PEOPLE v. MICKEL (ANDREW)

Respondent’s Brief

Cal.September 12, 2012

roy s Q.. te wd cee cat ta eea Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, CAPITAL CASE Plaintiff, Case No. 5133510 v. ANDREW HAMPTON MICKEL, Appellant. SUPREME COURT LED Tehama County Superior Court Case No. CR45115 The Honorable S. William Abel, Judge SEP 1 22012 RESPONDENT’S BRIEF Frank A. McGuire Clerk Deputy KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General WARD A. CAMPBELL Supervising Deputy Attorney General ROBERT C. NASH Deputy Attorney General State Bar No. 184960 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 323-5809 Fax: (916) 324-2960 Email: Robert.Nash@doj.ca.gov Attorneysfor Plaintiff TABLE OF CONTENTS Page Statement of the Case ..........ceeceeeeecceccccssecsessecessssssccecceeccccccccececeuaasecesseseesenecs 1 Statement Of Facts.........cccssscseesescsesesseeeeesesesseseeseseeessessssessesscenessenseeees 4 A. Guilt phase...eee eeeseeeesssessesecvenececeeeseesseeeessessneeeesees 4 1. October and November 2002, appellant’s planning and preparation to murder a POlice OFFFCOTeceeeeessetceeerteeesenetseesaeseeens 4 2. November 19, 2002, murder of Officer David Mobilio 200...ec eseeeececeeeeeeeseceeeteetenetetens 6 3. Appellant flees California........ sessesusssnsnssnesees 7 4, The investigation ........:cccccscccccetccsseseeeseesneeees 13 B. Penalty phase ........eesesssessesseseseeeseceeessesesseseesseeeseetees 21 1, People’s case in aggravation ..........ccscceeeeees 21 2. Defense case in mitigation ......eee23 ALBUMEN..... cee ecceceeccesecseressessceesseeeeeseeueeecsecesaeeseceseceaeeseaeaeaeeseaaecenenseseseeeae 31 I, There wasno substantial evidence that raised a doubt as to appellant’s COMPCtENCY«0.0...ee eeeesseeeseereneeeteteeeteenes 31 A. Relevant facts .......ccccscsssescsssseescesecssesesessecsesceesesesees 32 1. Appellant’s actions...eseeeseeeeseeesereees 32 2. Record settlementin this case .0........eleeeeees 34 3. Dr. Drukteinis’s letter... eeeseccseeseeeeteeees 36 B. Legal standard 0...ieseseeeseeeeeeessseseeeesecsseeeseeeneeas 40 C. Appellant did not present substantial evidence that he was incompetentto stand trial and was therefore not denied due process...........c:cceseseereeeees 42 II. Appellant was not denied effective assistance of COUNSE]......seeseesseceseeeeeatsectneeseeneeatenennesteneeesenseeenesneenesetaes 60 A. Summary Of argument ........ccccccessccesscsseceeeteeerteeaes 60 B. Appellant’s claim is more appropriately brought in habeas corpus rather than on direct appeal........... 61 I. IV. VI. C. TABLE OF CONTENTS (continued) Page Even if considered, appellant’s claim fails on its METItS 0.0... .ecececeeeeseeteeeeseeeeeeeesesueesseceseeseseaesssaeessseaeeess 63 There was no substantial evidence raising a doubt as to appellant’s competencyprior to judgment being PLONOUNCEM 0... eesecessesssesseesecseseceecseceessececeseaseseeseeseeny escseeeee 74 A. Introduction .....c cee eeeeeeceeeeereeeseeeseeseesesasesaeessesseeees 74 B. Relevant proceedings after the verdicts were TCCUITIE........eccescceesseesseeeesceeceeseeeeeeseecnsesseeecnseereeenens 74 C. DiSCUSSION .......:ccsccssseesessceseeeeseeeceseeseeesenseaneesaeeceseaees 75 The court properly granted appellant’s request to represent himself oo...cee cssesseeeeeeseereeseeeeeseneeneeseeseeeesenens 82 A. Summary of argument .0....i eccccecssseeesseneseneeeeeseeens 82 B. Relevant facts ........ccccccsscesseceeeeseceseeessesseesseecssecesenesees 82 C. Thetrial court properly granted appellant’s request to represent himself............cccesseseseeneeeteees 100 Thetrial court properly permitted appellant to continue to represent himself during the penalty phase.................... 111 A. Summary of argument...............00deeeieeeseeeeesaneeeeees 111 B. Thetrial court did not violate section 686.1............ 111 C. Reversal of the penalty is not required...............00 114 The court was not required to reconsider granting appellant’s request to represent himselfafter the prosecutor acknowledged section 190.3...114 A. Introduction...eee eeeceeseeesseeeneeeesenseeseeeneeeressaaees 114 “B. Relevant facts related to appellant’s knowledge that this was a Capital CaSC.......cececseeeeeeeeeeeees 115 C. Legal standard ....... ccs csceeccesessesseereeseseeseeeeeteeesaees 120 D. Appellant’s waiver of counsel was knowing and IntelliQent 0...eeeeessssesseesseesecseeneeesseeeeeeesseeeees 122 ii VIL. VII. IX. TABLE OF CONTENTS (continued) Page The court did not fail to adequately voir dire and then TEMOVE ANY JULOTS 20... cescccccsccesteceeesseeeseseeesnessecessnsaseseeeneas 127 A. Summary of argument...eeeeeeseseeeeeeseneeeeeees 127 B. Relevant facts 0... eceesecesneeeeseesneceeeeaeeetuaeseneeees 128 1. Facts pertaining to jury voir dire... 128 2. Facts pertaining to Juror Number 7877........ 135 3. Facts pertaining to Juror Number 7017........ 137 4. Facts pertaining to Juror Number 10155......139 5. Questioning of the jury panel as CONSTITUEM ooo. eee eeeeeeseeteeeesteeteccneeeeseereeeeens 141 6. Facts pertaining to Juror Number9466........ 143 Facts pertaining to Alternate Juror Number 12099 ooo.ccc eeessseceeesseceeeseeseneeeees 147 8. Facts pertaining to Alternate Juror Number 9719oocesesceeesessesseseesessneees 151 C. Appellant did not challenge any of the jurors for cause, andthe issue is therefore forfeited ............... 157 D. Assuming for sake of argumentthe claim is preserved,it is Without METItoo.eeeeeeeeeee 161 Thetrial court appropriately ruled appellant could not present irrelevant CVIdENCE ..........ccceceeteeeeeeteteseteteeteeeeecees 172 A. Summary of argument .......ceeeeeeeeceeseeseeeeeeneees 172 B. Relevant facts ...... ee eeeeeseesseeeeeeeeeeeeeeeseesesseeesteree L Z4 C. DISCUSSION .......:cceesseeseceeeesceeeestceeeacerseeetsneeeeteseeetee® 183 California’s capital sentencing schemeis constitutional and the penalty should be affirmed .00....eeeeeeeeneeeneeeees 188 A. Sentencing factor(s) are not unconstitutionally VAQUC.oscceeeseeseseccsrensceesessessesesseesasesssessesesenesueess 189 B. Capital punishment schemedoesnotviolate the Eighth Amendment...cceeeeseesneesereereeeeeeseeneees 189 iil H. Conclusion. .......... TABLE OF CONTENTS (continued) Page The jury may consider the “circumstances of the Crime”.....cccceeccesseceesneecessseeesenssssssesceseseeseeeaseees 189 Appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were not violated ............: ese 190 CALJIC No. 8.85 does not violate appellant’s constitutional rights 2.0.0... eeceesessseseeccnteeeeeesaees 190 The instructions Were PLOPeL........cesceeceeeeeseeeeeeeesers 191 Capital punishment scheme doesnotviolate equal protectin 0... cc ecceeesesceseesseessensersneeeseeeeseneees 191 California capital punishment scheme does not violate international LaW ......... eeseseeeseeseeseeteeseees 191 seeseeeeeeaeees secevecsseseceuseeseesesscsseseseneeaceeeeteceeeseaseateaseasoeseesenee LOD iv TABLE OF AUTHORITIES Page CASES Bloom v. Calderon (9th Cir. 1997) 132 F.3d 1267 oo. ccccccscesecetecsseeseeeesseeteeestens 80, 102, 108 Chapmanv. California (1967) 386 U.S. 18 wceesccceseccecesetecseecsneeeseeessscessesseceseeseeeseesetscesesseeesas 188 Dusky v. United States (1960) 362 US. 402 ooeeeecceteteeteeeeeceeteeesecetaeteeseeeeseeaeeeees 40, 105, 109 Faretta vy. California (1975) 422 US. 806 weeceeessesseseenscteetseesersresesenesaeceeaneeseaeenesaeespassim Ford v. Bowersox (8th Cir. 2001) 256 F.3d 783 oo... ceccccscccesnscesecsssesseesanecensesseeeseseeeessetanesseees 68 Godinez v. Moran (1993) 509 U.S. 389 oo ececcsccssscsssccssescesecessceenecsseesessseeesssertessseeseenes 101, 104 Harrington vy. Richter | (2011) 131 S.Ct. 770...ee ecesscsecesseeeeeceseesaceaecesecseeseessaesaceeeesacueseveneeneeess 64 Howardv. State (Miss. 1997) 701 So.2d 274.0... eeeeeeeeeeee descescecevsssaeeeussccsssssnscsesseaees 53, 54 Inre Christian S. (1994) 7 Cal4th 768 0... cc eescessesccsssscssesseeesessecessssseesceesaesseesseersesesaseaeees 185 Inre Fleming (2001) 16 P.3d 610 ooeccceceneceresserseceseceeressreeseenseeesseeeeeesescersssessaes 70, 71 Inre Harris (1993) 5 Cal4th 813cccccccsccscecssscssecsesseceeeceecsassseecsssseesesseeeseeeeaes 63, 72 Indiana v. Edwards (2008) 554 U.S. 164oeccsesteceeeeeteecsseeesreseeeeerseneees 101, 103, 104, 112 Kibert v. Peyton (4th Cir. 1967) 383 F.2d 566 oo... ec ecccsccssrecsteeessectsceseeeesseessseaseesseseeesesesaees 68 Loe v. United States (E.D. Va. 1982) 545 F.Supp. 662 ooo.eeesesesssecseeseseseesesessesesseseneseeeseees 68 Morganv.Illinois Bo pe Se, (1992) 504 U.S. 719 Lecce ceseesteesecseesceecenenersesesessscssceeseeeesneneeseseneeneenneees 157 Pate v. Robinson . . (1966) 383 U.S. 375 .ecccscessstesseseseeseseeneneseetesenseeecensceesneensnsesenesassnepenseseness 44 People v. Arias : (1996) 13 Cal4th 92 oo.eeeseeseeeseeeeeetseeeens esecaaseucesseneeecseeeeneneeaeass 191 People v. Blair (2005) 36 Cal4th 686.0...sesscacsenenenenentarereneconecensnsens 112, 121, 123, 127 People v. Bloom (1989) 48 Cal.3d 1194 0.ecsstesstessesseessesssesserssessennnesensessees 80, 102, 108 People v. Bolin (1998) 18 Cal.4th 297oooseeeeeeeeesSeaecesesasassessacsvacaeecesesesaesecssensenseees 157 People v. Boyette (2002) 29 Cal.4th 381 .....cceccssssesessesceneesessseeeeseeienesieneensesenssnerenenesseentnen 188 People v. Bradford (1997) 15 Cal4th 1229oceeceeeseseseesssssseeeeeeseenenees 80, 108, 163, 164 People v. Burnett (1987) 188 Cal.App.3d 1314ieceseeteeeseeeeneeneeesseeeseeaeeeseneseeeteness 104 People v. Carasi (2008) 44 Cal.4th 1263.0... eccesesseseeseseeeeteesetenseeteeneereeneesaslansesseseens 163, 164 People v. Cash oo . (2002) 28 Cal.4th 703.........ssaesceseeseeseeeeaeeceaesnseaeeseeseeessseeaeeeaeey vaceteaceescees 163 People v. Clark a (1990) 50 Cal.3d 583 woo.eescsesssesssssssssesesscssecssseeessesessesesseereseeenaeeeaespassim People v. Clark es (2011) 52 Cal4th 856... eeensessesesessssessesresscsssssseetesesenessesesenresseseeens 162 People v. Coleman (1988) 46 Cal.3d 749 oo ccccensecsssseeseesescessssesseneseseeseessrsesseesserseersterseney 157 People v. Cooper (1991) 53 Cal.3d 771 ooeeeeseseeeseeeeseucecessessecseeoecseeceseenenedeneracseaqereeeeeied 76 Vi People v. Cudjo (1993) 6 Cal.4th 585oceeceseeeneeesese ree ceeeeeseeeeeeeeeeessuseseeneasesesneeees 76,77 People v. Cunningham (2001) 25 Cal.4th 926 2...cc cccecesseseceneestseceeseesacereteseecneeseeseeseesaeeenees 75, 164 People v. Danielson (1992) 3 Cal.4th 691 oo.ceeseeccssecsecsesceeeerececssesseeessenaeeaseessseesaeseaeeeas 162 People v. Davis (1995) 10 Cal.4th 463 oo... ee eececesccseecseeneceeseneceeteaetsasereeseeeeeeees eceeeeenseenees 41 People v. DeSantis (1992) 2 Cal.4th 1198 ooo. cccecscscsecseesseeseeseceeessaecnecseeeecseeeessaeersaeees 163 People v. Doolin (2009) 45 Cal4th 390 oo... cecccsesesccesceesceeeesecesecseessessaeesaseaeenseeeeaesressaeeenes 65 People v. Edwards (1991) 54 Cal.3d 787 oo... eccsccsecseeeseseteeeeeesseecerseeneaeesseeeaeesesacseeoeaaseneespassim People v. Fairbank (1997) 16 Cal4th 1223 ooo. ccccscecssseecetcceseceeesesseecseesseeaseecacerseeeseesenaeees 64 People v. Farnam (2002) 28 Cal.4th 107 oo... cc cccesceccscesssesseeseeeesseeeceecensceeseeeceesseeesaeseaeeseees 121 People v. Foster (2010) 50 Cal4th 1301 oo.sessesseneesecseesecseeseeeeseresseeeaes 158, 159, 160 People v. Frye (1998) 18 Cal.4th 894 oo.cccccncsseesceecesesseeessseeseseecsecscsseerseesaeeeeceseeenes 65 People v. Ghent (1987) 43 Cal.3d 739 oo... cecccsccssssseeectececcscecnereeceessecesetsesseceeeseeeesersaeeesees 162 People v. Grant (1988) 45 Cal.3d 829 ooo cccccsesctsesecsesreeecsesereesesesesecereneeaeeeenteneessesaceeneeaes 58 People v. Griffin (2004) 33 Cal.4th 536.0000neceseueescsceceeeseesseeenesaecaeeecesscessaeeaeeaceneratees 162 People v. Guzman (1988) 45 Cal.3d 915 voc ccccccescssesceeseeteetesseceeseeseeteesseeceeeeceeeeestaeetueeseeeeeees 58 People v. Halvorsen (2007) 42 Cal.4th 379 occecccccssccssceeesecesceseeseceeeseseeeseeeeeesenteseeeenereneeenees 104 Vil People v. Harbolt (1988) 206 Cal.App.3d 140 ooeeeeneseecseretesseesesscressessiserenesseeseseseees 102 People v. Harris (2005) 37 Cal.4th 310...ecccceserssteeceseseeseessenstensssessesessseessseareeeeensenes 164 People v. Hayes (2000) 21 Cal.4th 1211 occccecsesereccseseceeseeesereesssssssssssesssessssaee P05 78 People v. Hill (1998) 17 Cal.4th 800 oo.cccneeeeeseesseseseeecsesecsessesneesssesssesnessesesessensaees 76 People v. Hillhouse (2002) 27 Cal.4th 469oeceessesssteesesacsesessssessenesessensenssseseesseneniens 160 People v. Humphrey (1996) 13 Cal.4th 1073oceesecseeeteeeeeeeeersesseeessesesesseessssseesesensenees 184, 185 People v. Johnson (2012) 53 Cal.4th 519occccccescsseeeseeeseeseeesenenseenessesseessrereresseeespassim People v. Jones (2003) 29 Cal.4th 1229occcsseseeecsecseeeesscsessessessscesesssessssesseseeessensnees 164 People v. Jones (1997) 15 Cal.4th 119eeceecceeesesscsssessesssseesesssseessseessseceeersesrenenenees 75 People v. Kelly (1992) 1 Cal.4th 495 oooccesceseeeeseesssetscceceeseseesssnssssesseseseseessenseeesneseeees 63 People v. Koontz (2002) 27 Cal.4th 1041oeeceseeneeessseseeneenenesseeeeseerseseenseespassim People v. Laudermilk (1967) 67 Cal.2d 272 oo.eeecceesesesseereseseeseesesessesssssenessessessensesseerees 78, 79, 80 People v. Lawley (2002) 27 Cal.4th 102ecesecsssseessesesseeeeseessserseeesenenes 52, 121, 123, 127 People v. Ledesma (2006) 39 Cal.4th 641 ooceeesenecessensereessstssssscesesscsstseaeesesssseessnenees 163 People v. Lewis (2001) 25 Cal.4th 610.ceesesesceecsenscsssssssssesesssesenessecseesessesaeerseeeees 164 People v. Lewis (2004) 33 Cal.4th 214oeeccesscneeeesensescsssssescscseseneeesssesecsesesseseseesseeesens 76 Vill People v. Lewis (2006) 39 Cal4th 970...ceseseseessessecesrsessececerseseeseseseseseeessssersesereeersaeaees 59 People v. Lewis (2008) 43 Cal.4th 415ieesceeeesenseseeseseeevensdeneeeeeneneaeenseetaeesneeetaesees 58 People v. Lindsey (1961) 56 Cal.2d 324oeceseeeeneeerecneenecereeeneesesseneesessseseetiessesseeseeseeteney 45 People v. Loy (2011) 52 Cal4th 46.0.eeeeeeseeeeeretereeeseeeeeeseneeeeeeeeens 189, 190, 191, 192 People v. Lucas (1995) 12 Cal.4th 415oecseseceeceseeeseeeeeeeseseeseseeseeees 63, 64, 157, 159 People v. Manriquez (2005) 37 Cal.4th 547 ooo... ccecccccecensssereeeeecseneceeeseesssecasseeesaersceeeenaesneetens 191 People v. Maury (2003) 30 Cal4th 342ooceccesseeeseceecneeesncessenesserseseneeeseseerseereesereeee 163 People v. McKinnon (2011) 52 Cal.4th 610... cceecceeeeeseeeeteeesaecneneeeaeeesens 163, 189, 190, 191 People v. Mendoza Tello (1997) 15 Cal.4th 264 0...ccceeceeeecsesseeeeeeseesseseeeettensesseecasssssscneeaeecsesees 61 People v. Merkouris (1959) 52 Cal.2d 672 ooo. ecccceseccssseeeeeererseeeeseenerseseverceensessessaseessssseeseesnsoats 44 People v. Moon (2005) 37 Cal.4th Lo... ceccceeeseeereeeseeeseseesesseseesesesssssessssesessessesenes 157, 162 People v. Mungia (2008) 44 Cal.4th 1101eeeeeeecetsseeessssssssesscssssssseesssesssesssessessenees 75 People v. Murdoch (2011) 194 Cal.App.4th 230vceesscecseeesseeeeceecetscneessseneens 55, 56, 57, 58 People v. Navarette (2003) 30 Cal.4th 458 oo. ececctesseesceescnscseeseseseeeesesescersseessssneeseees 157, 159 People v. O'Dell (2005) 126 Cal.App.4th 562 00.eeeneeeeseeeresenssesserensesesscscnersecseseeensseens 52 People v. Partida (2005) 37 Cal4th 428 oo. cccseseceseereressecsssssssecsesesssesesseseresseseeeeeseeeas 121 iX People v. Pennington (1967) 66 Cal.2d 508 ooo.eeeeeccscencecneceeensenesseesesreteeessssscsesseesssenseespassim People v. Raley (1992) 2 Cal.4th 870oceccceecessesneceeeeceeceeseeseeeenesssesesessaeseseessessesresnassees 76 | People v. Ray (1996) 13 Cal.4th 313 ooeecseesceccteeeesesesssssenssesssessssassssessesasees 189, 190 People v. Riccardi (2012) 54 Cal.4th 758 oo ccccccccccnecsecseeeceseceteeseeeeseseeseesseeesssessessenesseeseaes 162 People v. Rodrigues (1994) 8 Cal.4th 1060... ceesceseeeeeeeceeeseesesesseseessecsssessessesseaseseneesenees 188 People v. Rogers (2006) 39 Cal.4th 826.0... ecceseseeseseeeeeeseeeeseeseesesesssssesessssseesseesssesseeees 58 Peoplev. Saille (1991) 54 Cal.3d 1103eecccesecetectecesceesseeetsseeesecenessessesssseseasersenseeeees 185 People v. Samaniego (2009) 172 Cal.App.4th 1148oeeeecessessteseesseseseasseesesessesssesseens 187 People v. Schmeck (2005) 37 Cal.4th 240oo.esceccseseeesssesseresssssessseseesersssesreesesseeespassim People v. Smith (2005) 35 Cal.4th 334... cesecsesesssecensenesseetessessenseeeaesseeetseereeesseceeeseeees LOL Peoplev. Spurlin (1984) 156 Cal.App.3d 119oeeeeeeeesseseneseneneesenssseeeenseenesesenees 185 | People v. Stankewitz (1982) 32 Cal.3d 80veeeseececneceeeesesersceetsessessseserseseseseecsesssssssessenseneenes 4] People v. Stansbury (1993) 4 Cal4th 1017ccscssscsesnscassesseeesessssceeessecsseesesssseaseeaseeeenes 80 People vy. Staten (2000) 24 Cal.4th 434occsseceeesecneeseeeneeseseeneeseetseesssasnessssseees 157, 159 Peoplev. Steele (2002) 27 Cal.4th 1230eeecseceeesssssesssersceescsscssssesseseessssssessesersearenees 185 People v. Sullivan (2007) 151 CalApp.4th 5240cecceeeseseeeesenenseseeeesesssssesseseeseseeeaees 102 People v. Taylor (2009) 47 Cal.4th 850.0...eectsneeeenietsnieeseessineesseesseneenienpassim People v. Thomas (2011) 51 Cal.4th 449ooceeeeeesersececssssccenscsenseesseecsnerseeseneeaeeess 162 People v. Tomas (1977) 74 CalApp.3d 75 oo.ececeeessceseseeesesceseenscerestensesseceeeaeeseeeeeses 49, 50 People v. Waidla (2000) 22 Cal.4th 690... cccceecccsscesecsesesectecssseeecteesesessacseeesnesseesaeeaeeesses 187 People v. Watson (1956) 46 Cal.2d 818 oo... cccceescrseeesscseeeseeseseseeenesseseescessneeeseesesassacaeeans 187 People v. Williams (2008) 43 Cal.4th S84 ..cccscccscsssseccssssesesseessssessstssessestsssneseeense 186, 187 People v. Wilson (2005) 36 Cal.4th 309 oo. eeeeccssecercneesseesesseseecsseeseescssesessneessessseseesensets 121 People v. Zapien (1993) 4 Cal.4th 929 oo. cceseesereeeesereereseeeeseestsessessessesesasesessseeceseserensees 65 Price vy. Superior Court (2001) 25 Cal.4th 1046.0... ceeececeeeseeeseeeeneeeeeeeseeesereeseceseeececeeeseaseas 162 Price v. Superior Court (2001) 25 Cal4th 1046...eesceseseeceeessaceeseeseneessceseeeseneeesseeenesseesneees 58 Ross v. Oklahoma (1988) 487 U.S. 81 cececceseeccesestecenesecaessesaeeeseseenseeseateceneaents 157, 158 Speedy v. Wyrich (8th Cir. 1983) 702 F.2d 723 occ cecccsccesccseeceeecesceseeeecensenenecescnaeeeeaseseeaceees 68 Stansbury v. California (1994) 511 U.S. 318 Leeececseseesetessensceeeeeeeeneeseacsrseseeeeceneaeneenseeseeesens 80 State v. Johnson (1986) 395 N.W.2d 176.0... cceecsseenceneeceetsseeceeeseesceesseatnarene 68, 69, 70, 101 Strickland v. Washington (1984) 466 U.S. 668ececcececesesctseseeeecececeesseeeesessacsessscssssaesarsesssseeseeeeas 63 Wainwright v. Witt (1985) 469 U.S. 412Lccetecnsteceteesreteeseeeseereeeeenes 157, 162, 168, 169 xl STATUTES Evidence Code § 210 ececccccctcsscseceneeseceeeaessesaeceacesetsesesseseeassssecseessecseeseeeessnsessaseuseeesenes 186 SSLeeeeeeessecteeeeeteeeteeteeeneeenesseaeeeaeeesceseassaesceeseceaseeaeecseeneeeaeeceneeerersaeoues 186 § 352 i eeeccccseeseceeteeeeeceeeenecenreeeesseesLeseesceseceeceeeenetateneceateaceaeraeecsenseas 186, 187 § 1200 oo.eeeeeeesecseeuseseeaseceseeaeseseuanseseesececseeeseennenecseensessaseaseas 48, 76 Penal Code § 25 iceesccsecssescecececeseeseeeesecsecseescseeeassecseeetacsssessassasaseeessessesecsasessessseeeeeeenes 185 § 25, subd. (a)...eeehesesaeecceseseesseeeseeasecseneeseeeeeeeeseacecsaceceeesenaaensaasaasans 52 § 28 oo eecccsecscscessecececeneseesessetseteneceateseesesacetecarsseaeeseceseseasessssstsesessecseseaees 185 § 187, SUDA. (8) oesceceeeeeteeneeeeeceeesenerereeetsesssensesessaseasenees 1,2, 115, 183 § 189eecceeeeteteeeteeeeeseesessetenetsaeeteeseeenessesaesceeseeeneecaeeeseeeeeeneeetacensenneeaee 183 § 190.2, subd. (€)(7).... cece secesceseeeecnecseeeseeeeseessenssesesssatessesseeseeeets 1,2, 115 § 190.3 vee ceccecsscssetececcetecececteeeeessnecaceeeseeseeceeesaesseseseenssessuseesnessasseeeespassim § 190.3, SUDA. (8) oo... eeeeeeescecetceeeeserseesceeeeeseeescseenetaeseassasassecsesesacecsesesensees 189 § 190.4 welcccecseccteeteesecnceerecaeeeessateseceesaseeeecseseesscneseeaseeuseasessessssesseseeteaseess 75 § 190.4, Subd. (€)eeeeesesseeseeeeeeeetscessssneteseseeens seeteseeescesssesseseseseeseteeaes 75 § 197 eecccceseescececceesecseceeeseeceeeseeaecsevaeeevscsesessessssesscecesecsessesusseesssensssseeneees 183 § 686.1 eeeeeeeeesessessessescesssssesenessesessssescensessteesecsseneeseenes 82, 100, 101, 111 § 987.9 oo ccccscsscscssecessesensececsecseeeeeceacsessceersneeecssecessssscsessasseseceueessnesseseeaeeas 116 § 1239, SUD. (D) oeceecesccetecsseseeereceteseeseesescscesessesssesesseesessessasesseseeseseaesweed § 1368 ooo ceecccccescecenectettceseceneceecsesesecseeseesseecesesasesssssassesessesecstenseesseneenespassim CONSTITUTIONAL PROVISIONS California Constitution ATT. 1, § LO.ecescesesceeceecseesesecenecerceseceseesecesseaeseeeeeeaeeneseeseesesaseseseseeseees 162 United States Constitution Sth AMendMent ............:ceeeecesscseeseeccsscscesvsnsovecsscscssencusccusuvecccessssesseeeceeesss 190 6th Amendment....... cece eee ceeeeessecsseeseeesnseseeseesesesssasesorsssesssesseseeneeespassim Sth AmendMent.........cccccccccccesseccececesesssscessesseeesssssaeeeeeeesseeeesssesennees 189, 190 14th Amendment..........c.ccece cceeeceeeeeeees ducceeeeseeeececeeanacuaaceedeessstseeseneseres 190 OTHER AUTHORITIES A.B.A. Standards for Criminal Justice (1986) § 7-4.2, SUDA. (6) ceeccessssssssssssesevsssesssssesssseeseseessssesssseseeseseneecennssssnisen 67 CALIJIC NO. 8.85 ccsccccsssecscecsssssesseceessecssesssecccssasessceessesssssnuvscsssnevessssuetsessssssesaseesseee 190 Xii STATEMENT OF THE CASE On November 26, 2002, criminal complaint number NCR59621 was filed in Tehama County Superior Court charging appellant, Andrew Hampton McCrae aka Andrew Hampton Mickel, with one count of murder (Pen. Code,' § 187, subd. (a)). (ICT 6.) The complaint further alleged that the murder was committed while the victim, David Mobilio, was a peace officer engaged in the performanceofhis duties, and that appellant knew or should have known that Officer Mobilio was a peace officer engaged in the performance ofhis duties (§ 190.2, subd. (a)(7)). (LCT 6-7.) On December 12, 2002, the People filed an Application for Requisition because appellant was determined a fugitive from California, and had fled to New Hampshire. (2CT 431-434.) On that same day the People filed an amended felony complaint for extradition that again charged appellant with first degree murder (§ 187, subd. (a)), and the same special circumstance (§ 190.2, subd. (a)(7)). (2CT 435-436.) On January 30, 2003, appellant first appeared in court. (2CT 498.) Appellant sought to represent himself and asked for a public defender to be appointed as co-counsel. (IRT 6.) The court did not grant his requestat that time and appointed James Reichle to represent him. (2CT 500.) On February 25, 2003, appellant pled not guilty and denied the special circumstance. (3CT 558; IRT 23.) On April 7, 2003, Mr. Reichle, on appellant’s behalf,” filed a “Motion and Notice of Motion re Participation in the Proceedings.” (3CT 561.) On ' Unless otherwise designated,all further references are to the Penal Code. ? Respondentnotes “on appellant’s behalf” because from the outset of the proceedings appellant sought to represent himself and have an attorney appointed as advisory counsel or co-counsel. To that end, during (continued...) April 21, 2003, the People filed a response. (3CT 594.) On April 22, 2003, after hearing argument from the parties, the court denied appellant’s request to participate in the proceedings. (3CT 621-622.) | The preliminary hearing was on May 21, 2003, and appellant was held to answer. (3CT 672; IRT 222.) On May 29, 2003, an information was filed that charged appellant with one count of murder (§ 187, subd.(a)). (3CT 685.) The information further alleged that the murder was committed while the victim, David Mobilio, was a peace officer engaged in the performanceofhis duties, and that appellant knew or should have known that Officer Mobilio was a peace officer engaged in the performance ofhis duties (§ 190.2, subd. (a)(7)). (3CT 685-686; 8CT 1858-1859.) The information alleged the sentencing range waslife without the possibility of ‘parole or death. (3CT 686; 8CT 1859.) On November20, 2003, appellant’s appointed counsel, Mr. Reichle, filed a “Notice of Motion and Points and Authorities: Defendant’s Self- Representation As A Matter of Right.” (3CT 738, 747.) On November 24, 2003, appellant authored and filed “Defendant’s OwnPoints and Authorities In Support of His Right To Self-Representation.” (3CT 751- 766, 767; 8CT 1866.) On December4, 2003, the People filed a response. (3CT 771.) On December8, 2003, after hearing from the parties, and receiving andreviewing appellant’s written waiver, the court granted appellant’s request and appointed Mr. Reichle as advisory counsel. (3CT 786-790; 8CT 1867-1869.) On that same day appellant pled not guilty and denied the special circumstance. (3CT 790; 8CT 1869.) (...continued) pre-trial proceedings, while still represented by counsel, appellant authored and filed a document on his own behalf. Respondent, therefore, felt compelled to clarify the individual creating and filing the pleading. On February 9, 2004, the People informed the court that they were aware of the section 190.3 guidelines and requirements. (3CT 799; 8CT 1870; IERT 261-262.) On July 7, 2004, appellant filed a motion for a change of venue. (4CT 862.) On September 10, 2004, the court issued a written ruling granting appellant’s motion for a change of venue. (7CT 1729-1733.) On September 13, 2004, the court affirmed that ruling. (7CT 1734; 8CT 1880.) On October 27, 2004, the court ordered the trial moved to Colusa County. (8CT 1839, 1841, 1888.) On November4, 2004, the Colusa County Superior Court issued an order assigning the Honorable S. William Abel to the case. (8CT 1891.) Prior to trial the court and the parties exchanged a proposed juror questionnaire and suggested amendments. (8CT 1900-1918, 1922-1940, 1941-1949, 1952-1978.) On February 4, 2005, appellant filed a motion to exclude evidence, and a list ofproposed stipulations. (8CT 1979, 1982.) On March 1, 2005, the parties again reviewed the juror questionnaire and more proposed changes were submitted. (8CT 2120-2122.) On March1, 2005, the court sent an amended proposed juror questionnaire to the parties. (8CT 2125-2153.) Jury selection began on March 10, 2005 and a jury was impaneled on March 22, 2005. (9CT 2160, 2189.) The guilt phase evidence started on March 25, 2005. (9CT 2226-2232.) On April 5, 2005, the jury found appellant guilty of first degree murder, and that Officer Mobilio was a peace officer who waskilled while engaged in the performanceofhis duties. (LOCT 2554-2555, 2557-2558; VIIRT 1900-1901.) The penalty phase evidencestarted on April 6, 2005. (OCT 2568.) On April8, 2005,the jury returned a verdict of death. (13CT 3569, 3580; XRT 2300.) On April 27, 2005, the court denied the automatic motion for modification. (13CT 3670-3673; XRT 2346, 2351, 2356.) On that same day the court entered the judgment and death commitment. (13CT 3674- | 3676.) This appeal is automatic. (§ 1239, subd.(b).) STATEMENT OF FACTS A. Guilt Phase In the early morning hours ofNovember 19, 2002, appellant ambushed and murdered Police Officer David Mobilio while he was fueling his patrol car at a cardlock station in Red Bluff, California. (VIRT 1398- 1399, 1404.) Appellant shot him twice in the back and oncein the back of the head with a .40-caliber handgun he had purchased the month before in Olympia, Washington. (VIRT 1370, 1376, 1381.) 1. October and November 2002, appellant’s planning and preparation to murdera police officer Travis Jones was working at Larry’s Gun Shop in Olympia, Washington in October 2002, when appellant entered the store and said he wasinterested in buying a handgun. (VIRT 1370-1371, 1380.) Mr. Jones asked him if he wantedit for self-defense or target practice, and appellant said both. (VIRT 1371.) Mr. Jones asked appellant about the price range, but appellant did not really have a limit on what he wanted to spend. (VIRT 1371.) Mr. Jones showed appellant a few guns and appellant said he wanted a Sig Sauer P229. (VIRT 1372.) Mr. Jonesstarted filling out the . paperwork, but appellant looked around and left. (VIRT 1372.) Appellant returned a week-and-a-half or two weekslater and said he wanted to pick up the gun. (VIRT 1372.) Mr. Jones told him he had not paid for the gun so the paperwork had not beeninitiated. (VIRT 1373.) Appellant said he would pay for the gun, andtheyfilled out the necessary paperwork. (VIRT 1373-1376.) Appellant purchased a Sig Sauer P229, .40-caliber handgun with serial number AL 17 781.° (VIRT 1376.) Mr. Jones asked him if he wanted ammunition, andif so, for target shooting or defensive purposes. (VIRT 1382.) Appellant said he wanted ammunition for self-defense, and purchased fouror five boxes of hollow-point bullets. (VIRT 1382-1383.) On November 17, 2002, at about 2:50 p.m., Tehama County Deputy Sheriff Martin Perrone left Tehama County Mental Health after dropping off a subject when he observed a maroon 1990 Ford Mustang with Washington license plates, which he ran through his computer. (VIRT 1389; VIIRT 1470-1472.) | On November18, 2002, the day before Officer Mobilio’s murder, around 5:30 or 6:00 p.m., Joshua Schweikhart and Michael Flores went four wheeling in an area north of somerailroad tracks in Red Bluff, California. (VIIRT 1457, 1461-1463, 1468.) They were driving separate vehicles. (VIIRT 1457.) They left Breckenridge Road heading north and then down hill to a spot approximately 300 to 400 yards from Warner’s Petroleum. (VIIRT 1458-1459.) They saw a 1992 maroon or red Mustang facing back up the hill. The Mustang’sfront license plate was covered with a sheet that had been secured with zip ties. The windowswere foggyasif someone wasinside. (VIIRT 1459, 1465.) Mr. Schweikhart drove up to the car and saw someonein the back seat on the passengerside. Mr. Flores got out of his vehicle and checked the Mustang. Mr. Schweikhart’s headlights illuminated the interior ofthe car. (VIIRT 1459, 1465-1466.) Both men saw a personinside the car. The person appearedstartled or nervous. Mr. Flores saw short, scraggly hair, and the person looked kindoffrantic. (VIIRT 1459, 1466.) They went 3 Mr. Jones identified People’s Exhibit 4 as the gun that he sold to appellant. (VIRT 1379-1380.) past the car and drove aroundfor about ten minutes. (VIIRT 1461.) When they left, the car wasstill there. (VIIRT 1461.) Mr. Flores and Mr. Schweikhart remainedin the area for 15 to 20 minutes. He and Mr. Schweikhart spoke about how something did not feel right, and they left. When they left, the Mustang was still there. (VIIRT 1467.) 2. November 19, 2002, murder of Officer David Mobilio On November19, 2002, Red Bluff Police Officer David Mobilio was working patrol on the overnight shift. Officer Mobilio was usually assigned as a DARE officer, which is a program designed to teach children how to resist drugs and violence. (VIRT 1398-1399.) At about 1:20 a.m., Tasha Johnston, a dispatcher for the City ofRed Bluff, had contact with Officer Mobilio, who was checking an alleyway and had asked her to run a license plate. (VIRT 1393-1394.) At about 1:27 a.m., Officer Mobilio went to Warner’s Petroleum in Red Bluff to fuel his patrol car. (VIRT 1394.) Subsequently, another dispatcher, Susan Meyers, did a status check on Officer Mobilio, but there was no response. (VIRT 1394-1395.) Sergeant Ted Wiley, who was in charge and also workingpatrol, heard the radio communication, and said he would check on Officer Mobilio. (VIRT 1395, 1397-1401.) Sergeant Wiley was informed that Officer Mobilio’s last location was Warner’s Petroleum, which was wherethey fueled their patrol cars. (VIRT 1401.) Hearrived at Warner’s Petroleum and saw oneofthe department’s patrol cars parked by the gas pumps,andashepulled in, he saw Officer Mobilio. (VIRT 1402.) Officer Mobilio was face downat the north end of the pumps. (VIRT 1402.) Sergeant Wiley did not see anyone else. (VIRT 1403.) Sergeant Wiley called for medical assistance and asked for Officer John Waelty to come to the scene. (VIRT 1403.) WhenSergeant Wiley got out of the car he telephoned dispatch and told them it appeared to be a homicide and to contact the Sheriffs Departmentfor assistance, and to call the Chief and detectives. (VIRT 1403.) He walked within eight to ten feet of Officer Mobilio to get a closer look. (VIRT 1403.) Officer Mobilio was not moving and there wasa lot of blood around his head. (VIRT 1404.) Sergeant Wiley was certain Officer Mobilio was dead and could see the woundto the back of his head. (VIRT 1404.) The woundwaslarge and circular and he assumedit was from a gun. (VIRT 1404.) Next to Officer Mobilio’s head was what Sergeant Wiley thoughtat the time was cardboard or some type of paper. (VIRT 1405.) It had writing onit, including something about a “police action,” and had a drawing of a snake. (VIRT 1405.) Officer Waelty arrived and Sergeant Wiley had him block the entrance and secure the crime scene with barrier tape. (VIRT 1405.) At about 2:00 a.m., Red Bluff Fire Department Engineer Domenic Catona was dispatched to Warner’s Petroleum. (VIRT 1412-1413.) Mr. Catona approached Officer Mobilio’s body andfelt for a pulse, but there was none. (VIRT 1414.) Mr. Catona noticed both a bullet woundto the back of Officer Mobilio’s head, and another bullet wound in the middle of his back, just below the shoulder blades. (VIRT 1415.) While assessing the injuries, Mr. Catona noticed, laid neatly nearthe left side of Officer Mobilio’s head, a two-foot by three-foot cloth. (VIRT 1415.) A paramedic arrived and pronounced Officer Mobilio dead. (VIRT 1416.) 3. Appellant flees California Around 1:30 a.m. on November 19, 2002, Richard Williams, a truck driver for Raley’s Supermarkets, had finished making a delivery to the Raley’s in Red Bluff and was driving northbound on Interstate 5 when he noticed a car coming up behind him. (VIIRT 1453-1454.) The car’s headlights were pointed upandinto his mirror. (VIIRT 1454.) Mr. Williams was going about 55 miles per hour, and the car passed him going 65 or 70. (VIUIRT 1454.) At that point, Mr. Williams noticed the car hadits rear licenseplate covered. (VIIRT 1455.) The car was red with tinted windows, and appeared to be an early 1990s model with a hatchback. (VIIRT 1455.) The car got offat the Jellys Ferry exit, and he did not see it again. (VIIRT 1456.) Alice Lay lived in southeastern Oregon, where her husband managed - acommercial cattle operation. (VIIRT 1575.) It is called Whitehorse Ranchandis about 130 miles from Burns, Oregon. (VIIRT 1576.) The nearest town is about 38 miles away and has a population of 11. (VIIRT 1576.) On November 19, 2002, Ms. Lay was making lunch at the ranch when an employee camein about 1:00 p.m. and said there was a wreck on the road. (VIIRT 1576.) The employee said he stopped and checked, but could not find anyone, and noticed there were no license plates on the car. (VIIRT 1577.) Ms. Lay called the Sheriff's Office in Burns and told them there was an accident, but nobody was at the scene, and there were no license plates on the car. (VIIRT 1577.) The accident was on a blind curve so Ms. Lay wentto the shop and got her son, Wilson Lay, and materials to flag the wreck. (VIIRT 1577.) Whenthey arrived at the accident scene they saw appellant standing by a fire, and there was an overturned vehicle. (VIIRT 1578.) Ms Lay did not think it was cold enough for a fire and it made her and her son wonder what was going on. (VIIRT 1579, 1593-1595.) Appellant had a bloody face. (VIIRT 1580.) His injury looked like a piece of skin that had been peeled down,andhe hadglassin his hair. (VIIRT 1580.) They got outoftheir vehicle and asked appellant if he wasall right, and he said that he was. (VIIRT 1579.) Mr. Lay asked appellant if there was anyoneelse and appellantsaid there was not. (VIIRT 1595.) Ms. Lay asked appellant what he was burning andhesaid it was just trash. (VIIRT 1580.) The only thing | Ms. Lay could make outin the fire was part of a road atlas. (VIIRT 1580.) Mr. Lay saw pieces of paper and mapsinthefire pit. (VIIRT 1595.) There were gas cans and a military type backpack. (VIIRT 1595.) Mr. Lay saw other military type items, such as the type of bag that a Claymore mine - is stored in, and parachute cord. (VIIRT 1596-1597.) He also saw empty shell casings on the ground, which appeared to be .40 caliber or 9 millimeter. (VIIRT 1597.) Appellant acted a bit nervous. (VIIRT 1580.) Appellant said he was going too fast and hit loose dirt and then the bank,and thecar rolled. (VIIRT 1581.) Ms. Lay asked appellant where he was going and he said that he wasjust out for a “tour” to get away form things. (VIIRT 1581.) Ms. Lay asked appellant abouthis license plates and he said he “threw them away” because he was going to abandonthe car. (VIIRT 1581.) Ms.Laytold appellant she had already called theauthorities, and that he should not abandon his car. (VIIRT 1581.) She told appellant he needed to find the license plates before the authorities arrived or he would be in trouble. (VIIRT 1581.) Reluctantly appellant traveled 200 or 300 yards looking for the license plates. (VIIRT 1582.) Appellant kept saying that he did not know wherehe threw them,but eventually he found them. (VIIRT 1582.) Ms.Lay cleaned up the wrecksite, picking up glass or anything that might puncture a tire. (VIIRT 1582.) Her son went further up the road to mark it with flags and paint to warn other drivers. (VIRT 1582.) Asthey picked up items from the crashsite, appellant kept saying that he would leaveit, but Mr. Lay told him he could not just leave it becauseit waswhere they lived. (VIIRT 1598.) Appellant had items that he removed from the car such as gas cans, clothes, and a backpack. (VURT 1583.) Appellant said he did not want any ofthe stuff and had already gathered everything he wanted in the backpack. (VIIRT 1583.) Mr. Lay said he would take someofthe tools if appellant did not want them. (VIIRT 1583.) They gathered someofthe tools, a blanket, and some clothes, and put them in the back of the truck. (VIIRT 1584.) They picked up everything they could and putit in the back of the truck. (VIIRT 1598.) Mr. Lay kept a numberofthe items appellant left behind, including a gun case. (VIIRT 1598-1599.) The gun case had stickers on the end, and Mr. Lay did not tamper with those in any way. (VIIRT 1599.) Also amongthe items was a “brass catcher,” which was designed to catch ejected rounds from guns. (VIIRT 1518, 1600.) Ms. Lay also saw someshotgun shells and empty shell casings. (VIIRT 1583.) She did not know what they were, but they were not as small as a .22 caliber. (VIIRT 1583.) Ms. Lay was worried because appellant had a head injury and she insisted he sit in the cab. of the truck with her son while she rode in the back. (VIIRT 1584.) When they got back to the house they called law enforcement and said they had marked the wreck and the driver was with them at the ranch. She identified the driver as “Andrew McRae.” (VIIRT 1500-1503, 1584.) Ms. Lay asked appellant if he was hungry or wanted to get cleaned up. (VIIRT 1584-1585.) Appellant asked if there was a phone to call a taxi. (VIIRT 1585.) Ms. Lay thoughtit was “funny” because the closest town with those types of services was 130 miles away. (VIIRT 1585.) Ms. Lay hadherson take appellant into the bathroom to get cleaned up. (VIIRT 1585.) When he cameout, the piece of skin wasstill hanging off, and appellant took a pair of scissors and removedit. (VIIRT 1585.) 10 Ms. Lay asked appellant what he was going to do with the car. (VHRT 1585.) Appellant said he did not want it and planned on abandoning it. (VIIRT 1585.) Ms. Lay told appellant the tow charges would be outrageous and suggested that if he had the pink slip he could sign it over to someone. (VIIRT 1585-1586.) She told him to sign it over to her son, and then she and her son would usethetractor to dispose ofit. (VIIRT 1586.) . Deputy Tim Alexander, from the Harney County Sherriff’s Department in Burns, Oregon,arrived andtook a statement. (VIIRT 1500- 1501, 1588.) Deputy Alexander explained that he needed to go backto the wreck andtake pictures and appellant went with him. (VIIRT 1504, 1588.) Ms. Lay introduced him to the appellant as the driver of the car. (VIIRT 1500-1501, 1503, 1588.) Appellant said his name was “Andrew McRae”and showed Deputy Alexander a Washington State driver’s license. (VIIRT 1503-1504.) Appellant had cuts on his forehead and cuts and abrasions onhishands. (VIIRT 1504.) Appellant wanted to get to town and away from the area, but the town, Burns, Oregon, was 127 miles away. (VIIRT 1505.) Appellant said he was traveling on back roads and got stuck in someruts, and while trying to get his carfree it flipped. (VIIRT 1505.) Appellant said that he wanted to turn over ownership of the car and muchofthe contents to the Laysor the Whitehorse Ranchfor their assistance. (VIIRT 1505.) Deputy Alexander witnessed appellant write outa bill of sale and sign off on the Washington State title. (VIIRT 1505.) Appellant said he had burneda roadatlas out of frustration and anger. (VIIRT 1506.) Appellant had a backpack, plastic bags containing food, andajacket. (VURT 1506.) Deputy Alexander had not searched appellantat that point because appellant had just gotten out of the shower. (VIIRT 1506-1507.) 11 At somepoint, Mr. Lay went through the things appellant left. Later that evening, he approached his motherandsaid, “The guy has serious issues.” (VIIRT 1589.) He son showedher an item, but she did not know | what it was. (VIIRT 1589.) Deputy Alexander drove appellant to the crash site, which was approximately six miles away. (VIIRT 1507.) The deputy saw a 1992 red Ford Mustang overturned in the middle of a two-track gravel road. (VIIRT 1507, 1588.) He noted that both license plates were placed on the front bumper leaning against the driver’s side tire. (VIIRT 1508.) There were sometools lying around, and one of things that stood out was a new pair of _ bolt cutters. (VIIRT 1508.) Deputy Alexander conducted an investigation of the crash, and took some photographs. (VIIRT 1508.) He explained to appellant that he would give him a ride back to town, but before that happened he was going to search appellant’s personal belongings. (VIIRT 1508.) When Deputy Alexander opened appellant’s backpack he found a black semi-automatic Sig Sauer, .40-caliber handgun. (VIIRT 1509.) The serial number was AL 17 781.4 (VIIRT 1511.) He ran theserial number through dispatch and the gun camebackclear, which meantit was not wanted as a stolen weapon or had been used in acrime. (VIIRT 1511.) The gun wasloaded with a round in the chamber and Deputy Alexander unloadedit. (VIIRT 1512.) Deputy Alexander explained to appellant that he could not take the gun on public transportation, and neededto contact a shipping company to send the gun to himself in Washington. (VIIRT 1512.) * This is the gun appellant purchased at Larry’s Gun Shop the month before Officer Mobilio’s murder. (VIRT 1376.) 12 Deputy Alexander asked appellant why he had not said anything about the gun. (VIIRT 1512.) Appellant said he did not think it was a big deal, and knew Deputy Alexander wasgoingto find it anyway. (VIIRT 1513.) Deputy Alexander also found empty .40-caliber casings and about 30 to 40 12-gauge shotgun shells in appellant’s backpack. (VIIRT 1513.) Appellant said he did a lot of target shooting. (VIIRT 1513.) Deputy Alexander drove appellant to Burns, Oregon, which took approximately two and one-half hours. (VIIRT 1513.) He dropped appellant off at the Silver Spur Motel in Burns, and they had a detailed conversation about how appellant would not be allowed to take the gun on the bus. (VURT 1514.) Deputy Alexander assumed appellant was taking the bus to Olympia, Washington. (VIIRT 1514.) On November20, 2002, Carolyn Saunders was working for Convenient Services, which sold retail items and operated a busstop in Burns, Oregon. (VIIRT 1608-1609.) She sold a busticket to appellant under the name “Andy McCrae.” (VIIRT 1609, 1614.) Appellant said he had beenin an accident and that was whyhewastaking a bus. (VIIRT 1610.) He also said he had a firearm and she told him she did not know if the bus driver would let him take it on the bus. (VIIRT 1610.) She said something to the bus driver, and the bus driver went out, and appellant returned and threw the gun in the trash. (VIIRT 1610.) Ms. Saunders picked up the gun,andtold appellant thatif he wanted the gun back she would hold it for him. (VIIRT 1611.) There was some ammunition as well. (VIIRT 1611.) Ms. Saunders took the gun, ammunition, and a copy ofthe bus ticket, and put them in the safe. (VIIRT 1612.) | 4. The investigation Michael Barnes, a senior criminalist at the California Department of Justice crime lab, was assigned as part of the team that investigated Officer 13 Mobilio’s murder. (VIIRT 1473, 1475.) On November19, 2002, at about 4:00 a.m., he and criminalist Rebecca Gaxiola, and latent print examiner Barbara Phillips, responded to Warner’s Petroleum. (VIIRT 1476.) Mr. Barnesobserved a piece of cloth about two feet by two feet next to Officer Mobilio’s body. (VIIRT 1483.) It had wires in the top corners, with a snake image and some wording. (VIIRT 1483.) There was a gun present, a duty weapon,typically used at the Red Bluff Police Department.” (VIIRT 1483-1484.) Officer Mobilio’s holster was empty, so they assumed the gun washis duty weapon. (VIIRT 1483-1484.) Officer Mobilio had keys and a card lock holderin his left hand. (VIIRT 1486.) Officer Mobilio worehis holster on the right so his right hand was free to draw the weaponifhe was able. (VIIRT 1486.) On November20, 2002, forensic pathologist Thomas Resk performed an autopsy on Officer Mobilio at the Shasta County Coroner’s Officer in Redding, California. (VIRT 1418, 1422.) On external examination, Dr. Resk noted there were two bullet wounds to Officer Mobilio’s back, and anotherto his head. (VIRT 1424.) Officer Mobilio was wearing body armor, but it was bloody because the two gunshot woundsto his torso had gone through the vest. (VIRT 1428.) Officer Mobilio also had an abrasion - to his right knee, the back of his left hand, and his forehead. (VIRT 1429.) The head wound wasa devastating injury. (VIRT 1441.) One ofthe woundsto the back was devastating as well, having traveled through the left lower lung and the abdomen,andthen reentering the chest. (VIRT 1441.) Officer Mobilio may have lived for one to several minutes because he wasrelatively young and healthy, but would not have survived even if he had beenat oneofthe best facilities in the country. (VIRT 1441.) > Sergeant Wiley saw one of the department issued firearms about five feet from Officer Mobilio’s head. (VIRT 1404.) 