incompetence. (AOB 78.) These included that appellant had been on suicide watch while awaiting proceedingsin the case before it. (5 CT 1326.) The court also knew that, while appellant was incarcerated in New Hampshire, he was “disruptive and uncooperative with jail authorities there, refusing to dress,” and that he had appeared in court in New Hampshire wrapped only in a blanket; that appellant had madepretrial statements explaining his defense to murder charges on the basis of bizarre notions, including that he hadfiled articles of incorporation and therefore enjoyed corporate immunity from prosecution for his shooting of Officer Mobilio; and that, in the guilt phase, appellant soughtto defend against the charge of special circumstance murderon the ground that he was acting in “defense of liberty.” Appellant believed that this defense gave him the rightto shoot a police officer who wasrefueling his car. When the trial court precluded appellant from introducing evidence in support ofthis defense, appellant became extremely emotional, and told the court that he would not speak during the guilt phase. (8 RT 1830.) All ofthese facts must be considered together. “In resolving the question of whether, as a matter of law, the evidence raised a reasonable doubtas to defendant's mental competence, [the reviewing court] may considerall the relevant facts in the record. (People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069; [People v.] Howard, supra, 1 Cal.4th at p. 1164.” (People v. Young (2005) 34 Cal.4th 1149, 1217.) Moreover, -20- “fe]vidence of incompetence may emanate from several sources, including the defendant's demeanor,irrational behavior, and prior mental evaluations. [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 847.)” (People v. Lewis (2008) 43 Cal.4th 415, 524.) Consideringall the pleadings in the case, including the exhibits to the motion for change ofvenue and Reichle’s motion to seal the Drukteinis report, and the other information available to the trial court as described above, the court had before it substantial evidence of appellant’s incompetence. It is true that in the last two decades of capital jurisprudence, this court has rejected every claim that the trial court erred by failing to suspend criminal proceedings under section 1368, notwithstanding substantial evidence of the defendant’s incompetence.’ It appears, however, that the court has neverrejected such a claim whereit is based on two categories of evidence presentin the instant case: an adequate written report from a psychiatrist stating that the defendantis not 3 Appellant’s research hasdisclosedthat this court has rejected the claim in nearly 25 cases in the last two decades. (People v. Howard (2010) 51 Cal.4th 15, 44-45; People v. Rundle (2008) 43 Cal.4th 76, 180; People v. Lewis (2008) 43 Cal.4th 415, 523; People v. Halvorsen (2007) 42 Cal.4th 379, 401-407; People v. Rogers (2006) 39 Cal.4th 826, 846-850; People v. Ramirez (2006) 39 Cal.4th 398, 466-468; People v. Young (2005) 34 Cal.4th 1149, 1217-1218; People v. Blair (2005) 36 Cal.4th 686, 711-719; People v. Panah (2005) 35 Cal.4th 395, 432-434; People v. Ramos (2004) 34 Cal.4th 494, 508-510; People v. Stewart (2004) 33 Cal.4th 425, 515-517; People v. Koontz (2002) 27 Cal.4th 1041, 1062-1069; People v. Hayes (1999) 21 Cal.4th 1211, 1281; People v. Welch (1999) 20 Cal.4th 701, 736-740; People v. Frye (1998) 18 Cal.4th 894, 951-952; People v. Bradford (1997) 15 Cal.4th 1229, 1372; People v. Davis (1995) 10 Cal.4th 463; People v. Rodrigues (1994) 8 Cal.4th 1060, 1110-1111; People v. Howard (1992) 1 Cal.4th 1132, 1163- 1164; People v. Danielson (1992) 3 Cal.4th 691, 727-728; People v. Price (1991) 1 Cal.4th 324, 395-397; People v. Gallego (1990) 52 Cal.3d 115, 162-163.) -2]- competentto stand trial, together with irrational behaviorpriortotrial andirrational behavior during the proceedings. While this court has confronted cases in which a mental health professional has provided the court with a statementthat the defendant is not competent, (see People Panah, supr 35 Cal.4th 395; and People Rodrigues, supra, 8 Cal.4th 1060), in each of those cases the opinion washeld insufficient for reasons that do not exist here. Thus, in Panah, neither of two psychiatrists who examined the defendantultimately concluded that he was incompetentto standtrial, unlike the instant case. (Panah, supra, 35 Cal.4th at p. 433.) In Rodrigues, one psychiatrist (Dr. McKinsey)“had not had any opportunity to examine defendant,” and consequently related a diagnosis that was devoidofparticulars. (/d. at p. 1111.) The other doctor (Dr. Missett) had met with defendant but had not done any competency examination, and could only state that he “feels that the defendant has brain damage because of the two major seizures he has heard about through [the defense investigator].” (/d.) In contrast to these cases, Dr. Drukteinis had a sufficient opportunity to examine appellant (seepost, section I.D.1), and affirmatively stated that appellant’s competence to stand trial was “highly questionable,” i.e., highly doubtful. As explained below, this is precisely the kind of opinion that in itself constitutes substantial evidence under section 1368. (People v. Pennington (1967) 66 Cal.2d 508 [written psychiatric report constitutes substantial evidence of incompetence requiring suspension of proceedings undersection 1368].) -22. D. The Drukteinis Report Constituted Substantial Evidence Of Appellant’s Incompetence Respondentargues, however,that even ifthe Drukteinis report wasbefore the trial court, that report nonetheless does not constitute substantial evidence for three reasons: (1) prior to preparing it, Dr. Drukteinis did not have a sufficient opportunity to examineappellant; (2) the report was conclusory;and (3) it was not under oath. (RB 48-60.) The first two contentions are inaccurate. The third is insufficient to deprive the Drukteinis report of its force as substantial evidence. 1. In Preparing The Report, Dr. Drukteinis Had A Sufficient Opportunity To Examine Appellant. The Drukteinis report appears in the Clerk’s Transcript at 2 Supp.CT 147-152.) It is a six-page, single-spaced, typed document. In it, Dr. Drukteinis states that he interviewed appellant “for more than two hours”at the countyjail; that he conducted a “mental status examination and a preliminary competency to stand trial assessment”; that he reviewed the document appellant penned, called the “Renewed Declaration of American Independence”; and that he had a “lengthy telephone interview with [appellant’s] mother, Karen Mickel.” (2 Supp.CT 20.) The report describes appellant’s life-history. It describes his parents and their professions. It recounts appellant’s “childhood emotional problems,” that he was sent to counseling from the age of four, and suffered depression from the third or fourth grades; it describedthat, while in the seventh grade, appellant was diagnosed with chronic depression and placed on medication, which made him”irrationally fearful.” It tells how, in the tenth grade, he was again placed on anti-depressants. -23- (2 Supp.CT 22-23.) It describes his three-year experience in the Army, his discharge and eventual enrollment in college. (2 Supp.CT 23.) Based on the extensive life history, Dr. Drukteinis concluded that appellant suffered from “a chronic and cyclical history of Depressive Disorder, as well as more recent grandiose and persecutory thinking that can be seen in a Delusional Disorder.” (2 Supp.CT 25.) “There is a strong fantasy andirrational expectation to his thinking, coupled with what appears to be a belief that what he did was not wrong. The relatively sudden change [from a nonviolent ideology] in his thinking to this intense set of beliefs also supports that they represent a mental disturbance rather than just a variant of political beliefs.” (d.) This prompted the doctor’s conclusionthat appellant suffered from a delusional disorder. The doctor concluded that “In my opinion, Mr. McCrae’s competency to stand trial, or to rationally participate in other court proceedings,is highly questionable becauseofhisirrational thinking.” (/d.) Respondent does not dispute that a written report such as this constitutes substantial evidence of incompetence if, inter alia, “the psychiatrist has had sufficient opportunity to examinethe accused....” (People v. Pennington (1967) 66 Cal.2d 508, 519; People v. Welch (1999) 20 Cal.4th 701, 738.) Despite the abundant detail contained in Dr. Drukteinis’ six-page, single-spaced report, respondent claims that the report was preliminary only, and that, therefore, the doctor “did not have a ‘sufficient opportunity to examine’ appellant as that phrase is contemplated in Pennington.” (RB 49.) Respondent bases this contention on Dr. Drukteinis -24- statementthat “[iJn order to complete a full independent psychiatric evaluation” he would need to review all police records and statements of appellant to friends and family (2 Supp.CT 20), and that the report sets forth “are preliminary findings that need to be assessed inlight of all the discovery that becomesavailable and further personal interview andtesting of [appellant].” (2 Supp.CT 25.) Respondent’s argument is based on the mistaken notion that Pennington requires that the reporting doctor have had a complete, or exhaustive, opportunity to examine the defendant. The case does not require that. Instead, it requires only that the reporting doctor have had a “sufficient opportunity” to examine the defendant. The controlling cases, emanating from both the United States Supreme Court and from this court, indicate that a doctor’s opportunity is sufficientif it permits the doctor to form a reasoned opinion regarding the defendant’s competence. Indeed, many ofthese cases involve medical professionals who rendered adequate opinions based on far less of an opportunity to examine the accused than Dr. Drukteinis had. The leading case is Drope v. Missouri (1975) 420 U.S. 162. In Drope, defendant arguedthathis trial violated due process whenthe trial judge failed to suspend criminal proceedings to inquire into defendant’s competence. Defendant based his argument on a letter from a psychiatrist, retained by defense counsel, which wasattached to a motion to continue thetrial. The motion to continue was -25- based on counsel’s claim that the initial psychiatric examination disclosed “defendant is not a person of sound mind and should have a further psychiatric examination before the case is forcedto trial.” (/d. at p. 164.) As in the instant case, “the report was in the form ofa letter,” (id. at p. 165, fn. 1), and not under oath, and described defendant as having “difficulty participating well,” and that he “had a difficult time relating, and had “markedly circumstantial and irrelevant speech.” The doctor noted, however, that “there was no sign as to the presence of any delusions, illusions, hallucinations, obsessions, ideas of reference, compulsions or phobias at this time.” (/bid.) “In a section entitled ‘Impression,’ the report stated that petitioner had ‘always led a marginal existence,’ that he had a ‘history ofanti-social conduct,’ but that there were no ‘strong signs of psychosis at this time.’” (/bid.) The trial court in Drope concluded that the report attached to the pretrial motion to continue did not contain sufficient indicia of incompetence because it recited that defendant wasorientedin all spheres, did not have delusions and had no trouble answering questions testing his judgment. (/d. at p. 175.) The Supreme Court disagreed. The court explained: [I]t is ... true that judges must depend to some extent on counsel to bring [competency] issues into focus. Petitioner’s somewhat inartfully drawn motion for a continuance probably fell short in that regard. However, weare constrained to disagree with the sentencing judge that counsel’s pretrial contention that ‘the defendant is not a person of sound mind and should have a further psychiatric examination before the case should be forcedtotrial,’ did not raise the issue of petitioner’s competence tostandtrial. (dd. at pp. 176-177.) The Supreme Court held that the psychiatrist’s preliminary -26- examination, together with evidence that Drope attempted suicide duringtrial, was sufficient evidence requiring suspension of criminal proceedings and a hearing on competence. (/d. at pp. 179-180.) The doctor’s report attached to the motion to continue in Drope wasfar less exhaustive or compelling than Dr. Drukteinis’ letter in the instant case. While both indicated that further psychiatric testing was necessary, the report in Drope did not directly address the defendant’s competence. “It does not appearthat the examining psychiatrist was asked to address himselfto medical facts bearing specifically on the issues ofpetitioner’s competenceto standtrial, as distinguished from his mental and emotional condition generally.” (/d. at p. 176.) In Mr. Mickel’s case, by way of contrast, Dr. Drukteinis was asked to do precisely that. And he did, opining that appellant’s competence was “highly questionable.” As Dropeindicates, the fact that a psychiatric report is not conclusive, and even calls for further testing, does not depriveit ofthe force of substantial evidence, especially before a formal competency hearing had been ordered. Decisions from this court are even more compelling. In People v. Pennington, supra, 66 Cal.2d 508, itself, this court held that a psychologist had a sufficient opportunity to examine the defendant (and therefore to provide the court with substantial evidence ofincompetence), even though the psychologist based his testimony on a 10 to 20 minute examination of the defendant the morning the -27- psychologist testified. In Pennington, a psychologist, Dr. Sussman, rendered an opinion that the defendant was not competentto standtrial. “He based his opinion on observations of defendant in the courthouse that same day, a 10-to-20 minute examination ofdefendantthat morning,and previous contact he had with defendant in 1958,” some seven years beforetrial, when he had treated Pennington in a mental hospital and diagnosed him as schizophrenic. In that 10 to 20 minute interview, Sussman observed Pennington laughing inappropriately, and Pennington told Sussmanhe was hearing voices. Sussman also witnessed Pennington engaging in an outburst of violence. (66 Cal.2d at p. 512.) This court held that Sussman’s testimony, though based on a 10 to 20 minute interview and a seven year old diagnosis “was, by itself, substantial evidence which compelled the court to order a section 1368 hearing.” (/d. at p. 519.) This court specifically held that Sussman’s examination constituted “a sufficient opportunity to examine the accused....” (/d.) The doctor in Pennington hadfar less opportunity to examine the defendant than Dr. Drukteinis did. In Pennington, the doctor spent only 10 to 20 minutes with the defendant, and recalled a diagnosis seven years earlier. In the instant case, Dr. Drukteinis interviewed appellant for more than two hours, interviewed one family member, reviewed appellant’s psychiatric history, and reviewedhis writings. Ifthe briefcourthouse interview in Pennington constituted a “sufficient opportunity,” then so must Dr. Drukteinis’ far more extensive investigation. Viewed against the governing caselaw ofDrope and Pennington,the State’s -28- assertionthatthe trial court could disregard the Drukteinis report because the doctor assertedly did not have a sufficient opportunity to examine appellant must be rejected. 