14 Dr. Resk opined that the last shot was the one to the back of Officer Mobilio’s head. (VIRT 1442.) He wasable to testify to a medical certainty that Officer Mobilio was face down on the ground when he wasshotin the back of the head. (VIRT 1442.) Dr. Resk explained that all three gunshot wounds were characterized as “distant gunshot wounds,” which means more than three to four feet away. (VIRT 1434-1435.) Dr. Resk recovered projectiles from each ofthe wounds. (VIRT 1436.) | | Mr. Barnesalso attended Officer Mobilio’s autopsy. (VIIRT 1520, 1522.) Dr. Resk gave the projectiles from the body to Mr. Barnes. (VIIRT 1522.) Dr. Resk recovered a brass bullet jacket (Exh. 33) from the head wound, a mostly intact bullet (Exh. 34), and bullet fragments (Exh. 35) from the woundsto his back. (VIIRT 1522-1524; VIRT 1722.) Mr. Barnes packaged them and gave them to Senior Criminalist Ron Nies. (VIIRT 1522.) Mr. Nies was asked if he could determine what kind of firearm hadfired the bullets. (VIIRT 1723.) Julie Doerr, a criminalist supervisor at the DepartmentofJustice laboratory, received a blood sample from Officer Mobilio and the cloth banner found at the scene of his murder. _ (VIIRT 1671-1672.) Within five or six days of Officer Mobilio’s murder, law enforcement interest focused on an individual named Andrew Hampton McRae, who was also known as Andrew Hampton Mickel. (VIRT 1385.) Special Agent Jeff Lierly of the California Department of Justice obtained documentation regarding a Washington State driver’s license that had been issued on November7, 2002, in the name of Andrew Hampton McRae. (VIRT 1384, 1386.) Appellant had another Washington State driver’s license, which had been issued on October 24, 2002, in the name Andrew Hampton Mickel. (VIRT 1387.) A Ford Mustang, with license plate 5[****]B, was registered to Andrew H. McRae with the sameaddressas the driver’s license. (VIRT 15 1389.) A Mustang with the same license plate was observed by Deputy Perrone in Tehama County on November 17, 2002, two days before Mobilio’s murder. (VIIRT 1389, 1470-1472.) . Mr. Schweikhart returned with law enforcement to where he saw the Mustang off Breckenridge Road. He saw zip ties on the ground where the car had been parked, which he pointed out. (VIIRT 1459-1461.) Mr. Barnesandlatent print analyst Barbara Phillips were also directed to the Breckenridge area where Mr. Flores and Mr. Schweikhart had seen the Mustang. (VIIRT 1491.) Mr. Barnes had photographs from the original scene (Warner’s Petroleum), including tire and shoe impressions, and was looking for anything at this scene that he couldtie to the impressionsleft at the crime scene. (VIIRT 1491.) At the Breckenridge scene, at the bottom of a hill, was a footwear impression in the mud. (VIIRT 1492.) Mr. Barnes took a photograph and preservedit using a dental stone cast. (VIIRT 1492.) Appellant wasarrested in New Hampshire on November26, 2002. (VIIRT 1530-1531.) On November27, 2002, Mr. Barnes and other law enforcement officers and personnel searched appellant’s apartment in Olympia, Washington. (VIIRT 1636.) They found one round of .40-caliber RBCD Performance Plus ammunition in a backpackin the living room. (VIIRT 1636-1637.) They also found pieces of wire and cloth. (VIIRT 1637- 1638.) In the trash was a possible template for the snake image that was on the cloth left at the scene of Officer Mobilio’s murder. (VIIRT 1640-1641.) There was unique edging on the template that correspondedto the flag, but it did not match exactly in size. (VIIRT 1642-1643.) They also found somereceipts from different stores, and rental receipts with the name, “Mickel, A.” (VIIRT 1644-1646.) 16 On December10, 2002, Deputy Alexander was advised that appellant wasa suspect in the murderofa police officer. (VIIRT 1514-1515.) Deputy Alexanderreturned to Whitehorse Ranch and contacted Mr. Lay. (VIIRT 1515.) Appellant’s vehicle wasstill there, although the tires had been removed andstored in a barn, and the heater core had been removed and put in another vehicle. (VIIRT 1515-1516.) Somearticles of clothing had been donatedto a local school, but Deputy Alexander was given the vehicle and the contents that remained. (VIRT 1516.) One ofthe items was a case for a Sig Sauer handgun, which hada serial numberthat matchedtheserial numberon appellant’s gun. (VIIRT 1516-1517.) Deputy Alexanderalso retrieved the “brass catcher,” which was designed to catch the shell casing after a weapon had been fired. (VIIRT 1517-1518.) On December 11, 2002, Mr. Barnes went to Burns, Oregon and met with law enforcement, including Agent Lierly and Deputy Alexander. (VIIRT 1518, 1626.) Mr. Barnes received a Sigarmscase with a serial numberon the end and a gun. (VIIRT 1626-1627.) The serial number on the gun matchedthe serial number on the box. (VIIRT 1626-1627.) Deputy Alexander also gave Mr. Barnes the rounds of ammunition that he obtained from appellant’s firearm when hefirst encountered appellant on November 19, 2002. (VIIRT 1518.) Mr. Barnes subsequently compared the cloth found at the murder _ sceneto fabric from appellant’s brass catcher and fabric found in appellant’s apartment. The weave type and color were similar. (VIIRT 1636, 1638-1640.) Mr. Barnesalso examined appellant’s Mustangandits tires. (VIIRT 1628-1629.) He compared photographs of the Mustang’s tires with photographsofthe tire impression at the Breckinridge scene. (VIIRT 1629- 1630.) The size and pattern were the same. (VURT 1630.) 17 Washington State license plates 5[****]B wereinside the car. (VIIRT 1632.) There was a paint brush in the vehicle, and Mr. Barnes noted that the flag that was foundatthe scene had paint on it. (VIIRT 1632-1633.) There were two types of ammunition: Remington Golden Saber; and, RBCD Performance Plus. (VIRT 1633-1634.) He received the ammunition from Agent Lierly along with the firearm magazines and a magazine holder. (VIIRT 1634.) On December12, 2002, Deputy Alexander returned to the crash scene and searched approximately two square miles surrounding the scene. (VIIRT 1519.) He wentto the area where the fire had been. Deputy Alexander dug downand found two burnt computer discs. (VIIRT 1519.) Law enforcementalso contacted Ms. Saunders. (VIIRT 1612, 1616.) They showed herappellant’s picture and she told them she put something away for him. (VIIRT 1612, 1614, 1616.) She remembered because she does not normally put things away for people. (VIIRT 1612.) She gave law enforcementofficers a photocopy ofa busticket, a bag containing numerous“firearmsrelated items,” a Sig Sauer P229 handgun with serial number AL 17 781, a magazine holder, three magazines, and loose ammunition. (VIIRT 1616, 1617-1618.) | Mr. Nies examined the firearm with serial number AL 17 781.° (VIIRT 1723.) He fired somecartridges so that he had cartridge cases and “somebullets that he knew werefired from the gun. (VIIRT 1724.) He determined that People’s Exhibits 33 and 34 were fired from the same gun, and that 33 had been fired from appellant’s gun. (VIIRT 1726, 1757.) Asa consequence, People’s Exhibit 34 wasfired from appellant’s gun. (VIIIRT © This was the same gun appellant had purchased in Washingtonin October 2002, and that Deputy Alexander found in his backpack, and Ms.Saundersheld for him at the bus station in Burns, Oregon. (VIRT 1376, VIIRT 1509, 1511, 1616, 1618.) 18 1757.) The most he could say about Exhibit 35 was that it came from a gun that had the sameclass of characteristics as appellant’s gun. (VIIRT 1757- 1758.) Latent Print Analyst Barbara Phillips compared appellant’s fingerprints with latent prints from two magazinesof appellant’s gun. She examineda lot of items in this case. (VIIRT 1553, 1703, 1706-1708.) After comparing those prints to appellant’s she determined that a print on one of the magazines wasthe appellant’s right index finger, and a print on the other magazine was appellant’s right ring finger. (VIIRT 1710-1711.) On February 4, 2003, Agent Lierly obtained a search warrant to draw appellant’s blood. (VIIRT 1553.) He took the bloodto the crime lab for DNAcomparison. (VIIRT 1554.) On February 4, 2003, Royce Raker, a registered nurseat St. Elizabeth’s Hospital in Red Bluff, California, drew appellant’s blood pursuant to a search warrant. (VIIRT 1669.) He gave the blood to Agent Lierly. (VIIRT 1670.) Nicole Duda Shea, senior criminalist with the Departmentof Justice, conducted a DNAanalysis of the wire found at the scene of Mobilio’s murder with samples of Mobilio’s and appellant’s blood. (VIIRT 1553- 1554, 1669-1670, 1672, 1681, 1693-1695.) The DNAprofile obtained from sample 56-L, the wire at the top of the bannerleft at the crime scene, contained a mixture of two different DNA contributors. Both of them appeared to be male. (VIIRT 1695, 1697.) She concludedthat Officer Mobilio could not be excluded as being a minor contributor, but he was not the major contributor. (VIRT 1698.) She concludedthat appellant could not be eliminated as the major contributor, and Officer Mobilio wasstill included as the minor contributor. (VIIRT 1701.) Further, all of the DNA that was detected was consistent with the mixture ofDNAfrom these two individuals. (VIIRT 1701.) In other words, there was no other DNA present that could have come from somebody other than appellant or 19 Officer Mobilio. (VIIRT 1701.) The major contributor to the sample would be expected to occurin unrelated individuals, in one in 50 billion Caucasians, one in 2.5 trillion African Americans, and onein 10 trillion Hispanics. (VIIRT 1701.) Because there are less than 7billion people on the earth, this is very strong evidence that appellant was the major contributor. (VIIRT 1701-1702.) Mr. Barnes examined the shoes (Court Exh. 25) appellant was wearing when he wasarrested in New Hampshire to determine if the shoes had madeanyofthe shoe impressions that were foundat the scenes. (VIIRT 1530-1531.) The first one he comparedit to was an impression found at the Breckenridge scene. (VIIRT 1532.) He determined that the sole pattern was exclusive to Payless, the shoe’s retailer. (VIIRT 1542.) Mr. Barnes was informed thatin that size and lot number, there were 12,102 pairs made at the end of 2002. (VIIRT 1542.) Mr. Barnes opined that appellant’s shoe made the impression from the Breckenridge scene. (VIIRT 1541-1547.) There were several shoe impressions from the Warner Petroleum site as well. (VIIRT 1547-1548.) As to one of the impressions, Mr. Barnes was able to say that it shared size and class characterizations with appellant’s shoe, but the impression did not havethe detail to let him say that the specific shoe madethe specific impression. (VIIRT 1547-1548.) There were two other impressions as well, and all he could say was that the pattern was the same. (VIIRT 1549.) | The prosecution offered several statements appellant made in prior court proceedings in which appellant stated, “Your Honor, I admit that I committed the act that resulted in Officer Mobilio’s death...,” and “I have no intention of—I have never deniedthat I killed Officer Mobilio, and I never intend to deny that. And it will becomeclearto the jury, both by 20 myself and by the Prosecution, that there is no question ofthat fact.” (VIIRT 1761.) Appellant presented no witnesses on his own behalf. B. Penalty Phase 1. People’s case in aggravation Linda Mobilio met David Mobilio in 1991, and they were married in 1996. (IXRT 1933, 1937.) When her husband was murdered, she was 29 years old and they had a one and one-half-year-old child. (XRT 1945, 1949.) On November 18, 2002, Officer Mobilio was home with his son. (IXRT 1947.) After she got home from work, Officer Mobilio received a call and he told her he had to go to work. (IXRT 1948.). He called around 9:00 p.m. and they spoke for a few minutes, and he told her goodnight. (IXRT 1948.) In the early morning hours she was awakened by a pounding on the door. (IXRT 1948.) She heard a voice she recognized and openedthe door. (IXRT 1948-1949.) She immediately knew something was wrong and said, “Where’s David? Where is he?” (IXRT 1949.) They told her that her husband had beenshot while putting gas in the car, and they did not know whodid it. (IXRT 1949.) . They had two funeral services. (IXRT 1951.) There wasa private one for the family and a large ceremony for the public. (XRT 1951.) David Mobilio was a good man,friend, husband, and father. (IXRT 1954.) Red Bluff Police Chief Al Shamblin first met Officer Mobilio when he wasa patrol sergeant and Officer Mobilio was a deputy on the same shift. (IXRT 1956.) Officer Mobilio loved being a police officer, and worked hardto get there. (IXRT 1959.) Onthe night that Officer Mobilio was murdered, Chief Shamblin was the commanderin charge ofthe patrol divisions. (IXRT 1961.) He 21 received a call from dispatch just before 2:00 a.m., and wastold that Officer Mobilio had been killed. (XRT 1961.) The hardest thing about that night was going to Officer Mobilio’s houseto tell his wife. (XRT 1964.) Paul Nanfito met Officer Mobilio at a gym in Red Bluff. (IXRT 1980.) At that time, Officer Nanfito was a patrol sergeant and also served as the reserve coordinator. (IXRT 1980.) He noticed that Officer Mobilio was wearing police academy sweats and approached him about working for the department. (IXRT 1980.) Officer Nanfito explained that it perhaps would have been more understandable had Officer Mobilio been killed in a confrontation with a violent individual or in an accident during a pursuit, but it did not make sense that he wasshotin the back while fueling his patrol car. (IXRT 1985.) Red Bluff Police Officer Brett McAllister was scheduled to work the shift that Officer Mobilio covered on the night he was murdered. (IXRT 2002-2004.) He found out about Officer Mobilio’s murder at about 6:30 or 7:00 a.m., when other co-workers cameto the house and told him. (XRT 2004.) Initially, he was in shock, and thenit hit him that Officer Mobilio was workinghis shift and he felt enormousguilt. (XRT 2004.) The guilt has never gone away. (IXRT 2004.) Officer Mobilio’s family told him that it was not his fault. (XRT 2005.) Richard Mobilio, David Mobilio’s father, testified that he and his family will live with the grief and anger forthe rest of their lives. (IXRT 1972.) Laurie Mobilio, David Mobilio’s mother, testified that her son loved being in law enforcement and worked hard to get through the academy. (IXRT 1990-1991.) She knew Officer Mobilio was happy with his profession andhis life. (XRT 1996.) She wanted the jury to understand how difficult this loss had been for her family, and wanted them to know him as a person,not just for the uniform he wore. (IXRT 1997.) 22 C.M.was in elementary school in November2002, and participated in the DARE program, which Officer Mobilio taught. (XRT 1974.) The DARE program teaches children to say no to drugs, and the impact drugs and alcohol can have on yourlife. (IXRT 1975.) One day she wasat school and her teacher heard that a Red Bluff police officer had been killed. (IXRT 1977.) They said a prayer because they hopedit was not Officer Mobilio. (IXRT 1977.) About midday, they learned that it was Officer Mobilio, and they all broke down. (IXRT 1977.) 2. Defense case in mitigation Appellant testified that he was not trying to escape, but simply controlling the manner in which he came forward. (IXRT 2013-2014.) He also said he changed his name because he wanted to protect his family from — negative publicity. (XRT 2014.) Appellantsaid that he acted out of patriotism. (IXRT 2014.) He explained that our liberties are under attack. (IXRT 2014.) The governmenthas intruded in our personal decisions, and infringed on the right to bear arms. (IXRT 2015.) Appellant said that when our government tries to improperly imprison people or infringe on our right to bear arms, we havethe right to resist them. (IXRT 2016.) In appellant’s opinion, American law enforcement and Officer Mobilio, are enforcing laws to wrongfully arrest and imprison people. (IXRT 2016.) Appellant observed that it was appropriate for him to explain why he felt it was proper to attack and kill someone in defense of liberty. (XRT 2050.) Appellant explained that he felt connected to American history wherein if the government did something wrong,youresistit to protect your freedoms. (IXRT 2050.) Appellant referred to the Declaration of Independence,the Bill of Rights, and the Constitution. (IXRT 2051-2053.) Appellantsaid that one of the reasons he joined the Army was patriotism. (IXRT 2060.) Appellant received extensive training in the 23 military, including graduating from Army Ranger School. (IXRT 2060.) Appellant was honorably discharged from the military, and never had any disciplinary problems. (IXRT 2064.) Whenappellant got out of the Army hevisited his older brother in New York. (IXRT 2065.) Appellant then travelled west, to enroll in school in Olympia, Washington. (IXRT 2065-2066.) One morning he woke up and turned on the televisionto find that it was September 11 and the United States had been attacked. (IXRT 2065-2066.) On one ofthe first days in school there was a discussion ofhow the Israeli government was oppressing the Palestinians, and the United States governmentplayed a large role in whatthe Israeli government wasdoing. (IXRT 2066.) To appellant this was upsetting, and he decided he needed to go see for himself. (IXRT 2066.) Appellant travelled to Israel. (IXRT 2066.) Ina way, the trip turned appellant’s world upside down. (IXRT 2066.) Appellant saw firsthand that the United State’s governmentactively funded oppression and then demandedthat the people that were oppressed did not resist, and if they resisted, they wereterrorists. (IXRT 2066.) Appellant explained that you have aright to resist government agents that are carrying arms to oppress you,but youdo not have a right to attack unarmed people whoare not combatants. (IXRT 2067.) Appellant said that we havethe right to be equally armed with the state and federal law | enforcement agencies that are enforcing the laws against us. (IXRT 2075.) Appellant did not feel the same way about the Army,as long as the Army wasprohibited from being used in domestic affairs. (XRT 2075.) Appellant decided he needed to do something, but he did not know what to do. (IXRT 2076.) He wantedto assert our inalienable right of liberty, and to defend liberty. (IXRT 2076.) Appellant knew that you could try to do it peacefully by working within the system. (IXRT 2076- 2077.) Appellant had participated in nonviolent protests while he was in 24 Israel, and hadalso participated in nonviolent protests in Washington and Colombia. (IXRT 2079.) Appellant studied and examined nonviolent and peaceful protest before he determined that it was necessary to use violence to defendliberty. (IXRT 2080.) Appellant determined that when yourrights are threatened with violence, you havethe right to defend them with violence. (IXRT 2079.) Appellant explained that having armed and uniformedstate agents, while nothing new to us today, was never contemplated by the founding fathers. (XRT 2092.) Appellantsaid that our liberties are under attack in this country. (IXRT 2131.) He cited an example of a court case in whicha religious organization was told to provide contraception in its employee health care program. (IXRT 2133.) Appellant said that if you havereligiousbeliefs you should be allowed to follow them without the government forcing you not to follow them. (IXRT 2133.) Appellant explained that if the governmenthasthe right to tell you what to consent to that underminesthe Declaration ofIndependence. (IXRT 2136.) | Appellant compared the modern War On Drugsto Prohibition, explaining that now that alcoholis legal, there is no violence attachedtoit. (IXRT 2138-2139.) In appellant’s opinion the same logic applies to drugs, and the only reason there is violence attached to drug activity is because drugsare illegal. (IXRT 2139.) Appellant changedhis last name because he wantedto protect his family from being “dragged”into the situation. (XRT 2170.) He chose the name “McCrae” from a character in the book Lonesome Dove. (XRT 2171.) Appellant also explained that he came to California to commit this act because he was concernedthatifhe did it wherehe wasliving it would be interpreted as a local dispute. (XRT 2174.) He also chose California 25 because he believesit is the least gun friendly state, and it is where the war on drugs is fought the hardest. (XRT 2174.) Appellant knew he could not commit this act in a city becauseofall the security cameras. (XRT 2175.) Appellant knew that either he or his license plate would be recognized immediately. (XRT 2175.) Appellant looked for a location where he would havea place to put his car, and where he could conduct an “ambush.” (XRT 2175.) Appellant did reconnaissance around September 2002, and then returned to Washington. (XRT 2175.) Between September and November, he authored the documenthe called the “Declaration of a Renewed American Independence.” (XRT 2175.) Appellant explained that he said lot of “stupid” things in it, but there werestill things that he agreed with and — thought were important. (IXRT 2148.) Appellant said that he did not want to abolish our government, but wantedto alter it so that it respects our rights again. (IXRT 2154.) . On November15 or 16, 2002, appellant drove all night, and stopped in Oregon andslept for two hours. (XRT 2176.) He went to Weed, California, filled the gas cans, and then stopped at a gas station just north of Redding andfilled his car’s tank. (XRT 2176.) | Appellant then drove to a rest area between Redding and Red Bluff, and waited until about 4:30 a.m. (XRT2176.) He then drove directly to the Breckenridge site, where they foundthe zip ties and his tire tracks, and parked his car. (XRT 2176.) Appellant explained that he “sort of lost heart,” and had trouble going through with it. (XRT 2176.) He wentto Warner’s Petroleum about 10:00 or 11:00 p.m., and waited until 4:30 or 5:30 a.m. (XRT 2176.) Appellant said that several officers came by, but he could not get himself to do it. (XRT 2176-2177.) Appellant returned to his car and droveto the rest stop between Redding and Red Bluff and went to sleep. (XRT 2177.) He woke up 26 around noon and thought about“it” a lot. (XRT 2177.) Appellant decided he wasright, and it was something that needed to be done. (XRT 2177.) Appellant went back to the gas station north of Redding becausehedid not want to purchase anything with his ATM card around Red Bluff. (XRT 2177.) He then droveto the rest stop and waited until about 4:30 p.m.to drive to the Breckenridge site. (XRT 2177.) He waited until 10:00 or 11:00 p.m., and then went back to Warner’s Petroleum. (XRT 2177.) Appellant did not see any law enforcementofficers for a long time and fell asleep. (XRT 2177.) Appellant heard a car door slam, and it woke him up. (XRT 2177.) Appellant saw a law enforcementofficer, but before he could get ready, the officer left. (XRT 2177.) A short timelater, Officer Mobilio arrived. (XRT 2177-2178.) Appellant jumped up andran across the fueling area. (XRT 2178.) He stumbled and made a scraping sound, which Officer Mobilio heard. (XRT 2178.) Officer Mobilio was looking over his shoulder and saw appellant coming, and appellant shot until Officer Mobilio went down. (XRT 2178.) Appellant kept shooting at him as he went down,and then shot him in the head when he wasonthe ground. (XRT 2178.) Appellantleft the flag and ran back to his car. (XRT 2178.) Appellant also explained that the reason he used the brass catcher and coveredhis license plates was so that he could control the manner in which he came forward. (IXRT 2094.) In other words, he wasnottrying to escape, but to control the manner in which he came forward. (IXRT 2095- 2096.) Appellant intended to drive to Boise, Idaho, to an Internet café to send out the “Declaration of a Renewed American Independence,” but he wreckedhis car so he did not makeit to Boise. (XRT 2179.) When appellant wrecked his car, he had computer disks with e-mail addresses of people that he was not connected with, but whom he believed would think whathe wasfighting for was important. (XRT 2179.) Appellantdid not 27 want them to be implicated when they had nothing to do with it, so he burned the disks. (XRT 2179-2180.) Deputy Alexander took him to Burns, Oregon, and appellant took a bus to Portland, and then Olympia. (XRT 2179.) Appellant had extra copies of the computer disks in Olympia, which he collected and then returned to Portland. (XRT 2180.) At an Internet café in Portland, he sent out the writings and then took a bus back to Olympia. (XRT 2180.) He wentto Seattle and to another Internet café and sent the writings again, and then senttheletters to his parents and other people he thought law enforcement would track down. (XRT 2180.) Appellant sent the letters to his parents and the other people because he wantedit to be clear that he alone was involved. (XRT 2168.) He also wanted those people to know that they would probably be contacted by law enforcement and questioned. (XRT 2168.) Appellant flew to Vermont and then took a bus to New Hampshire. (XRT 2180.) Appellant explained that he went to New Hampshire to attempt to have a trial to mock the process by which corporations can be charged with crimes. (IXRT 2144.) He specifically chose New Hampshire to incorporate because that State Constitution guarantees the right to revolution. (IXRT 2145.) Appellant said he wanted to control the manner in which he cameforward, and did not want to be arrested in secret. (XRT 2175.) He wantedto be able to get toNew Hampshire to come forward and make a statement about personal responsibility. (XRT 2175.) Appellant had a family friend, Lois Raimondo, whois a journalist for the Washington Post. (XRT 2180.) Appellant called her and told her he would be on the East Coast for Thanksgiving break, and that he wanted to meet up with her. (XRT 2181.) When hegot there, he called her and told -her he had lied to her, and wantedto get in touch with her because she was a reporter. (XRT 2181.) He also e-mailed her the writings. (XRT 2181.) 28 Ms. Raimondo convinced him to call his parents because he might not get a chanceto do it later. (XRT 2185.) Appellant’s parents told him they had to turn him in. (XRT 2185.) He wentto a local Kinko’s and posted the writings on several websites. (XRT 2185.) The next morning, appellant woke up to a phone call from an FBI agent who informedhim that law enforcement wasat the hotel. (XRT 2185.) Appellant told them he would comeout, but the only thing he wanted beforehand wasfor a reporter from a local newspaperto cometo the hotel. (XRT 2185.) The reporter arrived, appellant spoke to her, and then surrendered. (XRT 2186.) . Stan Mickel, appellant’s father, is a professor of Chinese languageat a university in Ohio. (IXRT 2024.) On November 25, 2002, he was working with students in his office when his phone rang. (IXRT 2024.) Because he was working he did not answer. (IXRT 2024.) About ten minuteslater the department secretary camein and said there was someone he knew onthe phone whoneededto talk to him. (IXRT 2024.) On the phone was Lois Raimondo, whotold Mr. Mickelthat she had spokento appellant, and appellant referred to having killed someone. (IXRT 2025.) Mr. Mickel dismissed his students and then looked up a website that Ms. Raimondo had mentionedin their conversation. (XRT 2025.) He lookedat the website for the City of Red Bluff, and then for the police department. (IXRT 2025.) On the website for the police department, they had a picture of Officer Mobilio. (XRT 2025.) Mr. Mickel called his wife and told her she needed to come home. (IXRT 2026.) Whenhegot home, there were twoletters from appellantin the mailbox. (IXRT 2026.) Oneofthe letters was addressed to him and the other was to appellant’s mother. (IXRT 2026.) Appellant wrote in the letter to his father that they had hadtheir differences, and it would be hard 29 for him to accept what appellant was doing. (IXRT 2027.) Appellant wrote that he was trying to make the world a better place. (IXRT 2027.) The letter discussed activities in Red Bluff between November16th, and the 21st. (IXRT 2027.) Appellant also explained that he had changedhis name. (IXRT 2026.) Appellant’s mother arrived home,and they decided to contact a lawyer. (IXRT 2028.) Mr. Mickel decided to try and reach appellant by phone. (IXRT 2028.) He had information that appellant might be in Concord, New Hampshire, andtried to reach appellant there. (IXRT 2028.) He called a hotel and asked for “Andrew McCrae,” and wassent to voice mail where heleft a message. (IXRT 2029.) Subsequently, appellant spoke to his father on the phone and they discussed what appellant had done. (IXRT 2029.) Mr. Mickeltold appellant he would need totell law enforcement where appellant was, and appellant said, “You do what you have to do.” (IXRT 2029.) Appellant stayed in the hotel room and waited to be arrested. (IXRT 2030.) On November25, 2002, appellant’s mother, Karen Mickel, spoke to appellant on the phone. (IXRT 2032.) She recalled asking appellantif he had killed the police officer, and appellant said that he had. (IXRT 2032.) She recalled that appellant’s father said they were going to have to turn appellant in, and appellant wanted to contact some newspapersto get his story out. (IXRT 2032.) They had to turn appellant in to ensure his personal safety, and to make sure nobody else was hurt. (IXRT 2034.) Appellant told them he did not have the gun any more. (IXRT 2034.) Robert McWilliamshas a Ph.D. in Public Administration. (XRT 2100-2101.) Dr. McWilliams explainedthat “Total Information Awareness”is a system for pulling together and aggregatingall of the information about each citizen in the United States. (IXRT 2110.) He explained that there are private companiesthat collect information on 30 people and believe they are underno obligation to verify the accuracy of the information or notify individuals that they haveit in their possession. (IXRT 2113.) Dr. McWilliams opined that the various computer databases used by law enforcement can be used for good, but could also be used to track down someone whodid not deserve it. (XRT 2129.) AgentJeff Lierly explained that by using computer networks, they are able to track down someinformation quickly. (IXRT 2099.) Agent Lierly had previously written a statement of probable cause. (IXRT 2018.) In that statementit refers to “computer checks.” (IXRT 2022.) Agent Lierly recalled that during the investigation he left the commandpost and received a call from his supervisor to return because there had been a development. (IXRT 2022-2023.) At that point, he learned appellant’s nameandthat there had been information developed out of Ohio. (IXRT 2023.) ARGUMENT L THERE WASNO SUBSTANTIAL EVIDENCE THAT RAISED A DOUBT AS TO APPELLANT’S COMPETENCY Appellant contends that the judgment must be reversed because the trial court failed to suspend criminal proceedings when there was substantial evidence whichraised a doubt as to his competency. (AOB 39.) Appellant’s claim is without merit. Appellant is nothing more than a calculating murderer. From society’s perspective appellant is a cold- blooded murderer. From appellant’s perspective he is a failed revolutionary. But that does not raise a doubt as to his competency. In this claim, and others in the opening brief, appellant’s counsel attempts to morph society’s condemnation of appellant’s actions into a claim that he was incompetent. A review ofthe entire record reveals that appellantis an intelligent, logical, passionate, and misguided murderer. 31 Onthe first day appellant appeared in court in California he sought to represent himself. Eventually, the court granted appellant’s request. From that point forward, appellant presented coherent and logical legal arguments and briefs. He demonstrated the ability to conduct research, grasp legal issues, advocate for his own interests, and conduct himself appropriately in court. Further, at no point in any of the underlying proceedingsin this state did a judge, prosecutor, or appellant’s appointed counsel express the slightest doubt as to his competency. Appellant’s claim, and several others in this openingbrief, is based in part on proceedings that occurred in New Hampshire. It appears that an attorney, whowasretained by appellant’s parents before he wasarrested, then retained a psychiatrist to interview him. Further, even if the letter generated by the psychiatrist is considered, which the psychiatrist | acknowledged waspreliminary and incomplete; it falls far short of being substantial evidence of appellant’s incompetence. Appellant’s claim is without merit and should be rejected. A. Relevant Facts 1. Appellant’s actions The relevant facts are disturbing but straightforward. In October 2002, appellant purchased a .40-caliber handgun and hollow point ammunition in Olympia, Washington. (VIRT 1371, 1376, 1381, 1383.) On November7, 2002, appellant obtained a Washington State Driver’s license in the name of Andrew Hampton McCrae. (VIRT 1386.) On November19, 2002, at about 1:27 a.m. Red Bluff Police Officer David Mobilio was on patrol and went to fuel his patrol car. (VIRT 1394.) Appellant ambushed Officer Mobilio and shot him twice in the back and oncein the back of the head. (VIRT 1418, 1422, 1424.) 32 On November19, 2002, at about 1:43 p.m., Deputy Alexanderofthe Harney County Sheriff's Department in Burns, Oregon, respondedto the scene of a single rollover accident near Whitehorse Ranch. (VIIRT 1501.) When Deputy Alexander arrived he wasintroduced to appellant, who identified himself as Andrew McRae. (VIIRT 1503.) Appellant said he wastravelling on back roads and crashedhiscar. (VHRT 1505.) Deputy Alexander drove appellant to the crash site, which was about six miles away. (VIIRT 1507.) Whentheyarrived at the crash site, appellant’s Ford Mustang wasoverturned in the middle ofthe road. (VURT 1507.) Deputy Alexander searched appellant’s backpack and found the same .40-caliber handgun that appellant had purchased in Washington the month before. (VIIRT 1376, 1508-1509, 1511.) Deputy Alexandertold appellant that he would not be able to take the gun on public transportation and would needto arrangeto havethe gun shippedto himself in Washington. (VIIRT 1512.) Deputy Alexanderdrove appellant to Burns, Oregon, approximately two and one-half hours away. (VIIRT 1513.) On November20, 2002, Carolyn Saunders sold appellant a bus ticket under the name of “Andy McCrae.” (VIIRT 1608-1609, 1614.) Appellant said he had a gun and Ms. Saunderssaid she did not knowif the bus driver — would let him take it on the bus. (VIIRT 1610.) She spoketo the bus driver and then appellant returned and threw the gunin the trash. (VIIRT 1610.) Ms.Saunderstold appellant if he wanted, she would holdit for him. (VIIRT 1611.) There was some ammunition as well. (VIIRT 1611.) Ms. Saunders took the gun, ammunition, and a copy ofthe busticket, and put them in the safe. (VIIRT 1612.) Later, law enforcementofficers came and retrieved the items. (VIIRT 1612-1614.) The serial number on the gun matched the gun that appellant had purchased the previous month tn Washington. (VIIRT 1618.) Subsequentballistics testing matched a brass 33 bullet jacket and mostly intact bullet that were recovered during Officer Mobilio’s autopsy, to this gun. (VIIRT 1715, 1721-1723, 1726; VIII 1757- 1758.) | Appellant claimed that he was not trying to escape, but wastrying to control the manner in which he came forward. (IXRT 2013-2014.) He also said he changed his name because he wantedto protect his family from negative publicity. (IXRT 2014.) Appellant said that if the governmentdid something wrong, you shouldresist it to protect your freedoms. (IXRT 2050.) He participated in nonviolent protests, but concluded that when yourrights are threatened with violence, you havethe right to defend them with violence. (IXRT 2079.) Appellant said that he cameto California to commit this act because he did not wantit to be interpreted as a local dispute. (XRT 2174.) He also chose California because he believesit is the least gun friendly. (XRT 2174.) He wanted to be able to get to New Hampshire to come forward to make a statement aboutpersonal responsibility. (XRT 2175.) 2. Record settlement in this case Oncehe wasarrested in New Hampshire appellant was extradited to California. It appears that an attorney retained by appellant’s parents hired a psychiatrist. But it also appears that very little if any of this information was presentedto the court in appellant’s California proceedings. On March1, 2010, appellant’s counsel in this automatic appealfiled an “APPLICATION TO COMPLETE, SETTLE, AND CORRECT THE RECORD ON APPEAL.” (2Supp.CT 43.’) Among other documents, appellant soughtto includein the record, “The entire court file, including ” Respondent notesthatthere is a Clerk’s First Supplemental Transcript on Appeal (2 volumes), and a Clerk’s Second Supplemental Transcript on Appeal (1 volume). Thecitation “2Supp.CT”refers to the latter. 34 all pleadings and reporter’s transcripts, from the New Hampshire proceedings on the State of California’s ‘Application for Extradition,’ which appears at 2CT 431-432.” (2Supp.CT 48.) Appellant’s explanation for including the documents in this appellate record was: Defendantnotes that both parties referenced the New Hampshire proceedings. The District Attorney specifically referenced the New Hampshirefile in the People’s opposition to defendant’s motion that he not be shackled. (8CT 611-619.) Defendant referenced the New Hampshire proceedingsin his Motion for Change of Venue, wherehestated that after he was arrested in NH,“attorney Sisti, without Defendant’s consent and against his express instructions, attempted to lay the foundations 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.” (4CT 864-965.) These documents, made part of the appellate record by the parties’ references to the New Hampshire proceedings, should be includedin the appellate record. (2Supp.CT 48-49.) A review of the record reveals the extremely limited nature of the references. For example, the People’s opposition to defendant’s motion not to be shackledstates: While incarcerated in New Hampshire, defendant obstructed jail personnel and refused to dress. Defendant chose to remain nude and/or covered by a blanket and appeared in such mannerfor one of his court appearances, which was conducted with the use of a closed circuit video monitor. (3CT 612.) At another point the opposition also states, “Defendant was disruptive and uncooperative with jail authorities in New Hampshire refusing to dress,” and “Defendant demonstrated disrespect for the court process in New Hampshire appearing for court wrapped in a blanket.” (3CT 616.) 35 The People repeated these two references at the end of the opposition. (3CT 618.) The references to the New Hampshire proceedings in appellant’s Motion for Change of Venue were similarly limited. It appears, that even prior to his arrest in New Hampshire, appellant’s parents retained Mark Sisti to represent him. (4CT 864.) Appellantalso stated: Once Defendant wasarrested, attorney Sisti, without Defendant’s consent and against his expressinstructions, attempted to lay the 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. (4CT 864-865.) | Appellant also stated: Attorney Sisti’s unauthorized approach to representing his client solidified a belief throughout the community that the Defendant waseither attempting to avoid responsibility for his actions by playing the insanity game, or that he wasactually insane and that he did not even know his own name. (4CT 866.) The references to the New Hampshire proceedings were limited and it is not clear on this record that the letter from Dr. Drukteinis, M.D., or even the just of its contents, were ever conveyedto the court in this case.* 3. Dr. Drukteinis’s letter Further, even if the Drukteinis letter itself is considered, it does not present substantial evidence of appellant’s incompetenceto standtrial or represent himself. (2Supp.CT 79-84.) ® In ArgumentII, appellant contendsthat his attorney’s failure to disclose the letter to the court was ineffective assistance of counsel. (AOB 68, 73, 75.) 36 For example,the first sentence of the letter clarified that Dr. Drukteinis “interview[ed]” appellant at the request of the attorney’s office. (2Supp.CT 79.) Dr. Drukteinis madeit clear the examination was incomplete, stating: In order to complete a full independent psychiatric evaluation I would need to review all police records as they becomeavailable including statements of friends and acquaintances with whom Mr. McCrae hashad contact overthe past year. In addition, a lengthier interview and psychological testing would be necessary. (2Supp.CT 79.) Theletter discussed appellant’s background and political motives. Specifically, appellant’s transformation from oneof nonviolentpolitical movements to a violent plan of action. (2Supp.CT 80.) Theletter states: {H]e became involved with various non-violent political movements and associated international travel—someofwhich he would use as material for course work. For example, in December 2001, he traveled to Israel with the International Solidarity Movement, a citizens group that supports Palestinians. Mr. McCrae saysthat, while there, he saw moredirectly the poweroftheIsraeli “police state,” and how “laws are based on pretext.” He sayshe felt he “had to do something aboutit.” In April 2002, he was involvedin a rally against the World Trade Organization meeting in Seattle, WA, at which he wasarrested for falling on top of a woman,reportedly to protect her from police. Mr. McCrae says that he spent the night in jail and charges were dropped, but he believes the police actions were unjust, and “the arrest was just to break upa street party.” In June 2002, Mr. McCrae traveled to Northern Ireland and, in July, to Columbia, South America, both ofthese trips also with non-violent organizations. Finally, in August 2002, he participated in a demonstration outside of the perimeter of the School of Americas in Fort Benning, GA. Hesaysthat the School of Americasis established to train foreigners on how to control their population, so that U.S. corporate interests can be introduced into the country. Mr. McCrae saysthat atthis demonstration he saw three of his co-demonstrators arrested whenthere were climbing over the perimeter fence, and that it 37 was “eye-opening” for him. Specifically, he indicates that it was “disheartening to see well-motivated people accomplishing nothing....”” With that, he became determined to execute his “own violentpolitical action campaign,” by “redeveloping(his) approach.” (2Supp.CT 80-81.) Appellant explained that he madeplansto kill a single police officer. (2Supp.CT 81.) As explained in theletter: Mr. McCraesaysthat he believed killing as few [as] people as possible,i.e. only one person, would satisfy his aims because he could then come forward and explain whyhedid it. Hefurther says he believed that police would then see the “error of their ways or (would) realize that others would take armsin revolution”as he did. Throughthis, the police would “stop encroaching on freedoms.” He expected the public at large to rally behind him. (2Supp.CT 81.) The letter summarized Dr. Drukteinis’s perception of appellant’s mental state at the time of the interview as follows: Mr. McCraepresents as a mildly intense young man who wasnot agitated or belligerent. He showed nosigns of aggression or overt paranoia. He calmly and methodically gave his account without any signs ofpsychotic disorganization of thought. There was a tendency to ramble andto obsess about details, but no pressured speech orflight of ideas. There was no sign of hallucinations,illusions or psychotic perceptions. He denied being depressedat this time. He did admit to having spells in his life of high energy, but said that he is “not bipolar (manic depressive).” He did admit to seeing a counselor onceat Evergreen State College following the breakup of a romantic relationship. The details of this are not known. However, he says he determinedthat it would not do him any good, because the counselor “wouldn’t be open to existential, philosophical issues.” Mr. McCrae denied that his mentalstate is disturbed or that heis irrational, saying only that“political issues had (him) stirred.” He denied ever hearing voices or seeing things which were not there, and claimed no feelings of unreality, blackouts, or dissociation. Hesaid that he did not have any sleep problems, 38 and had not been drinking for a couple of months before his “political action campaign.” He admitted to some experimentation with drugs, but no addiction. (2Supp.CT 83.) Appellant explainedhis plans for fighting the charges against him as follows: Mr. McCraesays he wants to stay in New Hampshire to fight his court case, because of the State’s “right to revolution.” In the process, he wantsto call others to revolution as well. He says he hopesto be released eventually, but at the same time the “politics involved will make that unlikely.” He indicates that he plans to plead not guilty because he had a good reason to do whathedid, i.e. justifiable homicide. He says that he would not accepta plea of insanity, and wants to fight extradition to California. Mr. McCrae wants the court process to cause a “stir in the press so other people put themselves out on theline... reach out to make the world a better place.” (2Supp.CT 83.) In the letter Dr. Drukteinis concludes: In my opinion, there is evidenceat this point that Mr. McCraesuffers from a mental disturbance. He has 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. In Mr. McCrae,this does not appear to represent simply a variant of political beliefs, but an intense preoccupation with the wrongs committed by corporations and law enforcement agencies within U.S. society, while he has a mission to correct by inciting revolution. There is a strong fantasy andirrational expectation to his thinking, coupled with what appearsto be a belief that what he did was not wrong. The relatively sudden changein his thinkingto this intense set of beliefs also supports that they represent a mental disturbance rather than just a variantofpolitical beliefs. It is not clear what precipitating factors may he been responsible for this, but may include stressors during the fall of 2001, or the emerging of a new phase ofa pre-existing mental disturbance. In my opinion, Mr. McCrae’s competencyto standtrial, or to rationally participate in other court proceedings, is highly questionable becauseofhis irrational thinking. Most prominently, he would 39 refuse a plea of insanity because he lacks insight into his mental disturbance. This, of course, could remove any reasonable defense for him, since his trial cannot be based on his delusional aim at revolution. Again, these are preliminary findings that need to be assessedin light of all the discovery that becomesavailable and further personal interview and testing of Mr. McCrae. (2Supp.CT 84.) This letter was not presented to the court in New Hampshire under oath, or even in responseto an order from the court to examine appellant and file areport. At best, the “preliminary findings” opines there is “evidence” of a “mental disturbance.” (2Supp.CT 84.) Further, the foundation of Dr. Drukteinis’s preliminary opinion is flawed in that his conclusion is that appellant’s competenceis “highly questionable” because appellant refuses an insanity plea and that would remove any “reasonable defense.” (2Supp.CT 84.) In other words appellant must be incompetent because he refuses to say that he is insane, and claiming insanity is his only chance to avoid responsibility for Officer Mobilio’s murder. B. Legal Standard In Dusky v. United States (1960) 362 U.S. 402, the United States Supreme Court defined competenceto standtrial as a defendant’s “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’”and “<a rational as well as factual understanding of the proceedings against him.’” In California, proceedings related to competencyare also dictated by statute. Section 1368 provides in relevantpart: (a) If, during the pendencyofan action andpriorto judgment, a doubtarises in the mindofthe trial judge as to the mental competence of the defendant, he or she shall state the doubt on the record and inquire ofthe attorney for the defendant whether,in the opinion of the attorney, the defendant is mentally 40 competent.... At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings...to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. [ ] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competenceis to be determinedin a hearing.... If counsel informs the court that he or she believes the defendantis mentally competent, the court may nevertheless order a hearing. Anyhearing shall be held in the superior court. Asnoted by this Court in People v. Pennington (1967) 66 Cal.2d 508, 518 (Pennington): an accused hasa constitutional right to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him orofassisting in his defense. Once such substantial evidence appears, a doubt asto the sanity of the accused exists, no matter how persuasive other evidence- testimony of prosecution witnessesor the court’s own observations of the accused-maybeto the contrary. “Substantial evidence” has been defined as evidencethat raises a reasonable doubt concerning the defendant’s competenceto standtrial. (People v. Davis (1995) 10 Cal.4th 463, 527.) In People v. Stankewitz (1982) 32 Cal.3d 80, 91-92, this Court stated: This court has previously defined the preliminary showing of incompetency whichis necessary to trigger the mandatory competency hearing procedure of section 1367 et seq. Section 1368 speaks in terms of whether a doubtarises in the mind of the judge, and is then confirmed by defense counsel. However, as this court realized 15 years ago in People v. Pennington (1967) 66 Cal.2d 508, 516-517 [58 Cal.Rptr. 374, 426 P.2d 942] once the accused has come forward with substantial evidence of incompetenceto standtrial, due process requires that a full competency hearing be held. (See Pate v. Robinson (1966) 383 U.S. 375 [15 L.Ed.2d 815, 86 S.Ct. 836].) Drawing on Pate v. Robinson, Pennington set down standards regarding what constituted substantial evidence of incompetence to standtrial: 41 “If a psychiatrist or qualified psychologist [citation omitted], whohashad sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purposeornature of the criminal proceedings being taken against him or is incapable ofassisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.” (Id. at p. 519.) Here, appellant did not present substantial evidence that he was incompetent, requiring the court to suspend criminal proceedings. First, there is no indication in this record that the Drukteinis letter was ever presentedto thetrial court. Dr. Drukteinis did not state under oath, with . particularity, that appellant, because of a mental illness, was incapable of understanding the criminal proceedings,assisting in his defense, or cooperating with counsel. Further, as Dr. Drukteinis makesclearhis examination of appellant was incomplete and his findings were preliminary. The details and conclusory nature of his findings are discussed below. C. Appellant Did Not Present Substantial Evidence That He WasIncompetent to Stand Trial and Was Therefore Not Denied Due Process Appellant contendsthat the court had no discretion to exercise, and wasrequired to suspend proceedings pursuantto section 1368. (AOB 49.) Appellant’s claim is without merit. The foundation of appellant’s argument that the court had no discretion is Pennington, supra, 66 Cal.2d at p. 519, whichstated: If a psychiatrist or qualified psychologist..., who has had sufficient opportunity to examinethe accused, states under oath with particularity that in his professional opinion the accusedis, because of mental illness, incapable of understanding the purposeor nature of the criminal proceedings being taken against him oris incapable ofassisting in his defense or cooperating with counsel, the substantial-evidencetest is satisfied. 42 Appellant alleges, “That was the case here.” (AOB 50.) Appellant’s contention is without merit. Appellant’s circumstanceis factually and legally distinguishable, and Pennington does nothing to advancehis claim. In Pennington, a capital case, the defendant entered pleas of not guilty and not guilty by reason of insanity. (Pennington, supra, 66 Cal.2d at p. 511.) After trial began the defendant interrupted with curses or comments, and at one point announcedto the court that he refused to have a lawyer. (/bid.) His attorney moved to suspendthetrial pursuant to section 1368, and submitted the affidavit of a clinical psychologist, who had examined defendant and concluded he was insane. (/d. at pp. 511-512.) Thetrial judge took evidenceto assist him in determining if he should declare a doubt as to the defendant’s competenceto standtrial, and the psychologist who had prepared the affidavit in support of the motion testified. (Pennington, supra, 66 Cal.2d at p. 512.) The psychologist stated that in his opinion the defendant was incapable of understanding the nature of the proceedings against him and ofassisting his attorney in his defense. (Id. at p. 512.) Defense counsel stated that a psychiatrist, who had previously treated the defendant, and had also examined him, would testify that he was incompetentto stand trial. (/d. at pp. 512-514.) Defense counsel indicated that he would havecalled the psychiatrist, but his testimony would only have echoed the conclusionsofthe psychologist. (/d. at p. 513.) During the hearing the defendant interrupted and the judge “threatened” to have him gagged. (/bid.) The defendant broke into “obscenities and oaths” and four deputies subdued him. (/bid.) Following a recess, the judge announcedthat he had ordered the defendant gagged and that the motion for the sanity hearing was denied. (/bid.) The following day, defense counsel said thathe discovered the defendant weepingin his cell with abrasions on his wrist, and that the defendant had been hearing voices. (/bid.) The defendant had also been observed displaying his penis 43 to spectators and shouting for them to bring a “Cracker Jack,” which wasa reference to a snack he gave to the victim in the case. (/bid.) Defense counsel also offered defendant’s records from Atascadero State Hospital. (Ibid.) The judgestated the purpose of the proceeding was not to determine: the defendant’s sanity, but whetheror not the judge should declare a doubt as to his competency, and the judge had no doubt. (/bid.) The judge explained that his decision was based primarily on four reports of court appointed psychiatrists, each of whom had found the defendant to be presently sane, and his own observations duringtrial. (/bid.) During the remainderofthetrial there was evidence that defendant was,at the time ofhis trial, insane. (Pennington, supra, 66 Cal.2d at p. 514.) A psychiatrist, who had previously treated the defendant, testified that the defendant was incapable ofassisting in his own defense, and that his condition at trial was worse than it was when the defendant was under his care. (Jbid.) A consulting psychologisttestified, after testing and interviewing the defendant, that the defendant wasactively hallucinating and “grossly” insane. (/bid.) The defendant argued that insofar as the procedure approved in People v. Merkouris (1959) 52 Cal.2d 672, permitted a trial judge to resolve conflicting evidence against a doubt ofpresent competency, it was unconstitutional as applied in cases in which the defendant had come forward with substantial evidence of incompetenceto standtrial. (Pennington, supra, 66 Cal.2d at pp. 516-517.) This Court considered the then recent Supreme Court decision in Pate v. Robinson(1966) 383 U.S. 375, and revisedits interpretation of section 1368. (Pennington, at p. 517.) The Court stated: Whenthe evidence casting doubt on an accused’s present sanity is less than substantial, People v. Merkouris, supra, 52 Cal.2d 672, 678-679, correctly states the rules for application of section 1368 ofthe Penal Code. Whetherto order a present 44 sanity hearing is for the discretion ofthetrial judge, and only where a doubtas to sanity may besaid to appear as a matter of law or wherethereis an abuse of discretion maythe trial judge’s determination be disturbed on appeal. But, when defendant has come forward with substantial evidence of present mental incompetence,heis entitled to a section 1368 hearing as a matter of right under Pate v. Robinson, supra, 383 U.S. 375. The judge then has no discretion to exercise. Insofar as People v. Merkouris, supra, 52 Cal.2d 672, and People v. Lindsey, supra, 56 Cal.2d 324[°], suggest that the judge, because he personally has no doubt as to the accused’s sanity, may deny a section 1368 hearing despite substantial evidence of present insanity, they are overruled. (Pennington, supra, 66 Cal.2d at pp. 518-519.) This Court applied its conclusion to the facts of the case before it, and in so doing noted the language regarding psychiatric opinion now cited by appellant. (Pennington, supra, 66 Cal.2d at p. 519, AOB 49.) But appellant’s circumstanceis entirely different. First, there is no indication that the letter from Dr. Drukteinis was ever presented to the trial court. Second, even considering the letter, Dr. Drukteinis himself indicated that he did not have sufficient opportunity to examine appellant, did nottestify under oath, and did not even submitthe letter to the New Hampshire court pursuant to an order or appointmentby the court. Finally, even considering the substanceofthe letter, Dr. Drukteinis’s observations are only preliminary and are themselves conclusory and unsubstantiated. Asnoted above,it does not appear the letter was ever presented to the court. Appellant candidly acknowledges, “While the Drukteinis report was not itself before the court that did not relieve the trial court ofits responsibilities under sections 1367 and 1368 to ensure that the proceedings comported with due process.” (AOB 50.) But appellant then advances an argument thatis structured as if the letter was before the court. ? People v. Lindsey (1961) 56 Cal.2d 324. 45 For example, appellant contends, “The court was awarethat the psychiatric report had been provided by the prosecution in discovery (1 RT 68), and that both the prosecution and the defense were aware ofthat report.” (AOB 50.) But a review ofthe record cited by appellant does not support his contention. On April 22, 2003, in discussing the possibility of closing some of the proceedingsto the public, appellant’s attorney, Mr. Reichle, stated the following: [MR. REICHLE]: Basically I just want to makeit clear I am not in any waytrying to close or moveto close the preliminary hearing itself in any way. As weall know,this being a capital case, everything is recorded and reported. We also know that the press has an importantinterest in attending publictrials. All I am focused onhereis that there was, of course, an extensive investigation involving local authorities, Department of Justice, the F.B.I. and just about everybody else who could get their fingers on anything. And a lot ofpeople were interviewed, and a lot of material was provided, some of which could be significantly inflammatory. And I believe, and obviously it is my belief at this point in reviewing the discovery, it has little or no relevanceto the case, thus a conundrum. (IRT 67-68.) This statement simply does not support appellant’s contention that the court was awareofthat the letter had been provided by the prosecution in discovery, muchless the details included within theletter. In another example, appellant argues, “The court was also aware of the conclusion ofthat report when, on July 7, 2004, appellant told the court —without contradiction from the People—that Drukteinis had actually rendered that opinion that appellant was not competentto standtrial.” (AOB 50.) Presumably, appellantis referring to his motion for a change of venue, which appellantfiled on July 7, 2004. (4CT 862.) In that document, appellantstates: 46 Once Defendant wasarrested, attorney Sisti, without Defendant’s consent and against his express instructions, attempted to lay the 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. (4CT 864-865) In another portion of the motion appellant states: Attorney Sisti’s unauthorized approach to representing his client solidified a belief throughout the communitythat the Defendantwaseither attempting to avoid responsibility for his actions by playing the insanity game,or that he was actually insane andthat he did not even know his name. (4CT 866.) Again, these references do not support appellant’s contention that the court was aware ofthe letter, much less the details included within the letter. Ultimately appellant concludes: Having learned that a psychiatrist had concludedthat there wasa reasonable doubt regarding appellant’s competence, the trial court had no discretion. The court was obligated to suspend proceedings to investigate whether appellant wasin fact competentto stand trial. (AOB 50, footnote omitted.) As outlined above, there is little, if any, indication in the record that the court was informedofthe details of the proceedings in New Hampshire. Appellant was arrested in New Hampshire and extradited to California. Appellant attempts to import knowledgeofthe details of the New Hampshire proceedingsto the court in California to bolster the claim that the court erred in failing to raise a doubt as to his competency. There is no indication in this record that the court reviewed and consideredtheletter, andlittle indication that the court was aware anyofthe details of the New Hampshire proceedings. As a consequence, any argumentthat the court 47 was required to suspend criminal proceedings because of a letter it never saw, is without merit. Further, even assuming for sake of argumentthat the court had been presented with the letter it would not have required the court to suspend criminal proceedings. That is because the circumstancesandtheletteritself contain insufficient assurancesofits reliability for it to be considered evidence of anything, and certainly not evidence of appellant’s incompetenceto stand trial. As noted above, in Pennington the Court stated: If a psychiatrist or qualified psychologist..., who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accusedis, because of mentalillness, incapable of understanding the purposeornature of the criminal proceedings being taken against him or is incapable ofassisting in his defense or cooperating with counsel, the substantial-evidencetest is satisfied. (Pennington, supra, 66 Cal.2d at p. 519.) The letter from Dr. Drukteinis does not meet this standard and therefore fails to provide sufficient assurancesasto its reliability.!° The letter makesclear that there was not “sufficient opportunity to examine” appellant. In the letter Dr. Drukteinis referred to his “preliminary competencyto stand trial assessment,” and notedthat: In order to complete a full independent psychiatric evaluation I would needto review all police records as they become available including statements of friends and acquaintances with whom Mr. McCrae has had contact over the past year. In addition, a lengthier interview and psychological testing would be necessary. '° Dr. Drukteinis’s letter is also inadmissible hearsay (Evid. Code, § 1200) an issue that was never addressed presumably becausetheletter wasneverpresented to the court in California. 48 (2Supp.CT 79.) Dr. Drukteinis providedhis “preliminary findings” (2Supp.CT 79) and clarified in the conclusionthat: Again, these are preliminary findings that need to be assessed in light of all the discovery that becomes available and further personalinterview andtesting of Mr. McCrae. (2Supp.CT 84.) The contents of the letter, even if they had been presented to thecourt, were preliminary in nature. Dr. Drukteinis therefore did not have a “sufficient opportunity to examine”appellant as that phrase is contemplated in Pennington. Theletter therefore could not serve as substantial evidence of appellant’s incompetenceto standtrial in California. The preliminary nature ofthe letter, and its insufficient examination of appellant, are not its only shortcomings. In a footnote (AOB 50,fn.4) appellant claims: Noris it significant that the Drukteinis report was not filed under oath. The courts of this state have held that the fact that a doctor’s report is filed not under oath does not deprive the report of the force of a substantial evidence of incompetence. Appellant summarily dismisses the requirement in Pennington that the psychiatrist’s professional opinion be conveyed with particularity under oath. To do so herelies primarily on People v. Tomas (1977) 74 Cal.App.3d 75, 91. (AOB 50,fn. 4.) Appellant’s contention is flawed in several respects. First, as discussed above, the document was not even before the California court. Appellant’s argument therefore attempts to bolster the reliability of a document that was never even considered by the court. Further, People v. Tomas, supra, 74 Cal.App.3d at page 91, doeslittle to support appellant’s claim. In Tomas, the appellate court foundit probable that, through an oversight, the trial court did not actually consider 49 a doctor’s report, which concludedthat the defendant waslegally incompetent. (/d. at pp. 91-92.) The report was submitted to the court pursuant to an order appointing the doctor to examine the defendant. (People v. Tomas, supra, 74 Cal.App.3d at p. 91.) The appellate court found the “report was nonetheless available to the court and was substantial objective evidence giving rise to a doubt as to defendant’s competence.” (Id. at pp. 91-92.) The judgment wasreversed. In its analysis the appellate court noted: There wassubstantial evidence of defendant’s incompetenceto standtrial presented to the court in the form of Dr. Deering’s report. Dr. Deering did not testify under oath. However, his report was submitted to the court under an order appointing him to examine the defendant andto file his report with the court. (People v. Tomas, supra, 74 Cal.App.3d at p. 91.) Here,the situation wasentirely different. Dr. Drukteinis did not testify under oath, and wasnot underthe order of any courtdirecting him to examineappellant andfile a report. In fact, it appears that Dr. Drukteinis washired by an attorney in New Hampshire that wasretained by appellant’s parents before appellant was even arrested. And while appellant’s New Hampshire attorney may have submitted the letter as an attachment to a motion in New Hampshire there is absolutely no indication that the court in California ever saw theletter, or was familiar withits content. Unlike the situation in Tomas, Dr. Drukteinis was not appointed by any court, and certainly not a California court, to examine appellant and then file a report. The contents ofthe letter are therefore not sufficiently reliable to be relied onby the California court. . Appellant further contendsthat: The court was informed that Dr. Drukteinis directly linked appellant’s mental illness to his trial competence. As appellant described Drukteinis’s findings, appellant “could not even 50 identify himself, could not understand the court proceedings, and could not understandthe difference between the Judge, the Prosecution, and the Defense.” (4 CT 864-865.) (AOB51.") The portion of the record to which appellantcites, actually states: Once defendant wasarrested, attorney Sisti, without defendant’s consentand against his express instructions, attempted to lay the foundations 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 understandthe difference between the Judge, the Prosecution, and the Defense. (4 CT 864-865.) The information conveyed to the court in this part of the record was that appellant referred to the “unsubstantiated claims”of the attorney. There wascertainly nothing conveyed to the court about a report by Dr. Drukteinis. And nothing that “informed [the court] that Dr. Drukteinis directly linked appellant’s “mental illness” to his competence. Further, even if Dr. Drukteinis’s letter is considered it does not present substantial evidence of appellant’s incompetenceto either stand trial or conduct his own defense. That is because Dr. Drukteinis’s preliminary findings are equivocal and conclusory. Dr. Drukteinis’s letter ultimately concludes: In my opinion, Mr. McRae’s competencyto standtrial, or to rationally participate in other court proceedings,is highly questionable because ofhis irrational thinking. Most prominently, he would refuse a plea of insanity because he lacks the insight into his mental disturbance. This, of course, could removeany reasonable defense for him, since histrial cannot be based onhis delusional aim at revolution. 'l Appellant generously refers to Dr. Drukteinis’s “findings,” but Dr. Drukteinis carefully clarified that his findings were preliminary only and the examination was incomplete. (2Supp.CT 79, 84.) 51 Again, these are preliminary findings that need to be assessed in light of all the discovery that becomesavailable and further personal interview andtesting of Mr. McCrae. (2Supp.CT 84.) Dr. Drukteinis’s letter of preliminary findings is equivocal and conclusory. Dr. Drukteinis does not even concludethat appellant is, in his professional opinion, incompetent to stand trial. The furthest Dr. Drukteinis appears willing to go is that appellant’s competencyis “highly questionable.” Dr. Drukteinis does not appearto base that preliminary finding on any specific mentalillness, but on appellant’s “irrational thinking.” In sum,his preliminary opinion appearsto bethat appellant’s competency is highly questionable because he refusesa plea of insanity, and that is his only available defense.’” Theletter does not represent substantial evidence of appellant’s incompetence. (See People v. O’Dell (2005) 126 Cal.App.4th 562, 572 [expert’s opinion cannot constitute substantial evidence if unsubstantiated by facts].) Even assuming for sake of argument the court had knowledgeofthese preliminary findings; there was no obligation to suspend criminal proceedings. Appellant contends that People v. Koontz (2002) 27 Cal.4th 1041 (Koontz), is “highly instructive.” (AOB 52.) While Koontz maycertainly be instructive, it does nothing to advance appellant’s claim. In Koontz, a capital case, this Court held that thetrial court’s failure to conduct a competency hearing when defendant elected to represent himself at the conclusion ofthe preliminary hearing did not deprive the defendantofthe constitutional right to due process. (Koontz, supra, 27 Cal.4th 1041.) '? Legal insanity is a notoriously difficult standard to meet, requiring proofthat the defendant was “incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (§ 25, subd. (a); People v. Lawley (2002) 27 Cal.4th 102, 169-170.) 52 The defendant alleged that there was substantial evidence ofhis incompetency, and that he was unable to cooperate with andassist his original appointed counsel, and that after becoming his own counsel was unable to competently prepare and present his own defense. (Kooniz, supra, 27 Cal.4th at p. 1064.) In sum, Defendant characterizeshis trial as a travesty, punctuated with fits of his incoherent rambling and nonsensical statements, an irrational defense based on self-defense against a nonexistent knife and a delusional belief that the shot he fired into the victim’s abdomendid notreally hurt him,as well as an untenable suggestion that the paramedics actually killed the victim by negligent treatment. Defendantfurther asserts that he presented a numberofwitnesses in his defense who wereeither not helpful or damagingto the defense. (Koontz, supra, 27 Cal.4th at p. 1064.) This Court concluded that: Examination ofthe record fails to support defendant’s claim of incompetencyto stand trial. Even supposing defendant is correct that the various examples of his rambling, marginally" relevant speechescited in his briefing may constitute evidence of some form ofmentalillness, the record simply does not show that he lacked an understanding ofthe nature of the proceedings or the ability to assist in his defense. To the contrary, defendant - (who,it will be recalled, had had extensive prior experience with the criminal justice system) put on evidence, conducted cross- examination andtestified on his own behalf. (Koontz, supra, 27 Cal.4th at p. 1064.) Appellant argues that, “Importantly for the case at bar, this court contrasted the factual showing in Koontz with that in Howardv. State (Miss. 1997) 701 So.2d 274, where there was substantial evidence of incompetenceandthetrial court erred by failing to suspend criminal proceedings.” (AOB 52-53.) While this Court in Koontz did distinguish Howardv. State, that does not advance appellant’s claim, andit is certainly 53 not the case that, “The evidence in appellant’s case wasat least as strong as in Howard,if not stronger.” (AOB 53.) In Howard, the Mississippi Supreme Court reversed a murder conviction and death sentence on the basis, among other reasons,that the trial court erred in failing to declare a doubt as to the defendant’s competency, and without holding a hearing to determine his competency, permitted him to act as his own attorney. (Koontz, supra, 27 Cal.4th at pp. 1064-1065.) As summarized by the Court in Koontz: Howard’s theory was that Howard’s own family members had killed the victim and were framing him; he even suggested one of the jurors might have committed the crime. (bid.) During the one-hour sentencing phase, Howard refused to say anything to the jury. Thetrial judge never ordered a competency hearing, althoughprior to trial he did enter an order requiring that Howard undergo a mental examination, with which Howard refused to cooperate. On various occasions each of the four attorneys appointed to represent or assist Howard articulated to the court their concern that he was incompetentto stand trial. The Mississippi Supreme Court concludedthetrial judge wasthus apprised of information that should haveraised a doubt about Howard’s competencyand that the court erred in permitting Howard to represent himself withoutfirst determining his competency. (/d. at pp. 280-284.) (Koontz, supra, 27 Cal.4th at p. 1065.) The Court in Koontz compared the evidence in Howardto the evidence in the case before it, stating: In the present case, prior to defendant’s exercise ofhis right to self-representation, his appointed counsel neverraised any question concerning defendant’s competency. Unlike Howard, defendant took an active role in pretrial proceedings and voir dire. Moreover, he questioned witnesses concerning the facts of the case and the character of the victim, although his shaky grasp of the concept of legal relevancy did not well serve his cause. Defendanttestified and presented argumenton his own behalf, although he did not, as a competent attorney would, 54 attempt to develop a persuasive case in mitigation. These deficiencies in his self-representation suggest not incompetency to stand trial but, rather, the lack of legal training common to most pro se defendants. (Koontz, supra, 27 Cal.4th at p. 1065.) Here, Mr. Reichle, the court, and the prosecutors, never raised a doubt as to appellant’s competency. In each appearance before the court, appellant presented as intelligent, logical, and insightful, and more than capable of representing his owninterests. Appellant’s counsel dismisses appellant’s political beliefs as a “bizarre theory.” (AOB 54.) While appellant’s political beliefs are severely misguided, violent, and extreme, they should not be equated with a mentalillnessrising to the level of substantial evidence of incompetency to standtrial. It is hardly surprising that a percentage of the population in the United States maintain sharp disagreement with somepolicy or law ofthe government. Sadly,it is still not surprising that a small percentage ofthat population consider violence as a legitimate method to advancetheir | position. Andfinally, and even smaller percentage of that population actually resort to violence. That certainly does not mean those few individuals who actually resort to violence are each incompetentto stand trial. In reality they are criminals who broke laws recognized and supported by the vast majority of the American public. Appellant’s reliance on People v. Murdoch (2011) 194 Cal.App.4th 230 (Murdoch), is misplaced. (AOB 56.) Appellant contendsthat, “the evidence of incompetence in appellant’s case was equal to or stronger than in Murdoch.” (AOB 57.) Appellantis incorrect, as discussed above, atall times and during all court proceedings appellant presented as lucid, logical, and intelligent advocate. That was not the case in Murdoch. In Murdoch, the defendant was convicted of assault with a deadly weapon andbattery with serious bodily injury. (Murdoch, supra, 194 55 Cal.App.4th at pp. 233-234.) The defendantfiled a petition for writ of habeas corpus, which the Court of Appeal deemeda notice of appeal. (/d. at p. 235.) In the underlying proceedings in Murdoch,at his second court appearance, the magistrate ordered the jail psychological team to examine defendant. (Murdoch, supra, 194 Cal.App.4th at p. 233) The defendant was not broughtinto court for that hearing; but at a subsequent hearing the court suspended criminal proceedings pursuant to section 1368. (/bid.) The court assigned a psychologist and a psychiatrist to examine appellant. (Ibid.) Both found that defendant had a “major”or “severe” mentalillness. (Ibid.) They also found he was competentto standtrial due to the effects of the medication he had been prescribed. (/bid.) But there wasalso information that the defendant only took his medication “sometimes” or that he had stopped taking it. (Jbid.) Both experts concluded that the defendant could decompensate and becomeincompetentifhe continued to refuse medication. (Jbid.) At a hearing,the court found that the defendant was not incompetent and reinstated criminal proceedings. (Jd. at p. 234.) Subsequently, the defendant soughtto represent himself, and the court granted his request. (Murdoch, supra, 194 Cal.App.4th at p. 234) Prior to opening statements, and after a discussion on dealing with exhibits, the defendant said he had photographs and pagesout of books,including the Bible, which he wanted to use. (Jbid.) In explaining the relevancy, the defendantstated: ‘““WhatI have to do here is I have to demonstrate that there’s something else going on in this world that people aware of. I’m going to makeallegations about the plaintiffs in this case that they aren’t even human,andthat they’re—” Atthis point the court interrupted and asked, “The defenseis they’re not human?” The defendant confirmed that was his defense. He stated that when he used the term “plaintiffs,” he meant “both” ' people who wouldtestify. The court changed the subject, telling 56 the defendant that since the witnesses each havea record, the prosecutor may ask them abouttheir prior convictions. Immediately thereafter the defendantstated, “Judge, what I’m going to askis [if] these individuals are from Sodom and Gomorra. They’re individuals that are amongusthat are not human. There’s a saying, ‘when pigs fly.” Shoulder bladesare symbolic of angelic beings.” He wenton to say, “Shoulder blades are symbolic of angelic beings. These two that are going to be taking the stand do not have shoulder blades. Okay?” He continued, “All I need to do, okay, if my assertion oftheir anatomyis correct, they have a bonethat runs from hereto here. They cannot shrug their shoulders. That’s all I’m asking.” (Murdoch, supra, 194 Cal.App.4th at p. 234.) Whentime cameto cross-examine the victim, the defendant stated, “At this time, I don’t know if I really think that this is the imposter.” The court told the defendantto “[j]ust ask the question.” The defendant then asked a single question: “Can you shrug your shoulders like this?” The victim did so, and defendantstated, “That’s all I have. This isn’t the man that I believe attacked me.” (Murdoch, supra, 194 Cal.App.4th at p. 235.) The Court of Appeal recognized that more is required to raise a doubt than a defendant’s bizarre actions, and that “more” was presentin the case before it. (Murdoch, supra, 194 Cal.App.4th at pp. 236-237.) In that case the mental health reports dealt exclusively with defendant’s fragile competence and defendant’s reliance on medications to remain competent. (Id. at p. 237.) The reports also informed the court that the defendant had stopped taking his prescribed medication and warned of decomposition. (1bid.) In the instant case there is no indication in the record that appellant wastaking any medication. More importantly, there is no indication appellant required medication to remain competent. At no point, even if Dr. Drukteinis’s letter is considered, has anyone diagnosed appellant with a 57 “major”or “severe”mentalillness.'? (Murdoch, supra, 194 Cal.App.4th at p. 233.) Moreover, the court here never expressed a doubtas to appellant’s competency, or appointed a psychiatrist or psychologist to examine him and submit a report. Again,there is no indication that the letter itself, or the details ofits contents were provided to the court. In a motion filed November20, 2003, to support appellant’s request to represent himself, James Reichle stated: Onlyifthere is substantial evidence before the Court of incompetenceto standtrial is the trial court required to make an inquiry by requiring the holding of the appropriate hearings on that issue. People v. Teron, supra, at 114. There is no such evidencein this case. (3CT 743.) It is recognizedthat trial counsel’s failure to seek a competency hearing is not determinative, but is significant becausetrial counsel interacts with the defendant on a daily basis andis in the best position to evaluate whether the defendantis able to participate meaningfully in the proceedings. (People v. Rogers (2006) 39 Cal.4th 826, 848.) _ Asfar as appellant’s statements regarding the possible imposition of the death penalty (AOB 57), “a defendant’s preference for receiving the death penalty does not invariably demonstrate incompetence.” (People v. Lewis (2008) 43 Cal.4th 415, 526; People v. Grant (1988) 45 Cal.3d 829, 859; People v. Guzman (1988) 45 Cal.3d 915, 963-965, overruled on other grounds, Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Here, it was not so muchthat appellant stated a preference for the death penalty, but that he resolutely believed his political principles. '3 Tt appears the furthest Dr. Drukteinis was willing to stretch his “preliminary finding” was that there was evidence of a “mental disturbance.” (2Supp.CT 84.) 58 A reasonable doubt as to mental competency sufficientto require a full mental competency hearing exists if at least one expert whois competentto render an opinion, and whohashada sufficient opportunity to conduct an examination,testifies under oath with particularity that, because of mentalillness, the accused is incapable of understanding the proceedings or assisting in his or her defense. (People v. Pennington, supra, 66 Cal.2d at p. 519; People v. Lewis (2006) 39 Cal4th 970, 1047.) That did not happenin this case. Appellant acknowledges thatthe letter itself was not before the court. (AOB 50.) Further, even if it had been,the letter was notitself sufficiently reliable to be evidence of anything. Dr. Drukteinis did not testify under oath, and was not underthe order of any court directing him to examine appellant and file a report. In fact, it appears that Dr. Drukteinis was hired by an attorney in New Hampshire that was retained by appellant’s parents before appellant was even arrested. And while appellant’s New Hampshire attorney may have submitted the letter as an attachment to a pleading in New Hampshire thereis absolutely no indication that the court in California ever saw the letter, or was familiar with its content. Moreover, even if considered, Dr. Drukteinis’s letter of preliminary findings is equivocal and conclusory. Dr. Drukteinis does not even conclude that appellantis, in his professional opinion, incompetent to stand trial. The furthest Dr. Drukteinis appears willing to go is that appellant’s competencyis “highly questionable.” Dr. Drukteinis does not appear to base that preliminary finding on any specific mentalillness, but on appellant’s “irrational thinking.” In sum,his preliminary opinion appearsto be that appellant’s competency is highly questionable because he refuses a plea of insanity, and that is his only available defense. Further, throughout the entire proceeding appellant presented as an intelligent, rational, and logical advocate. He was engaged and analytical and demonstrated an impressive 59 grasp of the procedural and substantive aspects of criminal law. There was simply no substantial evidence of appellant’s incompetenceto standtrial that required the court to declare a doubt and suspend criminal proceedings. Appellant’s claim is without merit and should be rejected. II. APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL A. Summary of Argument The foundation of appellant’s second argument, as with thefirst, is the letter from the psychiatrist that was retained by a defense attorney in New Hampshire. '* For example, in ArgumentI appellantclaimed, “The court was informedthat Dr. Drukteinis directly linked appellant’s mentalillness to his trial competence.” (AOB 51.) Here, appellant essentially argues the opposite, that his appointed counsel, JamesReichle’s, was ineffective in his purported failure to advise the court of the psychiatric letter, which was prejudicial because it would have constituted substantial evidence of appellant’s incompetence to waive counsel, and would have precluded the court form accepting appellant’s waiver without further proceedings to determine appellant’s competency. (AOB 60.) As discussed more fully below, this issue should not be considered on direct appeal, and is more appropriate in the context of a petition for writ of habeas corpus. Further, even if considered on its merits appellant’s claim of ineffective assistance of counsel is baseless. The letter ‘4 In the openingbrief, appellate counsel candidly acknowledgesthat appellant asked him to inform this Court that he did not agree with the decision to assert claims based on his lack of competence. (AOB 58,fn. 5.) It would presumably follow; therefore, that appellant would not agree with appellate counsel’s decision to allege ineffective assistance of counsel based ontrial counsel’s alleged failure to similarly question his competency. 60 from Dr. Drukteinis to appellant’s New Hampshire counsel wasnot sufficiently reliable to be evidence of anything. Further, even if the contents of the letter are considered the self-described “preliminary finding” based on an incomplete examination falls well short of declaring a doubt as to appellant’s competencyto stand trial. (2Supp.CT 79-84.) Finally, appellant cannot establish any prejudice. B. Appellant’s Claim Is More Appropriately Broughtin Habeas Corpus Rather Than on Direct Appeal As noted above, a claim ofineffective assistance of counsel is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal4th 264, 266-267.) Appellant acknowledgesthat he is “well aware thatit is usually more appropriate to bring claims ofineffective assistance of counsel in habeas corpusrather than on direct appeal because the former permits an exploration of counsel’s tactical reasons for his conduct.” (AOB 60-61.) Nevertheless, appellant claims that this is one of those “’rare instances wherethere is no conceivable tactical purpose for _counsel’s actions....”” (AOB 61.) Appellant is incorrect. Appellant must contend there is absolutely no reasonable tactical purpose for counsel’s actions becausethat is the only way in whichthis claim can be addressed on direct appeal. This Court has: [R]epeatedly stressed that [if] the record on appeal sheds no light on why counsel actedor failed to act in the manner challengedf,]...unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must berejected. [Citations.] A claim of ineffective assistance in such a caseis more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267, internal quotation omitted.) 