2. The Drukteinis Report Was Not Equivocal Or Conclusory Respondent next contends that Dr. Drukteinis’ opinion — that appellant’s competence was “highly questionable” — was equivocal and conclusory. (RB 51- 52.) Respondent sees equivocation in the doctor’s statement that the defendant’s competence was “highly questionable,” and argues that it does not amount to an opinion that appellant was incompetent. (/d.) Dr. Drukteinis’ opinion, however,is exactly the sort of opinion that section 1368 requires. Undersection 1368, criminal proceedings must be suspended “when a doubt asto the defendant's competencearisesin the trial judge's mind....” (People v. Taylor (2009) 47 Cal.4th 850, 861[emphasis added]; People v. Ramirez (2006) 39 Cal.4th 398, 430-431.) The statement that a defendant’s competenceis “highly questionable” is identical to the statement that a defendant’s competence is “doubtful.” (Webster’s New World Dictionary (1988) at p. 1102 [defining “questionable” as being “open to doubt”]; Webster’s Third New Int’l. Dictionary (1986) at p. 1864 [defining “questionable” as “affording reason for being doubted”].) Dr. Drukteinis’ opinion thus echoed the very standard required by the caselaw. (See Evid. Codesection 805 [providing that an expert may “embrace[] the ultimate issue to be decided bythetrier of fact”].) -29- Indeed, many cases have foundthat a similar opinion is sufficient to raise a doubt ofthe defendant’s competence. (McGregor v. Gibson (10 Cit. 2001) 248 F.3d 946, 958 [noting that evidence before the trial court “demonstrated [defendant’s] questionable competence”.]; Jermyn v. Horn (3d Cir. 2001) 266 F.3d 257, 295 [noting that evidence in Drope v. Missouri that “the defendant’s competence was questionable”required suspension ofproceedingsthere]; Crawley v. Dinwiddie (10" Cir. 2009) 584 F.3d 916, 920 [noting that Pate v. Robinson (1966) 383 U.S. 375, stood for the proposition that, “a competency hearing is required where the evidence before the court strongly suggests the defendant's competence is questionable.”’].) Respondent contends that Dr. Drukteinis’ opinion that appellant’s competence was highly questionable was nonetheless insubstantial because it was not based “‘on any specific mental illness, but on appellant’s ‘irrational thinking.’” (RB 52.) As an example of appellant’s irrational thinking, Dr. Drukteinis noted appellant refused to considera plea of insanity, his only available defense, “because he lacks insight into his mental disturbance.” (2 Supp.CT 152.) Respondent suggests that this is an insufficient basis for a finding of incompetence. The United States Supreme Court would not agree, as it relied on similar evidence in concluding that the defendant in Drope v. Missouri was incompetent. There, the defendant was charged with raping his wife, who was ambivalent about bringing charges against her husband. (Drope, supra, 420 U.S.at p. 166.) A week before trial, the defendant sabotaged his owncase by attempting to choke his wife -30- to death. The Supreme Court observed that “[f]or a man whose fate depended in large measure on the indulgence of his wife, who had hesitated about pressing prosecution,this hardly could be regarded as rational conduct.” (Drope, supra, 420 U.S.at p. 180.) Dr. Drukteinis point was much the same: appellant had ambusheda police officer who wasrefueling his car, an act for which there was no defense other than the defense of insanity. Just as the defendant in Drope sabotaged his defense by compounding the crime against his wife, the principal witness against him, so appellant sabotaged his own case by refusing to consider his only defense, and instead attempting to defendhis case on a non-existent “defenseofliberty.” As the Supreme Court observed in Drope, this could hardly be considered “rational conduct,” and as such, it was an important factor for the trial court to consider in evaluating the defendant’s ability to cooperate with counsel. Nor wasDr. Drukteinis’ opinion conclusory,i.e., lacking in “particularity” as required by this court’s previous cases. (See RB 52.) Thus, for example, in People v. Stankewitz (1982) 32 Cal.3d 80, this court held that the defendant had comeforth with substantial evidence of incompetence requiring the suspension of criminal proceedings. That evidence consisted of the testimony of Dr. Glenn, summed up by the court as follows: “In the psychiatrist's opinion, appellant had alternating feelings of persecution and grandiosity. Among these were paranoid delusions -31- that his public defender was in collusion with the prosecutor, that people weretalking about him behindhis back, and that he couldjoin the mafia in jail and have the jury killed if they convicted him. Dr. Glenn indicated that appellant's delusional system “interfered with his ability to cooperate in the conduct ofhis defense.” Appellant appeared capable of cooperating with another attorney who was not a public defender, because he indicated to Dr. Glenn that he would accept a private attorney's evaluation that the prosecution had sufficient evidence to convict him of the killing. During the psychiatrist's testimony, it becameclear that the dispute between appellant and his public defender was over whether the defense should contest the issue of whether appellant was the perpetrator of the charged offenses or whethera psychiatric defense based on appellant's mental condition should be presented.” (Id. at p. 88.) In holding that Dr. Glenn’s testimony“satisfied the Pennington-Pate substantial evidencetest,” the court explained: “According to that testimony, appellant suffered from a mental disorder that prevented him from assisting his counselin his defense in arational manner. The psychiatrist's opinion was somewhat unusual in that it stated that appellant's problem was with his particular appointed counsel, due to a paranoid delusion focused uponthe public defender's office. The psychiatrist also gave the opinion that due to the nature of appellant's mental disorder and the fixation upon the public defender, appellant might well be able to rationally assist a counsel appointed by the court from the private bar.” (Id. at p. 92.) Stripped to its essentials, the testimony in Stankewitz was simply that the defendant had “paranoid delusions”that “interfered with his ability to cooperate” with the public defender, but not with private counsel. Dr. Drukteinis’ report was far more detailed, containing an exploration of appellant’s background and mental health history, together with a survey of his writings. Following that history, Dr. -32- Drukteinis reached the same conclusion as did Dr. Glenn in Stankewitz, namely that appellant’s mental illness interfered with his ability to cooperate with the only defense available to him. Ifthe evidence in Stankewitz was substantial, which this court has repeatedly said it was (see People v. Lewis, supra, 43 Cal.4th at p. 525; People v. Welch, supra, 20 Cal.4th at 737-738), then it was in substantial in appellant’s case as well. 3. The Report Need Not Be Under Oath Respondentfinally contends that the Drukteinis report could not constitute substantial evidence ofappellant’ s incompetence becauseit wasnotfiled underoath. Once again, the United States Supreme Court’s decision in Drope v. Missouri, supra, 420 U.S. 162, requires that this argumentbe rejected. As discussed above, in Drope, defense counsel attached to his motion to continue an unverifiedletter from the psychiatrist, Dr. Shuman,to defense counsel.‘ Despite the fact that the letter was not under oath, the United States Supreme Court had little difficulty in finding that, together with Drope’s attempted suicide, it constituted substantial evidence ofincompetence underthe due processclause ofthe Fourteenth Amendment. * The Supreme Court quoted the text of Dr. Shuman’s letter, which text did not include a verification. (Drope, supra, 420 U.S. 165, fn. 1.) That was not an oversight. Dr. Shuman’s full letter to defense counsel is appendedto the state court’s decision. (See State v. Drope (Mo.App. 1973) 498 S.W.2d 838, 844-847.) Dr. Shuman’s letter was not underoath. -33- California cases, cited in the opening brief, are in accord. (AOB 50, fn.4, citing People v. Tomas (1977) 74 Cal.App.3d 75, 91, citing People v. Laudermilk (1967) 67 Cal.2d 272, 286. Accord United States v. Moore (9"Cir. 1972) 464 F.2d 663, 666.) Respondentseeks to distinguish the holding ofPeople v. Tomas on the groundthat the doctor’s report there was submitted to the court pursuant to an order appointing him to examine the defendant. (RB 50.) Respondent points out that, unlike the doctor in Tomas, Dr. Drukteinis was not appointed by the court, but was hired by appellant’s New Hampshire attorney. (RB 50.) This is surely a distinction without a difference. The doctor in Dropev. Missouri was hired by defense counsel. (Drope, supra, 420 U.S. at p. 165.) His unverified report was considered sufficient to raise the issue of Drope’s incompetence. The doctors in Pennington were also retained by the defense. (Pennington, supra, 66 Cal.2d at pp. 511-512.) Their testimony was also deemed sufficient to raise the issue of the defendant’s incompetence. The fact that Dr. Drukteinis’ was retained by the defense is of no relevance to the force of his opinion.° > Respondentfurthertries to distinguish Tomas on the ground that the report in that case wasfiled with the court. (RB 50-51.) But as set forth in detail in the foregoing section ofthis brief, the trial court in the instant case was fully apprised in the exhibits to the venue motion of Dr. Drukteinis’ examination and findings. These findings included that appellant’s mental illness rendered his competence to stand trial “highly questionable.” Contrary to respondent’s claim, this finding directly linked appellant’s mental illness to his competency. That is precisely what the cases require for suspension of criminal proceedings undersection 1368. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1216 [although expert testified to defendant’s organic brain disorder, “he did not relate his findings in terms of -34- E. The Other Facts Respondent Cites As Indicia Of Appellant’s Competence Do Not Overcome The Substantial Evidence Before The Court Respondent further argues that other factors before the trial court indicated that appellant was perfectly competent. Respondentcites three chief factors: (1) appellant’s counsel, James Reichle, never expressed a doubt as to appellant’s competence (RB 58); (2) appellant’s preference for the death penalty did not necessarily indicate incompetence (RB 58); and (3) throughout the proceedings, appellant appeared to be an intelligent and rational advocate (RB 59). Before addressing each ofthese points, it must be understoodthat, if there is substantial evidence ofincompetence, the mere existence of contrary evidence does not relieve thetrial court of its obligation to suspend criminal proceedings. The United States Supreme Court has clearly and repeatedly madethis point. In Pate v. Robinson (1966) 383 U.S. 375, the defendant had a long history of mentalillness. Four witnesses expressed the opinion that he was insane. The state court held, however, that “the evidence here wasnot sufficient to require a hearing in light of the mental alertness and understanding displayed in Robinson’s ‘colloquies’ with the trial judge.” (/d. at p. 385.) The Supreme Court rejected this reasoning: “This reasoning offers no justification for ignoring the uncontradicted testimony of Robinson’s history ofpronouncedirrational behavior. While Robinson’s demeanor at trial might be relevant to the ultimate decision asto his sanity, it cannot be relied defendant's competencyto standtrial.”].) -35- upon to dispense with a hearing on that very issue.” (/d. at p. 385. See also Drope v. Missouri, supra, 420 U.S.at p. 179 [holding that while defendant’s demeanorat trial may “obviate the need for extensive reliance on psychiatric prediction concerning his capabilities,” under Pate, “this reasoning offers no justification for ignoring uncontroverted testimony ofa history ofpronouncedirrational behavior.”]. Accord, People v. Lightsey (2012) 54 Cal.4th 668, 691 [if substantial evidence presented, hearing is required evenif “the sum of the evidence is in conflict.”’].) By the same token, appellant’s seeming clarity at times duringtrial, or the other factors on which respondentrelies, did not permitthetrial court to ignore other compelling evidence of appellant’s incompetence. Appellant now turns to those other factors. Respondentnotes that Reichle had a great deal of contact with appellant, yet never expressed a doubtas to his competence. On this record, however, Reichle’s opinion as to appellant’s competenceis entitledto little, if any, weight. First, “[i]t is true that ‘defense counsel will often have the best-informed view of the defendant's ability to participate in his defense.’ [Citation.] But counsel is not a trained mental health professional, and his failure to raise petitioner's competence doesnotestablish that petitioner was competent.” (Odle v. Woodford (9" Cir. 2001) 238 F.3d 1084, 1088-1089.) While this court has noted that trial counsel’s opinion remains“significant -36- becausetrial counsel interacts with the defendanton a daily basis andis in the best position to evaluate whetherthe defendantis able to participate meaningfully in the proceedings,” (People v. Rogers (2006) 39 Cal.4th 826, 848), Reichle’s viewin this case is not entitled to any such presumption of significance. That is because Mr. Reichle’s view of appellant’s mental state was “pre-fixed,” without regard to the available evidence, a flaw this court has previously held deprives the opinion on a defendant’s mental state of any significance. (People v. Lewis (2006) 39 Cal.4th 970, 1048.) In Lewis, the defendant had argued that a psychiatrist retained by defense counsel had opinedthat the defendant was incompetent. This court held that the trial court wasjustified in rejecting the psychiatrist’s opinion becauseit was “pre-fixed.” Asthe court explained, the psychiatrist failed to consult readily available evidence showing the defendant was competent, and disregarded contrary evidence. (/d.) Underthese circumstances,the trial court wasentitled to discount the psychiatrist’s opinion. (/d.) In much the same way, Reichle’s opinion that appellant was competent was “pre-fixed,” and was oflittle weight. It must be remembered that Reichle met appellant forthe first time on February 3, 2003. (1 RT 9.) The very next day, at his first appearance in the case, without any possibility of conducting even a cursory investigation into appellant’s competence, Reichle told the court that he was supporting appellant’s motion to represent himself. (1 RT 9.) Moreover, when -37- confronted with contrary evidence in the form of the New Hampshire pleadings, which contained the opinion of appellant’s prior lawyer that he was not competent, and the opinion of Dr. Drukteinis that his competence was “highly questionable,” Reichle responded by moving to seal those documents, and to keep them from the court. As in Lewis, Reichle thus took a position on appellant’s competence before he could investigate it, and then disregarded contrary evidence. Under these circumstances, Reichle’s opinion lacked the significance a defense counsel’s opinion ordinarily carries. Respondent’s next argument — that appellant’s preference for the death penalty did not display incompetence (RB 58) — mustbe rejected. As set forth in the opening brief, appellant put on no defense, gave a closing argumentin the guilt phase which consisted ofseven sentences and lasted two minutes,(10 CT 2553; 8RT 1891-1892), and told the jury that “with the evidence that’s been put in front ofyou, you should find me guilty.” (8 RT 1892.) At the penalty phase, he asked the same jury (which hadalready takenhis liberty) to “give me liberty or give me death.” (10 RT 2295.) This court’s previous cases discussing the relevance of a defendant’s “death wish”are not as clear-cut as respondent indicates. In People v. Ramos (2004) 34 Cal.4th 494,this court explained that, ““a defendant's preference for the death penalty and overall death wish does not alone amount to substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric -38- evaluation.” (/d. at p. 509, citing People v. Guzman (1988) 45 Cal.3d 915, 963-965.) Ofcourse, the court’s holding in these casesis not that a defendant’s request for the death penalty may not be considered in the competency equation. The holdingis, rather, that it does not alone establish incompetence. Thetrial court must consider “all the relevant circumstances,” (People v. Howard (1992) 1 Cal. 4th 1132, 1164), including the defendant’s conductat trial. Indeed, as this court has clearly suggested that a defendant’s decision to forego any defense and seek the death penalty may be evidence of incompetence. (See People v. Koontz (2002) 27 Cal.4th 1041, 1064- 1065 [discussing Mississippi case in which finding incompetence wasjustified wherethe defendant did not put on a defense and refused to address the jury at the sentencing phase].) Ofcourse, Mr. Mickel does notat all claim that his refusal to put on a defense and his preference for death, alone, constituted substantial evidence of his incompetence. Heinstead has