61 That appellant’s claim is more appropriately addressed by a habeas corpus petition can be seen from the circular nature of appellant’s argument. In ArgumentI appellant claimed the court erred in failing to suspend criminal proceedings basedin large part on the contents ofthe letter from Dr. Drukteinis to his New Hampshire attorney, butin this claim (ArgumentII) alleges his California attorney wasineffective for failing to advise the court of theletter’s content. Subsequently, in ArgumentIII appellant claims that until the court received letters from appellant’s family members, after the guilt and penalty verdicts were returned, “the court did not have a complete picture of appellant’s mental state.” (AOB 81.) In support of that claim appellant points to correspondence from his mother in which she clams appellant was examined by twopsychiatrists. (AOB 84.) Althoughthe psychiatrist’s out of court statements to appellant’s mother, whoin turn, conveyed them to the court in writing, has levels of inadmissible hearsay,it is further indication that appellant’s claim hereis more appropriately addressed in the context of a habeas corpus proceedings. Appellant contendsthere is no explanation for “either failing to obtain the court file from a prior. phase ofhis client’s case, or in failing to advise the court of a recent psychiatric opinion that his client was not competent to waivethe right to counsel.” (AOB61.) The record sheds nolight as to why Mr. Reichle acted or failed to act in the mannerappellant alleges. Mr. Reichle wasclearly of the opinion that there was nosubstantial evidence of appellant’s incompetence, because that is exactly what he told the court. (3CT 743.) The information in this record is incomplete, andit is therefore appropriate to reject this claim on direct appeal. For example,the reference in the correspondence from appellant’s motherofthere being two psychiatrists is the only reference of its kind in the entire record. (AOB 84; 13CT 3634.) If appellant chooses 62 he may bringthis claim in a petition for writ of habeas corpus whereit can be appropriately considered on a more complete record. C. Even If Considered, Appellant’s Claim Fails on Its Merits , Nevertheless, assuming for the sake of argument, the claim is properly before the court, it is without merit. Mr. Reichle’s performanceat all times fell within the broad range of acceptable professional norms, and evenifit did not, appellant suffered no prejudice. The standards governing ineffective assistance of counsel claims are well settled. In order for appellant to establish that his trial counsel’s assistance wasineffective, he must show: (1) that his counsel’s performance wasdeficient, and (2) that he suffered prejudice as a result of his counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To meet the burden of showing incompetent performance, appellant must demonstrate that his “counsel’s representation fell below an objective standard of reasonableness underprevailing professional norms....” (People v. Kelly (1992) 1 Cal.4th 495, 519-520; accord Stricklandv. Washington, supra, 466 U.S.at p. 688.) To meet the burden of showing prejudice, appellant must show a “reasonable probability that, but for counsel’s unprofessionalerrors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]” (Un re Harris (1993) 5 Cal.4th 813, 833, internal quotations omitted.) Furthermore, “[rJeviewing courts defer to counsel’s reasonabletactical decisions in examining a claim of ineffective assistance of counsel[citation], and there is a strong presumption that counsel’s conductfalls within the wide range of reasonable professional assistance.” (People v. Lucas (1995) 12 Cal.4th 415, 436-437, internal quotations omitted.) The United States Supreme Court has recently notedthat: 63 “Surmounting Stricklana’s high bar is never an easy task.” _ Padilla v. Kentucky, 559 U.S.___,___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presentedat trial, and so the Strickland standard must be applied with scrupulouscare, lest “intrusive post-trial inquiry”threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689- 690, 104 S.Ct. 2052. Even under de novo review,the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” /d., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s representation amountedto incompetence under “prevailing professional norms,” not whetherit deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052. (Harrington v. Richter (2011) ___—* U.S. __, 131 S.Ct. 770, 788,italics in original.) In any case, when considering a claim ofineffective assistance of counsel, “a court need not determine whether counsel’s performance wasdeficient before examining the prejudice suffered by the defendant as result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the groundoflack ofsufficient prejudice, which we © expectwill often be so, that course should be followed.” [Citation.] A defendant must prove prejudicethat is a “¢demonstrable reality,’ not simply speculation.” [Citations.] (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) This Court has noted that the burden is “difficult to carry on direct appeal,” and a conviction will be reversed on direct appeal “‘only if the record on appeal affirmatively discloses that counsel hadnorationaltactical 999purposefor [his or her] act or omission.’” (People v. Lucas, supra, 12 64 Cal.4th at p. 437, quoting People v. Zapien (1993) 4 Cal.4th 929, 980.) In other words, when anineffective assistance claim is raised on direct appeal, the reviewing court will reverse the conviction only if the record on appeal affirmatively discloses that counsel had norational tactical purpose forhis conduct. (People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Again,it should be noted that appellant’s counsel has acknowledged that appellant himself does not agree with the decision to assert claims based on his lack of competence. (AOB 58, fn. 5.) Currently, appellant’s specific argumentis: | premised on Reichle’s failure to providethetrial court with the Drukteinis psychiatric report at the time appellant sought to waivehis right to counsel. This failure was critical because, before a court may permit a defendant to waivehis right to counsel, the trial court mustbe satisfied that the defendantis competentto do so. (AOB 68-69.) Appellant’s claim is without merit. Initially, as discussed above,it is not possibletotell from this record what information was in Mr. Reichle’s possession, and what reason he mayhave had for notdisclosing that information, because he was never asked. Further, as discussed in ArgumentI, ante, the Drukteinis letter was not substantial evidence of appellant’s incompetence. Appellant’s parents retained an attorney before appellant waseven arrested. (4CT 864.) That attorney asked Dr. Drukteinis to interview appellant. (2Supp.CT 79.) Atthat time appellant had already basically confessed in the media and taken responsibility for Officer Mobilio’s murder. (4CT 864.) Dr. Drukteinis interviewed appellant at the attorney’s request and forwarded the letter to the attorney, whoin turn attachedit as an exhibit to a filing to be submitted 65 to the New Hampshire court. (2Supp.CT 62, 79.) Further, the Drukteinis letter madeit clear that his findings were “preliminary” and carefully noted: In order to complete a full independent psychiatric evaluation I would need to review all police records as they become available including statements of friends and acquaintances with whom Mr. McCrae has had contact overthe last year. In addition a lengthier interview and psychological testing would be necessary. , (2Supp.CT79.) Appellant contendsthatthe, “law is clear that defense counsel, who possesses substantial evidenceofhis client’s incompetence, has a duty to inform the court of that evidence, and that counsel’s failure to do so constitutes deficient performance.” (AOB 69.) But there was no - substantial evidence of appellant’s incompetence. Asdiscussed in Arguments IV andV,post, appellantat all times presented asa logical, intelligent, and skilled advocate on his own behalf. Further, as discussed in Argument I,ante, even if the substance of Dr. Drukteinis’s letter is consideredit is not substantial evidence of appellant’s incompetence and Mr. Reichle made an acceptable decision not to come forward with it. Mr. Reichle, as the individual who undoubtedly spent the most time with appellant, clearly was ofthe opinion that appellant was both competentto standtrial and represent himself. Further, based on the limited information thatis in this record,Mr. Sisti’s and Dr. Drukteinis’s role in this case should be viewed with skepticism. Appellant’s parents hired Mr. Sisti, prior to appellant’s arrest, to represent him in New Hampshire. (4CT 864.) Also prior to his arrest, appellant “posted several writings on the Internet, using his legal name, regarding the death of Officer Mobilio and his justifications for the attack.” (4CT 864.) After his arrest, Mr. Sisti, without appellant’s consent and against his express instructions made, “dramatic, unsubstantiated claims that the 66 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.” (4CT 864-865.) In other words, even prior to his arrest appellant had confessed to Officer Mobilio’s murder. After his arrest, an attorney, retained by appellant’s parents, advanced mental health claims against appellant’s instructions. Mr. Sisti retained Dr. Drukteinis, he was not appointed by any court. In sum, an attorney not of appellant’s choosing, advanced a theory with which appellant did not agree, to attempt to avoid responsibility for a murder to which appellant had already confessed and wasnottrying to avoid responsibility. The simple fact is this: with the exception of disagreement with appellant’s extremeand violent political views, there is no indication that appellantis remotely incompetent. | The A.B.A. Standards cited by appellant similarly do not advancehis claim. (AOB 70.) As noted by appellant, A.B.A. Standards for Criminal Justice (1986) section 7-4.2, subdivision (c), provides: Defense counsel should move for evaluation of the defendant’s competenceto stand trial whenever the defense counsel has a good faith doubt as to the defendant’s competence. If the client objects to such a motion being made, counsel may move for evaluation over the client’s objection. In any event, counsel should make knownto the court and to the prosecutor those facts known to counsel whichraise a good faith doubt of competence. There is simply no indication in this record that Mr. Reichle ever had a “good faith doubt”as to appellant’s competence. In fact, the opposite is true. In the November 20, 2003, pleading, in support of appellant’s request for self-representation Mr. Reichle stated: Only if there is substantial evidence before the Court of incompetenceto stand trial is the trial court required to make inquiry by requiring the holding of the appropriate hearing on 67 that issue. [Citation omitted.] There is no such evidencein this case. (3CT 743.) As a consequence, rather than a “goodfaith doubt”as to appellant’s competence, Mr. Reichle felt that appellant was competentto standtrial, and represent his owninterests. Similarly, the cases cited by appellant do not support his argument. (AOB69.) To the contrary, the cases cited by appellant support the respondent’sposition that an ineffective assistance of counsel claim such as appellant’s should only be considered in a habeas corpus proceeding. Each ofthe federal cases cited by appellant: Ford v. Bowersox (8th Cir. 2001) 256 F.3d 783, 786; Kibert v. Peyton (4th Cir. 1967) 383 F.2d 566, 569; Speedy v. Wyrich (8th Cir. 1983) 702 F.2d 723, 726; and, Loe v. United States (E.D. Va. 1982) 545 F.Supp. 662, 666 (AOB69)are all decided in the context of a habeas corpus proceeding. Similarly, each ofthe state cases were in the context of a habeas proceeding, habeas proceeding consolidated with a direct appeal, personal restraint petition, or a direct appeal in whichthere had been an underlying post-conviction challenge and an accompanying hearing. For example, appellantrelies on State v. Johnson (1986) 395 N.W.2d 176,as a case with “facts similar to the instant case” (AOB 70-72) in which the attorney was found deficient. In Johnson, the defendant was convicted offirst degree murder. (/d. at p. 179.) Following his conviction the defendant brought a post-conviction motion claiming ineffective assistance of counsel. (Jbid.) Prior to trial, his attorney retained two mental health professionals to evaluate the defendant for a post-traumatic stress disorder defense. (Ibid.) After the examinations, his attorney decided not to pursue that defense and argue the intent element in that defendant was suffering from dissociative reaction and that he had acted in the heat of passion. (bid.) 68 The defendant and attorney had a disagreement concerning whetherto request a lesser included offense instruction and the attorney requested the same two mentalhealth professionals evaluate whether the defendant was competent to standtrial. (State v. Johnson, supra, 395 N.W.2d at p. 179.) The mental health professionals both expressed a concern about the | defendant’s competenceto standtrial, but neither offered a conclusion as they both believed they had a conflict of interest because each were employed by the county forensic unit. bid.) At a subsequent hearing the defendant movedto substitute counsel, which was denied. (State v. Johnson, supra, 395 N.W.2d at p. 179.) The prosecution then raised a doubtas to the defendant’s competency. (Ibid.) The defendant’s attorney respondedthat neither he nor the defendant was raising “the competency issue.” (/bid.) Defendant’s attorney, with knowledge of the letters from the mental health professionals he retained and asked to evaluate defendant’s competency,indicated to the court that if any competency issues came up he would bring them to the court’s attention. (/bid.) After the hearing each ofthe mental health professionals sent another letter to defendant’s attorney, but neither referenced their earlier concerns regarding competency. (/d. at pp. 179-180.) At the defendant’s post-conviction hearing on the claim of ineffective assistance of counsel, his attorney explained that he had been concerned about the defendant’s mental condition and asked the mental health professionals to look at the competency issue. (State v. Johnson, supra, 395 N.W.2d at p. 180.) The attorney explained to the court that hefelt it washis “strategic decision”not to raise the competencyissue. (/bid.) The attorney said at the hearing that one of his reasons for not raising the competency issue wasthat it was his interpretation of the Wisconsinstatute that the defendant was competent, at least with respect to those areas that the attorney thought he needed to be competent. (/bid.) The attorney 69 testified at the post-conviction hearing that he analyzed the competency issue in terms of what, if any, decisions the defendant’s mental impairment would affect. (/bid.) The attorney reasonedthat if the mental impairment only affected those decisions which ultimately resided with counsel, the degree of impairment would haveto be significantly greater for the defendant to be found incompetent as comparedto situations where the — impairment involves decisions the defendant controls. (/bid.) Thus, while this case was technically a direct appeal, as appellant notes (AOB 71), it is also true that there had been a post-conviction hearing in which the defendant’s trial counseltestified and explained his reasoning. Further, it appears that the attorney in that case held a unique perspective as to when a potentially incompetent defendant couldstill be broughtto trial. In California, procedurally, such a claim would be addressed in a habeas proceeding. In re Fleming (2001) 16 P.3d 610, similarly fails to advance appellant’s claim. (AOB 72.) In Fleming, the court accepted the defendant’s guilty plea, imposed the sentence, and denied a motion to withdraw the plea. (/n re Fleming, at pp. 613-614.) Following a direct appeal the defendantfiled a personal restraint petition (PRP) alleging numerousissues, including that he was incompetentto plead guilty. (/bid.) — In Fleming, the defendant’s first attorney soughtfunds for a “psychological/mental health evaluation.” (In re Fleming, supra, 16 P.3d at p. 612.) The court authorized an evaluation, which ultimately observed that the defendant was“psychotic at the time of” the crime and “marginally competent” to stand trial. (/bid.) The defendant’s first attorney withdrew and his second attorney movedfor an order for mental health services at public expense. (/bid.) That mental health professional concluded the defendant was: 70 presently able to understand the nature and purpose ofthe proceedings taken against him, but is presently unable to cooperate in a rational manner with counsel in presenting a defense andis not able to prepare and conduct his own defense in a rational manner without counsel and therefore is judged presently mentally incompetent to standtrial. Un re Fleming, at pp. 612-613, internal quotations omitted, emphasis in original.) The Washington Supreme Court rejected defendant’s claimsthat the court erred in failing to order a competency hearing (/n re Fleming, supra, 16 P.3d at p. 615), but granted his claim of ineffective assistance of counsel. (/d. at pp. 616-617.) As relevant to the instant case, Fleming was not a direct appeal, but wasa collateral attack in the form of a personal restraint petition. In sum, each of the cases cited by appellant support respondent’s position that appellant’s claim of ineffective assistance of counsel is more appropriately considered in a habeas corpus proceeding. Nevertheless, even if considered in direct review, appellant’s claim of ineffective assistance of counsel is without merit. Appellant contends that, “Nor could Reichle’s failing have been the result of any tactical decision.” (AOB 74.) Mr. Reichle clearly thought appellant was competent to stand trial and to represent his own interests. Mr. Reichle affirmatively informed the court that there was no substantial evidence of incompetence. (3CT 743.) Mr. Reichle’s opinion is supported at the numerousplaces in the record in which appellant advocated on his own behalf. As stated several times, appellant presented asa logical, intelligent, and capable advocate. There wasnot eventheslightest hint of being incompetentto standtrial and Mr. Reichle should not be faulted because he did not makethis baseless observation. Appellantalso claims that, “Nor could Reichle, faced with the psychiatric opinion that appellant was not competent, have been excused 71 from presenting this evidence by Mr. Mickel’s contrary instructions.” (AOB 74.) There is no indication in the record that Mr. Reichle was “blindly” following appellant’s instruction, and abdicating his professional responsibility. Mr. Reichle doubtless spent more time with appellant than anyoneelse involved in the case. Mr. Reichle was of the opinion that appellant was both competentto stand trial and competent to exercise his right to represent himself. Mr. Reichle was present during the relevant proceedings, knew of materials outside the record, and interacted with appellant, with the prosecutor, and with the judge. At no time did any of them question appellant’s competency. Further, as has already been - addressed, the letter from Dr. Drukteinis to appellant’s New Hampshire counsel wascertainly not substantial evidence of appellant’s incompetence. And onthis record it is not known what additional investigation or inquiry Mr. Reichle performed. Mr. Reichle’s decision not to raise a doubt as to appellant’s competency wasin the broad range of acceptable professional standards. Finally, appellant cannot establish any prejudice. Appellant advances a standard that he alleges applieswhen “defense counselfailed to obtain evidence.”'> (AOB 75.) But the standard for prejudice on claim of ineffective assistance of counsel is well settled. To meet the burden of demonstrating prejudice, appellant must show a “reasonable probability that, but for counsel’s unprofessionalerrors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]” (Un re Harris, supra, 5 Cal.4th at p. 833, internal quotations omitted.) 'S It is unclear if appellant argues that his attorney wasineffective for failing to obtain “evidence”or failing to present the “evidence”to the court. This solidifies respondent’s position that this issue should be determined in the context of a habeas proceeding. 72 As demonstrated in ArgumentI(C) evenifthe Drukteinis letter had been presented to the court it does not present substantial evidence of appellant’s incompetence,either to stand trial, or conduct his own defense. For example, the letter’s ultimate conclusionis essentially that appellant’s competencyis “highly questionable” because he would refuse to plead insanity which provided the only “reasonable defense.” In short, appellant maybe insane because herefuses to say heis insane. Asstated in the letter: Most prominently, he would refuse a plea of insanity because he lacks the insight into his mental disturbance. This, of course, could remove any reasonable defense for him,sincehis trial cannotbe based onhis delusional aim at revolution. Again, these are preliminary findings that need to be assessedin light of all the discovery that becomesavailable and further personalinterview andtesting of Mr. McCrae. (2Supp.CT 84.) Ashas already beenstated the letter, not presented underoath, or in responseto the order of any court, is not sufficiently reliable to considered evidence of anything. Further, even if considered, Dr. Drukteinis’s letter of preliminary findings is equivocal and conclusory. In sum,his preliminary opinion appearsto be that appellant’s competencyis questionable because he refuses a plea of insanity, and that is his only available defense. The letter does not represent substantial evidence of appellant’s incompetence. Further, as will be discussed in ArgumentIV and V,post,at all times, and in all court appearances, appellant presented asan intelligent, logical, and passionate advocate on his own behalf. Appellant cannot demonstrate there is a reasonable probability that had Mr. Reichle conveyedto the court the contents of the letter the outcome of the proceedings would have been different. Appellant’s claim is without merit and should be rejected. 73 III. THERE WAS NO SUBSTANTIAL EVIDENCE RAISING A DOUBT AS TO APPELLANT’S COMPETENCYPRIOR TO JUDGMENT BEING PRONOUNCED A. Introduction Appellant contends that the trial court became aware of substantial evidence of appellant’s incompetenceprior to the judgmentbeing pronounced,anderredin failing to suspend criminal proceedings. (AOB 80.) Appellant distinguishes this argument from ArgumentI as follows: Evenifthis court were to find that the evidence of incompetencepriorto trial was not substantial, the trial court became aware ofsubstantial evidence of appellant’s incompetenceprior to pronouncementofjudgment. Still, however,the trial court failed to suspend proceedings. (AOB80.) Asdiscussed below, appellant’s argumentis essentially that events prior to the pronouncementofjudgment, including, correspondence received from appellant’s family and friends after the guilt and penalty verdicts had already been returned, incidents of appellant’s alleged behavior in New Hampshire, and even appellant’s political ideology, provided substantial evidence of appellant’s incompetence. Appellant’s claim is without merit and should be rejected. At all times during the proceedings, appellant presented asa logical, intelligent, and competent individual. Further, to the degree the contents of the correspondence from appellant’s family and friends can be considered, they do not provide any evidence of appellant’s current incompetence. There was noevidence of incompetenceprior to the pronouncementofjudgment. B. Relevant Proceedings after the Verdicts Were Returned On April 27, 2005,after the guilt and penalty verdicts had been returned, a hearing was held to address a numberofissues, including an 74 automatic motion to modify pursuant to section 190.4. (LORT 2346.) The court denied the motion and filed a written statement of reasons. (13CT 3670-3673.) Thereafter, the court entered the judgment of death and commitment. (13CT 3674-3676.) Prior to these proceedings, family and friends of both the victim and appellant submitted written statements and correspondenceto the court. (13CT 3627-3656, 3667-3668.) C. Discussion Appellantis critical of the court’s procedure in addressing the automatic motion to modify, and claimsthe court erred in failing to suspend proceedings because it had been presented with substantial evidence of appellant’s incompetence. Appellant arguesthat: [T]he trial court conducted proceedings on the statutory automatic motion to modify the verdict of death. (Penal Code > § 190.4, subd. (e).) Prior to that proceedings, the court had received letters from family of both the victim and appellant. (See 13 CT 3627-3663.) However,thetrial court believed that in deciding the [] motion to modify, it was confined to considering the evidence before the jury. (10 RT 2346, 2351.) The court therefore did not review letters from appellant’s family and friends until after it had ruled on the motion to modify the judgment of death. (10 RT 2351.) _ (AOB 80-81.) Here, the court followed the correct procedure, and properly denied the automatic motion to modify. In every case where a verdict of deathis returned, a defendant is deemed to have made an application to modify the verdict. (People v. Mungia (2008) 44 Cal.4th 1101, 1139,citing § 190.4, subd. (e).) The trial court’s function isnot to make an independent and de novo determination, but rather to independently reweigh the evidence and determine whether,in the court’s independent judgment, the weight of the evidence supports the jury’s verdict. (People v. Cunningham (2001) 25 Cal.4th 926, 1039; People v. Jones (1997) 15 Cal.4th 119, 190-191, 75 overruled on other grounds, People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The ruling on a motion to modify must be based on evidence presentedattrial. (People v. Lewis (2004) 33 Cal.4th 214, 230; People v. Raley (1992) 2 Cal.4th 870, 921 [trial court may not consider probation report]; People v. Edwards (1991) 54 Cal.3d 787, 847 [trial court correctly refused to consider defendant’s new evidence not presented to penalty jury]; People v. Cooper (1991) 53 Cal.3d 771, 849 [trial court properly declined to hear from victims’ relatives at modification hearing].) Thus, any criticism that the court in this case did not consider the correspondence from appellant’s family and friends until after it addressed the automatic motion for modification is misplaced. Asnoted above, appellant’s claim is that the trial court became aware of “substantial evidence of appellant’s incompetenceprior to pronouncementofjudgment,” anderred in failing to suspend proceedings. (AOB 80.) The focusof this claim is the letters the court received from appellant’s family members prior to pronouncing judgment, and that “Up until the time the court received thoseletters, the court did not have a complete picture of appellant’s mental state.”!© (AOB81.) Atthe outset it should be noted that the correspondence and statements from appellant’s family membersare hearsay andare therefore inadmissible for purposes of establishing appellant’s incompetence. (Evid. Code, § 1200). As summarized by this Court in People v. Cudjo (1993) 6 Cal.4th 585, 608, “Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examinedto test perception, '6 This of course is inconsistent with appellant’s claim in ArgumentI that the court should have suspendedthe proceedings at somepoint prior to or duringtrial. 76 memory,clarity of expression, and veracity, and becausethe jury (or other trier of fact) is unable to observe the declarant’s demeanor.” Further, “the various hearsay exceptions generally reflect situations in which circumstances affording some assurance of trustworthiness compensate for the absenceofthe oath, cross-examination, and jury observation.” ([bid.) Theletters and statements were submitted to the court after appellant had been found guilty and the jury returned a penalty finding of death. The content ofthe letters and statements,to the degree they are considered at all, should be viewed with caution. There is no assuranceoftheir trustworthiness to compensate for the absence of oath, cross-examination, and observation. Further, there is no applicable hearsay exception. Additionally, evidence regarding past events that do no more than form the basis for speculation regarding possible current incompetenceis not sufficient. (People v. Hayes (2000) 21 Cal.4th 1211, 1280-1281.) Asa consequence,to the extent the letters convey past events they are of little relevance to appellant’s current competence. For example, appellant’s mother sent an e-mail to the court in which she reports that appellant hada difficult childbirth, and saw a counselor when he wasfour, and was medicated for depression for “muchofhis teenage years.” (13CT 3634.) She also reported that two psychiatrists told her appellant suffered from “psychosis,” and one report was “sealed by the court” and the other psychiatrist “needed more time” to determine the form of psychosis. (13CT 3634.) Appellant’s mother concludes with the observation that, “My son has a mentalillness,” and indicating that his illness does not excuse whathe did, but asks that he not be executed. (13CT 3635.) The e-mail from appellant’s mother contains levels of hearsay, in which she conveys to the court what someoneelse told her, and as such is inadmissible and unreliable. Further, evidence of appellant’s mental illness or bizarre statements is not enough to require a competency 77 hearing. (People v. Laudermilk (1967) 67 Cal.2d 272, 285.) It must be shown that the mental illness affected his ability to understand the proceedingsorassist his attorney in his defenseat the time of the proceedings. (Koontz, supra, 27 Cal.4th at p. 1064.) The communications from appellant’s family and friends present no “substantial evidence”of appellant’s mental competencyat the timeoftrial. Appellant does not refer to his father’s e-mail. Appellant’s father also mentions mentalillness, but indicates there were no “overt symptoms.” (13CT 3636.) He further states that in phonecalls andletters from appellant, “there were no indications of the impending storm.” (13CT. 3636.) Appellant’s father’s e-mail makes-no reference to psychiatrists or psychologist, or any diagnosis of mentalillness. (13CT 3636.) Rather, the letter seems to indicate there were no signs of mental illness.(13CT 3636.) In fact, nothing in either letter from appellant’s parents indicates that appellant was unable to understand the criminal proceedingsorassist his attorney. The purpose of the communications from appellant’s supporters was to garner leniency. As noted above, evidence regarding past events that do no more than form the basis for speculation regarding possible current incompetenceis not sufficient. (People v. Hayes, supra, 21 Cal.4th at pp. 1280-1281.) Further, evidence of his mental illness or bizarre actions or statements is not enough to require a competencyhearing. (People v. Laudermilk, supra, 67 Cal.2d at p. 285.) It must be shownthat the mental illness affected his ability to understand the proceedingsorassist his attorney in his defense at the time of the proceedings. (Koontz, supra, 27 Cal.4th at p. 1064.) Nothing in either of the communications from appellant’s parents indicates that appellant was incompetentprior to or duringtrial or prior to the pronouncement ofjudgment. 78 Appellant’s brother also submitted correspondenceto the court and for the first and only time referred to possible auditory and visual hallucinations. As stated by appellant’s brother: my brother called each memberof our family shortly after he committed this terrible crime. During the conversation with my brother, he told me that he had met God and met the Devil, and that God told him to do this. He said that God told him “The Law is in your hands,” and then wenton to explain the implications of this “message” from God, about how God endorsedthis course of action. ~ (13CT 3637.) Noneofthese references pertain to appellant’s competencyat the time of trial or sentencing. Further, even assuming for sake of argument appellant called and made these statements to his brother, they are not enough to require a competency hearing. (People v. Laudermilk, supra, 67 Cal.2d at p. 285.) Nothing in appellant’s brother’s correspondence shows that appellant was not able to understand the proceedingsorassist his attorney in his defense at the time of the proceedings. Further, thereis nothing in the correspondence from appellant’s brother that appellant was incompetentprior to the pronouncement ofjudgment. Finally, the correspondence from friends and acquaintances to which appellant refers are of no import. (AOB 85.) There is no indication in any of these letters/e-mails that the individuals had any particular insight into appellant’s mentalstate at the time oftrial or prior to the pronouncement of judgment. In sum,the letters from appellant’s family andfriends, submitted to the court after the guilt and penalty verdicts had been returned, but prior to the court’s pronouncementofjudgment, are not substantial evidence of appellant’s incompetenceat any point in the proceedings. Appellant also refers to a pleading filed by the prosecutor regarding appellant’s conduct in New Hampshire. (AOB 82-83.) In briefing related 79 to the possibility of shackling appellant in court the prosecutor wrote in part: 5) Defendant was disruptive and uncooperative withjail authorities in New Hampshire refusing to dress; 6) Defendant demonstrated disrespect for the court process in New Hampshire appearing for court wrappedin a blanket.... (3CT 618.) Butas hasalready been well established, “more is requiredto raise a doubt than merebizarre actions[citation] or bizarre statements....” (People v. Laudermilk, supra, 67 Cal.2d at p. 285.) These passing referencesto past incidents that may have occurred in New Hampshire have no bearing on a | determination of appellant’s competencyprior to or during trial or prior to the pronouncementofjudgment. Appellantalso points to pre-trial statements,trial strategy, and testimony in the penalty phase as additional evidence of incompetence. (AOB 83-84.) Notforthefirst time appellant’s counsel uses disagreement with appellant’s political ideology to bolster his claim for incompetence. But disagreement with appellant’s violent agenda does not meanhe is incompetentto stand trial or be sentenced. A defendant hasthe right not to present a defense and to take the stand and confess guilt and request imposition of the death penalty. (People v. Clark (1990) 50 Cal.3d 583, 617.) Further, there is no violation of public policy to allow a pro se defendantto refuse to introduce mitigating evidence. (People v. Stansbury (1993) 4 Cal.4th 1017, 1062-1064, reversed & remandedon different grounds, Stansbury v. California (1994) 511 U.S. 318; People v. Bradford (1997) 15 Cal.4th 1229, 1371-1372; People v. Bloom (1989) 48 Cal.3d 1194, 1222-1224, revd. on other grounds Bloom v. Calderon (9th Cir. 1997) 132 F.3d 1267.) Appellant had the right to represent himself and make tactical andtrial strategy decisions. There is noindication that appellant, because of mental 80 illness, was incapable of understanding the purpose or nature ofthe proceedings against him. Appellant arguesthat, “With the presentence report, the court learned that appellant had been foundto suffer from psychosis by a second psychiatrist.” (AOB 89.) As noted in previous argumentsthereislittle indication in this record as to what was conveyedto the court regarding the New Hampshire proceedings and noindication that the court was ever presented Dr. Drukteinis’s letter. Further, when appellant refers to the “presentence report” respondent assumesheis referringto theletter from appellant’s mother and not the probation officer’s report. The probation officer’s report does not refer to a “second psychiatrist,” but does state plainly: Concerning the defendant, he has no serious criminalhistory. Nothing in his background suggests a serious moral or emotional weakness of character. Thereis no indication of instability; he speaks with utter clarity about what he did and why. But two years after the crime hestill has no remorse; he continuesto believe he wasright to murder a policeman,that it was a justified meansofpolitical expression. (CT 3623.) There is nothing in the probation officer’s report about a second psychiatrist. Further, the correspondence from appellant’s mother contains inadmissible hearsay that even if considered does not provide substantial evidence of appellant’s incompetence. Appellant’s claim that this matter must be remandedfor a finding of competency to be sentenced is without merit and should berejected. 81 IV. THE COURT PROPERLY GRANTED APPELLANT’S REQUEST TO REPRESENT HIMSELF A. Summary of Argument In this claim appellant contends that the court violated section 686.1, by granting appellant’s request to represent himself without determining if he was competent to conduct his own defense. (AOB 92.) Specifically, that there must be a “minimallevel of trial skill,” and “In Mr. Mickel’s case, the trial court did not probe at all whether Mr. Mickel possessed this level of trial skill. In fact, he did not.” (AOB 94.) Appellant’s claim is without - merit. Aswill be discussed more fully below, criminal defendants have a Sixth Amendmentright to represent themselves. Self-representation by defendants who wishit and validly waive counsel is the norm and may not be denied lightly. There is no indication in the record that appellant suffered from a mentalillness that prevented him from carrying out the basic tasks needed to present a defense. In fact, a review of the record reveals that appellant wasanintelligent, logical, and capable advocate on his own behalf. Appellant’s claim is without merit and should berejected. B. Relevant Facts From the outset of the proceedings appellant sought to represent himself. On January 30, 2003, at appellant’s first appearance in California, appellantasked the court to recognizehis right to represent himself. (IRT 5-6.) The court did not do soat that time and appointed the public defender _ to represent him. (IRT 6.) On April 7, 2003, Mr. Reichle, who had been appointed to represent appellant on appellant’s behalf, filed a “Motion and Notice of Motion re Participation in the Proceedings.” (3CT 561.) In that motion appellant’s counselstated: Defendant requested at his arraignment that he be allowed to represent himself as co-counsel with his appointed counsel in 82 order to assure his control of the proceedings. Defendant has undertaken extensive anddiligent study to become more familiar with the criminaltrial process. Defendant, at his arraignment, agreed to defer a request for self-representation until after the preliminary examination. However, Defendantbelievesit is both necessary and appropriate that he be allowed to personally address the Court in order to explain the legal basis and nature ofhis affirmative defense. Thearticulation of his Constitutionally-based affirmative defense, at least at this stage of the case, is best provided by the person whoresearched and developedthis claim, whichis in some wayssimilar to the right to resist an unlawful arrest. See e.g. CALJIC 16.110; People v .White (1980) 101 CA3d 161; People v. Curtis (1969) 70 Cal 3d 347, 354-57. Whatthe Defendant proposesis that he be allowed to address the Court by way of extended offer ofproof and/or argumentasto legal sufficiency of his defense ofjustification by right to resist. (3CT 562-563.) On April 21, 2003, the People filed a response. (3CT 594.) On April 22, 2003, after hearing argumentfrom the parties, the court denied appellant’s request to participate in the proceedings. (3CT 621-622.) Appellant persisted in seeking self-representation. On November 20, 2003, appellant, through Mr. Reichle, filed a motion, and supporting points and authorities, to represent himself. (3CT 738-746.) On November24, 2003, appellant personally prepared and submitted, “Defendant’s Own Points and Authorities In Support of His Right to Self-Representation.””” (3CT 751-765.) Asclarified by appellant in that pleading,he first expressedhis intent to represent himself on January 30, 2003,at his initial appearance. (3CT 751.) On December4, 2003, the People filed a response '” As discussed more fully in Argument VI, appellant madeit clear in this documentthat he was aware this wasa capital case. 83 to appellant’s motion. (3CT 771-784.) On December 8, 2003, appellant completed and signed a Faretta waiver form. (3CT 788.) On December8, 2003, the court addressed appellant’s motion and the following exchange occurred: [COURT]: The nextissue is the Defendant’s request for self-representation. Did he complete the waiver form? [MR. REICHLE]: I don’t know, Your Honor. I didn’t—I thought you had the Bailiff providing that to him. [COURT]: I thoughtthat he did. {MR. REICHLE]: I did not go down and check onthat. I probably should have. Oh, you did do this? Yes, I hadn’t seen it, Your Honor. The Bailiff has just provided me a copyoran original waiver form, so I believe he has doneso. [COURT]: [Appellant], did you read and understandthis form? [APPELLANT]: I did, Your Honor. [COURT]: Do you have any questions about that form? [APPELLANT]: No, Your Honor. [COURT]: Okay. Why don’t you go ahead and beseated, sir. That’s fine. Sir, you have a constitutional right to represent yourself subject to the Court’s approval. Someofthis that Iam goingto talk to you aboutis already on the form, but I just wantto talk to and conversea little bit so I can be sure that you understand at least some of the ramifications of representing yourself and some ofthe rights that you may be giving up. You do understand that you have a rightto be represented by counsel, do you not? 84 [APPELLANT]: Yes,I do. [COURT]: Generally speaking,it is unwise for someone to represent themselvesfor a variety of reasons. Do you understand that? [APPELLANT]: Yes, I do, Your Honor. [COURT]: Probably the first obvious one would be that the People are going to be represented by an attorney who undoubtedly is going to have years of experienceat trying cases. I alwaystry to think of a good example to use to perhaps make my point, and the best maybe I can doisthat, I don’t know if you are familiar with the U.S. Open golf tournament. But you have amateurs and you havepros, and someofthose amateurs are very good golfers. They know the game. They know how to play golf. They are very skilled at it. And they always lose to the professionals because, as good as they may be as amateurs, they are not as goodasthe professionals. There is at least sometruth to that in a courtroom. No matter how good youare as an amateur, no matter how much you havestudied, no matter how prepared youare, you are going to be at certain disadvantages just because you haven’t made yourliving in a courtroom, and there are going to be attorneys opposing you that are going to be more skilled than you are. — Do you understand that disadvantage? [APPELLANT]: I understand that disadvantage, Your Honor. [COURT]: Okay. Do you understandthat the Court cannotassist you? The Court may or maynot appoint advisory counsel for you. But once you chooseto represent yourself, you are essentially on your own. You will be expected to conduct yourself essentially as an attorney would be required to conduct himself. And the Court cannot cometo yourassistance at any time during thetrial. Do you understand that? {APPELLANT]: I do, Your Honor. 85 [COURT]: Do you understandthatif there are any difficulties in your behavior in the courtroom or the waythat you are, if you are conducting yourself inappropriately, that the Court can terminate yourability to represent yourself? [APPELLANT]: I understand that, Your Honor. [COURT]: Do you understandthat that can be at a big disadvantage to you, because even if the Court has counsel standing by, youare the one that has been conducting yourself, and it would interrupt the flow of your case. Nevertheless, you are stuck with that decision. Understandthat? [APPELLANT]: Understandthat. [COURT]: Do you understand that—well, I will put it a little different way. Normally a defendant whois represented by an attorney,if they lose, if they are convicted and they go to appeal the case, they can at least make an argumentthattheir attorney did not conduct their case competently. If you chooseto represent yourself, no matterhow bad you may do, you cannot claim incompetency of counsel because you choose to represent yourself. Understand that? [APPELLANT]: I know that, Your Honor. [COURT]: Sir, do you have any questions about your ability to represent yourself in the proceeding? [APPELLANT]: No, Your Honor. [COURT]: Mr. McCrae—or Mr. Mickel and Mr. Reichle and Mr. Cohen, the Court has read and considered the motions and points and authorities submitted byall parties, and that includes the Defendant. Mr. Cohen,did you wish to be heard? 86 [MR. COHEN]: Just briefly, Your Honor. Are you ready to take up the issue of assisting counsel status at this point in time? [COURT]: Sure. [MR. COHEN]: The People’s positionis pretty straightforward, as outlined in our memorandum ofpoints and authorities in regard to Defendant’s motionfor self- representation. Basically there are two points I would like to make, Judge. Thefirst point being that although the Defendant has a constitutional right to represent himself, he does not havea right to appointment of advisory co-counsel or standby counselin whatever fashion. The Judge, however, as the Supreme Court hasstated, has discretion to appoint such counsel. Ourrequestis that if the Court were to exercise this discretion, as outlined in our motion, we would be asking that the Court appoint standby counsel, stand-by counsel in the form of counsel being able to assist the Defendant, if and when the need arise, due to a termination of self-representation. So in that instance, if the Defendant is representing himself and either the Court terminates his right to represent himself or Defendant elects to terminate his right to represent himself, then standby counsel could comein and replace the Defendant. That would be the preferred form we would ask for. Standby counsel has been recognized by several courts. This is in the outline or in my memorandum ofpoints and authorities. And with that, I would submitit. [COURT]: Mr. Atkins, on my deskis a yellow notepad. Would you get it for me? We will just take a moment. I will be with you in just a moment. [MR. REICHLE]: Heis requesting an adjustment on the chains with the Bailiff. [COURT]: Okay. (Brief pause.) 87 [COURT]: Mr. Reichle, did you wish to be heard on any issues? [MR. REICHLE]: I am prepared to, Your Honor. But the Defendant is requesting that he be allowed to respond to the commentsof the District Attorney. [COURT]: Mr. Mickel, go ahead. [APPELLANT]: Your Honor, I would simply respond to the points that I agree and disagree with the Prosecution on the points that they raised in their brief and that they reiterated just now. The Prosecution prefers standby, that if Counsel be appointed in an assisting fashion, that it be underthe label “standby counsel.” That’s fine with the defense. But I do have a disagreement with how the Prosecution interprets that standby counsel must be assigned. The Prosecution wants standby counsel, and wantsit to have no role in the presentation of the case unless and until Defendant’s right of self-representation is terminated. And that if standby counsel is going to advise the Defendant during the trial, that it be outside the jury’s presence. That counsel would not be permitted to present an opening statement, present evidence, cross-examine witnesses, refute evidence, present a closing argument, or perform any other attorney functions unless and until Defendant’s self-representation is terminated. The Prosecution wants to categorically silence standby counsel. But the cases that the Prosecution cites to support this categorical silencing of counsel expressly hold that standby counsel does not need to be categorically silenced. The twocases that the Prosecution cites to support the categorical silencing of standby counsel are McKask{/e]v. Wiggins and People v. Gallego. In the McKask{[le] v. Wiggins, the Court holds that the right to appearprose exists to affirm the dignity and autonomyofthe accused andto allow the presentation of what may be the accused’s best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel. 88 And in People v. Gallego, referencing McKask{[le] v. Wiggins, the Court brings up how,in McKask{le], the standby counsel examined witnesses andlaid the foundation for the presentation of documents, and held that standby counsel’s involvementin such basic mechanics wasirreproachable. So both ofthe cases that the Prosecution cites are directly adverse to what the Prosecution is arguing. I simply ask, as was submitted in the proposed statement, that standby counsel or advisory counsel, whatever label counsel is assigned to assist me under, that they be permitted to interact in court proceedings when two conditions are met: when I request it, and when the Court allowsit. So in summation, Your Honor, I would simply ask that Mr. Reichle be appointed to assist me underthe label of advisory counselin order to advise mein the formation of my argument and my legal argument, and that he be allowed to participate in court when those two conditions are met: whenI requestit, and when the Court allowsit. And I recognize that once I assumeself-representation that I have a responsibility to handle my case, andthat I can’t just frivolously constantly simply ask Mr. Reichle to jump in and take care of it for me. And I intend to handle every aspect of the case that I am capable of. . But I do believe that there—I certainly need Mr. Reichle’s advice, and I believe that there may be instances whereI will need his assistance in the courtroom. And with that, I submit, Your Honor. [COURT]: Sir, let me makesure that I am clear in my own mind. You have made a request to represent yourself. The Court may allow Mr. Reichle to act as an advisor to you. Onething that gave me a momentofpause is that you want him to handle things that you can’t handle, or some wordsto that effect. If you represent yourself, you will be responsible for representing your case in court, whether you can handle it ornot. The best that Mr. Reichle may give to you is some limited 89 assistance. But the case will be your responsibility, for better or worse. Do you understand that? {APPELLANT]: So are you saying that he will not— Mr. Reichle will never be available to examine witnessesor to interact with the Court, Your Honor? [COURT]: I am telling youat this point that the Court isn’t prepared to answerthat question. What the Court is prepared to dois allow Mr. Reichle to be an advisor for you. But an advisor doesn’t participate in the court process. An advisor may be with you in court; may be available to answer questions for you. But when it comesto presenting yourcase, that will be your responsibility because you are representing yourself. . The Court may at somepoint in time be open to allowing Mr. Reichle to handle certain aspect of the case, but you should not assumethatat this point. If you are taking on the responsibility of self representation, you are taking onall ofit, and must assumethat you are going to have to handle that case on your own. [APPELLANT]: Right. [COURT]: Understood? [APPELLANT]: I agree with Your Honor, and I understandthat. [COURT]: Andthatis the responsibility that you wantto take on? f[APPELLANT]: That’s correct, Your Honor. [COURT]: Okay. Anything further,sir? [APPELLANT]: No, Your Honor. _ [COURT]: The Court at this time recognizes the Defendant’s right under Faretta to represent himself. Whether or not the Court believes that is a wise or an appropriate decision, it appears to the Court that the Defendant’s waiverto 90 right to counsel is knowing,intelligent, express and explicit, and that therefore he is entitled to make that decision. The Court will at this time permit the Defendantto represent himself. In terms of assistance by counsel, first, the Court rejects any request, if that is even being made, for co-counsel. Co- counsel is more appropriate whereit is the attorney whois . permitting the Defendant.to act as co-counsel, and the attorney remains primarily responsible for the presentation ofthe case. It is the Court’s impression—andI certainly would be corrected if I am wrong—thatit is the Defendant who wants to be in charge of his case, and only seek the assistance of counsel. And absent somefurther showing,at least, of marked necessity, it would be inappropriate for the Court to appoint Mr. Reichle to somehow be co-counsel with the Defendant being in charge of the caseitself. | Under People v. Hamilton, at 48 Cal.3d, 1142, the Supreme Court madeit relatively clear that there are—that the Defendant has tworights, two constitutional rights: one is to represent himself, and the other is to be represented by counsel. Andfor the Court to at this juncture grant a request for co- counsel, it would be inconsistent with that directive, and there is insufficient evidence to support any exercise of discretion by the Court which would permit such a conclusion. The other two possibilities are advisory counsel and standby counsel. The Court believes that it is appropriatethat the Defendant be granted his request for advisory counsel, noting that advisory counselis just that, an attorney who provides advice to the Defendant, but does not actively participate as counselin the case, at least absent some further order by the Court based upon some showingthat in a limited sense that would be appropriate. Oneofthe issues addressed by the Defendantis that he should remain doing more than 50 percent of the case. Well, recognize it is awfully difficult for the Court to somehow figure out what is more than 50 percent. Andit is necessary for the Court to clarify that if a defendant is representing himself, then, in fact, the Defendantis in charge ofthe case and bears the responsibility for conducting 91 a defense, and not an attorney whois placed in the situation that he is taking directions from someonefar less experienced than himself and subjecting himself to orders from a defendantthat may or may not be appropriate. The Court will grant the request for advisory counsel. Counselis to advise and assist the Defendant. The Court retains authority to decide to what extent that advice andassistance will be given, and will, if appropriate, place somelimitations on the type of activities that Counselis expected to conduct in support of the Defendant,since his role is not to be a runnerandnotto be a law clerk, but to be an attorney/advisor, leaving to the Defendant the primary responsibility of conducting the defense. . Regarding standby counsel,it is a good possibility that this Court mayinclude in the advisory capacity also the designation of standby counsel. But given our prior discussions that we are looking at Septemberfora trial date, it is the Court’s view that decision does not need to be made quite yet, and the Court needs probablya little more interaction with the Defendant to determine whetheror not that is an appropriate order. Therefore, the Court does not deny nor doesit grant standby counselat this time, but may very well do so sometime in the future, but far enough from thetrial date so that it is an - effective order. Mr. Mickel, anything further that you wish to address at this time— [APPELLANT]: No, Your Honor. (IIRT 245-257.) Atall times prior to and duringtrial appellant presentedas logical, intelligent, and capable advocate. For example, on April 5, 2004, appellant demonstrated a sound grasp of court proceedings and procedure as demonstrated in the following exchange: [COURT]: People vs. McCrae. The record shall reflect the Defendantis present. Advisory counselis present. Mr. Cohen appears for the People. 92 Gentlemen, we put this matter on calendarreally simply for review more than anything else. I don’t have anything filed, so I don’t know that there is anything that needs to be reviewed. Mr. McCrae,is there any issues? [APPELLANT]: There was onething I wanted to address, Your Honor. . This case being a death penalty case, and myself acting as trial counsel personally, I reviewed transcripts for all the court appearances, and I havealso received from Department 4 an order that I submit a declaration that all court appearances are accounted for. But also in the same declaration it says that if trial counsel is different than the counsel for the preliminary hearing, then the counsel for the preliminary hearing hasto also submit the same type of declaration. And trial—counsel for preliminary hearing, now advisory counsel, has not received transcripts of the court appearances. And I would like to request that the Court orderthat transcripts be provided to Mr. Reichle for two reasons: one being— [COURT]: Sir, done. It is ordered. Okay. AndI think I am calling you McCrae. It is Mickel;is that correct? . [APPELLANT]: That’s correct, Your Honor. [COURT]: Thank you. I apologize. Anything further? [APPELLANT]: That’s it. (IIRT 264-265.) At a hearing on May 10, 2004, appellant again demonstrated the ability to understand court proceedings and procedure as demonstrated in the following exchange: [COURT]: People v. Mickel. The Defendantis. present, appearing in pro per. His advisory counselis present. Mr. Cohenappears for the People. 93 Counsel, primarily—or Mr. Mickel and counsel, the matter is primarily on for review. Are there any issues that either of you believe the Court needs to address? [APPELLANT]: I don’t believe there is anything that needs to be addressed today. But there were—I worked upa list with Mr. Reichle of different motions and hearings that I think will be needed—will need to be addressed. First of all, a majority of the issues that the Prosecution intendsto addressattrial I am simply willing to stipulate to as fact and to betrue. Andsecondofall, during the discovery that I have been providedwith, there is a lot of different reports and references to reports and references to evidence andthings that are spread out between a numberof different states. And what I need to do with that is I need to makeupa list of a requestofthe different items, and I need to provide that to the Prosecution. And then, Your Honor, you said that you were wondering or thinking about whether or not you were going to use jury questionnaires. And I don’t know ifyou have decided uponthat or not. But if we are going to do that, then obviously the defense and the Prosecution will have to submit different questions that we both feel are going to be appropriate or necessary, and then hold a hearing on that. [COURT]: That was why I mentionedit. [APPELLANT]: Right. [COURT]: So you could start working towardsthat. [APPELLANT]: And then a sub-issue on that point would be—I knowthatthereis a little leeway in the system asto whetheror not the judge conducts all of the questions during jury voir dire and whetheror not they can ask questions. And I am interested in what procedure you prefer, Your Honor; whetheror notit is just a given that you will be conducting the questions, orit’s a given that the lawyeror the representatives will be involved, or how exactly that works. 94 [COURT]: There is a high probability that this judge or any judge will not doall of the voir dire; that you will have some opportunity to ask your own questions. The extent to whichthe Court allowsthat will in part be determined by whether we use jury questionnaires and how extensive those questionnaires are. But I think you can assumethat you will have some opportunity to ask questions of potential jurors. [APPELLANT]: Okay. And anotherissueis that I fully intendtotestify at the trial. But representing myself it makesit a little more complicated. And I think it would be useful to have motionsor a hearing and hash out whether or not, am I simply just going totestify in the narrative. Or I am awarethat the Prosecution doesn’t want Mr. Reichle to be involvedin the case at all. So it seemsthat a narrative is aboutall there is becauseit would be pretty ridiculous for me to ask myself questions out loud and then to answer them. So— [COURT]: I have never followed the procedure where you would ask yourself questions. But at least in a determination of how youare goingto do it, at some point in the somewhatnear future you need to decide what your proposal is, and then we can address that specific issue: whether you wantto do it in the narrative, whether you want to ask yourself questions, whether you wantMr. Reichle to do an examination. And I will just entertain whatever requestit is that you make, and hear from the people ontheissue. [APPELLANT]: And then there also needs to be a procedureinitiated in terms of subpoenaing out-of-state witnesses, and funds to make that process performed or to do that process. [COURT]: Well, there is a statutory process, andthatis something that you havea right to do and have the Court pursue. Mr. Reichle can advise you on whatthat statutory processis. [MR. REICHLE]: Might I comment briefly, Your Honor, just on the procedural aspect, since I had great familiarity with this a couple of years ago. There is a requirementthat a ticket and a check accompany that. And the question is simply working out how,if the Court signs a certificate, how those funds—because we knowitis an 95 accounting process, not just you can write a check—how those funds are going to be made available if the Court determines that it will issue a certificate for an out-of-state subpoena. I think that is the crux, just an administrative piece. {COURT]: I don’t know exactly how wewill do it, but we will figure it out. [MR. REICHLE]: Thatis just to raise it. [APPELLANT]: And then there may or may not be a need to be a hearing in limine to exclude evidence. [COURT]: “Hearing in limine” ordinarily would mean right at or about the timeoftrial. Is that the kind of hearing you are talking about, or are you talking about something where we have a hearing before trial so that you know whatthe rulingis going to be before we actually try the case? [APPELLANT]: I don’t have any particular leaning either way. We can do it—I guess “in limine” was notthe right term to use. [COURT]: Well, it was close enough. [APPELLANT]: Thank you. And then that’s—thoseare aboutall the issues that I think would need to be addressed by the motions and hearings except for how exactly you, Your Honor, would want to conduct bench conferences. And thenI expect that that addresses a different couple issues that the Prosecution would wantto address. But I will let the prosecution address those. [COURT]: I assume you mean bench conferencesas in duringtrial, if there are issues that need to be addressed outside the presence ofthe jury? [APPELLANT]: Right, Your Honor. But I am awarethat everyone’s concerned aboutcourt security. So that’s why I bring it up like that. [COURT]: Actually it is a good question, and I hadn’t thought about how weare going to addressthose, either. 96 Mr. Cohen—wait. Mr. Mickel, there was one issue. You had indicated that there was some discovery issues, and you needed to makethe request of the District Attorney’s office on somespecific things. [APPELLANT]: That’s right, Your Honor. So— [COURT]: How long do you needto notify them in writing ofwhat it is that you want? [APPELLANT]: I believethat I could get it done in a month. [COURT]: Mr. Cohen, I know that we are operating under somewhat of an ambiguity because you don’t know what they are going to request. But I would assume,then, within a couple of weeks, you would know if you could get that to them or not; or if you have, that you have gottenit to him. [MR. COHEN]: Yes, Your Honor. [COURT]: Are there any issues that the People wanted to address? [MR. COHEN]: The mainissue at this point in time is venue, Judge. Andthe Peoplerealize that the Defendant has an opportunity to request a change of venueuptill and perhaps even during jury selection. But a lot of the issues that have been identified by the Defendant today would concern thetrial judge. And without knowingactually at this point in time if we will be here in Tehama County or if we will be elsewhere,it’s difficult at this pointin time to lay outall our motions. [COURT]: Well, Mr. Mickel, if you wish to address the issue, do you know whatyou are going to do in terms of venue at this point? [APPELLANT]: Atthis time I don’t know, Your Honor. I don’t have a knee-jerk reaction to change of venue. I believe that the community, the Red Bluff community does havea right to hear an. explanation in their own community, and I am respectful of that. But I think,I feel that it is wise to listen to whatthe venue expert has to say about it before I make a certain —before I make a definitive decision aboutthat. 97 (IIRT 269-274.) On April 8, 2004, appellant filed a declaration. (4CT 817.) The declaration again demonstrates appellant’s intelligence and ability to more | than capably represent his owninterests. The declaration stated as follows: I, the defendant in pro per declare as follows: 1. I have personally reviewed all court transcripts from January 30, 2003 through February 9, 2004 and have foundall court appearances to have been accounted for and transcribed. 2. [have personally initiated communication with opposing counsel regarding transcription of other discussions. 3. Under my supervision, the court file and docket sheets have been examined and these records further reflect that no court appearance has escapedtranscription, and the court file appears complete. . I declare under penalty of perjury that the aboveis true and correct to the best ofmy information andbelief. (4CT 817-818.) Appellant continued to demonstrate the ability to represent himself. At a hearing on June 28, 2004, he informed the court that he would be filing a motion to continue because he needed additional time to prepare for trial and a motion for a change ofvenue. (IIRT 278-281.) On July 12, 2004, the court granted appellant’s request for a continuance. (IIRT 283- 291.) On August 25, 2004, a hearing on the motion for change ofvenue washeld. (IIRT 297.) At the hearing appellant conduct an extensive examination of the witness and advocated for a change of venue. (IIRT 299-383, 392-408.) Ultimately, the court granted appellant’s motion for a changeofvenue. (IIRT 411.) Following a hearing the court ordered that the trial be held in Colusa County. (IRT 454.) At a subsequent hearing regarding thesetting of a trial date appellant again demonstrated his ability to represent his own interests, logically 98 discussing with the court his need for additional time to review discovery and prepare his defense. (IIIRT 463-464.) Thecourt indicated that it felt appellant was effectively representing his owninterests. For example, at one of the pre-trial proceedings the court stated: The, I went to CALJIC for example, just—the California jury instructions guide, just to look at defenses, because they talk about principal justifications. Mr. Mickel, as I’ve watched you, I’ve been extremely impressed with yourlevel of competence in these proceedings. I know throughout the day you’ve been consulting with Mr. Reichle, but you’re very articulate, you seem to know where you’re going, you’re very well prepared. And so, I’m presuming you know what you talking about. (IIRT 627.) At anotherpretrial hearing the court again recognized appellant’s ability, stating on the record, “I am still very impressed with yourskill level, with the quality of your representation.” At a March 17, 2005 pretrial hearing, after thoroughly discussing the logistics as to how jury selection would proceed, the court again inquired as to appellant’s desire to representhimself. [COURT]: [9] So, Mr. Mickel, have I confused you or are we okay with the understanding of what is happening? [APPELLANT]: I have a general understanding and then I am going to pour overthe transcript, your Honor. | [COURT]: Can try to explain anything more poorly for you? [APPELLANT]: No,I think I am goingto getit pretty well. [COURT]: Okay. Still okay representing yourself? 99 [APPELLANT]: Oh,yah. [COURT]: Okay. Do you understand the opening statementrules? [APPELLANT]: I do. [COURT]: Okay. [MR. COHEN]: Judge, before we leave the record while © weare talking about voir dire, I am not sure if Mr. Mickelis going to be posing any questions in regard to his potential defense during the voir dire and if so do we need to discuss that at this time? [APPELLANT]: Well, I intend to stick with the questionnaire, that is my intention at this point. [COURT]: If hetells us he intendsto stick with that, if he asks other questions and they are objectionable, you object and I will rule. Anything else? [MR. COHEN]: No. [APPELLANT]: No. (VRT 1196-1197.) These are just some of the examples in the record of appellant capably representing his owninterests. C. The Trial Court Properly Granted Appellant’s Request to Represent Himself Appellant contends that the court violated section 686.1 by permitting him to represent himself without determining if he was competent to conduct his owntrial defense. (AOB 92.) Respondentdisagrees. Appellant’s waiver of the right to counsel was knowingandintelligent and the court properly recognized his right to represent himself. Section 686.1 states: 100 Notwithstanding any other provision of law, the defendant in a capital case shall be represented in court by counselatall stages of the preliminary andtrial proceedings. Section 686.1, Godinez v. Moran (1993) 509 U.S. 389, and Indianav. Edwards (2008) 554 U.S. 164 (Edwards), serve as the foundation for appellant’s argument: That California policy, by requiring counsel in a// capital cases, necessarily includesa policy of not permitting self- representation unless the defendant can meet the moststringent standard of proof permitted by the federal Constitution. Put otherwise, federal law may preclude California from enforcing its literal statutory requirement of counsel in al] capital cases; but vindication of the State’s policy afortiori requires counsel in the greatest numberofcapital cases that federal law would allow. (AOB 93.) - In appellant’s opinion, a defendant who wishesto represent himself/herself must have “a modicum”oftrial skills, including, understanding the nature of the offense, the available pleas and defenses, and the possible punishments. (AOB 94.) Appellant’s claim is without merit. As will be discussed more fully below there is simply no indication in the record that appellant suffered from a severe mentalillness to the degree that he was unableto carry out the basic tasks needed to present a defense. Further, the record demonstrates that appellant was a more than capable advocate on his own behalf. Asthis Court had madeclear, the Edwards court specifically declined to overrule Faretta v. California (1975) 422 U.S. 806. (People v. Johnson (2012) 53 Cal.4th 519, 531 (Johnson).) A criminal defendantstill has a constitutional right to represent himself if he “‘knowingly and intelligently’” forgoes the traditional benefits associated with the right to counsel. (Faretta v. California, supra, 422 US.at pp. 819, 835.) Self- | representation by defendants who wishit and validly waive therightto 101 counsel remains the norm. (Johnson, supra, 53 Cal.4th at p. 531.) “The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Bloom, supra, 48 Cal.3d at p. 1225, revd. on other grounds in Bloom v. Calderon, supra, 132 F.3d 1267.) Thus, Faretta does not require the court to specifically advise a defendantofthe possible penal consequencesofthe charges against him. (People v. Harbolt (1988) 206 Cal.App.3d 140, 149- 150 [court not required to inform defendant of the increased penal consequences of the amended information].) A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” (Faretta v. California, supra, 422 U.S. at p. 835.) On appeal, the burden is on the defendantto demonstrate that he did not knowingly waivehis right to counsel. (People v. Sullivan (2007) 151 Cal.App.4th 524, 547.) On appealthe entire record is examined to determinethe validity of the defendant’s waiverofthe right to counsel. (Koontz, supra, 27 Cal.4th at p. 1070.) Despite appellant’s protestations that self-representation should only be allowed when a defendant can meet the most stringent standard of proof permitted by the federal Constitution (AOB 93), Faretta is still the norm and the court here wasobligated to honor appellant’s request as long as the waiverofthe right to counsel was knowingandintelligent. . This Court’s decision in People v. Taylor (2009) 47 Cal.4th 850 (Taylor), a capital case, is instructive. In Taylor, the defendant was granted permission to represent himself. (/d. at p. 856.) On appeal the defendant asserted several arguments that he was mentally incompetent to conduct his owndefense and should not have been permitted to do so. (Ibid.) 102 Appellantfirst claimed that defendants should be represented by counselin all capital cases, or at a minimum, wheneverthe self-representing defendant’s conductin his or her trial renders it unfair. (/d. at p. 865.) This Court rejected defendant’s claim stating: | Weaddressed and rejected much the sameset of claimsin People v. Blair (2005) 36 Cal.4th 686, 736-740, 31 Cal.Rptr.3d 485, 115 P.3d 1145, and other cases. We have explained that the autonomy interest motivating the decision in Faretta—the principle that for the state to “force a lawyer on a defendant” would impinge on “‘that respect for the individual whichis the lifeblood of the law’” [Citation]—applies at a capital penalty trial as well as in a trial of guilt. [Citation.] This is true even whenself-representation at the penalty phase permits the defendant to preclude any investigation and presentation of mitigating evidence. [Citations.] A defendant convicted of a capital crime may legitimately choose a strategy aimedat obtaining a sentence of death rather than oneoflife imprisonment without the possibility of parole, for some individuals may rationally prefer the formerto the latter. [Citation.] (Taylor, supra, 47 Cal.4th at p. 865.) The Court then turned to what it described as “the more difficult question of whether self-representation should have been denied or revoked on the ground defendant was mentally incompetent to represent himself.” (Taylor, supra, 47 Cal.4th at p. 866.) The Court considered the Supreme Court decision in Edwards, one ofthe cases that serves as the foundation of appellant’s argument here. (/bid.) As observed by this Court in Taylor,in Edwards, supra, 554 U.S. 164, the Supreme Court held the federal Constitution does not prohibit state courts from denying self-representation to defendants who are competentto stand trial with an attorney, but who © lack the mental health or capacity to conduct their own defenseattrial. (Taylor, at p. 866.) In its analysis the Court considered California cases decided before the Supreme Court’s decision in Faretta, and observed: 103 Before Faretta then, we had referred to self-representation competence, but had notarticulated any standard under California law for its assessment. (Taylor, supra, 47 Cal.4th at p. 872, footnote omitted.) The Court also notedthat, “In the wake ofFaretta’s strong constitutional statement, California courts tended to view the federalself- representation right as absolute, assuming a valid waiver of counsel.” (Taylor, supra, 47 Cal.4th at p. 872) The Court cited People v. Burnett (1987) 188 Cal.App.3d 1314, which “expressed a contrasting view.” (Taylor, at p. 873.) The Court then observed: The United States Supreme Court’s 1993 decision addressing competence, Godinez v. Moran, supra, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (Godinez), appeared to resolve any dispute by denying the existence of a separate competence standard for self-representation as a matter of federal law. (Taylor, supra, 47 Cal.4th at p. 874.) The Court outlined the impact of the Godinez decision, noting, among others, its own decision in People v. Halvorsen (2007) 42 Cal.4th 379,in which: weheld a trial court had erred in denying the defendant’s motion to represent himself at a penalty retrial on the ground the defendant“lacked the mental capacity to represent himself....” Under Godinez, the Faretta right “may be asserted by any defendant competentto standtrial,” makingthe trial court’s use of a higher standard erroneous. (Taylor, supra, 47 Cal.4th at p. 876, footnote omitted.) The Court then addressed the Supreme Court’s decision in Jndianav. Edwards, supra, 554 U.S. 164, and as relevant to appellant’s case, determined that Edwards does not support a claim of federal constitutional error in a case in which defendant’s request to represent himself was granted. (Taylor, supra, 47 Cal.4th at p. 878.) The Court summarized the Edwardsruling as follows: 104 The court in Edwards did not hold, contra to Godinez,that due process mandates a higher standard of mental competence for self-representation than for trial with counsel. The Edwards court held only that states may, without running afoul of Faretta, impose a higher standard, a result at which Godinez had hinted by its reference to possibly “more elaborate” state standards. (Godinez, supra, 509 U.S.at p. 402, 113 S.Ct. 2680.) (Taylor, at pp. 877-878, emphasisin original.) As a consequence, consistent with this Court’s analysis in Taylor, becausethe court here granted appellant’s request to represent himself, there can be no federal constitutional error. Further, at the time of appellant’s trial, the Dusky v. United States, supra, 362 U.S. 402, standard of competenceto stand trial was the only one to apply. The defendant in Taylor arguedthatthetrial court, in considering his request to represent himself, should have exercised the discretion,later recognized in Edwards, to apply a higher standard than competence to stand trial. (Taylor, supra, 47 Cal.4th at p. 879.) The Court ruled: Wereject the claim of error because,at the time of defendant’s trial, state law provided the trial court with notest of mental competenceto apply other than the Dusky standard of competenceto standtrial. (see Dusky v. United States, supra, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824), under which defendant had already been found competent. (Taylor, at p. 879.) The Court held that that it was not error for the trial court, in the absence ofa different California standard, to conclude that the finding that the defendant was competentto stand trial compelled a further finding that he was competentto represent himself. (Taylor, supra, 47 Cal.4th at p. 881.) The sameis true here. Because there was no substantial evidence that appellant was incompetentto standtrial there was nojustification to conclude that he was incompetentto represent himself. 105 This Court even more recently considered Faretta and Edwards in Johnson, supra, 53 Cal.4th 519. In Johnson, the defendant wasoriginally represented by counsel, but the court subsequently granted his request to represent himself. (Johnson, at p. 523.) Approximately six monthslater, the court expressed a doubt as to appellant’s competencyto stand trial. (/d. at p. 524.) Criminal proceedings were suspended and a jury subsequently found defendant competent to stand trial. Ud. at p. 524.) Criminal proceedings were reinstated and defendant resumed representing himself. (Ibid.) Twodayslater, the court expressed concern about the defendant’s ability to represent himself, telling the defendant, “You may be competent to standtrial, but I’m not convinced that you are competent to represent yourself.” (Ud. at p. 525.) In Johnson, the Court summarized the difference between the issue beforeit, andthe issue before the Court in Taylor, as follows: In Taylor, thetrial court had permitted a defendant who was competentto stand trial and waive counsel to represent himself. Because the Edwardsrule is permissive, not mandatory, we held that Edwards “does not support a claim of federal constitutional error in a case like the present one, in which defendant’s request to represent himself was granted.” (Taylor, supra, at p. 878, 102 Cal.Rptr.3d 852, 220 P.3d 872.) This case presents the reyerse situation: the trial court denied self-representation under Edwards. We must decide whether California courts may accept Edwards’s invitation and deny self-representation to gray-area defendants. (Johnson, supra, 53 Cal.4th at p. 527.) The Court held that California courts may denyself-representation when Edwards permits, stating: Denying self-representation when Edwards permits does not violate the Sixth Amendmentrightof self-representation. Because California law provides nostatutory or constitutional right of self-representation, such denial also does notviolate a state right. Consistent with long-established California law, we 106 hold thattrial courts may deny self-representation in those cases where Edwards permits such denial. (Johnson, supra, 53 Cal.4th at p. 528.) The Court then considered the standard to apply when deciding whether to deny self-representation under Edwards. (Johnson, supra, 53 Cal.4th at p. 529.) The Court rejected the suggestions of the parties and amici curiae, including a suggestion to return to the pre-Faretta standard in California (ibid.), stating: All of these suggested standardsare plausible. But we are constrained by the circumstance that what is permissible is only what Edwards permits, not what pre-Faretta California law permitted. In other words, because of federal constitutional constraints, in considering the defendant’s mentalstate as a reason to deny self-representation, a California court may not exercise the discretion permitted under California law butsolely that permitted in Edwards. (Johnson, at p. 530.) The standard announcedby the Court is as follows: webelieve the standard that trial courts considering exercising their discretion to deny self-representation should applyis simply whether the defendant suffers from a severe mental illness to the point where he or she cannotcarry out the basic tasks neededto present the defense without the help of counsel. (Johnson, supra, 53 Cal.4th at p. 530.) The Court observed that a trial court only needs to consider the mental competence of a defendant seeking self-representation if it is considering denying self-representation due to doubts as to the defendant’s mental competence. (Johnson, supra, 53 Cal.4th at p. 530.) The Court reiterated that denying a defendant’s Sixth Amendment right to represent himself/herself should not be donelightly, stating: Trial courts must apply this standard cautiously. The ‘Edwards court specifically declined to overrule Faretta, supra, 422 U.S. 806, 95 S.Ct. 2525. (Edwards, supra, 554 U.S.at 107 p. 178, 128 S.Ct. 2379.) Criminal defendants still generally have a Sixth Amendmentright to represent themselves. Self- representation by defendants who wishit and validly waive counsel remains the norm and maynot be denied lightly. A court may not denyself-representation merely becauseit believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides. Rather, it may denyself- representation only in those situations where Edwards permitsit. (Johnson, supra, 53 Cal.4th at p. 531.) Here, the court only needed to consider appellant’s competenceif it was considering denying appellant’s request due to doubts as to his mental competency. (Johnson, supra, 53 Cal.4th at p. 530.) But a court may deny self-representation based on a defendant’s mental state only to the degree Edwards permits, not what pre-Faretta California law permitted. (/bid.) The only way a court may deny self-representation because of a defendant’s mental condition is if he/she suffers from a severe mentalillness to the | point where he/she cannot carry out the basic tasks needed to present a defense. (/bid.) In this case, because the court granted appellant’s request the only potential criticism is that the court abused its discretion because appellant had a “severe mental illness” to the degree he could not carry out the basic tasks needed to present a defense. Even a cursory review ofthis record reveals that was plainly not the case. The law remainsthat a criminal defendant has the right to self- representation even though many mayperceivethat it is not in his/her best interest to do so. For example, a defendant’s announced intention to seek the death penalty does not compel denial of motion for self-representation. (People v. Bradford, supra, 15 Cal.4th at pp. 1371-1372; People v. Bloom, supra, 48 Cal.3d at pp. 1222-1224, revd. on other grounds Bloomv. Calderon, supra, 132 F.3d 1267.) It is also true that a defendanthas the right not to present a defense and to take the stand and confess guilt and 108 request imposition of the death penalty. (People v. Clark, supra, 50 Cal.3d at p. 617.) . Appellant’s claim fails for several reasons. First, as in Taylor, at the time of defendant’s trial, state law providedthetrial court with no test of mental competencyto apply other than the Dusky standard of competence to stand trial. (Taylor, supra, 47 Cal.4th at p. 879.) Second, Edwards does not support a claim offederal constitutional error in a case in which the defendant’s request to represent himself was granted. (/d. at p. 878.) Further, to the degree appellant’s claim is somehow the court abusedits discretion in failing to deny self-representation, appellant certainly did not suffer from a severe mentalillness to the point where he could not carry out the basic tasks neededto present a defense. (Johnson, supra, 53 Cal.4th at p. 530.) There are many examplesin this record of appellant more than capably representing his own interests. Athis first court appearance on January 30, 2003, appellant asked the court to recognizehisrightto self- representation. (IRT 5-6.) On November 20, 2003, nearly 10 monthslater, appellant, through Mr. Reichle, filed a motion and supporting points and authorities still seeking to represent himself. (CT 738-746.) In that motion appellant’s counsel made clear to the court that appellant was aware of the challenges and disadvantages of representing himself, stating: This capital case presents a unique factual situation. The Defendanthas publicly admitted committing the acts that underlie the charged murder of a law enforcementofficer, while articulating the justification and necessity of the acts in the nature of an affirmative defense. This focus ofthis caseis that defense. Defendant has determined, after careful deliberation, that he can adequately present his case to the jury onlyif he himself controls and conducts that presentation. (3CT 740.) 109 On November24, 2003, appellant personally prepared and submitted, ‘“Defendant’s Own Points and Authorities In Support of His Right to Self- . Representation.” (3CT 751-765.) Appellant indicated to the court that he was awareofthe applicable standard in determining if a defendant could represent himself/herself (3CT 752-753), and “unequivocally” asserted his “right to self-representation.” (3CT 753.) Further, appellant stated: In this case the prosecution’s caseis relatively simple and straightforward, especially with Defendant willing to admit to the bulk of, if not all of, the facts that the prosecution intends to present. Whereas, the defense’s case is an affirmative one and extremely complex. Furthermore, it is anticipated that with the theoretical overview of the defense being alien to the District Attorney, the prosecution will challenge nearly all the evidence that Defendant intends to present, to a greater extent and diligence than the average defense would undergo. (3CT 760.) Appellant also completed a Faretta waiver form. (3CT 788.) Further, at the hearing, the court addressed appellant directly and they thoroughly discussed the disadvantages ofself-representation. (IIRT 245-249.) The record as a whole demonstrates that appellant understood the disadvantages of self-representation, and the complexities of this particular case. Further, appellant was aware, since before he was granted the right to represent himself, that this was a capital case. Andfinally,at all times during the proceedings in which he acted as his own attorney, appellant presented as a capable, intelligent, and logical advocate. In sum, he wasclearly able to carry out the “basic tasks” of presenting a defense without an attorney. Appellant’s claim that he was incompetent to be grantedthe rightto self- representation is without merit and should be rejected. 110 V. THE TRIAL COURT PROPERLY PERMITTED APPELLANT TO CONTINUE TO REPRESENT HIMSELF DURING THE PENALTY PHASE A. Summary of Argument In a closely related argument appellant contendsthat the failure to provide counselat the penalty phase requires reversal of the judgment of death. (AOB 117-118.) Appellant distinguishes this argument from the onein section IV, ante, as follows: In the preceding argument, appellant has urged that Indiana v. Edwards permits the s[t]ate to enforce Penal Code section 686.1 at the guilt phase. Because a defendant’s interest in self-representation is even less following a conviction (Martinez v. Court ofAppeal, supra, 528 U.S.at p. 168), even if this court refuses to enforce Penal Code section 686.1 at the guilt phase, it should enforce that statute at the penalty phase. Thetrial court erred in not doing so. Thefailure of the trial court to provide counsel at the penalty phase requires reversal of the death judgment. (AOB 117-118.) Respondent disagrees. Forall of the reasons stated in response to ArgumentIV,appellant’s claim should be rejected. A defendant’s right to self-representation continues through the penalty phase. Atall times in the proceedings below appellant capably and intelligently represented himself, and advocated on his own behalf (Argument IV(B), Relevant Facts). Moreover, appellant presents no valid legal justification as to why one standard should apply in the guilt phase and then deny that defendant’s right to self-representation at the penalty phase. There was simply no information or evidence before the court that would havejustified revoking appellant’s previously granted request to represent himself. His claim should berejected. B. The Trial Court Did Not Violate Section 686.1 Appellant argues that: 111 In the instant case, the trial court violated the letter and spirit of 686.1 in permitting appellant to waive counselat the penalty phase. Decisions of the high court, including Indianav. Edwards, permit the states to enforce statutes which are intended to ensure the integrity of criminal judgments, where the integrity of such judgments constitutes an importantstate interest, and where that interest is undermined by self-representation. (AOB 118.) Specifically, appellant claims: while it may be argued that Faretta protects the right of a capital defendantto represent himself at the trial on guilt or innocence, the balance shifts once the defendant has been convicted. At that point, the state’s interests in the integrity of a death judgment permits the state to limit that right at the penalty phase. (AOB 122.) Asappellant acknowledges this Court has previously rejected claims that the defendant’s rightto selfrepresentation may belimited at the penalty phase. (AOB 122,citing People v. Blair (2005) 36 Cal.4th 686, 736-740; Koontz, supra, 27 Cal.4th at pp. 1073-1074; People v. Bradford, supra, 15 Cal.4th at pp. 1364-1365; People v. Clark, supra, 50 Cal.3d at p. 617.) Butit is appellant’s position that because of Edwards, supra, 554 U.S. 164, these cases were “incorrect.” (AOB 122.) As discussed in ArgumentIV,this Court has held that California courts may denyself-representation only when Edwards permits. (Johnson, supra, 53 Cal.4th at p. 530.) Specifically, as stated by this Court: weare constrained by the circumstance that whatis permissible is only what Edwards permits, not what pre-Faretta California law permitted. In other words, because of federal constitutional constraints, in considering the defendant’s mentalstate as a reason to deny self-representation, a California court may not exercise the discretion permitted under California law but solely that permitted in Edwards. (Johnson, supra, 53 Cal.4th at p. 530.) 