basedthat claim on multiple pieces ofevidence, only one ofwhichis his preference for death. Appellant’s positionis thus fully consistent with this court’s holding that a death-wish, alone, is not sufficient. Perhaps more importantly, appellant’s position is equally consistent with this court’s recognition that the decision to forego a defense and seek death mayberelevant to the section 1368 calculus. Finally, respondent claims that in view of appellant’s rational, logical and intelligent advocacy, the trial court was correct in not suspending criminal -39- proceedings. The short answeris, as the Supreme Court has repeatedly observed, “while ... demeanor at trial might be relevant to the ultimate decision as to [the defendant’ s] sanity, it cannot be relied uponto dispense with the hearing on that very issue.” (Pate v. Robinson, supra, 383 U.S.at p. 386; Drope v. Missouri, supra, 420 US. at p. 179.) Based on Dr. Drukteinis written report of finding appellant’s competence “highly questionable,” together with his New Hampshire counsel’s doubt as to appellant’s competence, and other evidence recited in the opening brief, the trial court should have suspended criminal proceedings and conducted a hearing into appellant’s competence. The failure to do so requires reversal. -40- Ii. APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY’S FAILURETO INFORMTHE TRIAL COURT OFTHE RECENT DRUKTEINIS REPORT STATING THAT APPELLANT’S COMPETENCE TO STAND TRIAL WAS HIGHLY QUESTIONABLE. The Parties’ Contentions In ArgumentI, appellant has contendedthat the trial court was aware of the Drukteinis report, and therefore erred by failing to suspend proceedings under section 1368. Assuming arguendothat this court disagrees and findsthe trial was not aware of that report, appellant has argued that his counsel, James Reichle, rendered constitutionally ineffective assistance by failing to inform thetrial court of the Drukteinis report. That report stated a doubt as to appellant’s competence to stand trial. Reichle’s failure to so advisethe trial court amounted to conductthatfell below an objectively reasonable standard of competence expected of defense counselin capital cases. Further, Reichle’s omission regarding the Drukteinis report wasprejudicial because it would haveconstituted substantial evidence ofappellant’s incompetence to waive the right to counsel, and would have precludedthetrial court from accepting appellant’s waiverofthat right. (AOB 59-75.) Consequently, appellant was deprivedofhis right to counsel throughoutthetrial. Respondent counters with four arguments: (1) the record shedsnolight on whyReichle did not bring the Drukteinisletter to the court’s attention, and the claim should therefore be brought by wayofpetition for writ ofhabeas corpus in which counsel’s motivations can be explored (RB 61); (2) the claim has no merit because -4]- the Drukteinis report did not contain substantial evidence of appellant’s incompetence (RB 66); (3) Reichle could have rationally decided not to present the Drukteinis report based on his own observations of appellant and the inherent shortcomings of the Drukteinis report (RB 66-72); and (4) there was no prejudice because, even if counsel had informedthetrial court of the Drukteinis report, it did not contain substantial evidence requiringthetrial court to declare a doubt (RB 72- 73). These arguments should be rejected. A. The Claim May Be Adjudicated On Direct Appeal Since There Could Be No Tactical Reason For Withholding The Report Theparties agree on the law regarding adjudication of a claim of ineffective assistance of counsel on direct appeal. Even if the record “sheds no light on why counsel acted or failed to act in the manner challenged,” a claim of ineffective assistance of counsel may be brought on direct appeal in the if “there is no conceivabletactical purpose for for counsel’s actions.” (People v. Lopez (2008) 42 Cal.4th 960, 966, cited in AOB 61; RB 61, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) While Respondent’s argumentis not exactly clear, it apparently contends that there could have been a tactical reason for Reichle’s decision to withhold the Drukteinis report from the trial court. (RB 62.) Respondent suggests only one such reason: that Reichle “was clearly of the opinion that there was no substantial evidence of appellant’s incompetence.” (RB 62.) -42- Respondent’s focus, however, is mistaken becausetactical considerations are not permitted to enter into defense counsel’s decision to inform the court about a defendant’s possible incompetence. The law simply does not permit counsel to ignore a written psychicatric opinion doubting his client’s competence. (AOB 69- 73.) In his Opening Brief, appellant cited ten cases, both state and federal, in support of that proposition (id.), including two — State v. Johnson (Wis. 1986) 395 N.W.2d 176, 215-220, and In re Fleming (Wash. 2001) 16 P.3d 610, 616-617, which appellant discussed in some detail. (AOB 69-70.) These cases clearly hold that “[w]hen defense counsel knows or has reason to know of a defendant's incompetency,tactics cannot excusefailure to raise competencyat any time “so long as such incapacity continues.” (/n re Fleming, supra, 16 P.3d at at p. 617.) Respondent dismisses appellant’s federal cases on the groundthat they were “all decided in the context of a habeas corpus proceeding.” (RB 68.) While this is true, it is hardly relevant. The casesare cited for the legal principle that counsel has an obligation to advise the court of evidence of his counsel’s incompetence. It makes no difference whether that principle was enunciated in a habeas case or a direct appeal. Respondent acknowledges, however, that appellant’s opening brief also contained authorityfrom direct appeals on the obligation of counsel to notify the court ofhis client’s potential incompetence. (RB 68-70, discussing State v. Johnson (Wis. 1986) 395 N.W.2d 176, 215-220.) Respondent’s Brief contains an extended -43- discussion ofthe facts in Johnson, apparently in an effort to convincethe court that the Wisconsin Supreme Court wasable to rule on the ineffective assistance claim on direct appeal because the appellate record was supplemented by a post-trial hearing exploring counsel’s motivation for suppressing the psychiatrists’ opinions. (RB 70.) But respondentfails to understand the scope of the Wisconsin Supreme Court’s decision. The decision did not depend on counsel’s motivations, since the court found that such motivationsare ultimately irrelevant. As the court explained, counsel had nolegitimate tactical reason forfailing to raise substantial evidence of the defendant’s incompetence.In the Wisconsin Supreme Court’s view “We believe that considerations of strategy are inappropriate in mental competencysituations. Thus, weholdthat strategic considerations do not eliminate defense counsel's duty to request a competency hearing.” (/d. at p. 221.) As appellant has argued, Mr. Reichle’s motivations in withholding Dr. Drukteinis’ opinion from the trial court are not controlling. Strategic considerations of the sort that might be developed in a habeas proceeding cannot eliminate Reichle’s obligations to bring the Drukteinis report to the court’s attention. For the same reason, respondent’s effort to distinguish the Washington Supreme Court’s decision in Jn re Fleming (Wash. 2001) 16 P.3d 610, mustfail. (RB 70-71.) As in State v. Johnson, in Fleming the Washington Supreme Court held that counsel’s tactics cannot trump counsel’s obligations to advise the court of substantial evidenceofhis client’s incompetence.“Whendefense counsel knowsor 44. has reason to know of a defendant's incompetency, tactics cannot excuse failure to raise competencyat any time “so long as such incapacity continues.” (/d. at p. 617.) Contrary to respondent’s reading of these decisions, because both Johnson and Fleming found counsel’s tactical reasons to be irrelevant, or at least not controlling, the cases stand for the proposition that counsel’s ineffectiveness may be adjudicated on direct appeal. Respondent further contends that Reichle had a good reason notto raise appellant’s competence with the trial court: that is, Reichle simply disagreed with Dr. Drukteinis and believed appellant to be competent. But acceptance of this argument would permit counsel, based on his own, untrained observations ofhis client’s demeanor, to ignore contrary, professional psychiatric opinion. United States Supreme Court decisions do not permit counsel to do so. (See Pate v. Robinson, supra, 383 U.S. at p. 386 [holding that, as a matter of due process, where there is substantial evidence ofincompetence, the defendant’s apparently competent demeanorat trial could not be relied upon to dispense with hearing on that issue].) Here, it is undisputed that Reichle had in his possession Dr. Drukteinis’ report, signed on December 17, 2002, stating that appellant’s competence was “highly questionable.” Reichle was appointed the following month, on January 30, 2003. (2 CT 500.) Five days later, on February 4, 2003, Reichle appeared in court “supporting” appellant’s motion for self-representation. (1 RT 9.) -45- Even ifrespondentis correct that Reichle’s strategy was relevant, then within a few days after being appointed, Reichle had concluded that both Dr. Drukteinis and Mr. Sisti were wrong and that appellant was fully competent to represent himselfin a potentially capital case. Ifrespondentis correct, the Sixth Amendment imposesno impedimentto counsel who, without any investigation, simply disregards a professional psychiatric opinion and deliberately withholdsit from the trial court. This is not the law. The A.B.A. Standards, explored in the openingbrief, could not be clearer: “Counsel should make knownto the court and to the prosecutor those facts known to counsel which raise the good faith doubt of competence.” (ABAStandardsfor Criminal Justice (1986) § 7-4.2(c).)’ The courts have followed this particular aspect ofthe Guidelinesin several cases. (UnitedStates v. Boigegrain (10" Cir. 1998) 155 F.3d 1181, 1188; State v. Veale (N.H. 2009) 972 A.2d 1009, 1015; deShazer v. State (Wyo. 2003) 74 P.3d 1240, 1248.) The rationale for the A.B.A. Standard is not difficult to discern. As the Tenth Circuit explained, “in addition to their duties as counselors, attorneysare also officers of the courts. The Constitution prohibits a court from trying defendants who are mentally incompetent. ’ This court has stated that the A.B.A. Guidelines “can be useful as ‘guides’ to what reasonablenessentails, but only to the extent they describe the professional norms prevailing when the representation took place.” (dn re Reno (2012) 55 Cal.4th 428, 466.) The portion ofthe Guidelinescited in the text, published in 1986, were in effect at the time of appellant’s trial. -46- See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Of all the actors in a trial, defense counsel has the most intimate association with the defendant. Therefore, the defendant's lawyer is not only allowed to raise the competencyissue, but, because ofthe importance ofthe prohibition on trying those whocannot understand proceedings against them, she has a professional duty to do so when appropriate.” (United States v. Boigegrain, supra, 155 F.3d at p. 1188.) Mr. Reichle was therefore obligated to bring the psychiatric report to the attention ofthe trial court. This claim may therefore be considered on direct appeal. B. The Drukteinis Report Contained Substantial Evidence Of Appellant’s Incompetence. Respondent claims, however, that the Drukteinis report did not constitute substantial evidence (RB 66), and that his failure to bring it to the trial court’s attention was therefore not ineffective assistance. Respondent relies on the same arguments it advanced in opposition to appellant’s first claim, that the trial court erred by failing to suspend criminal proceedings undersection 1368. Appellant has addressed those arguments above,in Part I. Respondent offers a smattering of additional reasons Reichle could have disregarded the Drukteinis report. First, Reichle could have ignored the report because he “spent the most time with appellant,” and reached a conclusion contrary to Drukteinis. But as pointed out above, Reichle reached the conclusion that appellant was competent, and decided to disregard Dr. Drukteinis’ contrary view, -47- after only one meeting with appellant and without any investigation. While an attorney’s “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” (Strickland v. Washington (1984) 466 U.S. 668, 690), an attorney’s decisions madein the absence ofany investigation enjoy no such presumptionofvalidity. (Wiggins v. Smith (2003) 539 U.S. 510, 521-523.) Second, respondentsays that Reichle could have ignored the report because both Dr. Drukteinis and appellant’s New Hampshire attorney, MarkSisti, “had been hired by appellant’s parents to represent appellant in New Hampshire.” Accordingly, “both Mr. Sisti’s and Dr. Drukteinis’s role in this case should be viewed with skepticism.” (RB 66.) Appellant has pointed out, however,that neither the United States Supreme Court, nor this court, have required that the psychiatric opinion on competence be offered by a court-appointed lawyeror a court-appointed psychiatrist. (See Drope v. Missouri, supra, 420 U.S.at p. 165; Pennington, supra, 66 Cal.2d at pp. 511-512.) Next, respondent claims that Reichle’s own opinion of appellant’s competence wassupportedby the record of appellant’s advocacy. In Part I, above, appellant has explained bythis rationale is not compelling: counsel maynotrely on his own observations ofthe defendant’s demeanorto reject substantial evidence of incompetence. (See ante, section I,E.) The United States Supreme Court has precludedthe courts from relying on such observations ofthe defendant’s demeanor -48- wherethereis sufficient evidence ofincompetence. Reichle, who had the Drukteinis report and the Sisti habeas petition, clearly had such substantial evidence. Moreover, appellant’s record of advocacyhardly attested to his competence. Asfully recountedin the openingbrief, appellant tried to defend himselfonthebasis of a preposterous, non-existent defense for the crime of fatally ambushing a police officer; when the court precluded that defense, appellant became extremely emotional and vowedto remain silent and put on no defense; appellanttold the jury to find him guilty; and, at the penalty phase, appellant asked the jury to “give me liberty or give me death.” It is impossible to see how that can qualify as the work of “a logical, intelligent and capable advocate.” (RB 71.) -49.. C. The Error Was Prejudicial Because, At The Very Least, It Would Have Precluded The Trial Court From Permitting Appellant To Waive His Right To Counsel. Finally, Respondent claims that if Reichle’s representation fell below professional norms,it was not prejudicial. The reason given is that even if Reichle had presentedthe trial court with the Drukteinis report, that report did not contain substantial evidence of appellant’s incompetence. Thus, the trial court would not have suspended proceedings anyway. (RB 72-73.) Appellant has explained above why respondent is wrong, i.e., why the Drukteinis report contained substantial evidence, even thoughit was not underoath, and even thoughit stated that appellant’s competence was “highly questionable.” (See, ante, section I,D.3.) In light ofthe substantial evidence contained in the Drukteinis report, thetrial court would have been obligated to suspend criminal proceedings, or at a minimum, to deny appellant’s motion for self-representation. Reichle’s decision to withhold the Drukteinis report from the trial court was prejudicial, and requires reversal. (AOB 77-79.) -50- HI. THE INFORMATION THE TRIAL COURT RECEIVED IN THE PRE-SENTENCE REPORT, FILED PRIOR TO JUDGMENT, RAISED A DOUBT REGARDING APPELLANT’S COMPETENCE. The Parties’ Contentions Appellant has argued that prior to pronouncing judgment, the trial court received a numberofletters from appellant’s friends and family, who described appellant’s long-standing mental illness. If the trial court did not have sufficient evidence of appellant’s incompetence prior to receipt of this material, these letters sufficed to raise a doubt as to appellant’s incompetence. At that point prior to pronouncing judgment, the trial court should therefore have suspended criminal proceedings pursuant to Penal