112 Appellant’s argument appearsto be that a “state’s interest in the integrity of a death judgment permits the state to limit that right [self- representation] at the penalty phase.” (AOB 122.) But as this Court has already observed, “a California court may notexercisethe discretion permitted under California law but solely that permitted under Edwards.” (Johnson, supra, 53 Cal.4th at p. 530.) And Edwards only permits when a “defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel.” (Jbid.) In considering the impact ofEdwards this Court noted that, “Self-representation by defendants who wishit and validly waive counsel remains the norm and maynotbe denied lightly.” (/d. at -p.531,) Asdiscussed thoroughly in the preceding argument appellant intelligently and capably represented his own interests and was well aware there would be a guilt and penalty phase in this capital trial. Prior to the court granting appellant’s request to represent himself, his attorney filed a motion in support of his request and madeit clear to the court that appellant was aware of the challenges and disadvantages of self-representation in a capital case. (3CT 740.) Appellant’s counsel, under the heading, “Defendant’s right to self-representation is in no way diminished by the fact that this is a capital case” stated: Althoughall capital cases are complex, the guilt phase here presents few factual or legal issues related to the People’s case. The Defendant has repeatedly and publicly admitted the commission of the acts underlying this charge, choosingto rely on whatis essentially an affirmative defense to defeat the charges. Asto the penalty phase, Defendant understandsthat he will have widelatitude in presenting relevant mitigating evidence to convince the jury to not impose the death penalty, as well as the fact that there are limits on the Prosecution’s right to introduce evidence in aggravation. (3CT 742-743.) 113 Appellant personally prepared and submitted points and authorities in support of his request, which “unequivocally” asserted his “right to self- representation.” (3CT 753.) Appellant also completed a Faretta waiver form, and at the hearing, the court addressed appellant directly and they thoroughly discussed the disadvantagesofself-representation. (3CT 788; IIRT 245-249.) The record as a whole demonstrates that appellant understood the disadvantagesofself-representation, and the complexities of this particular case. Further, appellant was aware, since before he was granted the right to represent himself, that this was a capital case. Atall times during the proceedings in which he acted as his own attorney, appellant presentedas a capable,intelligent, and logical advocate. Appellant affirmatively sought the right to represent himself, and did so capablyat all times during the guilt phaseofthe trial. There was nothing in the record to justify the court revokinghis right at the penalty phase. Appellant’s claim is without merit and should be rejected. C. Reversal of the Penalty Is Not Required Appellant contendsthat, “The erroneousdeprivation of the rightto counsel understate law requires reversal without a showing of prejudice.” (AOB 126.) But as outlined above appellant was not erroneously deprived of counsel. Rather, the court continued to honor appellant’s recognized right to represent himself. Appellant’s claim is without merit and should be rejected. VI. THE COURT WAS NOT REQUIRED TO RECONSIDER GRANTING APPELLANT’S REQUEST TO REPRESENT HIMSELF AFTER THE PROSECUTOR ACKNOWLEDGEDSECTION190.3 A. Introduction Appellant contendsthatthe trial court failed to make the proper inquiry to ensure appellant knew this was a capital case whenit granted his request to represent himself and as a result, the guilt and penalty verdicts 114 must be reversed. (AOB 127-128.) In sum,appellant’s contention is that, althoughall parties were keenly aware that this was a capital case, once the prosecutor acknowledged section 190.3, the court was again required torevisit appellant’s desire to represent himself. The question actually presented by appellant here is whetheror not his waiver ofthe right to counsel was knowing and intelligent with respect to the fact that he waspotentially facing the death penalty. From the outset of these proceedings appellant sought to represent himself. The record further reveals that prior to the court’s granting appellant’s request to represent himself on December8, 2003,all of the interested parties, and most importantly appellant, were aware that this was a capital case. A thorough review ofthe record also reveals that in the points and authorities written and filed by appellant on November 24, 2003, in support ofhis request for self-representation, he repeatedly demonstrated that he was aware that this was a capital case. Appellant’s waiver of the right to counsel was knowingandintelligent, and as relevant to this claim made with the knowledgethat this was a capital case. As a consequence, any claim that the court needed to obtain an updated waiver regarding appellant’s desire to represent himself should be rejected. B. Relevant Facts Related to Appellant’s Knowledge That This Was a Capital Case Attheearliest stages of the proceedings both appellant and his attorney knewthat this was a capital case. The preliminary hearing was on May 21, 2003, and appellant was held to answer. (3CT 672; IRT 222.) On May 29, 2003, an information was filed that charged appellant with one count of murder (§ 187, subd. (a)), and the special circumstancethat the murder was committed while the victim was a peace officer engaged in the performanceofhis duties (§ 190.2, subd. (a)(7)). (3CT 685-686; 8CT 115 1858-1859.) The information specified that the sentencing range waslife without parole or death. (3CT 686; 8CT 1859.) On November20, 2003, appointed counsel James Reichle filed points and authorities in support of appellant’s request to represent himself. GBCT 738-746.) In that motion Mr. Reichle described appellant as “highly intelligent, literate and educated,” and that appellant had undertaken an extensive study of criminal law and evidence. (3CT 739-740.) Important to appellant’s claim here, no fewer than three ofthe five headings in appellant’s counsel’s motion refer to this being atleast potentially a capital case. (3CT 742, 744-745.) Appellant’s counselalso noted that appellant was requesting the assistance of advisory counselto conduct someparts of the defense and handle investigative duties and section 987.9 duties. (3CT 740.) Section 987.9 pertains to requesting funds in capital cases or in cases in which a person is convicted of second degree murder having served a prior prison term for murder. Appellant’s counselalso discussed the details of this specific case in the context of a capital proceeding. Importantly, appellant’s counsel discussed appellant’s knowledge of the phases in capital cases. As noted in the motion: Althoughall capital cases are complex, the guilt phase here presents few factual or legal issues related to the People’s case. The Defendant has repeatedly and publicly admitted the commission ofthe acts underlying this charge, choosing torely on whatis essentially an affirmative defense to defeat the charges. Asto the penalty phase, Defendant understandsthat he will have widelatitude in presenting mitigating evidence to convince the jury not to impose the death penalty, as well as the fact that there are limits on the Prosecution’s right to introduce evidence in aggravation. (3CT 742-743.) In the motion Mr. Reichle make other referencesto this being a capital case (3CT 744-745), and in the conclusionstates: 116 Recognizing Defendant’s right of self-representation now will avoid numerousdifficulties in bringing this case to trial and serious appellate issues, especially since wrongful denial of the fundamentalright of self representation requires a reversal ofthe conviction per se. Provided that Defendantis appointed qualified death penalty counsel serving as Advisory Counsel, the interests of both the Defendant, in presenting his own defense, and the People, in its obligation to insure an appropriate process in seeking the death penalty, will be served. This arrangement will greatly increase the probability that the orderly and expeditious conductofthe court’s business will not be substantially hindered, hampered or delayed northe finality of its judgment be subject to challenge on appeal. See[,] e.g.[,] People v. Mattson (1959) 51 Cal.2d 777, 797. (3CT 746.) On November24, 2003, prior to the court granting appellant’s request to represent himself, appellant wrote and filed a “Defendant’s OwnPoints and Authorities In Support of His Right to Self-Representation.” (3CT 751-765.) In that motion appellant not only demonstrated his ability to capably and competently represent himself, but also his knowledgethat he was facing capital charges. (3CT 751.) Appellant reminded the court that from the beginning he wantedto exercise the right to represent himself. (3CT 751-752.) Appellant also advocated for the appointment of Mr. Reichle as “advisory counsel, standby counsel, or co-counselor under whatevertitle the court deemsappropriate...” (3CT 754), and in so doing states, “In capital cases the Court has the authority to appoint an additional attorney as co-counsel. P.C. 987(d).” (3CT 755.) Appellant further stated: In a death penalty case a trial court may be required to appoint a second attorney as co-counsel,if it appears that a second attorney may lend important assistance in preparing for trial or presenting the case. A defendant in a capital case represented by professional counsel, upon showing sufficient need, has a statutory right to the appointmentof another attorney as co-counsel. P.C. 987(d). (3CT 756.) 117 In noting the distinction between the appointmentof additional counsel when oneis represented by counsel versus when onerepresents his/her owninterests, appellant stated: However, apparently a defendant representing himself ina death penalty case is not recognized to have this same right to the appointment of a second counsel. “Defendant, who has elected self-representation, was not entitled to appointmentof a secondattorney to assist him. Although in capital cases, an attorney may seek appointmentof a second attorney to assist him, defendant wasnot an attorney.” Scott v. Superior Court 212 Cal. App. 3d 505 (1989). ° However, this logic does not stand. The position of Scott, supra, hinges on a frivolous, out of context interpretation ofthe term “attorney.” It is recognized in the legal system that a pro per defendantis “his own counsel,” and “that he is acting as his own attomey.” It is only logical and fundamentally fair that where a pro per defendantis held to all the same courtroom standards as a memberofthe bar,is afforded no special privileges, no extra time, and is in every wayto be held to the same confining limitation as a trained attorney, the defendant mustalso be afforded all the same reasonable courtroom rights as a trained attorney as well, except in issues of security, or competency of counsel on appeal. (3CT 757.) Under a headingentitled, “The complexity and uniqueness of the Defense case requires death-qualified counsel to be involved assisting Defendant” (3CT 760), appellant stated: In this case the prosecution’s caseis relatively simply and straightforward, especially with Defendant willing to admit to the bulk of, if not all of, the facts that the prosecution intends to present. Whereas, the defense’s case is an affirmative one and extremely complex. Furthermore,it is anticipated that with the theoretical overview ofthe defense being alien to the District Attorney, the prosecution will challenge very nearly all the evidence that Defendant intends to present, to a greater extent and diligence than the average defense would undergo. Indeed, the theories and evidenceofthe defense are quite sensitive in the 118 mannerin which they can be misportrayed as to relevance at trial. (3CT 760.) In the motion appellant continues to reference “death penalty” and “capital” case[s]. (3CT 761-762.) Appellant further bolstered his argument for the appointment of Mr. Reichle with the following observation regarding limited accessto legal materials: Especially while attempting to prepare a defensein a capital case, such limited study would be a severe handicap to justice, © wherethe defense receive no extra time to complete comprehensivelegal study. It would substantially promote justice if Defendant were vicariously granted adequate access to case law andlegal study, via Xeroxes, consultation, and the overall assistance of appointed assisting counsel. (3CT 763.) Finally, in support of his argumentthat Mr. Reichle specifically should be appointed to assist him, appellant acknowledgedthat, “An indigent defendant, even in a capital case, may notforce a trial court to appoint a particular attorney.” (3CT 764.) Subsequently, on December4, 2003, the Peoplefiled a response to appellant’s motion for self representation, which contains numerous referencesto this being a capital case. (3CT 771-784.) In fact, the opening line of that documentstates, “Defendant has been charged with the commission of a capital offense namely, murder of a peace officer while engagedin the performanceofhis duties.” (3CT 771.) On December8, 2003, appellant completed and signed a Faretta waiver form. (3CT 788.) On that same day the court held a hearing in whichit granted appellant’s request for self-representation. (IIRT 245- 257.) As outlined in Argument IV(B), at the December 8, 2003, hearing, the court addressed appellant’s request. 119 Approximately two monthslater, on February 9, 2004, the parties appeared in court and the following exchange occurred: [COURT]: People vs. Mickel. The record shall reflect the Defendantis present. Mr. Reichle is also present. Mr. Cohen appears for the People. Mr. Cohen, Mr. Mickel, this matter was just put on calendar for review, no particular reason other than to determine whether there were any problemsorissues that the Court needed to address. Mr. Mickel, did you have any? [APPELLANT]: No, I don’t have anything right now, Your Honor. [COURT]: Mr. Cohen? [MR. COHEN]: I would just like to state on the record _ that this will be a death penalty case. I have let Mr. Reichle knowthat before. But I am just stating for the record thatit will be myintention to seek death in this matter. I am aware of my 190.3 guidelines and requirements, and I will be filing at a later date to meet those guidelines. [COURT]: And I believe that the transcript has already been prepared from what used to be the Municipal Court. If not, it is directed that the transcript be prepared, and that it be approved by the Judge whoheardthe Preliminary Hearing. With that, Mr. Mickel, anything further? [APPELLANT]: No, Your Honor. (CURT 261-262.) On February 4, 2005, the People filed a written notice of intention to introduce evidence in aggravation. (8CT 2007-2008.) C. Legal Standard It is appellant’s contention that once the prosecutor provided notice pursuantto section 190.3, the court was again required to revisit appellant’s 120 request to represent himself. (AOB 127.) As discussed in Arguments IV and V, a criminal defendanthas the right under the Sixth Amendmentofthe United States Constitution to conduct his own defense if he knowingly and intelligently waives his Sixth Amendmentright to the assistance of counsel. (Faretta v. California, supra, 422 U.S. at pp. 819, 835-836; People v. Blair, supra, 36 Cal.4thatp. 708.) Theright to self-representation is not limited to the guilt phase of a capital trial, but extends to the penalty phase as well. (People v. Clark, supra, 50 Cal.3d at p. 617.) A defendant seeking to | represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” (Faretta, at p. 835.) Noparticular form of words is required in admonishing a defendant who seeks to waive counseland elect self-representation. (People v. Blair, supra, 36 Cal.4th at p. 708; Koontz, supra, 27 Cal.4th at p. 1070.) Thetest is whether the record as a whole demonstrates that the defendant understood the disadvantagesof self-representation, including the risks and complexities of the particular case. (People v. Blair, supra, 36 Cal.4th at p. 708; People v. Lawley, supra, 27 Cal.4th at p. 140.) Appellant’s claim also appears to be basedin part on thenotice of evidence in aggravation. The purpose of a notice of evidence in aggravation “is to advise the accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty phase.” (People v. Wilson (2005) 36 Cal.4th 309, 349, internal quotation marks & citations omitted.) There is no requirementthat the notice be written. (/bid.) Initially it should be notedthat to the degree appellant’s claim could somehow beinterpreted as inadequate notice of intent to present evidence in aggravation, any such claim has been forfeited by appellant’s failure to object. (People v. Partida (2005) 37 Cal.4th 428, 434-435; People v. Farnam (2002) 28 Cal.4th 107, 175.) 121 D. Appellant’s Waiver of Counsel Was Knowing and Intelligent Asnoted above, appellant contends that the court did not ensure that he waivedhis right to counsel with an understanding of the “ultimate penal consequencesheactually ended up facing.” (AOB 128.) Appellant’s claim is without merit. The record demonstrates that: prior to the court granting appellant’s requestto represent himself; and, prior to his completion of the Faretta waiver and the December8, 2003, hearing; appellant was aware ofthe “ultimate penal consequenceshe actually ended up facing.” His waiver of the right to counsel was therefore knowingandintelligent. On November 20, 2003, appellant’s attorney filed a motion in support of appellant’s request to represent himself. (3CT 738.) That motion makes clear the interested parties, including appellant, knew that he was facing the death penalty. As just one example, in the motion appellant’s attorney refers to the two phases of capital cases, and in specifically referring to the penalty phase, and appellant’s knowledge of the penalty phasestates: Asto the penalty phase, Defendant understandsthat he will have widelatitude in presenting mitigating evidence to convince the jury not to impose the death penalty, as well as the fact that there are limits on the Prosecution’s right to introduce evidence in aggravation. (3CT 742-743.) Andperhaps even moretelling of appellant’s knowledge ofthe penal consequences of his murder of Officer Mobilio was the November24, 2003, motion appellant wrote and filed in support of his request. In that motion, appellant advocates being permitted to represent himself, and for the appointmentofMr. Reichle to assist him. (3CT 751-766.) The motion makes numerousreferences to the “death penalty” and “capital” case[s]. 122 Finally, on December 4, 2003, the People filed a response to appellant’s motion for self representation, which contains numerous references to this being a capital case. (3CT 771-784.) In fact, the opening- line of that documentstates, “Defendant has been charged with the commission of a capital offense namely, murder of a peace officer while engagedin the performanceofhis duties.” (3CT 771.) A review of the record prior to the court granting appellant’s request demonstrates that appellant was aware this was a capital case. Further, nothing that happened _ during the guilt phaseofthe trial would havejustified revoking the court’s previous grant of appellant’s request. Appellant acknowledges that generally a Faretta waiver remainsin effect throughoutthe criminal proceedings (AOB 142), but claimsthat “Whenthe prosecutorstated his intent to seek death, the court did not discuss with appellant whether that dramatic change in the penal consequencesaffected appellant’s decision to represent himself. This was error.” (AOB 141.) There was no error. Appellant attempts to make much of the court appearance on February 9, 2004, wherein the prosecutor informedthe court that, although he had let appellant’s counsel know before, he wasstating “on the record”that this was a death penalty case, andthat he was aware ofthe 190.3 guidelines and requirements...” (IIRT 261.) This did not represent a “dramatic change”in the penal _ consequences. As demonstrated in the record, appellant was well aware,prior to this date, and prior to the court granting appellant’s request to represent himself, that this was a capital case and he therefore faced the death penalty. The record as a whole demonstrates that appellant understood the disadvantages of self-representation, including the risks and complexities of the particular case. (People v. Blair, supra, 36 Cal.4th at p. 708; People v. Lawley, supra, 123 27 Cal.4th at p. 140.) Appellant’s waiverofthe right to counsel was knowing andintelligent. Appellant’s also argues that once the People stated their intention to seek the death penalty, “the defendant must prepare for and face not one, but two inherently antagonistic trials: one on guilt and one on penalty.” (AOB 144.) And that appellant did not appreciate the usefulness of counsel in that context. Appellant’s position is not supported in the record. The record reveals that prior to the court granting appellant’s request to represent himself he was aware that there were potentially two phasesto the trial. As noted above,in the pleading filed in support of appellant’s request to represent himself, his attorney specifically referred to the separate guilt and penalty phases and appellant’s understanding of presenting mitigating evidence at the penalty phase to convince the jury not to impose the death penalty. (3CT 742-743.) Appellant knew that if found guilty of murdering Officer Mobilio there would then be a penalty trial in which he potentially faced the death penalty. As a consequence, an argumentthat appellant was somehow unawarethat he potentially faced two phasesattrial is not supported by the record. Appellant also claims “when the prosecution in Mr. Mickel’s case declared that it intended to take Mr. Mickel’s life, it triggered a series of procedures at which the potential value of counsel wassubstantially increased.” (AOB 145.) As it must, appellant’s argument presupposes that all of the interested parties were not already aware, prior to the People’s announcement that they would comply with the section 190.3 statutory requirements, that this was a capitalcase. First, as discussed above, the record reveals that appellant was well aware, prior to the court granting his request to represent himself, that this was a capital case and he therefore faced the death penalty. Second, the record contains numerous examples of appellant’s impressive grasp of 124 procedural issues. For example, at a hearing just four months after being permitted to represent himself, and 11 months before the trial started, appellant demonstrated his impressive level of preparation and knowledge of the procedural aspects of a capital case: [APPELLANT]: There wasonething I wantedto address, Your Honor. This case being a death penalty case, and myself acting as trial counsel personally, I reviewed transcripts for all the court appearances, and I have also received from Department4 an order that I submit a declaration that all court appearances are accounted for. But also in the same declarationit says that if trial counsel is different than the counsel for the preliminary hearing, then the counsel for the preliminary hearing has to also submit the same type of declaration. And trial—counselfor preliminary hearing, now advisory counsel, has not received transcripts of the court appearances. And I would like to request that the Court order that transcripts be provided to Mr. Reichle for two reasons: one being— [COURT]: Sir, done. It is ordered. Okay. (IIRT 264.) Appellant’s argumentthat the procedural complexities of a capital case were somehow beyondhisgrasp is belied by the record. The above quoted languageis just one of many examples in the record of appellant’s impressive grasp of the law, both substantively and procedurally. Further, appellant argues that, “The error was not curedbythe trial court’s belated remark,just prior to jury selection on January 19, 2005, whetherit should “readdress[] the Faretta question.” (AOB 146.) But there was noerror to “cure” and the court’s exchange with appellant was not intended to “cure”an error that did not exist. 125 On January 19, 2005, in discussing the length of time the parties thought it would take to get a jury empanelled the following exchange occurred: [MR. REICHLE]: So I am allowing someextra time for sort of getting used to the processforthe first part ofthe first day orso. [COURT]: Should I be readdressing the Faretta question? [APPELLANT]: No, Your Honor. [COURT]: Okay. I have reviewedthe file that came to me fairly carefully regarding that question, and I think ’'m comfortable with where we are. But the jury selectionis a challenge. And I am not—as you havebeentold all along by judges before me, because I haven’t told you much ofanything, I can’t tell you how to doit, and I can’t help you do it. You are on your own with the assistance of advisory counsel. He can be ‘at counsel table with you. That is okay with me. [APPELLANT]: I understand that, Your Honor. I have fully understood the depths in which I have thrust myself into. . And I understandit is wholly my responsibility, andit is a large task, and that I have my work cut out for me. I understandall of that. And wereally don’t need to readdress the Faretta issue because I’m fully awareofall of the difficulties that will be involved. [COURT]: Okay. For now I am okay. We mighttalk about that some more. ButI just want to makesure that your issues are properly presented in court for your own sake. [‘“].--[9]- (IIIRT 515-516.) The court’s exchange with appellant was intendedto reaffirm that the court and appellant remained comfortable with appellant’s decision to represent himself. Additionally, it further demonstrated appellant’s knowledge and sophistication, and that his prior waiver was knowing and intelligent. Appellant advances “reasons” the “error was not cured....” 126 (AOB 146.) But as discussed above,there was noerror to “cure” and appellant’s “reasons” do not support his claim. Appellant had the right under the Sixth Amendmentofthe United States Constitution to conduct his own defenseif he knowingly andintelligently waived the rightto the assistance of counsel. (Faretta v. California, supra, 422 U.S. at pp. 819, 835-836; People v. Blair, supra, 36 Cal.4th at p. 708.) That right extends to the penalty phase. (People v. Clark, supra, 50 Cal.3d at p. 617.) The test is whetherthe record as a whole demonstrates that the defendant understood the disadvantagesof self-representation, including the risks and complexities ofthe particular case. (People v. Blair, supra, 36 Cal.4th at p. 708; People v. Lawley, supra, 27 Cal.4th at p. 140.) Here, the record as a whole demonstrated that appellant was well aware, prior to the court granting his request that he represent himself, that this was a capital case, and he therefore faced the death penalty. Any claim that appellant only became aware this was a capital case after he was granted the right to represent himself is belied by the record. Appellant’s claim is without merit and should berejected. VII. THE CouRT DID NOT FAIL TO ADEQUATELY VOIR DIRE AND THEN REMOVE ANY JURORS A. Summary of Argument Appellant contends that three seated jurors and onealternate should have been removed. (AOB 151.) Asstated by appellant, his contention is that: One question asked jurorsifthey believed that the State should automatically put to death any defendant convicted of killing a police officer who was engaged in the performance of his duties—the precise question the jury would have to decide in appellant’s case. Three jurors who were eventually seated, and one alternate, answered that they believed such a defendant who committed such a crime should automatically be put to death. Thetrial court’s perfunctory voir dire did notelicit contrary 127 answers. Despite giving this answerthat indicated they could not follow the law, these jurors were permitted to sit on the jury. (AOB 151.) Asaresult of this alleged error appellant claims the judgment of death must be reversed. (AOB 177.) Appellant’s claim ultimately focuses on Jurors 7877, 7017, 10155, and 9466. (AOB 168.) Initially, any alleged error is forfeited because appellant did not challenge any of these jurors for cause, did not exercise a peremptory challenge to excuse any of these jurors, and accepted the jury as constituted. Further, the trial court had no sua sponte duty to excuse any of the jurors and appellant’s trial rights were not violated because he had the opportunity to have the juror excused. Finally, when the entire voir dire is considered each of these jurors was capable of performing his/her duties in accordance with the instructions and his/heroath. | B. Relevant Facts 1. Facts pertaining to jury voir dire On March 17, 2005, appellant filed a brief regarding the scope of voir dire. (9CT 2171.) Appellant’sbrief is telling in that it not only is indicative of appellant’s grasp of the legal issues, but also becauseit is directed at a defendant’s “right to question potential jurors on facts or circumstanceslikely to be presented in the case.” (9CT 2171.) In fact, the conclusion of appellant’s brief specifically refers to Question 39(d), the question which he now attemptsto use as the basis for this challenge (AOB 151), stating: The Defendant has considerable leeway in asking potential jurors, for instance, whether they personally would automatically impose the death penalty based on the facts described in Question 39(d) since those are the facts of this case and on any other general fact or circumstancelikely to be a significant factor in this case. 128 (9CT 2174.) Prior to voir dire the court and the parties discussed the manner in which questioning of the jurors would be handled. In that exchange the parties discussed the scope of questioning, at one pointspecifically considering Question 39(d). [COURT]: I ask the six. As I understandthe law, those are the six questions I haveto ask. [MR. COHEN]: If you are referring to the onesthat I think you are, I agree with you. [COURT]: Well, let me see if I can find them andI'l tell you. Okay. The voir dire I think I haveto ask: Numberone: “Do you hold strong viewsin support of or in opposition to the death penalty as a punishment for murder.” Number two: “Do you have an open mindon the death penalty determination?” Numberthree: “If a defendant were found guilty offirst degree murder and a special circumstance were foundto be true could you as a juror consider as a possible punishment: A, death; B, imprisonmentforlife without parole. Four: Would you automatically vote for the death penalty in every case of murder in the first degree no matter what the evidence may be. Five: Would you automatically vote against the death penalty in every case of murderin the first degree no matter what the evidence maybe. Six: Is there any reason why you mightnot be able to be fair and impartial or might not be able to follow the Court’s instructions in a case which may involve a possible death penalty. I think those are the six I am going to ask them andIll ask them of the 18. Weare going to use the six pack,did tell youthat? 129 [MR. COHEN}: Yes. [COURT]: I will ask the 18 in the box that question and for each question I’ll ask for everyone to respondbyraising their hand andI’ll try to get, to make sure youall know their feelings on these questions. {MR. POYNER]: Youwill explore their answers? [COURT]: IJ will explore their answers. So, in fact, for these questions I will ask each one of them, I will ask the question and say “Juror Number One”andgoright down the 18 and answer “yes” or “no” or whatever. [MR. COHEN]: That would be great. And we are satisfied with the way the Court is approachingit. Thatis fine. [COURT]: Mr. Mickel. [DEFENDANT]: I agree, that sounds appropriate. [COURT]: And I am sure you folks will read those questionnaires very carefully. I hope I do too, but you are free to inquire into those areas as well on the death penalty portion of this. If there is something in there that you feel is. inconsistent and mightraise to challengein light of what the law is—and you briefed that Mr. Mickel, so you know. Then we’ll consider those issues. And then weget past death penalty and we go into traditional voir dire. [MR. REICHLE]: Sothe first phase is simply death qualification and that would be the scopeas to the questionnaire. Not prolonged portion ofthat, just the death penalty. [COURT]: Death qualify them and then we’!l go to general voir dire. [APPELLANT]: And how much ofthat do you intend to handle yourself, your Honor? [COURT]: Well, that is a good question, because inthis case we have got that questionnaire that is fairly thorough. Most of those things on the questionnairein a traditionaljury trial I ask and I explore those areas myself. Now I have already asked 130 them via the questionnaire. So how do you want meto dothat? Whatdo you think I should be doing? I am going to do the death penalty qualifying and what I saw happeningafter that would bethat if there were issues on individual juror’s questionnaire as I lookedat it and I felt it should be exploredI explored those areas. Otherwise, I probably wouldn’t go through all of those questions again, because they have been asked. [APPELLANT]: I think that would probablybe all right. I think that Mr. Cohen andI will probably honein on the specific areas that we are interested in and that would probably take care ofit. [MR. COHEN]: (nods head) That soundsfine. {MR. REICHLE]: IfI might, the converse of the question is: Do you have anyparticular limits other than redundancyor wasting time in terms of counsel’s exploration, because there are, as you will see in the brief, one particular question mentioned there that is asked in general, “Should the state always,” and I think the appropriate question would be “Would you always,” to personalize that question. And there are several questionslike that that are related to the questionnaires. Are you considering that for counsel? [COURT]: I don’t have a problem with that. The only request I would makeis that ifwe can ask those questions to the panel and ask them to respond with a raise of the handif their answer would be anything other than the appropriate response. Did that make sense? (Reporter interrupts) Raise their hand and say, for example—Whatis your question that you are referring to, counsel. [MR. REICHLE}: It is 39D whereit says, “Do you believe the state should automatically require the death penalty in all of the following,” and there is four, the last line being, “When a police officer is the victim.” “Do you believe the State should make that a mandatory death penalty situation?” So I assume the question would be something to the effect, you know, “You were asked if the State would do that. Would you personally, 131 automatically vote for the death penalty any timethere is a police officer killed.” [COURT]: Okay. And you canask that question to the panel as a whole. “If you would automatically vote for the death penalty any timea police officer was killed, raise your hand.” And you can explore that with that juror and you cantalk to those jurors. Is that going to be a problem? [APPELLANT]: Well, in one manner, your Honor,I think you were—atfirst you were talking about asking them all and having them raise their hand and then you were saying that you were going to address them specifically. It seems—address each —question each juror specifically. It seems to me that when you ask them all and like have them raise their hand like the responsibility for answering is kind of diffused and like each person can kind oflike feel like they don’t really have to respond as—they don’t feel that responsibility to respond as they would if you were actually addressing them specifically and asking them to vocally respond. So I am little concerned about that. [COURT]: Okay. Thatis a fair concern. However, my experience has beenthat if I ask jurors a question I get a whole lot of hands if they want to respond. Soifthere is certain areas that you feel it necessary to explore personally with each juror, tell me where they are and if we have a meeting of the minds on what those areas are that you want to explore with each juror, “Do you think this?” “Yes” or “no”? I would considerthat. [APPELLANT]: Okay. [COURT]: But to conduct the entire voir dire of everybody in the box at one time, that is not going to happen. [APPELLANT]: Okay. [MR. POYNER]: Ifwe have some questions of an individual juror based on the questionnaire. [COURT]: You ask them. [MR. POYNER]: Or do you wantusto say, “Judge, look at answer 15.” 132 [COURT]: I would be happyto dothat too. I will do it either way you want. [MR. POYNER]: Okay. [COURT]: If you want me to explore those issues with the jury instead of you doingit, just tell me which areas you want me to explore and I will do that too. [APPELLANT]: Okay. [COURT]: See, my normal practices would be all of those questions that are on the questionnaire, pretty much allofthose except the death penalty stuff in one form or another I cover and I ask the jury to discuss those things with me, “Ifyou have these kind offeelings, if you do, raise your hand.” And wetalk about those things. And while Mr. Mickel makesa point, I just think that based on my experience, jurors around here are pretty candid, you ask them a question and they respond. [APPELLANT]: Okay. [MR. POYNER]: It seems jurors around here don’t respond whenyou ask them to verbalize, they are more comfortable raising their hand. [COURT]: So— [APPELLANT]: Okay. [COURT]: If you have areas of the questionnaire after you have reviewedit that you want meto consider, make a note of those and say, “Judge, please explore these areas.” If you want to do it by juror it is because we have a whole lot of bodies to do that with. But if you had your notes and you want meto inquire into those areas, I will do that for you if you tell me what you want me to do. I don’t know logistically quite how to makethat workright. I will ask any questions that are fair and appropriate to ask if you want meto as opposedto you doingit to avoid the possible embarrassmentthat could come from asking a very sensitive question, I will bear the bruntofthat issue. But I expect youto be able to inquireinto sensitive areas with individual jurors. I don’t expect that we are going to do the 133 entire voir dire one on one with this panel. Did that give you any help? [APPELLANT]: I understood the—I understand that you are not going to be doing one on one questioning, but Mr. Cohen and I will be doing one on one;is that right? [COURT]: No. What I think is you are going to be under the samerulesthat I am. [APPELLANT]: Okay. [COURT]: Ifyou believe that a juror needs to respond to something based on their questionnaire, you ask them. If you ask one of your questionsthat is the corollary to one of the questions that is on the questionnaire, I would expect that you would askthe jury to indicate if they—ask them for an answer so they can respondbyraising their handit if calls for a further response. Soto use that scenario, “Do you always—would you alwaysvote for death if an officer was killed? If you would, raise your hand.” Then you know andyoucantalk to them. -[APPELLANT]: (nods head) [COURT]: I think that was the example. Andifthey don’t raise their hand then they don’t think that. [APPELLANT]: But then with specific individual responses then I can go into the individualjuror. [COURT]: Absolutely. Absolutely. If I misled youthere, I didn’t make myself clear. If Juror Cohen responds to question number32 and says something, you cantalk to that juror about that question. But I don’t wantyouto talk to that juror aboutall 27 pages of questions. [APPELLANT]: Oh, okay. And I understoodthat to begin with. [COURT]: So specifically based on focused areas of inquiry. [APPELLANT]: Right. [COURT]: Should I makethat clearer somehow? 134 [MR. COHEN]: I think I understand,judge. [MR. REICHLE]: Youare saying basically that if you’re questioning about whatis in the questionnaire and what it means or whatit implies, then you are talking to the individual juror because they wrote the questionnaire. If you are raising a corollary or a new pertinent point that isn’t covered by the questionnaire you wanta, in bank, hands raised response before goingto the individual jurors, “Do any of you feel X?” And then you would do that as a bank and then you would gointoit, because thenit is a general question not a specific interpretation of the questionnaire response. [COURT]: Correct. [MR. REICHLE]: Is that what you are saying? [COURT]: Exactly. Excellent explanation. I wish I could have been thatarticulate. (VRT 1182-1190.) Theparties continued to discuss the process as to how jury selection would proceed. (VRT 1190-1196.) . 2. Facts pertaining to Juror Number 7877 Juror Number 7877filled out the juror questionnaire. By way of background Juror Number 7877 hadstrong feelings on an individual’s right to own guns, stating, “Every law abiding citizen should own guns.” (37CT 10719.) Juror Number 7877also indicated he/she had been in the NRA. (37CT 10719.) Theinitial portion of Question 39 states, “Do youfeel that the State of California should automatically put to death everyone who:....” (37CT 10721.) Juror 7877 responded in the negative that the state should automatically put to death everyone who,“Kills another human being?” (37CT 10721.) But Juror Number 7877 answered in the affirmative for, “Is convicted of murder?” and “Is convicted of multiple murder?” (37CT 10721.) Juror Number7877 also responded in the affirmative for, “Ts 135 convicted of murder plus the murder was of a peace officer while the peace officer was engagedin the performanceofhis duties?” (37CT 10721.) In response to Question 43 Juror Number 7877 indicated that he believed that life in prison without the possibility of parole was worse for a defendant than death. (37CT 10722.) Question 49 asked: The murderalleged in this case alleges the special circumstances that David Mobilio was a peace officer who was intentionally killed while engaged in the performanceofhis duties and that the defendant knew and reasonably should have knownthat David Mobilio was a peace officer who was engaged in the performance of his duties. Do you think that, depending on the circumstancesofthis case and the evidence to be presented in the penalty phase,if any: (37CT 10723) Juror Number 7877 respondedin the affirmative to both inquiries, “you could impose the death penalty in such a case?” and “you could imposelife in prison without the possibility ofparole in such a case?” (37CT 10723.) Juror Number 7877 also respondedin the affirmative when asked: Giventhe fact that you will have two optionsavailable to you, can you see yourself, in the appropriate case, rejecting the death penalty and choosing life imprisonment without the possibility of parole instead? (37CT 10723.) The court specifically questioned Juror Number 7877 regarding his/her views on the death penalty. . [COURT]: Do you hold strong views in support ofor in opposition to the death penalty as a punishment for murder? [JUROR NUMBER7877]: Yes. [COURT]: Do you have an open mindon the death penalty determination? [JUROR NUMBER7877]: Yes. 136 [COURT]: Ifa defendant were found guilty of first degree murder and special circumstance were foundto be true, could you, as a juror, consider as a possible punishment death? [JUROR NUMBER7877]: Yes. [COURT]: Imprisonmentfor life without parole? [JUROR NUMBER7877]: Yes. ~“[COURT]: Would you automatically vote for the death penalty in every case of murder in the first degree, no matter what the evidence might be? [JUROR NUMBER 7877]: No. [COURT]: Would you automatically vote against the death penalty in every case of murderin the first degree, no matter what the evidence may be? [JUROR NUMBER7877]: No. [COURT]: Is there any reason why you mightnotbe able to be fair and impartial or might not be able to follow the Court’s instructions in a case which may involvethe possible death penalty? [JUROR NUMBER7877]: No. [COURT]: Thank you, [Redacted Juror Number 7877]. (VIRT 1244-1245.) 3. Facts pertaining to Juror Number 7017 Juror Number 7017 filled out the questionnaire as well. (38CT 10940.) Juror Number 7017 indicated that he/she had been a member of the NRA, but was not any longer. (38CT 10938.) Juror Number 7017 respondedin the affirmative when asked if the State should automatically put to death everyone convicted of murder, multiple murders, and murder of a peace officer while the peace officer was engaged in the performance of his duties. (38CT 10940.) Juror Number 7017 also indicated that he 137 could impose the death penalty and could imposelife in prison without the possibility of parole where the allegation is that Officer Mobilio was a peace officer who wasintentionally killed while engaged in the performanceofhis duties. (38CT 10942.) In response to Question55, Juror Number 7017 indicated that he/she “strongly agreed” that anyone whointentionally killed another person should always get the death penalty. (38CT 10943.) The court specifically questions Juror Number 7017 regarding his/her views on the death penalty. [COURT]: Do youhold strong viewsin support of or in opposition to the death penalty as a punishmentfor murder? [JUROR NUMBER7017]: I think life in prison without parole and death penalty is one and the same. Wedon’t kill anybody anymore. [COURT]: Okay. Do you have an open mind onthe death penalty determination? [JUROR NUMBER7017]: Yes. [COURT]: Ifa defendant were found guilty of first degree murder and a special circumstance were foundto be true, could you, as a juror, consideras a possible punishmentdeath? [JUROR NUMBER7017]: Yes. [COURT]: Imprisonmentfor life without parole? [JUROR NUMBER7017]: Yes. [COURT]: Would you automatically vote for the death penalty in every case of murderin the first degree, no matter whatthe evidence may be? [JUROR NUMBER7017]: The word “automatically”is the one that makesit a no. 138 [COURT]: Okay. Would you automatically vote against the death penalty in every case of murder in the first degree, no matter what the evidence may be? [JUROR NUMBER7017]: No. [COURT]: Is there any reason why you mightnotbe able to be fair and impartial or might not be able to follow the Court’s instructions in a case which may involve the possible death penalty? [JUROR NUMBER7017]: I will follow therules. [COURT]: Thank you, [Redacted Number Juror 7017]. (VIRT 1250-1251.) 