Code section 1368. The State has two responses: (1) the letters were hearsay, and therefore inadmissible and unreliable (RB 76-77); and (2) the letters did not contain any information pertaining specifically to appellant’s trial competency. (RB 77-80.) Neither contention is correct. A. The Trial Court May Rely On Hearsay Evidence Of Incompetence “Evidence ofincompetence may emanate from several sources, including the defendant's demeanor,irrational behavior, and prior mental evaluations. [Citations. ]” (People v. Rogers, supra, 39 Cal.4th at p. 847.)” (People v. Lewis (2008) 43 Cal.4th 415,524.) More specifically, both the United States Supreme Court andthis court have long held that the trial court may consider hearsay evidence in deciding whetherto declare a doubt and suspend proceedings under section 1368. In Drope, -5|- for example, the Supreme Court notedthatthe trial court had sufficient evidence of the defendant’s incompetence, part of which was “hearsay information” aboutthe defendant’s suicide attempt during trial. (Drope, supra, 420 U.S.at p. 180, fn. 16.) Morethan half a century ago in People v. Pennington, supra, 66 Cal.2d 508, this court held that a hearsay declaration of a “psychiatrist or qualified psychologist [citation], who has hadsufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mentalillness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him oris incapable of assisting in his defense or cooperating with counsel, the substantial-evidencetest is satisfied.” (/d. at p. 519. See also People v. Welch, supra, 20 Cal.4th at p. 738.) In a variety of other contexts, it has similarly been heldthatthe trial court may rely on hearsay in declaring a doubt as to the defendant’s competence. (See, e.g., People v. Tomas, supra, 74 Cal.App.3d 75, 92 [court may consider psychiatric report submitted with presentence report]; People v. Laudermilk, supra, 67 Cal.2d at p. 286 [court considered medical reports submitted in connection with insanity plea].) The United States Supreme Court has similarly considered hearsay medical evidence in determining whether the due process clause requires suspension of proceedings. (Drope v. Missouri, supra, 420 U.S.at p. 164 [hearsay medical report attached to a motion to continue thetrial].) It is true that hearsay statements may not be offered at the competency -52- hearingitself, (People v. Lawley, supra, 27 Cal.4th at p. 131 [“Althoughit arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings. [Citation.]”]). Nevertheless, it is clear that such evidence may be considered by the court in deciding whether to conduct a hearingin thefirst place. B. The Letters Pertained To Appellant’s Trial Competence. Respondent argues that the letters attached to the presentence report in appellant’s case only described past mental illness and descriptions of bizarre behavior, neither of which are sufficient to raise a doubt of current incompetency. Respondent’s has an unduly crabbed reading of these letters. While the letters certainly did describe appellant’s prior mentalillness and bizarre behavior, fairly read, they communicated far more than that. Thus, appellant’s mother informed the court that a psychiatrist who examined her son after the crime had determined that appellant suffered from psychosis. (13 CT 3635.) Appellant’s brothertold the court that appellantstated that “he had met God and metthe Devil, and that God hadtold him to do this. He said that God told him,‘The law is in your hands,’ and then went on to explain the implications of this ‘message’ from god, about how God endorsedthis course of action.” (13 CT 3637.) And, appellant’s long-time friend, Tobias Smith, told the court that appellant suffered from manic- depression, and that, from 2002 onwards, appellant was “increasingly troubling and suicidal.” (13 CT 3665-3666.) -53- The courts have frequently relied on these sorts of observations in determining whetherthere is substantial evidence ofincompetence. Thus, in Drope v. Missouri, supra, 420 U.S. at p. 179, the Supreme Court relied on evidence of suicidal behavior. In People v. Murdoch, supra, 194 Cal.App.4th 230, the court relied on evidence of the defendant’s belief that his victim was an angel, and not human.® And, anumberofcases, including Pate v. Robinson, supra, 383 U.S.at pp. 380-382, have relied on evidence that the defendant had “irrational episodes,”(id. at p. 380), “seemed to have a disturbed mind,” (id.), or was psychotic. In Peoplev. Laudermilk, supra, 67 Cal.2d at p. 283-284, this court relied upon evidence of “a previous diagnosis of schizophrenia and paranoia, a current diagnosis of a more paranoid condition, defendant's current unfeigned hallucinations, and defendant's fits ofpsychotic furor....”” The court in Laudermilk summarized the evidence in People v. Pennington as including defendant's medical history of schizophrenia, the defendant's unfeigned hallucinations in which he heard voices, frequently those of the devil, and the witness' finding that the defendant was then suffering from an acute mental sickness in which he was delusional and out of contact with reality. (Ud. at pp. 283-284.) * Respondent suggests that Murdochis distinguishable because the defendant needed medication to remain competent, and that the defendant had stopped taking his medication. (RB 57.) Respondent points out that there was no indication that Mr. Mickel was similarly required to take medication. (/d.) But whether a defendantfails to take required medicationis not the litmus test for incompetence. The Drukteinis report was not conditional. Thatis, it did not condition appellant’s competence on medication, but simply opinedthat,in view ofappellant’s history and behavior, appellant’s competence was “highly questionable.” In this respect, the evidence relating to appellant’s competence wasstronger than that in Murdoch. -54- The informationin the letters from appellant’s family and friends was similar to the information discussed in the foregoing cases. Throughthoseletters, thetrial court learned ofappellant’s psychosis, his conversations with god and the devil, and his previous diagnoses of mentalillness from an early age. If such evidence was relevantto the issue ofcompetenceas dicussed in Pate, Pennington and Laudermilk, it is surely relevanthere. Moreto the point, appellant’s mental disease obviously affected his present competencein the trial. As noted in the opening brief, appellant likened his fatal shooting of a police officer who wasrefueling his car, and whom hedid not know, to the act of a colonial revolutionary fighting the Red Coats. (9 RT 2105.) When the trial court precluded appellant from introducing evidence in support of this defense, appellant became extremely emotional. (8 RT 1830.) Appellant then told the court that “I intend to sit in silent protest during the guilt phase, and I will not speakor raise any issues until the penalty phase.” (/d.) At the penalty phase, he told the jury to “give me liberty or give me death.” In light of the information in the letters from family and friends regarding appellant’s psychosis, long-time mental illness and hallucinatory conversations with God and the Devil, the trial court could certainly haveattributed appellant’s strange trial behavior to his mentalillness. This is precisely the sort of inference that requires suspension of proceedings. (See Drope v. Missouri, supra, 420 U.S.at pp. 174-176.) The judgment must be reversed. -55- IV. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED PENAL CODE SECTION686.1 BY PERMITTING APPELLANT TO WAIVE COUNSEL WITHOUT FIRST ASSESSING WHETHER HE WAS COMPETENT TO PRESENT HIS DEFENSE WITHOUT THE ASSISTANCE OF COUNSEL. The Parties’ Contentions Appellant has arguedthatthe trial court erroneously permitted him to waive his right to counsel and represent himself in this capital trial. At the time of appellant’s trial, California statutory law required the appointment of counsel in every capital case. (Penal Code section 686.1.) Notwithstanding the mandate of section 686.1, the trial court believed that if a defendant had the capacity to waive counsel, then the right to self-representation, secured by Faretta v. California (1975) 422 U.S. 806, was absolute. Subsequent decisions have established, however,that the right to self-representation is not absolute. Indianav. Edwards (2008) 554 US. 164, recognized an exception to the right to self-representation for “gray-area defendants.” These are defendants who may havethe capacity to waive counsel, but may not have the capacity to represent themselves competently at trial. (/d. atp. 172; People v. Johnson (2012) 53 Cal.4th 519, 527.) Edwards held that “the Constitution permits States to insist upon representation by counsel for those competent enoughto stand trial under Dusky but whostill suffer from severe mental illness to the point where they are not competent to conducttrial proceedings by themselves.” Undiana v. Edwards, supra, 554 U.S. at p. 178; People v. Johnson, supra, 53 Cal.4th at p. 527.) -56- In his opening brief, appellant has argued that he wasjust such a “gray-area” defendant. However, becausethetrial court wrongly believedthat the rightto self- representation was absolute, it did not consider whether appellant was competentto conduct trial proceedings without the assistance of counsel. Nor did the court consider whether, if appellant was not competentto that degree, it should appoint counsel pursuant to Penal Code section 686.1. Respondent answers that Indiana v. Edwards did not overrule Faretta, and that a criminal defendantstill has a right to self-representation if he can validly waive the right to counsel. (RB 101.) Edwards only created an exception to the Faretta rule for “gray area” defendants. Here, respondent argues, there was no evidence that appellant was a “gray area” defendant. In other words, there was no evidence that appellant suffered from a mentalillness “to the degree he could not carry out the basic tasks neededto present a defense.” (RB 108.) Accordingly, the State could not require him to have counsel, as mandated by section 686.1. Respondentignores both the evidence of appellant’s mental illness, and his inability to present any defense remotely recognized by California law. As explained below, becausethe trial court believedthe right to self-representation was absolute, it never explored whether appellant, by virtue of his mental illness, was a “gray- area” defendant who neededthe assistance of counselto present his defense. Ofgreat importancefor the instant case, this court has recently explained that -57- California courts “should give effect to [the mandate ofPenal Code section 686.1] whenit can.” (People v. Johnson (2012) 53 Cal.4th 519, 526.) Thatis, the trial court should appoint counsel in capital cases whenever doing so would notviolate federal constitutional law. In Johnson,this court explained the factors thetrial court should consider in deciding whether a defendant can — consistent with Edwards — be deniedthe rightofself-representation. (/d. at p. 529-531.) Becausethetrial court failed to consider any of these factors, the judgment must be reversed. A. There WasSubstantial Evidence That Appellant WasIncapable of Presenting A Defense Without The Assistance Of Counsel. Although Indiana v. Edwards did not require states to adopt heightened standards of competencefor self-representation, it gave states that choice. “The Edwards court held only that states may, without running afoul of Faretta, impose a higher standard [than that required for competenceto standtrial]....”_ (People v. Taylor (2009) 47 Cal.4th 850, 878.) In People v. Johnson (2012) 53 Cal.4th 519, this court accepted the invitation ofIndiana v. Edwardsto adopt a higher standard.’ ° Respondent does not suggest that Indiana v. Edwards and People v. Johnson are not retroactive. Nor could it. “As a matter ofnormaljudicial operation, even anonretroactive decision governscasesthat are notyet final whenthe decision is announced.” (People v. Price (2004) 120 Cal.App.4th 224, 237-238, citing People v. Guerra (1984) 37 Cal.3d 385, 399; People v. Rollins (1967) 65 Cal.2d 681, 685, fn. 3. See Griffith v. Kentucky (1987) 479 US.324, 322 [constitutional rule, even if new, applies retroactively to cases not yet final on appeal]; accord, People v. Reyes (1998) 19 Cal.4th 743, 455.) Other states that have considered the question, have concluded that Indiana v. Edwards and any heightenedstandards of competence subsequently adopted are fully retroactive. (E.g., State v. Jason (lowa 2009) 779 N.W.2d 66, 73; State v. Connor (Conn. 2009) 973 A.2d 627, 656; State y. Wray (N.C. App. 2010) 698 S.E.2d 137, 139) Moreover, under California law, -58- Because this court’s decision in People v. Johnsonis critical to appellant’s claim presented here, appellant will review it in detail. The Johnson court began by explaining that California law prior to Faretta did not provide for the right of self-representation. Twoofits prior cases, People v. Sharp (1972) 7 Cal.3d 448, and People v. Floyd (1970) 1 Cal.3d 694, held there was no such right. (Johnson, supra, 53 Cal.4th at p. 526.) Yet, Johnson continued, “[s]till today, Penal Code section 686.1 provides that ‘the defendantin a capital case shall be represented in court by counselatall stages ....’” (Ud.) The court then surveyed the developments in federal law from Faretta to Edwards. Quoting Edwards, the court explained: “Edwards held that ‘the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant whoseeks to conduct his own defense at trial is mentally competent to do so. That is to say, the constitution permits States to insist upon representation by counsel for those competent enoughto stand trial under Dusky but whostill suffer from both Edwards and Johnson vindicate a right “which is essential to the integrity of the fact-finding process,” and are therefore fully retroactive. (People v. Carrera (1989) 49 Cal.3d 291, 327.) Indiana v. Edwards, itself, was expressly premised on the need to preserve the integrity of the trial process. (554 U.S. at p. 176-177 [defendant’s “lack of capacity threatens an improper conviction or sentence, [and] undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial.”]; State v. Jason, supra, 779 N.W.2d at p. 73 [Edwards standards “assures the defendantofa fair trial.”].) As they are expressly intended to secure the core values of a fair trial (see People v. Lightsey (2012) 54 Cal.4th 668, 695-696), Edwards and Johnsonapplyretroactively. -59. severe mental illness to point where they are not competent enough to conducttrial proceedings by themselves.’” (Id. at p. 527, quoting Edwards v. Indiana, supra, 554 U.S. at p. 174.) The Johnson court agreed that California courts “should have discretion to deny self-representation to gray-area defendants,” principally because “to refuse to recognize such discretion would be inconsistent with California’s own law.” (/d. at p. 528.) “In People v. Floyd, [citation], we upheld the denial ofa capital defendant’s request for self-representation citing, among other factors, his youth, his low level of education, and his ignorance of the law. [Citation.] Certainly, a defendant who could be denied self-representation under Edwards[citation], could also have been denied self-representation under People v. Sharp [citation], and People v. Floyd....” (/d.) The court thus concludedthat, “/c/onsistent with long-established California law, we hold that trial court may deny self-representation in those cases where Edwards permits such denial.” (/d., emphasis added.) Johnson thus accepted the view that, under People v. Sharp and People v. Floyd, there was a standard in California for denying self-representation to marginally competent defendants. The court then turned to the “standard for trial courts to employ when deciding whetherto deny self-representation under Edwards [citation].” Ud.) The court declined to adopt a standard more specific than Edward’s standard: whether the defendant hasthe ability ‘to carry out the basic tasks needed to present [one’s] own defense without the help of counsel,” or alternatively, whether defendants “suffer from severe mental illness to the point where they are not competent to -60- conduct trial proceedings by themselves.” (/d. at p. 530.) declined to be more specific, it nonetheless held that trial courts could consider a variety of factors’’ “in their examinations