4. Facts pertaining to Juror Number 10155 Juror Number 10155 filled out the questionnaire as well. (38CT 11065.) Juror Number 10155 indicated he/she had strong feelings about the private ownership of gunsstating, “Byfe]ryone has right to bear arms.” (38CT 11077.) Juror Number 10155 did respondin the affirmative that the State should automatically put to death everyone whois convicted of multiple murder, and convicted of murderof a police officer in the performanceofhis/her duties. (38CT 11079.) In response to Question 49, Juror Number 10155 said he/she could impose the death penalty or life in prison without parole when asked if the murder alleged wasthat Officer Mobilio wasa peace officer engaged in the performanceofhis duties, depending on the circumstance and evidence presented in the penalty phase. (38CT 11081.) Juror Number 10155 also indicated that given the two punishmentoptions he/she could see himself/herself in the appropriate case, rejecting the death penalty and choosinglife imprisonment without the possibility of parole, or the other way around. (38CT 11081.) Juror Number 10155 indicated that he “Agree[d] somewhat” with the statement, “Anyone whointentionally kills another person should always 139 get the death penalty.” (38CT 11082.) Juror Number 10155 explained that there might be circumstances where you would notgive the death penalty. (38CT 11082.) He/she also indicated that he had worked closely. with law enforcement, and anyone whointentionally killed an on duty officer deserved the death penalty. (38CT 11084.) The court specifically questioned Juror Number 10155 regarding his/her views on the death penalty. [COURT]: Thank you, [Redacted Juror Number 10687]. And[Redacted Juror 10155], do you hold strong views in support of or in opposition to the death penalty as a punishment for murder? [JUROR NUMBER10155]: Yes, I do. [COURT]: Do you have an open mindon the death penalty determination? [FUROR NUMBER10155]: Yes. [COURT]: Ifa defendant were found guilty offirst degree murderand a special circumstance were foundto be true, could you, as a juror, consider as a possible punishment death? [JUROR NUMBER10155]: Absolutely, yes. [COURT]: Imprisonmentfor life without parole? [JUROR NUMBER10155]: Yes. [COURT]: Would you automatically vote for the death penalty in every case of murderin the first degree, no matter whatthe evidence may be? [JUROR NUMBER10155]: No. [COURT]: Would you automatically vote against the death penalty in every case of murderin the first degree, no matter what the evidence may be? [JUROR NUMBER10155]: No. 140 [COURT]: Is there any reason why you mightnotbe able to be fair and impartial or might not be able to follow the Court’s instructions in a case which may involve a possible death penalty? [JUROR NUMBER10155]: No. (VIRT 1273-1274.) 5. Questioning ofthe jury panel as constituted The court invited the parties to question the 18 jurors that were prospective panelists at that time, including Juror Numbers 7877, 7017, 10155. (VIRT 1277.) Juror Number 10155, as well as other jurors, were questioned by the prosecutor. (VIRT 1283.) The prosecutor asked multiple questions including clarifying some responses from the questionnaire. (VIRT 1277-1288.) Appellant then had the opportunity to question the 18 prospective jurors. (VIRT 1288.) Appellant questioned one of the jurors about his/her job with the probation departmentaffecting her/her impartiality. (VIRT 1289.) Appellantalso had the following exchange with oneof the jurors: [APPELLANT]: And, [Juror V.]? [JUROR V.]: Yes. [APPELLANT]: In your questionnaire you said under the death penalty that on the portion of the questionnaire that was concerning the death penalty questions there is a question that asks, “Do youfeel that the State of California should automatically be put to death everyone whois convicted of murdering a peace officer who was engaged in the performance of their duties?” And yousaid,“Yes, the state should automatically put those people to death.” Could you explain to me why you marked “yes”for that? [JURORV.]: Because they killed a police officer. Heis there to uphold the law andtake care of us and everything. [APPELLANT]: Sois it yourfeeling that anyone who kills a police officer should automatically die? 141 [JUROR V.]: If they are found guilty. [APPELLANT]: So you wouldn’t—you wouldn’t consider life without parole in that case? [JUROR V.]: Oh,it depends. [APPELLANT]: What does it depend on? {JUROR V.]: What you hear duringthe trial. [APPELLANT]: Well, just a second ago you were saying that everyone whois found guilty should automatically be put to death—found guilty of that crime should automatically be put to death and now youaresaying that it depends— [JUROR V.]: Maybe they should think twice before they shoot a— . [APPELLANT]: Right. But I am trying to get a sense. Do you feel—if someoneis found guilty of that crime do you think that they should just automatically be put to death or would you consider other things? [JUROR V.]: No. [APPELLANT]: You would not consider other things? [JUROR V.]: (shakes head) [APPELLANT]: Okay. Thank you,[Juror V.]. (VIRT 1290-1291.) Appellant subsequently used a peremptory challenge to excusethis juror. (VIRT 1313.) Appellant questioned two other jurors about their responseto that same question. (VIRT 1292-1293, 1295.) At the conclusion of his questioning of the 18 prospective jurors the following exchangeoccurred: [COURT]: Thank you, Mr. Mickel. 142 Counsel, on the issue of the Witt qualifying questions, do you wantto pursue that any further? Am I clear on my point, Mr. Mickel. [APPELLANT]: You mean more questioning for death qualifications with them? [COURT]: Yes. [APPELLANT]: No, I am through with that. Thank you. (VIRT 1297.) Theparties then followed up with one juror regarding cases in which a police officer had been murdered. (VIRT 1297-1300.) Appellant challenged two jurors, on the grounds they were not qualified to be ona death penalty case. (VIRT 1300.) The court dismissed one juror, but rejected appellant’s challenge as to the other. (VIRT 1301.) Juror Number 9466 replaced the juror who had been dismissed. (VIRT 1301.) Appellant subsequently used a peremptory challenge to excuse the juror that he had challenged as not qualified to be on a death penalty case, but had hadhis challenge rejected. (VIRT 1313.) 6. Facts pertaining to Juror Number 9466 Juror Number9466filled out the questionnaire as well. (837CT 10913.) Juror Number9466 indicated in the negative in response to whetheror not he/she would always vote in favor of or against the death penalty. (37CT 10913.) Juror Number 9466 responded with a “?”in response to whether a person should automatically be put to death if they are convicted of murdering a peace officer when the peaceofficer is engaged in the performanceofhis/her duties. (37CT 10913.) Inresponse to Question 49, Juror Number 9466 indicated that he/she could impose either the death penaltyorlife in prison without the possibility of parole whenit is alleged that Officer Mobilio was a peace officer who was engaged in the performanceofhis duties when he was murdered. (37CT 143 10915.) Juror Number 9466 further indicated he/she could see himself/herself rejecting the death penalty and choosinglife in prison without the possibility of parole, or rejecting life in prison without the possibility of parole and choosing the death penalty. (37CT 10915.) The court spoke to Juror Number 9466directly: [COURT]: Okay. Now, were you able to hear the discussion I was having with the jurors previously? [JUROR NUMBER9466}: Yes. [COURT]: Any questions about any of those concepts we talked about? [JUROR NUMBER9466]: No. [COURT]: Let me ask you six questions. [JUROR NUMBER9466]: Okay. [COURT]: [Redacted Number Juror 9466], do you hold strong views in supportof or in opposition to the death penalty as a punishment for murder? [JUROR NUMBER9466]: No. [COURT]: Do you have an open mind onthe death penalty determination? [JUROR NUMBER9466]: Yes. [COURT]: Ifa defendant were found guilty of first degree murder and a special circumstance were foundto be true, could you, as a juror, consider as a possible punishment; A death? [JUROR NUMBER9466]: Yes. [COURT]: B, imprisonmentfor life without parole? [JUROR NUMBER 9466]: Yes. [COURT]: Would you automatically vote for the death penalty in every case of murderin the first degree no matter what the evidence may be? 144 [JUROR NUMBER9466]: No. [COURT]: Would you automatically vote against the death penalty in every case of murderin the first degree no matter what the evidence may be? [JUROR NUMBER 9466]: No. [COURT]: Is there any reason why you mightnot be able to be fair and impartial or might not be able to follow the Court’s instructions in a case which may involve a possible death penalty? [JUROR NUMBER9466]: No. [COURT]: Okay. I have reviewed the questionnaire,I didn’t see any particular issue there, but you can inquire, counsel. . [MS. STROM]: I don’t either, your Honor, we’ll pass. [COURT]: You can inquire, Mr. Mickel, as to [Redacted Juror Number 9466]? (MS. STROM]: No, your Honor. [COURT]: Okay. [MR. COHEN]: Excuse me, wasthere a challenge by the defense? [APPELLANT]: No. (VIRT 1301-1303.) The Court then asked the parties if they wanted to question the jurors further, and both parties passed. (VIRT 1304.) In fact, in respondingto the court appellant asked if he could have a moment, which the court granted, and then indicated he did not have any further questions. (VIRT 1304.) At that point the following exchange occurred: [COURT]: Okay. That means both sides have passed these prospective 18 panelists for cause. 145 [APPELLANT]: Well, I did make—there was—there sustained a challenge that was— [COURT]: You made a challenge under Witt standards to removea panelist. [APPELLANT]: Right. [COURT]: The Court rejected that. [APPELLANT]: Okay. [COURT]: And other than that you are passing the remaining panelists recognizing you madethat challenge that wasdenied by the Court? [APPELLANT]: Right? [COURT]: Andthe prosecution passes any further cause challenges? [MS. STROM]: Yes. [COURT]: And, to make it clear, that was—well,it could have been considered cause, that was a qualifying challenge under the Wainwright vs. Witt theory for death qualification, right? [APPELLANT]: Right. [COURT]: And other than that there are no challenges for cause from the defense? [APPELLANT]: Right. (VIRT 1304-1305.) The parties moved to peremptory challenges. (VIRT 1306.) Appellant exercised one peremptory challenge and then passedtwice. (VIRT 1307.) Appellant then exercised another peremptory challenge. (VIRT 1313.) | Atthat point Juror Numbers 12099 and 9719 were called and put on the prospective panel. (VIRT 1313.) The court asked the new members of 146 the prospective panel if they heard the previous discussion about how the legal system works and the presumption of innocence. (VIRT 1317.) Both Alternate Juror Number 12099 and Juror Number 9719 said there was nothing in that discussionthat they felt they needed to address with the court. (VIRT 1317-1318, 1319-1320.) 7. Facts pertaining to Alternate Juror Number 12099 The Court had the following exchange with Alternate Juror Number 12099: [COURT]: [Redacted Juror #12099], do you hold strong viewsin support of or in opposition to the death penalty as a punishment for murder? [Redacted Juror #12099]: No. [COURT]: Do you have an open mind on the death penalty determination? [Redacted Juror #12099]: Yes. [COURT]: Ifa defendant were found guilty of first degree murder and a special circumstance were foundto be true could you as a juror consideras a possible punishment death? [Redacted Juror #12099]: Yes. [COURT]: Imprisonment for life without parole? [Redacted Juror #12099]: Yes. [COURT]: Would you automatically vote for the death penalty in every case of murderin thefirst degree no matter what the evidence may be? [Redacted Juror #12099]: No. [COURT]: Would you automatically vote against the death penalty in every case of murderin the first degree no matter what the evidence may be? [Redacted Juror #12099]: No. 147 [COURT]: Is there any reason why you mightnotbe able to be fair and impartial or might not be able to follow the Court’s instructions in a case which may involve a possible death penalty? [Redacted Juror #12099]: No. (VIRT 1323.) Alternate Juror Number 12099filled out the prospective juror questionnaire as well. (37CT 10818.) Alternate Juror 12099 described himself as being moderately in favor of the death penalty. (37CT 10831.) Asnoted above, Question 39 stated, “Do you feel that the State of California should automaticallyput to death everyone who:....” (37CT 10832.) Appellant respondedin the affirmative when a personis convicted of multiple murder, and when a person, “Is convicted of murder plus the murder wasof a peace officer while the peace officer was engaged in the performance of his duties.” (37CT 10832.) Alternate Juror Number 12099 indicated that life in prison without the possibility of parole is worse for a defendant than death. (37CT 10833.) In response to Question 49, Alternate Juror Number 12099 indicated that he could imposethe death penalty whenit is alleged that Officer Mobilio was killed in the performanceofhis duties and the defendant knew or should have known that Officer Mobilio was engaged in the performance ofhis duties. (87CT 10834.) Appellant also indicated that he could not imposelife in prison without the possibility of parole in such a case. (37CT 10834.) In response to Question 54, appellant answeredin the negative to the following: Given 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 withoutthe possibility of parole instead? (37CT 10834.) 148 The court specifically questioned Alternate Juror Number 12099 as follows: [COURT]: Okay. And, [Juror Number 12099], in your questionnaire, and Question 39 again: Do youfeel the State should automatically put to death everyone whooneis convicted of multiple murders? You said “yes”. Talk to me aboutthat. [JUROR NUMBER12099]: It is pretty much like what she said,if it is different occurrences. Like—um—justpretty much whatshe said. I am justa little out ofit right now. [COURT]: So whatshe said if there was a murderlast year and a murderthe year before now we’re dealing with the third murder this year she thought that was a case that it should automatically be a death penalty case. [JUROR NUMBER12099]: Uh-huh. [COURT]: Is that the case—kind of case youare talking about? [JUROR NUMBER12099]: Uh-huh. [COURT]: “Yes”? [JUROR NUMBER12099]: Uh-huh. [COURT]: You haveto say “yes”— [JUROR NUMBER12099]: Yes. [COURT]: —or“no” but don’t say “uh-huh.” Okay. The next question, D, is the same automatic preamble. D is: Convicted of murderplus the murder was of a peace officer while the peace officer was engagedin the performanceofhis duties and you said “yes”. So talk to me aboutthat. . [JUROR NUMBER 12099]: Well, uh, like, I believe that the police officer is there to just protect everyone else and once you deprive society of that—it depends on howthe evidenceis 149 shownto meand just the circumstances of the trial themselves and so I probably would say “no”, I was probably— [COURT]: So as you think about it right now you have to hearthe facts? [JUROR NUMBER12099]: Going to the automatic,I would say “no”. [COURT]: So it is not an automatic? [JUROR NUMBER12099}: No. [COURT]: You put that at high level of societal concern? {JUROR NUMBER12099]: Uh-huh. [COURT]: Yes? [JUROR NUMBER 12099]: Yes. [COURT]: Butit is not automatic? [JUROR NUMBER12099]: Yes. [COURT]: Correct? [JUROR NUMBER12099]: Correct. [COURT]: Now,I get to Question 54. Question 54 says: There are no circumstances under whichajury is instructed by the Court to return a verdict of death. No matter what the evidence shows,the jury is always given the option in the penalty phase of choosinglife without the possibility of parole. Now,thefirst sub part is: A, given the fact that you will have twooptions available to you, can you see yourself in the appropriate case rejecting the death penalty and choosinglife imprisonmentwithout the possibility of parole instead? And you checked “no”. Talk to me aboutthat one. [JUROR NUMBER12099]: I just believe the death sentence would be more appropriate, and it would also have to just go howthe court is, but I have always leaned toward the death sentence more than withoutparole. 150 [COURT]: So preference. In a case where the prosecution is seeking a death penalty, if you believe thereis a finding of guilt that death should be the inevitable result? [JUROR NUMBER12099]: Are you saying that—like— that would be my only option? Oh, no, I would consider both, but I would always lean more towards death. [COURT]: Okay. The prosecution to inquire on these issues? (VIRT 1329-1331.) 8. Facts pertaining to Alternate Juror Number 9719 Alternate Juror Number 9719 filled out the questionnaire as well. (38CT 11092.) Alternate Juror Number 9719 indicated that he/she was moderately in favorofthe death penalty. (38CT 11105.) Alternate Juror Number9719 also indicated in the negative that he/she would not always vote for or against the death penalty if a person is found guilty of intentional first degree murder with a special circumstance. (38CT 11106.) Alternate Juror Number 97 19 also stated that the State should automatically put to death everyone whois convicted of murder, multiple murders, and murder of a peaceofficer while the peace officer was engagedin the performanceofhis/her duties. (38CT 11106.) Alternate Juror Number 9719 also indicatedthat he/she thoughtthatlife in prison without the possibility of parole would be harder than death. (38CT 11107.) Alternate Juror Number 9719 also indicated that if the murder alleged in this case was that Officer Mobilio was a peace officer killed while engagedin his duties, and the defendant knew or reasonably should have know that he wasa peaceofficer, he/she could impose death penalty, or could imposelife in prison withoutthe possibility of parole, depending on the circumstancesofthe case and the evidence presented in the penalty phase. (38CT 11108.) 151 The court questioned Alternate Juror Number 9719. [COURT]: And, [Juror #9719], do you hold strong views in support of or in opposition to the death penalty as a punishment for murder? {Redacted Alternate Juror #9719]: No. [COURT]: Do you havean open mind on the death penalty determination? {Redacted Alternate Juror #9719]: Yes. [COURT]: Ifa defendant were found guilty of first degree murder and a special circumstance were foundto be true could you as a juror consider as a possible punishment death? [Redacted Alternate Juror #9719]: Yes. [COURT]: Imprisonmentfor life without parole? {Redacted Alternate Juror #9719]: Yes. _ [COURT]: Would you automatically vote for the death penalty in every case of murderin the first degree no matter what the evidence may be? {Redacted Alternate Juror #9719]: No. [COURT]: Would you automatically vote against the death penalty in every case of murderin the first degree? [Redacted Alternate Juror #9719]: No [COURT]: No matter what the evidence may be? [Redacted Alternate Juror #9719]: No. [COURT]: Is there any reason why you mightnot be able to be fair and impartial or might not be able to follow the Court’s instructions in a case which mayinvolve a possible death penalty? {Redacted Alternate Juror #9719]: I might mention I don’t know if I could be—I wouldtry to be fair and impartial, but my 152 husband was murdered, my first husband, someyears ago, in 1981. So I don’t know if that would affect my— [COURT]: Only you cantell us. You have discussed that in some length in your questionnaire. How do youthink that would affect us with you beinga trial juror? [Redacted Alternate Juror #9719]: I am notsure if I could be balancedas far as yea or nay. I would hopethat I could listen to the evidence and makea decision. [COURT]: Okay. So are youtalking aboutthe issue of whether you could imposethe death penalty or life without paroleor are you talking aboutjust the case being a fair juror? [Redacted Alternate Juror #9719]: Right, just being a fair juror. [COURT]: Asfar as the issue of death penalty you believe you can deal with that issue on a fairly rational basis? [Redacted Alternate Juror #9719]: Yes. [COURT]: Andbased onthis case whetherit could belife without parole? [Redacted Alternate Juror #9719]: Yes. [COURT]: You are more worried about your personal experienceas a juror onthecaseitself? {Redacted Alternate Juror #9719]: Yes. [COURT]: Okay. Thank you. (VIRT 1325-1327.) The parties then had the opportunity to examinethe jurors. (VIRT 1331-1332.) The prosecutor had the following exchange with Alternate Juror Number 9719: [MS. STROM]: [4.] [Redacted Alternate Juror #9719], given—lI understand you havea history or someonein your family hasa history, I am 153 sorry about that. Now, given—evengiven those circumstances you wouldn’t convict the defendant without finding it beyond reasonable doubt, would you? [Redacted Alternate Juror #9719]: No. [MS. STROM]: And would you weigh both of the options in terms of sentence? [Redacted Alternate Juror #9719]: Absolutely. [MS. STROM}: Do youthink you could befair in that regard? [Redacted Alternate Juror #9719]: Uh-huh. Very. [MS. STROM]: Thank you. Thatis all I have, your Honor. (VIRT 1331-1332.) During that process appellant also examined Alternate Juror Number 9719. (VIRT 1333.) [APPELLANT]: Okay. Thank you,[Juror C.] And, [Juror #9719], and I am sorry to hear about your loss as well. And, I understand and I appreciate that in this case that you wouldn’t find someoneguilty if it wasn’t proven beyond a reasonable doubt, but I was—I kind of wanted to know if there were—if there were kind oflife-graphic details or sort of like alarming imagesalong those kinds oflines in terms of that issue would that be overly distressing to you? [Juror #9719]: After—I answeredthat incorrectly. I think you’rereally right. I think it might be. I rememberI said “no”; then I thought aboutit afterwards. [APPELLANT]: “No” you—doyouthink that that—do you think that that might effect your judgment in terms of being objective about— [Juror #9719}: No, I don’t think it would affect my judgment, it would just affect me personally, I think. 154 [APPELLANT]: But would the stress of having to go through that personally and go through that personal issue, how well do you think you would be able to handlethat stress? [Juror #9719]: I think I would beall right. [APPELLANT]: And then also you answeredthat if a police officer testified that you would give their testimony more credibility. Could you explain to me what yourposition is on that? {Juror #9719]: I would give it more credibility than not. I believe in law enforcement andpolice officers and what they are trying to do for everybody. | [APPELLANT]: Okay. And then there is a question about, that a defendant has the constitutionalright not to testify and yousaid that if they didn’t testify that you would feel they would betrying to hide something. So if a defendant didn’t testify do you think that that would affect your judgmentin terms of whether or not he wasguilty or not? [Juror #9719]: I think it might. [APPELLANT]: Yes? [Juror #9719]: Uh-huh. [APPELLANT]: Okay. Thank you. [COURT]: First, we have the issue to deal with— Any further questions? Okay. We’re being invoked with Wainwright v. Witt issues as well as cause issues, so I understand that. Any further inquiry that you want to make onthat issue before I call to the question? So to speak. [MS. STROM]: Yes, your Honor. As‘to the defendanttestifying, whether or not they would testify, could you follow an instruction from the judge that says youare not to consider whetheror not the defendanttestifies? {Redacted Alternate Juror #9719]: Yes 155 [MS. STROM]: Thank you. [COURT]: Mr. Mickel? [APPELLANT]: No, I don’t have any questions, your Honor. [COURT]: First issue is qualifying, death qualifying. Do you wantto be heard, prosecution, as to the seven? [MS. STROM]: No, your Honor. [COURT]: Asto the seven on the death qualifying question? [APPELLANT]: No, your Honor. [COURT]: Asto the seven for cause? [MS. STROM]: No, your Honor. fCOURT]: Asto the seven for cause, Mr. Mickel? [APPELLANT]: No, your Honor. [COURT]: Okay. Whenwecalled this last group of seven ladies and gentlemen forward, peremptories were with the defense. So both sides have passed cause and death qualifying and peremptories are now with the defense. Anybody wantto be heard on whereI think we are procedurally? (VIRT 1333-1335.) Appellant then passed his next three peremptories. (VIRT 1336.) The prosecution passed their next peremptory and the panel was accepted. (VIRT 1336-1337.) The court then proceededto the selection of the alternates. (VIRT 1337.) Appellant again passed his peremptory challenges and Juror Number 12099, Juror Number 9719, as well as one other, were selected as alternates. (VIRT 1337-1338.) 156 C. Appellant Did Not Challenge Anyof the Jurors for Cause, and the Issue Is Therefore Forfeited A defendantis entitled to challenge a juror for cause based on their views on capital punishment when the juror’s views would prevent or substantially impair the performanceofthe juror’s duties in accordance with the instructions and oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Moon (2005) 37 Cal.4th 1, 13.) Appellant had the opportunity to challenge each of these jurors and chosenotto, and declined to use a peremptory challenge to excuse them. “It has long been the rule in California that exhaustion of peremptory challengesis a ‘condition precedent’ to an appeal based on the composition of the jury. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 315, quoting People v. Coleman (1988) 46 Cal.3d 749, 770.) Here, appellant did not exhaust his peremptory challenges. (VIRT 1336-1338.) Further, appellant failed to object to the jury as finally constituted, another requirement to overcomeforfeiture. (People v. Lucas, supra, 12 Cal.4th at pp. 480-481.) Because appellant did not challenge any of these jurors for cause, exhaust his peremptory challenges, or object to the jury as constituted, the issue is not preserved for review. (People v. Navarette (2003) 30 Cal.4th 458, 489; People v. Staten (2000) 24 Cal.4th 434, 454; People v. Lucas, supra, 12 Cal.4th at pp. 480- 481.) The United States Supreme Court has also recognizedthat claims involving jury composition must be preserved on appeal. Generally, the Court has noted that a conviction would be reversed when a seated juror would automatically vote for the death penalty when the issue has been properly preserved. (Ross v. Oklahoma (1988) 487 USS. 81, 85; Morganv. Illinois (1992) 504 U.S. 719, 728-729.) More specifically, the Court found no fault with the Oklahomarule that a defendant must exhausthis 157 peremptory challenges before challenging a court’s denial of a motion to removeajuror for cause. (Ross, at pp. 89-90.) Appellant acknowledgesthe he did not challenge these jurors for cause and did not exhaust his peremptory challenges. (AOB 173.) Appellant further acknowledges: Appellant is well aware that this court has held that a challenge for cause and exhaustion of peremptory challengesis ordinarily required to preserve a claim on appealrelated to jury composition. (People v. Taylor, supra, 47 Cal.4th at pp. 883- 884, and cases cited therein.) (AOB173.) Nevertheless appellant argues that there is an exception,articulated in People v. Foster (2010) 50 Cal.4th 1301 (Foster), in cases in which a seated juroris actually biased. (AOB 173-174.) Respondent disagrees that there is any potential exception that is applicable to appellant’s case. In Foster, among otherissues, the defendant claimedthetrial court’s examination of the prospective jurors was inadequate to reveal bias and that there were jurors who werebiased against him. (Foster, supra, 50 Cal.4th at p. 1322.) In its analysis the Court stated: Defendant did not object to the mannerin which voir dire was conducted, nor did he indicate he believedthetrial court should undertake examination in addition to the questions posed by the questionnaire and the unlimited questioning afforded defendant and the prosecution. Defendant therefore has forfeited his claim that the voir dire was inadequate. (Foster, at p. 1324.) Importantly, the Court then analyzed the claim on the merits,stating, ‘Defendant’s claim also fails on the merits.” (Foster, supra, 50 Cal.4th at p. 1324.) In its analysis therefore the Court chose to recognize that the defendant had forfeited the claim, and further that the claim would fail on the merits. The Court then addressed the remaining portion of the 158 defendant’s claim regarding prospective jurors and in the portion ofthe opinion cited by appellant (AOB 174)stated: Finally, although defendant did not challenge any ofthe seated jurors for cause and did not exhaust the peremptory challenges available to him, he contends the verdicts mustbe set aside becausesix jurors were biased against him. (See Johnson v. Armontrout(8th Cir. 1992) 961 F.2d 748, 754 [“When a defendantfails to object to the qualifications of a juror, heis without remedyonly if he fails to prove actual bias”].) “Actual bias” is “the existence of a state of mind onthe part of the juror in referenceto the case, or to any of the parties, which will preventthe 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, 117 Cal.Rptr.2d 45, 40 P.3d 754.) (Foster, at p. 1325.) Appellantrelies on this passage to support an argumentthat: In view of the jurors’ actual bias, even in the absence of appellant’s challenge for cause or exhaustion ofperemptory challenges, under People v. Foster this court may addressthe merits of appellant’s claim that his jury contained jurors having an actual bias [and] violated Morgan v. Illinois. (People v. Foster, supra, 50 Cal.4th at pp. 1326-1326.) (AOB 176-177.) The fact that the Court in Foster alternatively reached the merits in that case does not meanthat appellant did not forfeit the claim in his case. It is certainly not uncommonfor a reviewing court to recognize that a claim has been forfeited and then further note that the claim fails on the merits. Because appellant did not challenge any ofthese jurors for cause, exhaust his peremptory challenges, or object to the jury as constituted, the issue is not preserved for review. (People v. Navarette, supra, 30 Cal.4th at p. 489; People v. Staten, supra, 24 Cal.4th at p. 454; People v. Lucas, supra, 12 Cal.4th at pp. 480-481.) 159 Further evidence of these requirements to preserve a claim for review can be seen from the Foster Court’s citation to People v. Hillhouse (2002) 27 Cal.4th 469. (People v. Foster, supra, 50 Cai.4th at p. 1325.) In Hillhouse, the defendant arguedthetrial court erred in denying his challenges for cause to five prospective jurors. (People v. Hillhouse, supra, at pp. 486-487.) TheCourt noted the claim was not preserved for appeal because the defendant did not exhaust his peremptory challenges and did not object to the jury as finally constituted. (/d. at p. 487.) The defendant further argued that one ofthe five persons wasnotonly a prospective juror but ultimately was an actual juror. (People v. Hillhouse, supra, 27 Cal.4th at p. 487.) The Court stated: This circumstance does not change the rule. Defendant could have used a peremptory challenge to removethis juror but chose not to do so. Accordingly, defendant may not now complain that he was an actual juror. (Hillhouse, at p. 487.) The Court then chose to address the claim on the merits as if it had been cognizable on appeal stating: A party may challenge a prospective juror for actual bias, defined as a state of mind that would preventthat person from acting impartially and without prejudice to the substantial rights of any party. (People v. Ayala (2000) 24 Cal.4th 243, 271-272 [99 Cal.Rptr.2d 532, 6 P.3d 193].) On review ofa trial court’s ruling, if the prospective juror’s statements are equivocal or conflicting, that court’s determination of the person’s state of mindis binding. If there is no inconsistency, the reviewing court will uphold the court’s ruling if substantial evidence supports it. (/d. at p. 272.) Here, the juror’s statements were equivocal and somewhatconflicting. Accordingly, we must defer to the trial court’s determination ofhis state of mind. (People v. Hillhouse, supra, 27 Cal.4th at p. 488.) As a consequence,there are many instances in which a Court will recognize that an objection is required, but then chooseto additionaily 160 addressthe claims on the merits. That certainly does not mean that an objection is not requiredor that the peremptory challenges need not be exhausted before a claim is preserved for review. Here, appellant did not challenge any of these jurors for cause, exhaust his peremptory challenges, or object to the jury as constituted, and the issue is therefore not preserved for review. It is clear from the record appellant was aware he could question jurors on their responses to the questionnaire. As outlined above, appellant questioned Juror V. on her response to a question on the questionnaire, and subsequently dismissedherutilizing one ofhis peremptory challenges. (VIRT 1290-1291, 1313.) Appellant did not challenge any of these jurors for cause, exhaust his peremptory challenges, or object to the jury as constituted. As a consequence,his claim is not preserved and mustberejected. D. Assuming for Sake of Argument the Claim Is Preserved, It Is Without Merit Nevertheless, assuming for sake of argumentthat the claim is somehow preservedforreview,it is without merit. Ultimately, appellant’s claim focuses on Juror Numbers 7877, 7017, 10155, and 9466. (AOB 168.) Appellant contends that these jurors: all stated that they believed that the death penalty should automatically apply to a defendant whois convicted of murdering a police officer engaged the performanceofhis duties. Two ofthe seated jurors, Jurors 7877 and 7017, further stated that defendants who commit any murder should also automatically be sentenced todeath. These statements constituted grounds for discharge for cause. That is because a juror who would automatically vote to impose the death penalty for murder, or certain types of murder, will not “consider and weigh the mitigating evidence in determining the appropriate sentence.” (AOB 168,citation omitted.) 161 As outlined above, appellant did not challenge any of these jurors for cause, exhaust his peremptory challenges, or object to the jury as constituted. In fact, the crux of appellant’s current argumentis the response to the very question he advocated including on the questionnaire.'® (9CT 2171-2174.) Nevertheless, assuming appellant had no further responsibility in the jury selection processasit relates to this claim, a careful review of the record reveals that these jurors were fully capable ofperforming their duties in accordance with the court’s instructions and the oath. Asa consequence, even if considered, appellant’s claims are without merit. Thestandard used for excusing a prospective juror for cause based on his or her views regarding capital punishmentis “whether the juror’s views would ‘prevent or substantially impair the performanceofhis duties as a 399juror in accordance with his instructions and his oath.’” (Wainwright v. Witt, supra, 469 U.S. at p. 424; People v. Clark (2011) 52 Cal.4th 856, 895.) In People v. Ghent (1987) 43 Cal.3d 739, 767, California adopted the Witt standardas the test for determining whether a defendant’s right to an impartial jury under article I, section 16 of the state Constitution was violated by an excusal for cause based on a prospective juror’s views on capital punishment. (People v. Thomas (2011) 51 Cal.4th 449, 462; People v. Moon, supra, 37 Cal.4th at p. 13; People v. Griffin (2004) 33 Cal.4th 536, 558, disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758 [44, fn. 32].) The Witt standard also applies to someone excusable for bias in favor of the death penalty. (People v. Danielson (1992) 3 Cal.4th 691, 712-713, overruled on other grounds Pricev. '8 Appellant acknowledged earlier in this argumentthat Juror Number 9466 actually respondedto the question regarding automatically putting to death someone whowasconvicted of the murder of a police officer when the officer was engaged in the performanceofhis duties not in the affirmative or negative, but with a “?.” (AOB 156; 37CT 10913.) 162 Superior Court (2001) 25 Cal.4th 1046, 1069.) A prospective juror is biased and disqualified to serve only if his/her state of mind will prevent him/her from acting impartially and without prejudice to any party. (People v. Carasi (2008) 44 Cal.4th 1263, 1290.) A prospective juror who would invariably vote either for or against the death penalty because of one or more circumstanceslikely to be presentin the case being tried, without regardto the strength of the aggravating or mitigating circumstances,is subject to challenge for cause. (People v. Ledesma (2006) 39 Cal.4th 641, 671.) But questions directed to juror’s attitudes toward particular facts of a case are not relevant to the death- qualification process. (People v. DeSantis (1992) 2 Cal.4th 1198, 1217.) The Court in People v. Cash (2002) 28 Cal.4th 703, 721-722, noted: Our decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand,it must not be so abstract that it fails to identify those jurors whose death penalty views would preventor substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not beso specific that it requires the prospective jurors to prejudgethe penalty issue based on a summary ofthe mitigating and aggravating evidencelikely to be presented. The standard of review for a ruling regarding a prospective juror’s views on the death penalty is essentially the same as the standard for other claims of bias. (People v. Schmeck (2005) 37 Cal.4th 240, 262, abrogated on other groundsas stated in People v. McKinnon (2011) 52 Cal.4th 610, 637-639.) Whether the contentionis that the court erred in excluding prospective jurors who exhibited an anti-death bias,or erred in failing to exclude prospective jurors who exhibited a pro-death bias, the same standard applies. (People v. Maury (2003) 30 Cal.4th 342, 376; Peoplev. Bradford, supra, 15 Cal.4th at p. 1318.) Wherethe juror gives conflicting or equivocal responsesthetrial court is in the best position to evaluate the juror’s responses, and its 163 determination as to his/her state of mind is binding on the appellate courts. (People v. Carasi, supra, 44 Cal.4th at p. 1290; People v. Harris (2005) 37 Cal.4th 310, 329; People v. Cunningham, supra, 25 Cal.4th at p. 975; People v. Lewis (2001) 25 Cal.4th 610, 631; People v. Bradford, supra, 15 Cal.4th at p. 1319.) “Generally, the qualifications ofjurors challenged for cause are matters within the wide discretion ofthe trial court, seldom disturbed on appeal.” (People v. Jones (2003) 29 Cal.4th 1229, 1246.) It is within the broad discretion of the trial court to determine whether a prospective juror will be “unable to faithfully and impartially apply the law in the case before the juror.” (/d. at p. 1247.) A careful review ofthe record in this case reveals that each of the now challenged jurors were fully capable ofperforming their duties as a juror in accordancewith the court’s instructions and his/her oath. Importantly, each ofthese jurors was questioned by the court regarding his/her views on capital punishment. For example, when questioned by the court Juror Number 7877 indicated that he/she could consider death orlife imprisonment without parole when someoneis foundguilty offirst degree murder and a special circumstance is found to be true. (VIRT 1244-1245.) Juror Number 7877 also said he/she would not automatically vote for or against the death penalty in every case of murderin the first degree, no matter what the evidence might be. (VIRT 1244-1245.) Juror Number 7877 affirmatively indicated to the court that there was no reason he/she could not be fair and impartial or could not follow the court’s instructions. (VIRT 1244-1245.) In response to Question 49 on the questionnaire, which specifically mentions that Officer Mobilio was a peace officer on duty, Juror Number 7877 indicated that he/she could impose either the death penaltyorlife in prison depending on the circumstances of the case and the 164 evidencein the penalty phase. (37CT 10723.) Juror Number 7877 also respondedin the affirmative when asked: Giventhe fact that you will have two options available to you, can you see yourself, in the appropriate case, rejecting the death penalty and choosinglife imprisonment withoutthe possibility of parole instead? (37CT 10723.) Importantly for appellant’s purposes Juror Number 7877 had strong feelings regarding an individual’s right to own guns,stating, “Every law abidingcitizen should own guns.” (37CT 10719.) Juror Number 7877 also indicated he/she had been in the NRA. (37CT 10719.) It is likely that appellant viewed individuals with strong feelings on the right to bear arms as sympathetic to his political views. | Juror Number 7877 did indicate in response to Question 39 that the State of California should automatically put to death everyone who was convicted of murder, convicted of multiple murder, and “Is convicted of murderplus the murder wasofa peace officer while the peace officer was engagedin the performanceofhis duties.” (37CT 10721.) But, these responses must be considered in the context of his/her responsesto the other questions. This juroraffirmatively indicated to the court that he/she would not automatically vote for or against the death penalty in every case offirst degree murder. (VIRT 1244.) This juroralso affirmatively indicated to the court that there was no reason he/she could not be fair and impartial and no reason he/she could notfollow the court’s instructions in a capital case. (VIRT 1244-1245.) Similarly, Juror Number 7017 indicated that he/she had strong feelings on theprivate ownership oruseof firearmsin that it should be allowed. (38CT 10938.) Juror Number 7017 had also been a memberof the NRA, but was not any longer. (38CT 10938.) When questioned by the court, Juror Number 7017 also indicated that he/she could consider death or | 165 life imprisonment without parole when someoneis found guilty offirst degree murder anda special circumstance is found to be true. (VIRT 1250- 1251.) Juror Number 7017 also said he/she would not automatically vote for or against the death penalty in every caseoffirst degree murder, no matter what the evidence might be. (VIRT 1250-1251.) Juror Number 7017 responded,“I will follow the rules” whenasked if there was any reason he/she could not be fair and impartial or could not follow the court’s instructions. (VIRT 1250-1251.) Juror Number 7017 also said he/she had an open mind on the death penalty determination. (VIRT 1250-125 1.) As did Juror Number 7877, while Juror Number 7017 also indicated in response to Question 39 that the State of California should automatically put to death everyone who wasconvicted of murder, convicted of multiple murder, and “Js convicted of murder plus the murder wasofa peaceofficer while the peace officer was engaged in the performanceofhis duties.” (38CT 10940.) Juror Number 7017 also indicated that he/she could impose the death penalty and could imposelife in prison without the possibility of parole wherethe allegation is that Officer Mobilio was a peace officer who wasintentionally killed while engaged in the performanceofhis duties. (38CT 10942.) Juror Number 7017 stated that he/she could see himself/herself rejecting the death penalty and choosinglife in prison without the possibility of parole, and rejecting life in prison without the possibility of parole and choosing the death penalty. (38CT 10942.) Again, similar to Juror Number 7877, Juror Number 7017’s responses to the questions must be considered as a whole. Each of these jurors was capable of following the court instructions and performing his/her duties as jurors consistent with the oath. The court and the parties were in the best position to determine these jurors’ suitability to serve, and none of those present thought they were unqualified or unfit. For example, there are instances in the record where appellant and the prosecution stipulated that 166 particular jurors should be excused because they were not qualified to be jurors in a capital case. (VIRT 1261-1262.) It therefore appears thatall of those present felt that these jurors were qualified to serve. Similar to Juror Numbers 7877 and 7017, Juror Number 10155 indicated he had strong feelings about the private ownership of guns stating, “Ev[e]ryone has right to bear arms.” (38CT 11077.) Juror Number 10155 did respondin the affirmative that the State should automatically put to death everyone whois convicted of multiple murder, and convicted of murderofa police officer in the performanceoftheir duties. (38CT 11079.) In Question 49, Juror Number10155 wasaskedif the murder alleged in this case was that Officer Mobilio was a peace officer engaged in the performanceofhis duties, and appellant knew or should have known that was the case. (38CT 11081.) Juror Number 10155 indicated that depending on the circumstances and evidence presented in the penalty phase, he/she could impose the death penalty, or could imposelife in prison withoutthe possibility of parole. (38CT 11081.) Juror Number 10155 also respondedthat given the two punishmentoptions he/she could see himself/herself in the appropriate case rejecting the death penalty and choosinglife imprisonment withoutthe possibility of parole, or the other way around. (38CT 11081.) Again, the court specifically addressed this juror regarding his/her viewson the death penalty. When questioned by the court regarding his/her views on the death penalty, Juror Number 10155 assured the court that he/she had an open mind, could consider both death andlife in prison withoutthe possibility of parole when a person is found guilty offirst degree murderanda special circumstance is found true. (VIRT 1273- 1274.) Juror Number 10155 also said he/she would not automatically vote for or against the death penalty in every caseoffirst degree murder no matter what the evidence might be. (VIRT 1273-1274.) Finally, Juror 167 Number 10155 said there was no reason why he/she mightnot be fair and impartial or might not be able to follow the court’s instructions. (VIRT 1274.) As stated previously, given that the People and appellant had previously stipulated to certain jurors being excused, and the court ruling on prior challenges, it appears that all of those presentfelt that this juror was qualified to serve. (See Wainwright v. Witt, supra, 469 U.S. at pp. 430- 431 [a federal habeas proceeding in which the Court observed thatit was noteworthy that defense counsel did not object to juror’s recusal or attempt rehabilitation].) Finally appellant challenges Juror Number 9466. Juror Number 9466 responded negatively to whether or not he/she would alwaysvote in favor of or against the death penalty. (37CT 10913.) Juror Number 9466 responded with a “?” in response to whether a person should automatically | be put to death if they are convicted of murdering a peace officer when the peace officer is engaged in the performanceofhis/her duties. (37CT 10913.) In response to Question 49, Juror Number 9466 indicated that he/she could imposeeither the death penalty or life in prison without the possibility of parole whenit is alleged that Officer Mobilio was a peace officer engaged in the performance of his duties when he was murdered. (3ICT 109 15.) Juror Number 9466 further indicated he/she could see himself/herself rejecting the death penalty and choosing life in prison withoutthe possibility of parole, or rejecting life in prison without the possibility of parole and choosing the death penalty. (37CT 10915.) Similar to the other challenged jurors, Juror Number 9466, when questioned by the court, indicated that he/she had an open mindoncapital punishment and could impose either death orlife in prison withoutparole, whena personis found guilty of first degree murder and a special circumstanceis found true. (VIRT 1301-1303.) Juror Number9466 also said he/she would not automatically vote for or against the death penalty in 168 every case of first degree murder no matter what the evidence mightbe. (VIRT 1301-1303.) Finally, Juror Number 9466 indicated that there was no reason whyhe/she would notbe able to be fair and impartial or would not be able to follow the instructions. (VIRT 1301-1303.) Again it appears that none ofthose presentfelt this juror was not qualified. (Wainwrightv. Witt, supra, 469 U.S. at pp. 430-431 [a federal habeas proceeding in which the Court observed that it was noteworthy that defense counsel did not object to juror’s recusal or attempt rehabilitation].) Further, Juror Number 9466 affirmatively indicated to the court that he/she could be fair and impartial and could follow the court instructions. Appellant again fails to demonstrate bias. Appellant contends that, “These jurors were subject to challenge for cause despite their further answers to questions 38 and 49.” (AOB 168- 169.) Specifically, appellant argues: Question 38 did not identify any particular special circumstance. Instead, the question asked generally about how the juror would evaluate a special circumstance, not the particular special circumstance of the murder ofa policeofficer. (AOB169.) Question 38 stated: If the jury found defendant guilty of intentional first degree murder and founda special circumstanceto be true, would you always vote for death, no matter whatother evidence might be presented at the penalty hearingin this case? (See 38CT 10940.) Question 37 askedtherelated but opposite question with the wording “always vote against death....” (See 38CT 10940.) Each ofthe four challenged jurors responded to each ofthese questionsin the negative. (37CT 10721, 10913; 38CT 10940, 11079.) 