andrulings,” (id.), including whether: (1) (2) (3) (4) 10 ccs The defendant“possesses a reasonably accurate awareness of his situation, including not simply an appreciation of the charges against him and the range and nature of possible penalties, but also his own physical or mental infirmities, if any.” The defendant is “able to understand and use relevant information rationally in order to fashion a response to the charges.” The defendant can “coherently communicate that response to the trier of fact.” The defendant has a mental disorder or disability that would prevent him from: a) achieving a basic understanding of the charges, law, and evidence, b) formulating simple defense strategies andtactics, c) or communicating with the witnesses, the court, the prosecutor, and the jury in a manner calculated to implement those strategies and tactics in at least a rudimentary manner.” '0 The factors were drawn from People v. Burnett (1987) 188 Cal.App.3d 1314, and two law review articles: Marks, State Competence Standards for Self—Representation in a Criminal Trial: Opportunity and Dangerfor State Courts after Indiana v. Edwards, (2010) 44 U.S.F. L.Rev. 825, 847; and Johnston, Representational Competence: Self-representation at Trial, (2011) 86 Notre Dame L.Rev. 523, 595. (People v. Defining the Limits of the Right Johnson, supra, 53 Cal.4th at pp. 529-530.) -61- Though the court (5) The defendanthasthe ability to: a) perceive problematic situations, generate alternative courses of action, maintain mental organization, and communicate decisions to a functionary of the court. b) identify a plausible source of the prosecution, an ability to gather information to evaluate the state's case, a willingness to attend to the prosecution, and an ability to withstand the stress oftrial. c) for certain key decisions, such as selecting the defense to pursueat trial, a defendant should be capable ofjustifying a decision with a plausible reason. (Johnson, supra, 53 Cal.4th at pp. 529-530.) In granting appellant’s motion for self-representation in the instant case, the trial court failed to consider any of these factors. (See 2 RT 246-249.) B. The Trial Court Failed To Consider Any Factors Required By People v. Johnson Bearing On Whether Appellant Was Capable Of Presenting A Defense Without Counsel. In the instant case, the trial court was confronted with a defendant whom it knew from court filings had recently been examined by a New Hampshire psychiatrist. As fully described above, in Argument I, the court knew that appellant’s New Hampshire attorney believed appellant was not competent to stand trial; the court knew that a New Hampshire psychiatrist had examined appellant and determined that his competence to stand trial was “highly questionable,” and specifically noted that appellant “could not even identify himself, could not understand the court proceedings, and could not understandthe difference between -62- the Judge, the Prosecution, and the Defense." (4 CT 864-865.) Further, the court knewthat appellant had espoused exceedingly bizarre ideas about the reasonsfor his conduct. And, when the trial court rejected his proffered “defense of liberty,” appellant was overcome with emotion and vowedto remainsilent during the guilt phasetrial. While respondentarguesarguethat these indicia wereinsufficient to establish appellant’s incompetence to stand trial, they surely permit the conclusion that appellant’s the mental difficulties could have interfered with the ability “to carry out the basic tasks needed to present [one’s] own defense without the help of counsel.” (Johnson, supra, 53 Cal.4th at p. 530.) The opinions of appellant’s New Hampshire counseland Dr. Drukteinis werethat appellant was not even competentto standtrial, muchless waive the right to counsel. Addedto this was defendant’s irrational reaction to the court’s rejection of his “defense of liberty” — vowing to remain silent during trial. It is difficult to understand how a defendant who vowsto remain silent duringhis capitaltrial is able “to carry out the basic tasks neededto present [one's] own defense without the help of counsel.” (Edwards, supra, 554 U.S.at pp. 175-176.) In short, Dr. Drukteinis’ opinion and the other indicia of appellant’s mental illness were sufficient to characterize appellant as a “gray-area defendant.” (See, e.g., People v. Johnson, supra, 53 Cal.4th 519 [holding defendant with possible -63- “delusional thought disorder” and communicative difficulties was gray-area defendant; State v. Jason (lowa App. 2009) 779 N.W.2d 66, 75-76 [holding that defendant, a college graduate with Asperger’s Syndrome may be a gray-area defendantbased on psychiatrist’s concerns about lack of“cognitive, perceptual, and affective responses.”].) Butthatis not an inquiry thetrial court here ever made. (See 2 RT 246-249.) Believing appellant’s right to self-representation wasabsolute,the trial court failed to examineanyofthe criteria for competenceto self-representthatthis court has said in Johnson should be considered. Examination of one such factor makes the point. The Johnson court has stated that trial courts should consider whether“for certain key decisions, such as selecting the defense to pursueattrial, a defendant shouldbe capableofjustifying a decision with a plausible reason.” (Johnson, supra, 53 Cal.4th at p. 529-530.) Similarly, Johnson stated that trial courts should consider whether the defendant understands the charges against him, and “is able to understand and use relevant informationrationally in order to fashion a response to those charges.” (Jd. at p. 529.) In the instant case, appellant displayed no understanding of the charge of murder, and was demonstrably incapable of “selecting a defense to pursueattrial,” andjustifying it “with a plausible reason.” Appellant was charged with murdering -64- a police officer, by ambush, who was refueling his car. Appellant’s chosen “defense” was, in his own words, the “defense of liberty.” (10 CT 2355-2396.) Appellant explainedthat he “took the action which underlies the charges in this case as an action in defense of liberty.” (10 CT 2360.) In support of his defense, appellant askedthe trial court to “take judicial notice of the Shot Heard Roundthe World,” of and “Paul Revere’s Midnight Ride.” (10 CT 2366.) Appellant concluded that “if the California Constitution’s guarantee of the right to defend liberty has any meaningatall, then defendanthasthe right to explain to ajury ofhis peers that his actions were factually in defense ofliberty.” (10 CT 2369.) Understandably perplexed by appellant’s claimed “defense ofliberty,”the trial court questioned appellant in chambers abouthis chosen defense. (8 RT 1819 et seq.) This was appellant’s chance to give a plausible reason for the selection of that defense. Appellant told the court that did not know Officer Mobilio, and that had “no information or belief that Officer Mobilio had done anythingthathe felt needed to be remedied by this conduct.” (8 RT 1819, 1821.) Appellant then reverted to his explanation about the Shot Heard Round the World,and the colonists fight against the Red Coats. (8 RT 1820.) In responseto the court’s questions about whetherappellant knew anything about Officer Mobilio, appellant demonstrated his delusional thinking: “The same question is, the colonists who cameto resist those Red Coats, have they ever had any specific contact with those Red Coats? Had they ever known them before? Had they ever had any personal interaction with them? The answer is no. But it doesn’t really matter, because those specific Red Coats were out in an attempt -65- to enforce laws that were unjust and oppressive. And so it doesn’t matter really whether or not whothose specific Red Coats were. What matters is that they were out on patrol attempting to do, whichis they were attempting to wrongfully imprison two people, and they were attempting to abridge and infringe and destroy the colonists’ right to bear arms.” (8 RT 1820.) Thetrial court’s response could not have been clearer: “This is not a defense that is recognized in the State of California or anywherein the United States. ... “This isn’t something that I can see any wayis justified under a defense ofliberty. Thisis anarchy.” (8 RT 1821, 1824.) Appellant’s response: “Well, I disagree with Your Honoron that point.” (8 RT 1824.) Thetrial court told appellant that “Shooting a cop onthe street isn’t part of [our legal] system.” (8 RT 1827.) Appellant’s further then explained whyheshotthe officer: “T would propose that I came forwardin orderto use the court system in order to havethis right recognized. Becausethat’s, that is how — that’s typically how it worksis that you, in order for Appellate Court to recognize a right, is that somebody practices that right and then it goes to court. “If you go to court and say, in order to guarantee a right that you haven’t exercised, then the Court is goingto say, “All right, come -66- back when youare arrested. You have no standing to challenge — to protect this right.” “T have exercised the right in order that I would have standing within the court system to protect that right. There’s no other way to have doneit, Your Honor. That is how the system works. I have to have standing in order to claim that I was exercising that right.” (8 RT 1827-1828.) The court then told appellant that his defense was no defenseatall, and the court “cannotallow it to beraised as a defense... I can’t allow defenseto go to the jury that are not cognizable in the law. I can’t instruct on them. And therefore the evidenceas to those theories are[sic] irrelevant.” (8 RT 1830.) Atthat point, the record reflects that appellant was overcome with emotion. (8 RT 1830.) Appellant “g[ave] the court notice that I intend to sit in silent protest during the guilt phase ....” (8 RT 1830.) True to his word, appellant presented no guilt phase defense. There can be no dispute about the import of this colloquy. In deciding whether a defendant is competentto represent himself, the trial court must consider whether the defendant, “for certain key decisions, such as selecting a defense to pursueattrial, ... [is] capable of justifying a decision with a plausible reason.” (Johnson, supra, 53 Cal.4th at p. 529.) Thetrial court itself expressly recognizedthat appellant utterly and totally -67- failed to select a cognizable defense forhis capitaltrial, and utterly and totally failed to justify his purported defense with any plausible reason. And whenhisefforts to have the court recognize his defense ofliberty failed, appellant vowed to remain silentat trial. This is simply not the expression of a defendant whohas“the ability ‘to carry out the basic tasks neededto present [one’s] own defense withoutthe help of counsel.’” (Johnson, supra, 53 Cal.4th at p. 530, quoting Edwards, supra, 554 U.S. at pp. 175-176.) It is the antithesis of such a defendant. Becausethetrial court failed to consider the Johnson factors governing the determination ofwhether a defendant was competent to waive counsel, thejudgment mustbe reversed. (AOB 116.) -68- V. THE JUDGMENT OF DEATH MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY PERMITTED APPELLANT TO WAIVE COUNSELAT THE PENALTY PHASEIN VIOLATION OF PENAL CODE§ 686.1 The Parties’ Contentions In the preceding argument, appellant has urged that Indiana v. Edwards permitted the trial court to enforce Penal Code section 686.1's requirement of counsel at the guilt phase of appellant’s case. But a defendant’s interest in self- representation is even less following a conviction. (Martinez v. Court ofAppeal, supra, 528 U.S. at p. 168.) Thus, even putting aside the implication of section 686.1 at the guilt phase, the trial court’s failure to provide counsel at the penalty phase requires reversal of the death judgment. Respondentfirst answers that the right to self-representation guaranteed by Faretta continues through the penalty phase, and that this court has previously so held. (RB 112; see AOB 122 [recognizing cases rejecting the argument, including People v. Blair (2005) 36 Cal.4th 686, 736-740; People v. Koontz (2002) 27 Cal.4th 1041, 1073-1074; People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365; People v. Bloom (1989) 48 Cal.3d 1194, 1222-1223; People v. Clark (1990) 50 Cal.3d 583, 617 and fn. 26].) Second, respondent argues that the denial of self-representation is permissible at the penalty phase only to the extent that Indiana v. Edwards permits, i.e., only for a gray-area defendant who cannotpresenthis case without the assistance of counsel. Appellant did not come within the class of defendants described in Edwards. (RB 112-113.) -69- A. Denial Of The Right Of Self-Representation At The Penalty Phase In The Instant Case Is Consistent With Indiana v. Edwards And Required By People v. Johnson As appellant pointed out in his opening brief, previous litigants have unsuccessfully argued that the right of self-representation does not extend to the penalty phase of a capital trial. It is true that this court has rejected the argument, despite the caselaw holdingthat at the penalty phase, the state has a strong interest in ensuring individualized sentencing andthereliability of a deathjudgment. (E.g., People v. Blair, supra, 36 Cal.4th at pp. 736-740; People v. Koontz, supra, 27 Cal.4th at pp. 1073-1074; People v. Bradford, supra, 15 Cal.4th at pp. 1364-1365.) It is also true, however, that only one decision — People v. Taylor (2009) 47 Cal.4th 850 — consideredthis issue after the Supreme Court’s decision in Indianav. Edwards. But in Taylor, the defendant argued only that counsel was required under the Fifth and Eighth Amendmentat the penalty phase in orderto ensurereliability of the death verdict. (/d. at p. 865.) This court responded that the defendant’s “autonomy interest” that animated Faretta “applies in a capital penalty trial as well as in a trial of guilt.” (U/d.) This is so even where the defendant chooses to forego any investigation or presentation ofmitigating evidence. (Jd) Such a defendant may “rationally prefer” a death sentenceto life in prison. (/d.) Whatthis court did not consider in Taylor was whether Indiana v. Edwards affected the analysis of the right of self-representation at the penalty phase. Opinionsare not authority for issues they do not consider. (Maguire v. Hibernia S. -70- & L. Soc. (1944) 23 Cal.2d 719, 730; Hart v. Burnett (1860) 15 Cal. 530, 598-600, 603-604.) It is clear that both Indiana v. Edwards, together with this court’s subsequent decision in People v. Johnson, supra, 53 Cal.4th 519, imposed an important limitation on the right of self-representation at the penalty phase. Before Indianav. Edwards, the argumentfor limitation ofthe rightofself-representation at the penalty phase wasbased onthe balancing ofthestate’s interest in a reliable deathjudgment against the defendant’s interest in autonomy. Indiana v. Edwards changed that equation by lessening the autonomyinterest ofgray-area defendants, and increasing the state’s reliability interest with respect to them. As the Supreme Court explained in Indiana v. Edwards, “in our view,a right of self-representation at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense withoutthe assistance of counsel.” (554 U.S. at p. 176.) Similarly, “insofar as a defendant’s lack of capacity threatens an improperconviction or sentence,self- representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial.” (Id. at pp. 176-177.) For gray-area defendants, such as appellant, the balance between the competing interests of autonomyandreliability at the penalty phase must be re- struck. This court’s recent decision in People v. Johnson, supra, 53 Cal.4th 519, instructs the trial court’s how that must be done. Confronted with a defendant’s request for self-representation, a trial court should consider various factors to -71- determine whether the defendant can proceed competently without the aid of counsel. While, as explained above, this court identified many factors for consideration, at a penalty phase ofcapital trial, one factor stands out: a defendant must possess “a reasonably accurate awarenessofhis situation, including but not simply an appreciation of the charges against him and the range and nature of possible penalties, but also his ownphysical andmental infirmities, ifany ....” (Id. at p. 529, emphasis added.) This ability is critical at the penalty phase, since evidence in mitigation is frequently, if not almost always, based on some form of mental disease or defect. (See Penal Code section 190.3, subd. (h); (See, e.g., Wiggins v. Smith (2003) 539 U.S. 510, 524-525; Rompilla v. Beard (2005) 545 U.S. 374, 381-385. See generally A.B.A. Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. Feb. 2003) Guideline 4.1 - The Defense Team and Supporting Services, at p. 31.) A defendant who does not have an appreciation for “his own physical or mental infirmities” can hardly makerational decisions whether to present mitigation evidence at the penalty phase regarding his own mentalillness. (See People v. Lightsey (2012) 54 Cal.4th 668 [holding that a potentially incompetent defendant may be prohibited from waiving counsel and representing himself at the hearing on his own comptency hearing].) Commentators and courts that have considered the impact of /ndiana v. Edwards onself-representation at the penalty phase have concludedthatthe right to -72- self-representation must be limited at the penalty phase. The rationales include a defenant’s more limited right following conviction, the state’s enhancedinterest in individualized sentencing in a capital cases, andthe special skills required to present mitigation. (Blume & Clark, “‘Unwell’: Indiana v. Edwards and the Fate of Mentally Ill Pro Se Defendants,” 21 Cornell Journal ofLaw & Public Policy 151 (Fall 2011), at pp. 169-172; Barnes v. State (Fla. 2010) 29 So.3d 1010, 1025-1026.) For the samereasons,this court should reconsiderits view that competency to self-represent at trial necessarily implies that the defendant is competent to represent himself at the penalty phase. While the two stages maybepart of a single trial, the stages are bifurcated and each requires distinct skills and investigation. (See AOB 144-145; Blume & Clark, “‘Unwell’: Indiana v. Edwards and the Fate ofMentally Ill Pro Se Defendants,” supra, at pp. ; State v. Reddish (N.J. 2004) 859 A.2d 1173, 1200-1201.) Defendants who do notfall into the gray-area may be able to negotiate the complexities of mitigation. The same cannot be said of those defendants who,by virtue of mental illness, cannot appreciate “[their] own mental and physical infirmities,” (Johnson, supra, 53 Cal.4th at p. 529), and are thereby unable to put on a case in mitigation “without the help of counsel.’” (Johnson, supra, 53 Cal.4th at p. 530, quoting Edwards, supra, 554 U.S. at pp. 175-176.) For such defendants, at least at the penalty phase, this court’s decision in People vy. Johnson strongly supports the view that the right to self-representation should be limited. -73- The supreme courts ofNew Jersey and Florida have taken the position that a capital defendant’s oppositionto, or inability to put on, mitigation evidence should not prevent the appointment of counsel to accomplish that task. (State v. Reddish, supra, 859 A.2d 1173, 1200-1205;. Barnes v. State (Fla. 2010) 29 So.3d 1010, 1022- 1024.) The presentation of mitigation evidence, these courts held, is indispensable to the goal of securing the twin goals of fair trials for capital defendants and individualized sentencing as required by Gregg v. Georgia (1976) 428 U.S. 153. Edwards’ revolution lay in its recognition that the criminal justice system’s goal of the appearanceoffairness oftrials is superior to the individual defendant’s interest in autonomy. As Edwards putit, “insofar as a defendant's lack of capacity threatens an improperconviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providinga fairtrial.” (Edwards, supra, 554 U.S.at p. 176-177.) Becausethetrial court never considered whether appellant’s mental illness, including his inability to perceive his own mental illness, prevented him from conducting the penalty phase without the assistance of counsel, the judgment of death must be reversed. -74- VI. THE JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO OBTAIN AN UPDATED WAIVER OF COUNSEL AFTER THE STATE ELECTED TO SEEK THE DEATH PENALTY The Parties’ Contentions On December 8, 2003, ten months after appellant’s arraignment and numerous hearings,the trial court took appellant’s waiver of counsel. At the time appellant waivedhis right to counsel, the State had not filed a Penal Code section 190.3 notice of an intent to seek death. The prosecution did so, however, on February 9, 2004, at the hearing following the granting of Mr. Mickel’s waiver of counsel. Appellant has argued that the State’s filing of its notice of intent to seek death constituted a radical changein the nature of the prosecution, which required the trial court to advise appellant of the new penal consequences and procedures, insurethat he understood those consequencesand procedures, and obtain an updated waiver of counsel. At no time in this case, however, did the trial court conduct the necessary and properinquiry to ensure that appellant waived his right to counsel with an understanding of the ultimate penal consequence he actually ended up facing. Thetrial court’s failure to do anyofthese things rendered appellant’s waiver of counsel invalid. Respondent contendsthat, for two reasons, an updated waiver ofcounsel was not required. First, appellant’s initial waiver was knowingandintelligent because -75- at the time he made that waiver, he was on notice that the State intended to seek death. (RB 122-123.) Second, the record discloses that appellant also understood the procedural complexities ofa death penalty case , and the risks ofself-representation. (RB 124-125.) It is noteworthy that respondent does not contest the legal principle underlying appellant’s claim. Thus,the parties appearto agree that a Faretta waiver remains in effect unless there is a “substantial change in the circumstances”ofthe case whichrequiresthetrial court to inquire whether defendant wishes to revoke his waiver. (See AOB 142-143.) Respondent’s position seems to be that no such substantial change occurredin the instant case. A. At The Time Appellant Waived His Right To Counsel, The State Had Not Provided Adequate Notice OfIts Intent To Seek The Death Penalty. Asproofofthe fact that appellant was on notice of the State’s intent to seek the death penalty, respondent cites to a numberof portions of the record in which appellant’s counsel, James Reichle, referred to the case as one involving a “special circumstance,” and therefore having a “sentencing range [of] life without parole or death” (RB 115-116); or as being a “capital case” (RB 116); or as having a bifurcated guilt and penalty phase. (/d.) However, these portions ofthe record only demonstrate that Mr. Reichle may -76- have understood that the People intended to seek the death penalty, and that he understood the procedures involved. They say nothing about appellant’s own understanding. Andit is appellant’s understandingthat is relevant, not his counsel’s. Thus, any waiver of counsel must be personally made by the defendant, not by his counsel. (People v. Floyd (1970) 1 Cal.3d 694, 702-703; In re Johnson (1965) 62 Cal.2d 325, 334; People v. Conrad (1973) 31 Cal.App.3d 308, 323-324.) Merely insuring that a defendant’s counsel understands the consequences of waiver is therefore insufficient to establish a voluntary and intelligent waiver on the part ofthe defendant. The advisements,in other words, must be given to the defendant and the waiver must be personally madeby the defendant. (Faretta v. California (1975) 422 U.S. 806, 834 [“It is the defendant, therefore, who must befree personally to decide whether in his particular case counsel is to his advantage.”].) Mr. Reichle’s understanding of the penal consequencesis not relevant to the question whether appellant personally understood those consequences. The State also rely upon a pleadingfiled by the People on December4, 2003, whichrefers to the fact that “the defendant has been charged with a capital offense, namely, murder ofa police officer while engaged in the performanceofhis duties.” (RB 119.) This reference, too, is inadequate to have given notice that the People intended to seek the death penalty. A “capital case” is simply one in which death may be sought, or in which life without parole may be imposed. (Gardner v. Superior Court (2010) 185 Cal.App.4th 1003, 1013. See Sand v. Superior Court (1983) 34 Cal.3d 567, 570 [“Arguably the term “capital case” might be understood -77- either to define the nature of the offense charged—i.e., murder with special circumstances—or to describe the permissible punishment—1.e., that the death penalty may be imposed.”].) The designationalonedid not inform the defendantthat the People would seek death rather than life without parole. This court has suggested as much in People v. Visciotti (1992) 2 Cal.4th 1. There, the defendantarguedthat the State’s notice of intent to introduce aggravating evidence undersection 190.3 was inadequate. (/d. at p. 70.) The court rejected the argument, holding that notice was adequate because “[s]pecial circumstances were charged andthe People gavenotice ofthe aggravating evidenceit intendedto offer at the penalty phase.” (/d., emphasis added.) In the instant case, ofcourse, a special circumstance waschargedprior to Mr. Mickel’s entry of his Faretta waiver. But, the section 190.3 notice of intent to introduce aggravating evidence and thereby seek the death penalty was not given prior to that waiver. Whileit is true that, based on the special circumstance charge, Mr. Mickel was awarethat the offense carried either life without parole or death, without the added specification that the People intended to introduce aggravating evidenceto seek death, the special circumstance charge alone wasinsufficientnotice to the defendant that death will be sought. Thus, the prosecution’s filing of its section 190.3 statement — after appellant had waivedhis right to counsel — markedthefirst time that the State had committed -78- itself to pursue a sentence of death rather than life without parole. This constituted a “substantial changein the circumstances”ofthe case, requiring a renewed waiver of the right to counsel. Respondentalso citesto a brief filed by appellant in support ofhis motion for self-representation, in which appellant made statementsindicating his beliefthat the case was a death penalty case. (RB 117-119, citing 3 CT 751-765.) Specifically, appellant arguedthat, since the trial court may appoint a second counselto represent the defendant “in a death penalty case,” it should appoint Mr. Reichle to be appellant’s co-counselin the instant case. (3 CT 756-760.) Appellant’s statements in his brief filed in support of his motion for self- representation indicates no more than whathaspreviously been established: namely that appellant understoodthat based on the chargesofspecial circumstance murder, the case could carry a possible sentenceoflife without parole or the death penalty. (See 3 CT 686 [Information charging special circumstances noted the “sentencing range” to be “LWOP/Death”. See AOB 130.) Respondent misses two important points. First, when appellant filed this briefin support ofwaiving counsel, the State had not yet committeditself to seeking death. That did not happen until February 9, 2004, after appellant had been permitted to waive counsel. The State’s declaration on that date that it would do so thus marked a dramatic shift in the penalty the State was seeking. Second,in light ofthe State’s declaration ofits intent to seek death, an entire panoply ofprocedures cameinto play. It is undisputed that -79- the trial court did not advise appellant of any of these consequences of a death penalty prosecution. This omission on the court’s part has added significancein light of its prior dealings with Mr. Mickel onthe issue of self-representation. Early in the case, Mr. Mickelstated his intent to waive counsel. (1 RT 11. See AOB 128-129.) When the trial court advised appellant ofthe complexities ofa preliminary hearing, Mr. Mickel relented and agreed to have counsel represent him throughthat stage. (1 RT 14.) Hadthetrial court similarly advised appellant ofthe complexities of a death penalty prosecution, which far exceed the complexity ofa preliminary examination, it is highly likely that appellant would have made the same decision he did with respect to the preliminary hearing. Unfortunately, however, such advisements were nevergiven. In the absence ofsuch advisements,it can hardly be said that appellant waived counsel with “his eyes open,” (Faretta, supra, 317 U.S.at p. 242), and with a full understandingof“the disadvantagesofself-representation, including the risks and complexities of the particular case.’ (People v. Koontz, supra, 27 Cal.4th at p. 1070; People v. Lawley (2002) 27 Cal.4th 102, 140.) Respondentalso relies on People v. Lawley (2002) 27 Cal.4th 102, 140, and People v. Blair, supra, 36 Cal.4th at p. 708, in arguing that appellant understood the State was seeking his death, and that he understoodthe “risks and complexities” of self-representation in such a case. (RB 123.) -80- Both cases are very different from appellant’s case. In Lawley, the prosecution filed a section 190.3 notice of intent to seek the death penalty prior to the defendant’s motionfor self-representation. (People v. Lawley, supra, App. Opn. Br., at pp. 3-4 [stating that the prosecutionfiled the section 190.3 notice on June 16, 1989, and that defendant entered his Faretta waiver on August 14, 1989.].) Similarly, in People v. Blair, the defendant entered his Faretta waiver on September 19, 1986. (36 Cal.4th at p. 703.) Whenthe trial court took the waiver, it made it crystal clear to the defendantthat the prosecution was seeking the death penalty: As this court noted, the trial court “stressed to defendant that this was a special circumstances case in which the state was asking forhislife ....” (Id. at p. 703.) Nothing of the sort happened in Mr. Mickel’s case. Unlike Lawley, prior to Mr. Mickel’s Faretta waiver, the prosecution did notfile its notice of intent to introduce aggravating evidencein orderto seek the death penalty. And, unlike Blair, prior to Mr. Mickel’s Faretta waiver, thetrial court did not advise him that the State wasasking for his life. Mr. Mickel’s Faretta waiver wasthus given prior to the State’s commitment to seeking the death penalty. For that reason, whenthe State finally committed itself on February 9, 2004 to seeking the death penalty, the circumstances of the case drastically changed, and a new waiver ofthe right to counsel was required. -8]- B. The Trial Court Completely Failed To Advise Appellant Of Any Of The Risks Of Self-Representation In, Or Complexities Of, A Death Penalty Case, And His Waiver Of Counsel Was Therefore Involuntary. Appellant has further argued that, in assessing the need for additional advisements oncethe State committed itselfto seeking death, this court must follow United States Supreme Court law established in Patterson v. Illinois (1988) 487 U.S. 285. (AOB 143-144.) Because the Respondent’s Brief declines to discuss Patterson, a brief review of that law is appropriate. The Supreme Court in Patterson addressed whether a defendant’s pre- indictment waiver of counsel for purposes of interrogation carried over to post- indictment questioning by the authorities. In answering this question, the court stated that “we have defined the scope of the right to counsel by a pragmatic assessmentofthe usefulness ofcounsel to the accusedat the particular proceeding, and the dangers to the accused of proceeding without counsel. An accused's waiver of his right to counsel is ‘knowing’ whenhe is made awareofthese basic facts.” (Ud. at p. 298.) The Supreme Court held that no additional advisements were required in Patterson because it “d[id] not discern a substantial difference between the usefulness of a lawyer to a suspect during custodial interrogation, and his value to | an accusedat postindictment questioning.” (/d. at pp. 298-299.) -82- Under Patterson, the touchstone for determining whether a defendant can waive his right to counsel without new advisements being administered, is a “pragmatic” one, based on whetherthereis ‘“‘a substantial difference between the usefulness of a lawyer”at the two stages. Ifthere is such a difference, a new waiver is required. When a defendant knowingly and voluntarily waives a constitutional right based upon an assumedset of facts or circumstances, but where circumstances change and render invalid the assumptions upon which the original waiver was made, courts have long held tha the initial waiver is invalid. (Harrison v. United States (1968) 392 U.S. 219, 222-223 [where a defendant waivesright against self- incriminationto respondto state’s introduction ofconfessionin its case-in-chief, and the confession is later held inadmissible on appeal, the defendant’s initial waiveris invalid and the state may not introduce the confession at a secondtrial]. Accord, People v. Hopkins (1974) 39 Cal.App.3d 107, 118-120 [defendant waivedright to jury trial based on an accurate understanding ofthe charges, but state then amended the information to add more charges; held, changed circumstancesrenderedinitial waiverofjury trial invalid]; People v. Luick (1972) 24 Cal.App.3d 555, 557-559 [same]; People v. Ray (1965) 238 Cal.App.2d 734, 735 [same]; People v. Walker (1959) 170 Cal.App.2d 159, 166 [same].) The question respondent in the instant case seems unwilling to addressis whether, consistent with Patterson, there is a substantial difference between the usefulness ofa lawyer in a murder case involving only a prison sentence, as opposed -83- to a murder case involving the death penalty. Appellant has explained why there simply can be no dispute on this question. (AOB 144-145.) As appellant has pointed out, the American Bar Association’s “ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” (rev. ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1027 (2003), spanning 130 pages, identify the specific obligations of capital counsel, from investigating the case and the client’s background, to conducting voir dire, to presenting a penalty phase. Leading commentators have expounded on the additional complexity of death penalty cases and the need for specially trained and qualified counsel. (See e.g., J. Leibman, “The Overproduction of Death,” 100 Columbia L.R. 2030, 2102-2103 (2000); Blume & Clark, “‘Unwell’: Indiana V. Edwardsandthe Fate of Mentally III Pro Se Defendants,” supra, at pp. 1200-1201. The United States Supreme Court has acknowledgedthat special competence is required for an attorney representing a defendant subject to the death penalty. (Martel v. Clair (2012) 132 S.Ct. 1276, 1284.) Congress has acknowledged the same point. When the federal death penalty statute was passed, it amended the provisions in the United States Code for appointment of counselin capital cases. (Martel v. Clair, supra, 132 S.Ct. at p. 1284.) The newstatute grants federal capital defendants and capital habeas petitioners enhancedrights ofrepresentation,in light of what it calls “the seriousness of the possible penalty and ... the unique and complex nature ofthe litigation.” (/d. at pp. 1284-1285.) The Supreme Court explainedthe rationale for the need for enhanced legal reprepresentation in capital -84- cases: “The statute aims in multiple ways to improve the quality of representation afforded to capital petitioners and defendantsalike. Section 3599 requires lawyers in capital cases to have more legal experience than § 3006A demands. Compare §§ 3599(b)-(d) with § 3006A(b). Similarly, § 3599 authorizes higher rates of compensation, in part to attract better counsel. Compare § 3599(g)(1) with § 3006A(d) (2006 ed. and Supp. IV). And § 3599 provides more money for investigative and expert services. Compare §§ 3599(f) (2006 ed.), (g)(2) (2006 ed., Supp. IV), with § 3006A(e) (2006 ed. and Supp. IV). As we have previously noted, those measures “reflec[t] a determination that quality legal representation is necessary”in all capital proceedings to foster “fundamental fairness in the imposition of the death penalty.” McFarland, 512 U.S., at 855, 859, 114 S.Ct. 2568.” (Martel v. Clair, supra, 132 S.Ct. at p. 1285.) late in the day for anyone to contendthatthere is no marginal “usefulness”to having counsel in such a case. Under the framework dictated by Pattersonv. Illinois, new waivers of counsel were required when the State formally declared its intention to In view ofthe inherent complexities of a death penalty case,it is simply too seek death. because the record demonstartes that “appellant understood the disadvantages of self-representation, includingthe risks and complexities ofthe particular case.” (RB 123, citing People v. Blair, supra, 36 Cal.4th at p. 708, and People v. Lawley, supra, Respondent suggests, however, that additional advisements were unnecessary 27 Cal.4th at p. 140. -85- These two decisions are thoroughly distinguishable on this point as well. Lawley rejecteda claim thatthe trial court’s admonitions were inadequate,stating two reasons: the defendant had significant experience with the criminal justice system (having been a defendantin six priortrials); and “[t]he record suggests no confusion on defendant's part regarding the meaning of the admonitions, risks of self-representation, or the complexities ofhis case....” (/d. at p. 140.) Blair rejected the same claim because the defendant there also had prior experience in a murder trial, and because,after the prosecutionstated its intention to seek death, the trial court specifically warned the defendant that “[a]t this point, the stakes have just gone up quite a bit. Now, you are a layman, and youreally need a lawyer.It's your life.” (Blair, supra, 36 Cal.4th at p. 710.) Mr. Mickel’s case is quite different. Unlike Lawley and Blair, appellant had no prior experience with the criminal justice system, and no inferences about his understandingofthe procedures could be drawn. Thetrial court,itself, realized this when it questioned appellant about pre-trial procedures. Hearing appellant’s answers, the trial court stated that appellant did not “demonstrate a very sophisticated or, for that matter, any grasp of the law.” (1 RT 11.) Because appellant affirmatively demonstrated no understandingofthe procedures,the court cannot draw a contrary inference from a silent record, i.e., a record in which appellant fails to express confusion. Moreover, unlike the instant case, the trial court in Blair went to great lengths to impress upon the defendantthat“the State is asking for yourlife,” (id.) and that he would therefore benefit from a lawyer. As explained in the openingbrief, the trial court never examined appellant about the -86- penal consequencesofthe case. (AOB 130-132.) Unlike Blair and Lawley, appellant’s case was one in which,prior to his waiver of counsel, an unsophisticated defendant demonstrated his lack of understanding ofpretrial procedures, was not advised that the State was seeking death, and was not informed of the complexities of a death penalty case. It is difficult to see how a waiver ofcounsel, in these circumstances, can be characterized as knowing andintelligent. Thetrial court’s failure to obtain a new waiver of counsel requires reversal ofthe judgment. (People v. Lightsey (2012) 54 Cal.4th 668, 699 [denial of counsel at critical stage is structural error requiring reversal].) -87- VI. THE JUDGMENT OF DEATH MUST BE REVERSED BECAUSE THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AND FOURTEENTHAMENDMENTRIGHTSTOAN IMPARTIAL JURY BY FAILING TO ADEQUATELY VOIR DIRE AND REMOVE JURORS WHO STATED ON THEIR QUESTIONNAIRES THAT THEY WOULD AUTOMATICALLY VOTE FOR DEATH IF A DEFENDANT WERE CONVICTED OF THE MURDER OF A POLICE OFFICER. The Parties’ Contentions Appellant has arguedthat the trial court violated his constitutional right to an impartial jury by failing to investigate and removethe four seated jurors who stated underpenalty ofperjury that they believed the state should automatically put to death a defendant whokills a police officer engaged in his duties. (AOB 151-177.) The result is that appellant wastried, convicted and sentencedto death by ajury actually biased against him. Respondent counters with two contentions. First, appellant forfeited the claim in thetrial court by failing to challenge the jurors for cause, failing to use peremptory challenges against them,andfailing to objectto the panelas constituted. (RB 157-159.) Second, the claim is meritless because the voir dire of these jurors indicated that they could in fact follow the law. (RB 161-170.) Asexplained below,the claim has not been forfeited, and the record does not show that thejurors would refrain from automatically imposing the death penalty on a defendant who murdersa police officer in the performanceofhis duty. -88- A. The Claim WasNot Forfeited Because It Involves Seated Jurors Who Were Actually Biased. Appellant has argued that his failure to challenge the four jurors who stated they would automatically vote for death in a case like appellant’s in which the defendant murdereda police officer engaged in the performance ofhis duties, did not forfeit review ofthat claim becausethosejurors were actually biased. Appellant relied for this proposition on this court’s decision in People v. Foster (2010) 50 Cal.4th 1301, in which the court stated, quoting Johnson v. Armontrout (8" Cir. 1992) 961 F.2d 748, 754, that “[w]hen a defendant fails to object to the qualifications of a juror, he is without remedy only if he fails to prove actual bias.” (Id. at p. 1325.) The Foster court then went on to analyze the appellant’s claim that various jurors were actually biased against him. (/d. at pp. 1325-1326.) Respondent argues that Foster does not mean whatit plainly says. It is common,says respondent, for a court to first hold a claim forfeited, then address the merits anyway. (RB 159.) Respondentsaysthat the fact that Foster cited to People v. Hillhouse (2002) 27 Cal.4th 469, supports its point. There, too, the court held a the jury selection claim had been forfeited, but “then chose to address the claim on the merits as if it had been cognizable on appeal....” (RB 160.) Respondent misreads Foster and misunderstandsthe nature of a claim that a seated juror is actually biased. The claim that an unchallenged, potential juror is actually biased doesnot dissipate once the juror actually seated. That biased juror obviously continuesto sit on thejury for the duration ofthe case. In such situation, -89- wherethetrial judge is aware of the juror’s actual bias, California statutes require the judge to investigate the juror’s actual bias and discharge that juror if necessary. Thus, Penal Code section 1089 provides: “Tf at any time, whetherbeforeorafter the final submission ofthe case to the jury, a juror dies or becomesill, or upon other good cause shownto the court is found to be unable to perform his or her duty,... the court may orderthe juror to be discharged....” Similarly, Code of Civil Procedure section 233 provides: “If, before the jury has returned its verdict to the court, a juror becomessick or, upon other good cause shownto the court, is found to be unable to perform his or her duty, the court may orderthe juror to be discharged....” Both statutes require thetrial judge, at any time, to investigate and discharge a juror whois not fit to serve. (People v. Burgener (1986) 41 Cal.4th 505, 519.) Burgener explained that, “these statutes have established that, once a juror's competence is called into question, a hearing to determine the facts is clearly contemplated. [Citations.] Failure to conduct a hearing sufficient to determine whether good causeto discharge the juror exists is an abuse ofdiscretion subject to appellate review. [Citations.].)” (Ud. at pp. 519-520.) While the decision to conduct a hearingis subject to thetrial court’s discretion, “once the court is put on notice of the possibility a juror is subject to improperinfluencesit is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regardedaserror. (People v. McNeal, supra, 90 Cal.App.3d 830, 838-840.)” (qd. at p. 520.) Finally, “i]t is beyond question that a criminal verdict rendered with the participation of a juror -90- unfit for the proper discharge of her duty ... must be reversed.” (/d. at p. 521.) Thus, while the defendant’s failure to challenge a prospective juror may forfeit a claim “that the voir dire was inadequate,” (Foster, supra, 50 Cal.4th at p. 1324), it does not forfeit a claim that a seated juror was actually biased. A seated juror’s actualbias is a state of affairs that, under the statutes set forth above, places an obligation onthetrial court to act, independently of the defendant’s objection. Contrary to respondent’s argument, this conclusionis not changed by People v. Foster’s citation to the earlier decision in People v. Hillhouse, supra, 27 Cal.4th 469. The court in Foster cited Hillhouse solelyfor the definition of “actual bias,” not for the proposition that claims ofactualbias are forfeited." Thejurors’ questionnairesin the instant case disclosedtheiractual biasas that term was defined in Hillhouse. The trial court was fully aware, from the answers of seated jurors 7877, 7017, 10155, and 9466 to question 39(D), that they believed a '! This precise passage in Foster is as follows: ‘“‘Actual bias’ is ‘the existence of a state ofmindonthepart ofthe juror in reference to the case, or to any ofthe parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.’ (Code Civ.Proc., § 225, subd. (b)(1)(C); People v. Hillhouse (2002) 27 Cal.4th 469, 488.) Page 488 of the Hillhouse decision simply states the definition of actual bias that was summarized in Foster: “A party may challenge a prospective juror for actual bias, defined as a state of mind that would prevent that person from acting impartially and without prejudice to the substantial rights ofany party.” (/d.) Nothing in the court’s citation to Hillhouse indicates that, contrary to Foster's explicit statement, a claim of actual bias is waived bythe failure to object at the voir dire stage. -9]- defendant who commits a crime like the one with which appellant was charged, should be automatically put to death. This answer constituted actual bias, which understatutory law,the trial court was obligated to investigate and act upon. The claim that it failed to do so, and that appellant was consequently convicted and sentenced to death by jurors having an actual bias, is therefore not forfeited. B. The Record Does Not Show That the Jurors 7877, 7017, 10155, and 9466 Would Refrain from Automatically Imposing the Death Penalty on a Defendant Who Murdered a Police Officer in the Performance of His Duty. Respondentfurther arguesthatthetotality ofthe voir dire indicates that none of the jurors under review would automatically impose the death penalty for the murder of an officer in the performance of his duties, and that instead they could follow the law. (RB 164-171.) “A careful review ofthe record in this case,” (RB 164), does not support this assertion. 1. Juror 7877 Respondent agrees that Juror 7877 “did indicate in response to Question 39 that the State of California should automatically put to death everyone who... ‘is convicted ofmurder plus the murderwasofa police officer while the police officer was engaged in the performance ofhis duties.” (RB 165, citing 37 CT 10721.) Respondentpoints out, however, that Juror 7877 told the court that “he/she would not automatically vote for or against the death penalty in every caseoffirst degree murder,” and further indicated that “there was no reason he/she could not be fair and impartial,” and “follow the court’s instructions.” (RB 165.) -92- Appellant has explained in his opening brief why neither of these two statements contradict Juror 7877's beliefthat the death penalty should be automatic for the murder of a police officer. (AOB 169, 171-173.) As explained in greater detail there, a juror could state that they would not automatically vote for death “in every case offirst degree murder,”yetstill adhere to the belief that, if the victim in a particular case wasa police officer engagedin his duties, the death penalty should be automatic. Further. thejuror’s willingness to follow the court’s instructions came in answer to a general question which did not specify any particular instruction. Moreover, the instructions that the court had discussed with the jurors, or which appeared on the questionnaire had nothingto do with refraining from the automatic application of the death penalty for certain crimes. (AOB 172-173.) Juror 7877's views on the automatic application of the death penalty for murderers of police officers remained undiluted by the further voir dire. 2. Juror 7017 Respondent acknowledgesthat Juror 7017 also answered question 39-D by saying that he/she would automatically vote for death in a case in which a defendant murdereda police officer engaged in the performanceofhis duties. (RB 166,citing 38 CT 10940.) Respondent points out, however, that Juror 7017 also stated that “he/she would not automatically vote for or against the death penalty in every case of first degree murder, no matter whatthe evidence mightbe,” he/she would “follow the rules,” andsaid there was no reason he/she could not be impartial or follow the court’s instructions. (RB 166.) For the same reasons, explained abovein relation -93- to Juror 7877, these answers did not indicate that Juror 7017 abandoned the view that the death penalty should be automatic for murders ofpolice officers. Respondentfurther points out that Juror 7017 said he/she could imposelife without parole “wherethe allegation is that Officer Mobilio was a peace officer who wasintentionally killed ....” (RB 166.) In his opening brief, appellant explained whythis answerdid not repudiate Juror 7017's answerto question 39-D. (AOB 169- 170.) In short, the juror’s willingness to consider alternate penalties where it is simply alleged that the murder victim wasa police officer engaged in his duties signified only that the juror was willing to adhere to the presumption of innocence. By merely asking for the juror’s views on unproven allegations, this question (number 49) did not qualify the jurors’ stated belief that convicted murderers of police officers should automatically be put to death. Juror 7017 did not repudiate his/her views on the automatic application ofthe death penalty for murderers of police officers. 