169 Appellant’s argumentis flawed becauseit isolates Question 38 and then argues that because of the responses to Question 39 the jurors made “crystal clear” that their willingness to consider alternate penalties did not apply whenthe special circumstance was the murderofa police officer. (AOB 169.) Appellant is incorrect. Question 38, along with Question 37, and several others, including the verbal questions asked by the court, were designed to determineifan individual juror’s views would preventor substantially impair the performance ofhis/her duties as a juror in accordance with the instructions and the oath. Each ofthese jurors’ responses to the questions demonstrated that none of them would always vote for or against the death penalty andall of them would follow the court’s instructions and perform his/her duties consistent with the oath. Question 39 stated: Do youfeel that the State of California should automatically put to death everyone who: A. Kills another human being? O YES ONO B. Is convicted of murder? O YES ONO C. Is convicted of multiple murder? O YES O NO D. Is convicted of murder plus the murder wasof a peace officer while the peace officer was engaged in the performance of his duties? O YES ONO (See 38CT 10940.) While appellant’s argument of course notes that this question specifically mentions a peace officerit fails to recognize that the wording of the questions asks the juror how he/she “feel[s].” This distinction while subtle is.important. This question does not reveal a jurors unwillingness to follow the law or follow the court’s instructions. An individual may well feel that every person who murdersa peace officer while the officer is 170 engagedin the performanceofhis/her duties should be put to death, butstill recognize their obligation to follow their oath as a juror, and the court’s instructions, and the law ofthe state of California. In fact, that is what each of these jurors indicated in response to the court’s questions to them. In the questionnaire, Question 49 is the most factual andcasespecific of the group. Question 49 stated: The murderalleged in this case alleges the special circumstances that David Mobilio was a peace officer who was intentionally killed while engaged in the performanceofhis duties and that the defendant knew and reasonably should have known that David Mobilio was a peace officer who was engaged in the performanceofhis duties. Do you think that, depending on the circumstancesofthis case and the evidence to be presented in the penalty phase,if any: you could impose the death penalty in such a case? O YES 1 NO you could imposelife in prison without the possibility ofparole in such acase? 0 YES ONO (See 38CT 10942.) Each ofthe challenged jurors respondedin the affirmative to this question, indicating that they could imposeeither the death penaltyorlife in prison withoutthe possibility of parole in such a case. (37CT 10723, 10915; 38CT 10942, 11081.) Further, each of them indicated that given that there are two punishmentsoptionsavailable, and the jury was always given the option, each, in the appropriate case, could reject the death penalty and chooselife in prison without the possibility of parole, or the other way around. (37CT 10723, 10915; 38CT 10942, 11081.) Each of these jurors, when their answers and responsesto inquiries from the court and the parties are considered, was capable of performingtheir duties as a 171 juror in accordance with the instructions and the oath.’ Asdiscussed above, appellant did not challenge any of these jurors for cause, exhaust his peremptory challenges, or object to the jury as constituted, and his claims are therefore not preserved for review. Further, each of them was capable of performing his/her duties in accordance with the instructions and oath. Appellant falls well short of demonstrating bias andhis claim thereforefails. VIII. THE TRIAL COURT APPROPRIATELY RULED APPELLANT COULD NOT PRESENT IRRELEVANT EVIDENCE A. Summary of Argument Appellant contendsthatthe trial court’s ruling regarding the presentation of his proposed “defense”: '? Alternate Juror Number 9719 also respondedin the affirmative to Question 49 indicating that he/she could impose the death penalty orlife in prison whenthe special circumstance was that Officer Mobilio was a peace officer killed in the performance of his duties and the defendant knew or should have knownthat was the case. (38CT 11108.) Alternate Juror Number 9719 further indicated that in the appropriate case he/she could reject the death penalty and chooselife in prison without the possibility of parole, or the other way around. (38CT 11108.) Finally, in his/her verbal discussion with the court, this juror indicated that he/she did not have strong views in support of or in opposition to the death penalty, and had an open mind with regard to the penalty determination. (VIRT 1325-1326.) Further he/she stated that he/she could consider death or imprisonmentfor ~ life without parole as a possible punishment, and would not automatically vote for or against the death penalty. (VIRT 1326.) This juror did indicate that a spouse had been murdered butthat he/she could deal with the issue of punishment. (VIRT 1327.) When questioned by the prosecutorthis juror indicated that even given that history, he/she would not convict someone without finding it beyond a reasonable doubt, and could be fair and weigh both options in terms of sentence. (VIRT 1331-1332.) Appellant questioned this juror as well. (VIRT 1333-1335.) Appellant did not challenge this juror for cause and did not exercise a peremptory challenge. (VIRT 1335-1336.) | 172 violated the fundamental, constitutional right of “an accused...to present his own version of the events in his own words.” (Rock v. Arkansas (1987) 483 U.S. 44, 52.) Because the erroris structural, reversal is required. (AOB 178.) But the simple fact is that appellant wanted to present evidence in the guilt phase that although he never met Officer Mobilio, had no issue with Officer Mobilio as an individual, felt threatened by him in any way, and had no reason to murder Officer Mobilio, did so to send a message to the American public. That evidence wasnot relevant in the guilt phase of the trial. The flaw in appellant’s argumentis thatit fails to acknowledge that the evidence wasnot a “defense”at all. An attempt to send a message to the public by ambushing and murderinga policeofficer is not a valid recognized defense to a homicide in California. Specifically appellant argues: The question in the instant case is whetherthe trial court’s order, based on relevancy grounds, precluding appellant from “presenting his own version of events in his own words” was “arbitrary or disproportionate to the purpose []” the relevancy doctrine “was designed to serve.” (AOB 193.) Aswill be discussed more fully below, the superior court’s ruling regarding appellant’s proposed “defense” was proper. The court’s ruling wasthat it would not permit appellant to present irrelevant evidence. It did not prohibit or stop appellant from testifying or presenting evidence, merely that he could not provide testimony or evidence that wasnotrelevant to the issues. Appellant’s argumentthat the ruling somehow stopped him from testifying or presenting a valid defense is misplaced. The court’s decision wasa straightforward evidentiary ruling. Appellant then chose to present no further evidence. Any claim that he was somehow stopped from presenting a defense is without merit. 173 B. Relevant Facts On March 1, 2005,at a pretrial hearing the court considered appellant’s legal theory. [COURT]: Okay. Now let metell you a problem I am having with the case, and that wasthe issue regarding how Mr. Mickel would testify, should he elect to testify. I am having a concern in my own mind as to how to arrange opening statements in this case, and how that’s going to be allowed to be discussed during the opening statements. So I think we need to go there now. And I will tell you my thoughts, and I will allow you to addressit, and we will see where we end up. First ofall, as I indicated a couple of times ago, I was very concerned aboutthe theory ofjustification that was advanced in some proposed changesin the jury questionnaire by Mr. Mickel. AndI havetried to research available legal theories that falls in the category ofjustification for the alleged offense, and tried to fit that all within the framework of whatI see as a potential defense or defenses in this case. I will tell you I have reviewed all of your papers fairly carefully. I see two theories being advanced by way of the Web postings. One theory is that Mr. Mickel incorporated himself, - and heis entitled to corporate immunity. And the second theory is that Mr. Mickel was making a statement to protest police brutality. And that that would be his theories ofjustification for the alleged criminal conduct. If those are the theories of the Defense, the Court does not see at this time how those would ever be admissible in this proceeding for any purpose until we get to the penalty phase. At the guilt phase, I don’t see those being recognized or being admissible for any purpose. [APPELLANT]: I agree with you, Your Honor. If I can speak with my advisory counsel for a moment? [COURT]: Sure. (Brief discussion between the Defendant and advisory counsel.) 174 [APPELLANT]: I agree with what you said, Your Honor. Andas you have, from reading what I have wrote—orwritten, the way that the proposed defenses that you feel that I may attemptto use, I can state at this point are not, neither one of those are a defense that I intend to use during trial. So with those being the defenses that you would have potential concerns about, I don’t think that’s really an issue, because I am not going to use those defenses, Your Honor. [COURT]: Okay. Now I have—my concern expands. I have reviewedthe proposedstipulations that you offered last time that were rejected, and that’s within the right of the Prosecution to reject any andall stipulations as it is for you to reject their proposed stipulations. That it not an issue for me. The issue for meis in light of what you indicate the proposed facts are by way ofstipulation— [APPELLANT]: Right. [COURT]: —I’m very concerned as to whatis going to be presentedto this jury. [APPELLANT]: Right. [COURT]: And I think I have an obligation under the law to insure that only legally recognized defenses are presented to the jury. I should not and J don’t plan on allowing improper evidence to be presented during the courseoftrial, inadmissible evidence. In light of those two proposed stipulations, I don’t see any defense. So I am really struggling with what we are going to talk about and howit is going to be presented. And so! need — some help here[.] For example, before I could, in my own mind,seeing that you are telling me now thatthose two theories of corporate liability and a statementprotesting police brutality, which were your Webpostings, are not defenses that you intend to advance, based on your stipulation, I am kind of hard-pressedto see where the Defense is coming from. 175 WhatI don’t wantto do is have a situation where you would be subjected to what I think would be serious embarrassmentif every time youtried to speak, there is an objection and a ruling. And I don’t wantto put your case through that. I think that’s prejudicial to you. So I need to have some guidance here on where we are going with this defense. [APPELLANT]: Right. [COURT]: For example,if, in opening statement—I am really concerned about the opening statement. I would need to see where that goes; what is going to be included in the opening statement. In examining witnesses, I don’t need to know too much. You can ask the questions, and they can object, and I canrule. But if you elect to testify, I would have to have an offer ofproof as to what you are goingto testify to. I think having you write down the questions and then answerthe questions, I agree with you,that’s really pretty cumbersome. But I have to know whereit is going to go. I can’t just let you start a story, for use of a better term, and not have any way to control the progress ofthat testimony. SoI’m struggling with that one. So if you can help me, I’m listening. But I think I would have to have an offer of proof before I can allow youtotestify, in light that I don’t see any defenses based on what you have done so far. And I don’t know how youdeal with that. The opening I am troubled with; and if you should elect to testify, I am having trouble with, also. [APPELLANT]: I can simplyreiterate that the defenses that, as you have stated them, the defenses that you would potentially see me as using, I am not going to use. Other than that, my actual defense I don’t think is going to actually be an issue until the Prosecution’s case has been presented. And then I think that we can deal withit at that point. [COURT]: What do we do with an opening statement, then? 176 [APPELLANT]: I am notentirely sure at this point how much of my actual defense I am going to address during my opening statements. [COURT]: Well, I think I would be remiss in allowing you to make an opening statement to argue a defense that doesn’t exist. [APPELLANT]: Right. [COURT]: So how am I going to deal with that? [APPELLANT]: One moment, Your Honor. (Brief discussion between the Defendantand his advisory counsel.) Well, Your Honor, I don’t feel that I am goingto utilize my opening statements in a way thatis going to makeit an issue or a problem. I am notgoing to addressthose sorts of issuesthat are troubling the Court in a way that will makeit a problem. [COURT]: Okay. I amstill troubled. [APPELLANT]: Well, I understand that, Your Honor, and I think that is reasonable from yourposition. But J still feel that it is an issue that will comeup after the prosecution has rested their case. (IIIRT 664-669.) On March 30, 2005, appellant filed a brief “Re Admissibility Of Defense, With Accompanying Proposed Order.” (10CT 2355-2390, 2397a- 2397b.) On that same day healsofiled a “Brief re In Camera Hearing on Offer of Proof re Testimony.” (9CT 2348.) Prior to trial the court ruled that appellant was not required to inform the court of the content of his opening statement, but again admonished appellant on appropriately available defenses. [COURT]: Okay. Let me just take a couple ofthings, one, just to get them sothey are out of my purview. 177 Wetalked about Mr. Mickel’s opening statement, and his defenses. It’s the Court’s view that Mr. Mickel can makehis opening statement. I am not going to ask him whatit is in advance. I will tell Mr. Mickel that the purpose of an opening statementis to explain to the jury what the evidence ofthe case is and notto try to garner sympathy,prejudice, not to espouse political causes. It is commonly, lawyers use the analogy of the road map of the case, where it is going, what the evidenceis going to be. Andifthat is what you are going to do, then you are entitled to do that. And if you exceed those boundaries of no argument, no discussing the law, simply discussing the facts of the case, you can discuss the facts, but not the law or evidence, doit. Do you wantto be heard on that? [MR. COHEN]: Andin regard to the potential defense from Mr. McCrae? [COURT]: I already told him that—I think I—I probably didn’t makeit clear. Obviously I didn’t If he decides to provide a defense, we will ask for an offer ofproof at that time as to where we are going with it. And that’s primarily based.on the fact that when I look as the Web postings and see issuesraised that are not recognized defenses, such as “I wasa corporation; therefore, I am immunefromliability,” such as “I want to makea political statement protesting police brutality,” not a legally, recognized defense, so those issues we are not going to do. So I am just—Andbased uponthe proposed offer to stipulate regarding the admission in that proposed offer as to Mr. Mickel’s culpability for the offenseitself, I think the defense becomesa big issue for me as to whereit is going to go. So before wegetto that, I would require an offer of proofas to what weare goingto hear in the way of defense. Butuptill that time, make your opening statement. If they object, I will stop you if you are doing something wrong. So you limit it to what anybody else would offer, and that’s an overview ofthe case, not arguing the law, not asking for 178 sympathy, not discussing irrelevant materials, and not discussing theories of the defense that don’t exist. So that’s what I’m going to do. [MR. COHEN]: Judge, we appreciate your ruling and— [COURT]: Thanks. [MR. COHEN]: And I know Mr. Mickelis sitting about two feet from me. Heis nodding his head, but I don’t knowif that is on the record or not. And we are concerned— [COURT]: Do you understand that, Mr. Mickel? [APPELLANT]: Oh,yes, I understand. (VRT 996-998.) Subsequently, appellant submitted twobriefs to the court. Thefirst wasa, “Brief re In Camera Hearing on Offer of Proof re Testimony,” and the second was, “Re Admissibility Of Defense, With Accompanying Proposed Order.” (9CT 2348; 10CT 2355.) On April 1, 2005, appellant and his advisory counsel were present at an in-camera hearing. (VIIIRT 1819.) At the hearing appellant outlined his defensive theory. | [COURT]: And how wasit directed to Officer Mobilio specifically other than he was the individual that was there? [APPELLANT]: Well, it would be the same as—I asked Your Honorto take judicial notice of several facts regarding The Shot Heard ‘Round the World in 1775. The same argumentor the same questions that Your Honor is asking me aboutpolice officers in general and Officer Mobilio specifically, that same argument and that same question can be maderegardingresisting those specific Red Coats. 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 answeris no. But it doesn’t really matter, because those specific Red Coats 179 were out in an attempt to enforce laws that were unjust and were oppressive. And so it doesn’t matter really whether or not who those specific Red Coats were. What matters is what they were out on patrol attempting to do, which is they were attempting to wrongfully imprison two people, and they were attempting to abridge and infringe and destroy the colonists’ right to bear arms. Does that—HaveI clarified the issue, Your Honor? [COURT]: I think I understand your point. So before the night in question of the 19th ofNovember, 2002—Ithink that wasthe date. [APPELLANT]: That’s the date. [COURT]: —had you ever seen Officer Mobilio before? [APPELLANT]: No, I hadn’t. [COURT]: And did anyone express to you particular complaints or specific complaints to you about Officer Mobilio as a peace officer? [APPELLANT]: No,they had not. [COURT]: One thing you did do is you got meto reread the Constitution. I read both the California and the U.S. Constitution and the Bill of Rights carefully about 4:00 o’clock yesterday morning. This is not a defense that is recognized in the State of California or anywhere in the United States. [APPELLANT]: It’s not an established defense that anyone has madebefore. It is a case offirst impression. But this defense is specifically guaranteed by the rights that are recognized in Article 1, Section 1 of the California Constitution. (VIIIRT 1820-1821.) Appellant also made the following statement: 180 I would propose that I came forward in order to use the court system in order to have this right recognized. Because that’s, that is how—that’s typically how it worksis that you,in order for Appellate Courts 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 guaranteea rightthat you haven’t exercised, then the Court is going to say, “All right, come back whenyouare arrested. You have no standing to challenge—to protect this right.” I 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. (VIIIRT 1827-1828.) Ultimately, the court ruled as follows: [COURT]: Youare a fascinating individual. I think that your theories are interesting discussion. I don’t think they rise to the level of a defense in a criminal action, the political discussions, and they should havebeenleft in a political forum. Wearein a criminal court, and thisis not a defense that I can instruct on in a criminal case. I can’t doit, and I won’tdoit. I read yourbrief carefully, and I have listened to your arguments. Andit appears to the Court that the defense is a political statement. And I can’t allow that because I can’t allow defenses to goto the jury that are not cognizable in the law. I can’t instruct on them. Andtherefore the evidence as to those theories are irrelevant. And I would haveto object to every single objection dealing with a theory that you have just advanced. So I don’t think it is a recognized theory of defense. [APPELLANT]: Okay. Andthat’s your ruling, Your Honor? [COURT]: That’s the ruling. [APPELLANT]: Okay. I accept that. 181 I feel very strongly that’s an incorrect ruling and that you should not makethat ruling. But I accept that that is your ruling. And I would like to give the Court notice that I intend to sit in silent protest during the guilt phase, and I will not speak or raise any issues until the penalty phase. [COURT]: Okay. Do you want sometimeto think about that? The record should reflect that Mr. Mickel is very emotionalat this time. If you want sometimeto reconsider that, you can haveit, Mr. Mickel. (Brief discussion between the Defendant and advisory counsel.) [APPELLANT]: No. I think that—I think weare finished, Your Honor. . [COURT]: Okay. Let me ask you what“finished” means. The Defenseis to begin Tuesday. Is there going to be any defense presented? [APPELLANT]: No, Your Honor. (VIIRT 1829-1831.) Appellant’s closing argument in the guilt phase consisted of the following: [APPELLANT]: Good Afternoon. Now, Mr. Cohen was perfectly correct, nobody except for myself really understands why I took Officer Mobilio’s life. And I wanted to spend the day today explaining that to you, but—and it wouldn’t be appropriate to go into detail about any of that right now. But I would just reiterate, as I said before, the Judge has found that to be inadmissible, so I’m not allowed to talk to you about that during the guilt phase. But I would say that with the evidence that’s been put in front of you and without you guys hearing anything, anything 182 from mereally or hearing anything to the contrary, you'd have to be fools to find me innocent. I would find me guilty if I were a jurorin this case. Now,I’ve taken responsibility for taking Officer Mobilio’s life every step of the way. And I have always accepted the possibility every step of the way that I would be foundguilty. Andwith the evidence that’s been put in front of you, you should find me guilty. Now,I wanted to explainit all to you today, but that’s not going to happen,so I will just explain it to you during the penalty phase. (VIIIRT 1891-1892.) C. Discussion Asnoted above, appellant contendsthat trial court’s ruling prohibited him from testifying in his own defense. (AOB 178.) Appellant’s argument is flawed in that the testimony he sought to admit did not pertain to any cognizable defense. In reality the trial court’s ruling merely prohibited appellant from presenting irrelevant and inadmissible evidence. The testimony appellantpurports to have been prohibited from offering was in no way a legal justification for Officer Mobilio’s murder. In fact, appellant did not appear to planto offer the testimony to exonerate his guilt, or as evidenceofjustification for Officer Mobilio’s murder, but as aplatform to advance an agenda. Appellant acknowledgedthat this was not a “defense” that had been madebefore. (VIIIRT 1821.) Because appellant’s proposed testimony wasat best an attempt at mitigation the court wascorrect to exclude it during the guilt phase ofthetrial. Murderis the unlawful killing of a human being with malice. (§§ 187, subd. (a).) A murder that is willful, deliberate, and premeditated is murder in the first degree. (§ 189.) There are relatively few ways in which a homicideis legally justifiable. In 2002, section 197 read as follows: 183 Homicideis also justifiable when committed by a person in any of the following cases: 1. Whenresisting any attempt to murder any person,or to commit a felony, or to do some great bodily injury upon any person;or, 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purposeofoffering violence to any person therein;or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, whenthere is reasonable ground to apprehend a design to commit a felony or to do somegreat bodily injury, and imminent danger of such design being accomplished; but such person, or the person on whose behalf the defense was made, if he wasthe assailant or engaged in mutual combat, mustreally and in good faith have endeavored to decline any further struggle before the homicide was committed; or 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing anyriot, or in lawfully keeping and preserving the peace. Appellant’s proposed testimony went to none ofthese categories of justifiable homicide and the court was correct to excludeit as irrelevant. The third category aboveis further divided into self-defense and imperfect self-defense. “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) “To constitute ‘perfect self-defense,’ i.e., to exonerate the person completely, the belief must also be objectively reasonable.” (/bid.) “If the belief subjectively exists but is objectively unreasonable,there is ‘imperfect self-defense,’ i.e., ‘the defendant is 184 deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter.” (Humphrey, at p. 1082 (quoting Jn re Christian S. (1994) 7 Cal.4th 768, 783).) “Moreover, for either perfect or imperfectself-defense, the fear must be of imminent harm. ‘Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of 999imminent dangerto life or great bodily injury.’” (People v. Humphrey, supra, 13 Cal.4th at 1082,italics omitted (quoting Jn re Christian S., supra, 7 Cal.4th at p. 783, italics omitted.) — Additionally, in California there are some limited mental health defenses. The California Legislature abolished diminished capacity defenses. (§§ 25, 28.) “The express purpose of both statutes is to abolish the diminished capacity defense and eliminate the judicially created concept of ‘non-statutory voluntary manslaughter.’ [Citations.]” (People v. Spurlin | (1984) 156 Cal.App.3d 119, 128.) Under California law “when an intentional killing is shown, malice aforethought is established.... [T]he concept of ‘diminished capacity voluntary manslaughter’ (nonstatutory voluntary manslaughter)...[citation] is no longer valid as a defense.” (People v. Saille (1991) 54 Cal.3d 1103, 1114, internal citation omitted.) Although diminished capacity has been abolished, diminished actuality survives. (People v. Steele (2002) 27 Cal.4th 1230, 1253.) That is, the jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether defendant actually had the required mental state for the crime. (/bid.) In the instant case none ofthe “evidence” appellant purportedly wanted to admit was remotely related to any recognized defense or justification for homicide. Further, appellant’s purported “purpose”in murdering Officer Mobilio wasnotrelevant to any ofthe justifications or theories of reduced responsibility for homicide. Appellant acknowledged 185 to the court he had never seen Officer Mobilio before he murdered him. (VIIIRT 1820-1821.) Further, nobody had expressed any complaints to him about Officer Mobilio as a peace officer. (VIIIRT 1820-1821.) Appellant acknowledged that this was not a “defense” that had been made before. (VIIIRT 1821.) The evidence was not relevant and the court was proper to excludeit. Under Evidence Codesection 210, relevant evidence is evidence “having any tendency in reasonto prove or disprove any disputed fact that is of consequenceto the determination of the action.” “Except as otherwise provided bystatute, all relevant evidence is admissible.” (Evid. Code, § 351; People v. Williams (2008) 43 Cal.4th 584, 633.) It has long been recognizedthat “[t]he trial court has considerable discretion in determining the relevance of evidence. [Citations.]” (Williams,at p. 634.) | The testimony appellant purports to have been prohibited from - presenting was in no waya legaljustification for Officer Mobilio’s murder. Appellant did not plan to offer the testimony to exoneratehis guilt, or as evidenceofjustification for Officer Mobilio’s murder, but as a platform to advancea political agenda. Because appellant’s proposed testimony wasat best an attempt at mitigation the court was correct to excludeit during the guilt phase ofthetrial. Further, even assuming for the sake of argumentthat the evidence had ~ somerelevance the court would have been proper to exclude it becauseit was more prejudicial than probative. Evidence Codesection 352 accords the trial court broad discretion to exclude even relevant evidence “‘ifits probative value is substantially outweighed by the probability thatits admission will...create substantial danger of undueprejudice, of confusing the issues, or of misleading the jury.” “Evidenceis substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedingsor the reliability of the outcome’ 186 [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.) The trial court’s ruling is reviewed under Evidence Codesection 352 for an abuse of discretion. (People v. Williams, supra, 43 Cal.4th at pp. 634-635.) As noted above, the purported testimony was not to exonerate appellant’s guilt, or offered as evidenceof a justification for Officer Mobilio’s murder, but as a platform to advance an agenda. It was not probative of any valid or recognized legal defenseorjustification, and as result was more prejudicial than probative. At best appellant murdered Officer Mobilio in an extreme attempt to advance a personal agenda. Becauseit wasnot related to any cognizable defense its admission would have created a substantial danger of undueprejudice, of confusing the issues, and misleading the jury. It would therefore have been properforthe court to exclude it pursuant to Evidence Codesection 352. Finally, even assuming for sake of argumentthe evidence was relevant and should not have been excluded pursuant to Evidence Code section 352, appellantstill cannot establish any prejudice. In determining whethera trial court’s erroneous exclusion of evidenceis prejudicial, the People v. Watson (1956) 46 Cal.2d 818, 837, standardis applied to determine whetherit is “reasonably probable that had the evidence been admitted a result more favorable to [appellant] would have ensued.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1179-1180.) Here, the purported evidence wasnot probative ofjustification for murder or reduced responsibility of guilt. Nevertheless, because this wasa capital case appellant was permitted to present the evidencein the penalty phase. The jury returned a verdict of death, and therefore did notfind the evidence to be compelling mitigation for appellant’s actions. Appellant cannot therefore establish that it was reasonably probable that had the evidence been admitted in the guilt phase he would have obtained a more favorable verdict. Appellant therefore cannotestablish prejudice. 187 Appellant contendsthat the trial court’s evidentiary ruling deprived him of his federal constitutional rights and therefore, that the Chapman” beyond a reasonable doubt standard of prejudice applies. (AOB 202.) The law is well settled that even erroneous limitations placed on a defendant’s tight to present evidence generally do not constitute a deprivation ofa defendant’s constitutional right to present a defense. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minoror subsidiary point does not impair an accused’s due processright to present a defense’ [citation]”].) As discussed above, the evidence appellant purportedly wanted to present did not have any tendency to prove or disprove any cognizable defenseor justification. Thetrial court’s ruling did not deprive appellant of his right to present a defense or otherwise violate his federal constitutional rights. Accordingly, appellant’s contention that the Chapmanstandard ofprejudice applies to this claim is - without merit. In any event, as discussed, the jury rejected appellant’s evidencein the penalty phase and returned a verdict of death. Thetrial court’s exclusion of the evidence was therefore harmless, even underthe Chapman standard. IX. CALIFORNIA’S CAPITAL SENTENCING SCHEMEIS CONSTITUTIONAL AND THE PENALTY SHOULD BE AFFIRMED Appellant alleges a numberof “systematic (and previously rejected) claims relating to the California death penalty scheme which require a new penalty phasein his case....” (AOB 208.) Consistent with its holdings in prior cases this Court should reject each of these claims. In each instance in which appellant failed to object or request a clarifying instruction the claim is not preserved for review. (People v. Rodrigues (1994) 8 Cal.4th 20 Chapmanv. California (1967) 386 U.S. 18, 24. 188 | 1060, 1192.) Nevertheless, assuming for sake of argumentthe following claims are preserved for review, they are without merit. A. Sentencing Factor(s) Are Not Unconstitutionally Vague Appellant contendsthat the instructions permitted the jury to consider appellant’s age (13CT 3564), and that this factor for consideration was unconstitutionally vague. (AOB 208-209.) As appellant acknowledgesthis argumenthas been previously rejected. (People v. Ray (1996) 13 Cal.4th 313, 358.) Respondent submits that in this respect People v. Ray, supra, 13 Cal.4th at page 358, was properly decided and appellant’s claim should be rejected. B. Capital Punishment Scheme Does Not Violate the Eighth Amendment Appellant contends that California’s capital punishment scheme violates the Eighth Amendment and fails to distinguish among defendant’s whoare sentenced to death and those whoare not. (AOB 209.) As appellant acknowledges this argument has been previously rejected. (People v. Schmeck, supra, 37 CalAth at pp. 304-305, abrogated on other groundsas stated in People v. McKinnon, supra, 52 Cal.4th at pp. 637-639; People y. Loy (2011) 52 Cal.4th 46, 78-79.) Respondent submits that in this respect People v. Schmeck, supra, 37 Cal.4th at pages 304-305, and People v. Loy, supra, 52 Cal.4th at pages 78-79, were properly decided and appellant’s claim should berejected. C. The Jury May Consider the “Circumstancesof the Crime” Appellant contendsthat section 190.3, subdivision (a), which permits a jury to consider the “circumstances of the crime” is applied in a manner that institutionalizes the arbitrary and capricious imposition of the death penalty. (AOB 209.) Appellant acknowledges this argument has been previously rejected. (People v. Schmeck, supra, 37 Cal.4th at pp. 304-305, 189 abrogated on other groundsasstated in People v. McKinnon, supra, 52 Cal.4th at pp. 637-639; People v. Loy, supra, 52 Cal.4th at pp. 78-79.) Respondent submits that in this respect People v. Schmeck, supra, 37 Cal.4th at pages 304-305, and People v. Loy, supra, 52 Cal.4th at pages 78- 79, were properly decided and appellant’s claim should be rejected. D. Appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendment Rights Were Not Violated Appellant contendsthat the jury was notinstructed that it must find beyond a reasonable doubtthat the aggravating circumstances outweigh the mitigating circumstances. (AOB 209-210.) Appellant acknowledgesthis argumenthas been previously rejected. (People v. Schmeck, supra, 37 Cal.4th at p. 304, abrogated on other groundsas stated in People v. McKinnon, supra, 52 Cal.4th at pp. 637-639; People v. Loy, supra, 52 Cal.4th at p. 78.) Respondent submits that in this respect People v. Schmeck, supra, 37 Cal.4th at page 304, and People v. Loy, supra, 52 Cal.4th at page 78, were properly decided and appellant’s claim should be rejected. E. CALJIC No. 8.85 Does Not Violate Appellant’s Constitutional Rights Appellant contends that CALJIC No. 8.85 is flawed in multiple ways. (AOB 210.) Appellant acknowledges these arguments have been previously rejected. (People v. Schmeck, supra, 37 Cal.4th at pp. 304-305, abrogated on other groundsas stated in People v. McKinnon, supra, 52 Cal.4th at pp. 637-639; People v. Ray, supra, 13 Cal.4th at pp. 358-359.) Respondent submits that in this respect People v. Schmeck, supra, 37 Cal.4th at pages 304-305, and People v. Ray, supra, 13 Cal.4th at pages 358-359, were properly decided and appellant’s claims should be rejected. 190 F. The Instructions Were Proper Appellant contendsthat the instructionsfailed to inform the jury that even if they determined that the evidence in aggravation outweighed the evidencein mitigation, they could still return a verdict of life without parole. (AOB 210-211.) Appellant acknowledges this argument has been repeatedly rejected. (People v. Smith (2005) 35 Cal.4th 334, 370; People v. Arias (1996) 13 Cal.4th 92, 170-171.) Respondent submits that in this respect People v. Smith, supra, 35 Cal.4th at page 370, and People v. Arias, supra, 13 Cal.4th at pages 170-171, were properly decided and appellant’s claim should be rejected. G. Capital Punishment Scheme Does Not Violate Equal Protection Appellant contendsthat California’s death penalty schemeviolates the Equal Protection Clause becauseit provides “significantly fewer procedural protections” for individuals facing a death sentence than those facing non- capital felonies. (AOB 211-212.) Appellant acknowledgesthis argument has been previously rejected. (People v. Manriquez (2005) 37 Cal.4th 547, 590; People v. Loy, supra, 52 Cal.4th at p. 79.) Respondent submitsthat in this respect People v. Manriquez, supra, 37 Cal.4th at page 590, and People v. Loy, supra, 52 Cal.4th at page 79, were properly decided and appellant’s claim should berejected. H. California Capital Punishment Scheme Does Not Violate International Law Appellant contends that California’s death penalty schemeviolates international law including the International Covenantof Civil and Political Rights. (AOB 212.) Appellant acknowledges this argument has been previously rejected. (People v. Schmeck, supra, 37 Cal.4th at p. 305, abrogated on other groundsas stated in People v. McKinnon, supra, 52 Cal.4th at pp. 637-639; People v. Loy, supra, 52 Cal.4th at pp. 78-79.) 191 Respondent submits that in this respect People v. Schmeck, supra, 37 Cal.4th at page 305, and People v. Loy, supra, 52.Cal.4th at pages 78-79, were properly decided and appellant’s claim should berejected. CONCLUSION Accordingly, respondent respectfully requests that this Court affirm the judgment and sentence. Dated: September6, 2012 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P, FARRELL Senior Assistant Attorney General WARD A. CAMPBELL Supervising Deputy Attorney General Table co ROBERT C. NASH Deputy Attorney General Attorneysfor Plaintiff RCN:tmk SA2005 102562 31466223.doc 192 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13-point Times New Romanfont and contains 56,885 words. Dated: September6, 2012 KAMALAD. HARRIS Attorney General of California TAA ly ROBERT C. NASH Deputy Attorney General Attorneysfor Plaintiff DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Mickel — No.: 8133510 I declare: I am employedin the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of ageor older and not a party to this matter. I am familiar with the business practiceat the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with thatpractice, correspondenceplaced in the internal mail collection system at the Office of the Attorney _ General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On September11, 2012, I served the attached RESPONDENT’SBRIEFby placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Lawrence A. Gibbs The Honorable Gregory Cohen Attorney at Law Tehama County District Attorney P.O. Box 7639 P.O. Box 519 Berkeley, CA 94707 . Red Bluff, CA 96080 (Counsel for appellant - 2 copies) Criminal Clerk Michael G. Millman _ Tehama County Superior Court Executive Director P. O. Box 1170 California Appellate Project Red Bluff, CA 96080 101 Second Street, Suite 600 San Francisco, CA 94105 I declare underpenalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September11, 2012,at Sacramento, California. Declarant $A2005 102562 31523730.doc