3. Juror 10155 Respondent concedes that Juror 10155 also answered question 39-D by saying that he/she would automatically vote for death in a case in which a defendant murdered a police officer engaged in the performanceofhis duties. (RB 167,citing 38 CT 11079.) Respondentrepeats its argumentthat this juror’s answer to question 49, inquiring whether he/she could imposelife in prison whereit is “alleged”that the murder wasofa police officer, sufficed to ameliorate the juror’s affirmative -94. answer to question 39-D. For the same reasons given above with respect to Juror 7017's response,it does not. The question dealt only with unproven allegations, not a conviction. Respondent also notes that this juror said that, “depending on the circumstances,” he/she could reject the death penalty. (RB 167.) Presumably, respondentis referring to Juror 10155's answers to question 54. Whatthat question actually asked was whether, “[g]liven the fact that you will have two options available to you, can you see yourself, in the appropriate case, rejecting the death penalty and choosing life imprisonment without the possibility of parole instead?” Asappellant has pointed out, the operative phrase in this portion of question 54is, “in the appropriate case.” A juror who answered question 39-D in the affirmative 9could, of course, choose life “in an appropriate case.” But a case in which the defendant murdereda police officer in the performanceofhis duties would not, in the juror’s view,ever constitute “an appropriate case”for that disposition. Juror 10155 gave similar answers as Jurors 7877 and 7017 whenthe court asked if they could be fair and impartial, or if they would automatically vote for death “in every case of first degree murder no matter what the evidence mightbe. Asargued above, these answers did not repudiate the affirmative answerto question 39-D. While Juror 10155 may not automatically vote for death in every caseoffirst degree murder, the relevant question is whether he/she would automatically vote for it in a particular case where the victim wasa police officer engagedin his duties. The voir dire did not cause Juror 10155 to repudiate that affirmative answer. -95- 4. Juror 9466 Respondentagrees that Juror 9466 put a “?” in answer to whether the death penalty should be automatic for murderersofpolice officers, presumably indicating that the juror was unsure a life sentence should be an considered in a case involving the murderofa police officer. (RB 168.) Respondentpoints out that this juror gave similar answers to the other jurors discussed above. But as explained above, none of these answers specifically repudiated the possibility that Juror 9466 would automatically vote for the death penalty if appellant were convicted ofmurdering a police officer in the performanceofhis duty. Respondent next faults appellant generally for “isolat[ing]” the juror’s answersto question 38 and then “arguing that because ofthe responses to Question 39 thejurors made‘crystal clear’ that their willingness to consider alternate penalties did not apply when the special circumstance was the murder of a police officer.” (RB 170.) Respondent suggests Question 39 wasactually less clear than appellant contends: it only asked the jurors whether they “feel” that the state should automatically put to death everyone whokills a police officer. The fact that a juror “feels” that way, does not mean they cannot follow the court’s instructions. (RB 170.) Respondent’s argument cannot be accepted. Each ofthe jurors whofelt that the death penalty should be automatic for Mr. Mickel’s offense, failed to disavow that “feeling” in response to any other question. The simple fact is that these jurors were never askedif, afterfinding a defendant guilty of murdering a police officer -96- engagedin the performanceofhis duties, they could imposelife without parole. As such, their biased answer to Question 39 remained unmitigated. In sum, neither the jurors’ other answers on the questionnaire northetrial court’s cursory voir dire caused any ofthe foregoingjurors to reconsider or repudiate their view that the death penalty should automatically be imposed on a defendant who murdersapolice officer engaged in the performance ofhis duties. Thesejurors, all ofwhom sat on thejury throughout thetrial, were therefore actually biased within the meaning ofPeople v. Foster. Thejudgmentofdeath must therefore be reversed. -97- Vil. THE JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFYINHIS OWNDEFENSE,WHICHTESTIMONY COULD HAVE PROVIDED A BASIS FOR REDUCTION OF THE CRIME TO SECOND-DEGREE MURDER. The Parties’ Contentions Appellant has argued that the trial court violated Mr. Mickel’s Sixth Amendmentright to put on a defense by precluding him from testifying about the facts ofthe crime and his motive for committing it. (AOB 178-207.) While thetrial court considered appellant’s proffered testimony irrelevant to any recognized defense, the trial court was wrong. Although not characterized as such attrial, appellant’s testimony was relevant to a defense to premeditation based on his unreasonable belief that prompted the murder. Such a belief, which can negate premeditation, need not be reasonable, so long as it is honestly held. (AOB 202- 207.) Appellant has arguedthat the error wasstructural, requiring automatic reversal (AOB 199-202) or at a minimum,federal constitutional error subject to Chapman v. California (1967) 386 U.S. 18. (AOB 202-207.) Respondent has three responses. First, echoing the trial court, respondent contends that appellant’s testimony was properly excluded because it was not relevant to any cognizable defense. (RB 183-186.) Second, even if appellant’s testimony was relevant, “it was proper to exclude it as more prejudicial than probative,” under Evidence Code section 352. (RB 186-187.) Third, even if it was erroneously excluded, appellant cannot establish prejudice because the jury eventually heard appellant’s testimony at the penalty phase and sentenced him to -98- death. (RB 187.) Respondent’s arguments are meritless. A. Appellant’s Testimony Was Relevant To A Defense That Could Have Negated Premeditation And Reduced His Crime To Murder Of The Second Degree. Respondent contendsthat appellant’s testimony wasnot “remotely related to any recognized defense orjustification for homicide,” and was merely “a platform to advance political agenda.” (RB 186-186.) In taking this position, respondent refuses to discuss or consider the claim made in appellant’s opening brief that the testimony wasrelevantto the defenseagainsta finding ofpremeditation. (AOB 204- 205.) As appellant explained, evidence tending to prove that the defendant acted from a delusion cannot negate malice, but is relevant to negate premeditation. (See People v. Padilla (2003) 103 Cal.App.4th 675, 679.) Indeed, at the time of appellant’s trial, a standard CALJIC jury instruction specifically addressed this point: “A hallucination is a perception that has no objectivereality. [{] If the evidence establishes that the perpetrator of an unlawful killing suffered from a hallucination which contributed as a cause of the homicide, you should considerthat evidencesolely on the issue of whether the perpetrator killed without deliberation and premeditation.” (CALJIC No. 8.73.1 (2004 ed.).) Appellant’s testimony as to his motive for the murder, which disclosed his entirely unreasonable delusion that he was acting pursuantto the dictates of the -99- Declaration of Independence, and in response to Paul Revere’s Midnight Ride and the invasion of the Red Coats, would have provided a basis for negating premeditation. Respondentis therefore incorrect in arguing that the evidence was not relevant. B. A Trial Court May Not Exclude, Under The Guise Of Evidence Code Section 352, The Defendant’s Testimony About The Crime And His Motive For CommittingIt, Where These Matters Are Relevant To A Defense. Respondent next arguesthat, even if the defense evidence wasrelevant, the trial court could have excluded it under Evidence Code section 352 as more prejudicial than probative. (RB 186-187.) Here, too, respondent ignores the theory ofrelevance ofappellant’s testimony based on negation ofpremeditation, and argues only that the testimony was“a platform to advancea[] [political] agenda,” and was “not probative of any valid or recognized legal defense ....”. (RB 187.) Respondent’s argument cannotstand, in light ofthe demonstrable relevance of the evidence to a recognized defenseto a finding ofpremeditation. Under these circumstances, the trial court has no discretion to exclude such evidence under a state’s relevancystatute such as section 352, particularly where the prosecution has introduced evidence on the very same matters. (AOB 190-193; United States v. Scheffer (1998) 523 U.S. 303, 308 [holding that “the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only whereit has infringed upon a -100- weighty interest of the accused.”]; Holmes v. South Carolina (2006) 547 US. 319, 328-329; Rock v. Arkansas (1987) 483 U.S. 44; Ferguson v. Georgia (1961) 365 U.S. 570.) Thus, while a trial court may invoke Evidence Code section 352 to exclude cumulative or marginally relevant testimony,it may not do so where the prosecution has introduced evidence on the same matters, and where the evidence supports a defense to premeditation. (/d.) C. The Erroneous Exclusion Of Appellant’s Testimony Was Either Structural Error Requiring Automatic Reversal, Or Prejudicial Error Under Chapmanv. California. Appellant has arguedthat the trial court’s preclusion ofappellant’s testimony in violation ofthe Sixth Amendmentright to present a defense waseither structural error, or at a minimum,federal constitutional error reviewed under Chapman v. California. (AOB 197-203.) Respondent declines to engage this legal argument; instead, it declares that the mere exclusion of evidenceis tested for prejudice under the state standard of People v. Watson (1956) 46 Cal.2d 818, 837. (RB 187.) While respondent is correct that the exclusion of evidence is ordinarily reviewed under Watson, that is not the case for exclusion of the defendant’s own testimony in support ofa recognized defense. As appellant explainedin his opening brief, exclusionofthis sort ofevidence implicates the defendant’s Sixth Amendment right to present a defense andis, therefore, given stricter scrutiny. (AOB 199-202; -101- See Rock v. Arkansas, supra, 483 U.S. 44; Ferguson v. Georgia (1961) 365 U.S. 570; See Martinez v. Yist (9" Cir. 1991) 951 F.2d 1153, 1157.) Respondent nonetheless reasons that under the Watson standard, the exclusion of appellant’s testimony was harmless because the jury heard appellant’s testimonyat the penalty phase and sentenced him to death. (RB 187.) Respondent’s theory is that the jury “therefore did not find the evidence to be compelling mitigation for appellant’s actions.” (d.) But respondent’s argument has no force if the correct standard ofprejudiceis, as appellant has urged, automatic reversal or the standard of Chapman v. California, which requires the State to prove that the error was harmless beyond a reasonable doubt. The State cannot carry this burden, even in light of the death verdict following appellant’s testimony. This is so because the State’s argument hinges on assumption that the jury at the guilt phase engaged in the same factual inquiry and was bound by the same legal principles as at the penalty phase. The State’s argumentis really a variant of that explored in People v. Sedeno (1974) 10 Cal.3d 703. In Sedeno, this court held that the failure to give an instruction is harmless error if “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant underother, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, ...” (Id. at p. 721.) In the instant case, a reviewing court cannot determine that the factual -102- question of appellant’s mental state omitted at the guilt phase was resolvedat the penalty phase. This is because the evidence at the penalty phase upon whichthejury deliberated contained far different evidence than waspresentedat guilt. First, at the penalty phase, the jury was presented with extensive victim impact evidence. Indeed,thejury heard emotionaltestimony from Officer Mobilio’s wife, his parents, various colleagues and a student whoparticipated in the DARE program that Officer Mobilio taught. Moreover, the death verdict came after appellant himselfasked the jury to impose the death sentence, which was doubtless a powerful impetus for the verdict. A reviewing court cannot say with any confidencethat the verdict of death wasbasedonthejury’s discrediting appellant’s testimony of his mentalstate rather than the additional evidence in aggravation the jury presented. Further, the jury’s decision at the penalty phase is based on a numberof factors. (See Penal Code section 190.3.) In deliberating on the penalty,the jurors may well have credited appellant’s delusion, as was suggested by one juror’s question whetherappellant “wason drugs.” (10 CT 2599.) Yet, the samejurors may still have decided that the other factors favoring death, supported by the People’s case in aggravation, outweighed appellant’s mental-state limitations. Forthese reasons, unlike Sedeno, no necessary inferences can be drawn from the deathjudgmentregarding how ajury, properly instructed on CALJIC No.8.73.1, would have evaluated the proofofpremeditation. Because the factual recordat guilt and penalty were notidentical, respondent cannotcarry its burden ofproving beyond a reasonable doubt that the jury would have rejected the evidenceat the guilt phase. The judgment must therefore be reversed. -103- CONCLUSION The judgment should be reversed. Dated: January 17, 2013 Respectfully "GAA (4 Lawrence A. Gibbs Attorney for Appellant -104- CERTIFICATE PER CAL. RULES OF COURT, RULE8.204(c) I certify that this petition is produced in 13-point proportional type and contains 26,060 words. [' Li Date: January 17, 2013 i ¢ Lawignce A. Gibbs / PROOF OF SERVICE I declare that I am employed in the County of Alameda. I am overthe age of eighteen years and not a party to this cause. My business address is P.O. Box 7639, Berkeley, California. Today, I served the foregoing Appellant’s Reply Brief, on all parties in this cause by placing a true copy thereof enclosedin a sealed envelope with postage fully prepaid, in the United States mail at Berkeley, CA, addressed as follows: Office of Attorney General 1300 I St., #1100 P.O. Box 944255 Sacramento, CA 94244-2550 Gregg Cohen Tehama County District Attorney 444 Oak Street, Room L Red Bluff, CA 96080 Tehama County Superior Court 445 Pine St. P.O. Box 1170 Red Bluff, CA 96080 Andrew Mickel V-77400 San Quentin State Prison San Quentin, CA 94974 Scott Kauffman CAP 101 Second St., #600 San Francisco, CA 94105 I declare under penalty of perjury that the foregoing is true and correct. Executed on January —_, 2013 in Berkeley, California. (Pham 6. GAA Lawugnce A. Gibbs ‘