PEOPLE v. POWELLRespondent’s BriefCal.June 11, 2013SUPREME COURT COPY Iu the Suprenwe Court of the State ot Caliturnia THE PEOPLE OF THE STATE OF CALIFORNIA, CGEAL Plaintiff and Respondent, Case No. $137730Vv. TROY LINCOLN POWELL, SUPREME co URT Defendant and Appellant. F | L EE D Los Angeles County Superior Court JON TI 2013 Case No. BA240299 Frank The Honorable William R. Pounders, Judge KA, McGuire Clerk RESPONDENT'S BRIEF Deputy KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JAIME L. FUSTER Deputy Attorney General PAMELA C. HAMANAKA Deputy Attorney General State. Bar No. 125782 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2279 Fax: (213) 897-6496 Email: DocketingLAAWT@dojea.gov Email: Pamela.Hamanaka@doj.ca.gov Attorneysfor Plaintiffand Respondent couett LiWn Ireo TABLE OF CONTENTS Page Statement Of the Case... ccccccscccsssseseessessseesesseesecsseesecsssseseeeeteesseeesseseaseaes 1 Statement Of Facts 0.0... cceccccecsecseessenseeesessseesssessesssscsescseeseeecessesesesseseenenstens 3 A. Guilt Phase... ccececeeessesseesseesseesesseecsessteceesseeesseesseesseeseeenes 3 1. People’s Case-in-Chicf........ccccccecesesseceesseeesteeeesecesteeenes 3 a. The Murder of Tammy Epperson............ccceee 3 (1) Events Leading Up to the Murder............. 3 (2) Police Find Epperson Dead in Her Apartment 0.0 .cceccceeesceeseecsesesseeesseeenteeenees 8 (3) Blood Spatter Expert Testimony and DNAResults 00... ccc eceeseeceeeteseeeeteeneeeees 13 (4) The Autopsy Including DNA Results..... 23 b. Appellant's Prior Attacks on Women................. 27 (1) Debra Colletta c...ccieccsecsessesesesseeeeeees 27 (2) Betsy M. oo. cecccceecesseeseceseeeeteeseetesestecenes 27 2. Defense Evidence ........ceccccccecceeeseeeneeeetaneeeeeeenerereresens 30 a. Appellant's Testimony .....c ce eeeseesreesteeseeneens 30 b. Expert Testimony on Epithelial Cells... 43 3, Rebuttal by Prosecution... ceccccceceeeeeeteessteeesseatens 45 a. Charles Vannoy............:e eee eeenasereuneeeseaneeees 45 b. Detective Larry Barr ..........ceceSeeeeteneteass 49 B. Sanity PHASC.........ccceeccccsccsseecceseeeseeesseesesescseeeeesssseeesesesseessseeens 53 1. Defense Evidence ........c i ecccececcesceeeseeeneeseensetteeeseneteneeeens 53 Dr. Kyle Boone .o..ccccssesscsseesesscsscsesessseesssseeseereees 53 Dr. Roger Bertolinieeesecceceseeeneesseeeeees 59 C. Dr. Saul Niedorfa... cccecccccseccceesseeegeseverseeens 66 (1) Intermittent Explosive Disorder DiaQnOSIS 0... eee ceecceeeeseeeseeceteeseeeneseeseaes 66 (2) Sanity Issue...eeeeeeeeeeneeseeeeeeseeeeens 72 TABLE OF CONTENTS (continued) Page d. Dr. William Vicary 2...eee ceseeeeeeeteeseeeerseeees 74 (1) Prior Competency Evaluation and Bipolar Diagnosis..........cccccseeeeenes 75 (2) — Samnity Issue oo... eeeecesseeseeeeeererereeeiees 82 (3) Dr. Vicary's Removal from the Superior Court Panel of Doctors and Probation .......ccccceeeceeeessecesteeeseeeeeeeseeneenees 85 2. Prosecution Evidence ........:cceeceeesseessseeesseeeeeeseeeeneenes 86 a. Dr. David GrieSemet.....0....:cceeeecesce tet eeeteeeeeeeees 86 b. Dr. Kris Mohandie .........ccecceseseeseseceteeeteeeseeens 89 C, Penalty phase... ce ccccecsseeseseseeneeneereerereneeseeneerserseeseeneeecaen 94 l. Prosecution Evidence... ccceeceeeeeceeseeeeeseteetenerseneneees 94 a. Epperson's Family and Friends.........cece 94 (1) ~—_ Bette Ruiz De Esparza oo.eeerceees 94 (2) Ruth Steward...reese: 95 b. The Murder of Tammy Epperson...........:ce 96 (1) Blood Spatter Expert Testimony and DNA Results .......eeceseeseteeecseeeseeneeeees 112 (2) The Autopsy and DNAResults ............ 121 ¢. Appellant's Prior Attacks on Women............-.. 125 (1) Debra Colletta and Appellant's Assault Conviction .....icccsceeneseeeeeee 125 (2) Betsy Mo .c.eccececsesseneseeetenenereneeeensees 129 2. Defense EVidence......c cece eteereseereeeneneernenereiennin 134 a. Appellant's Family .........cccsseneeceteteereneeeeees 134 (1) Joyce Powell, Appellant's Mother........ 134 (2) Terri Powell, Appellant's Older SiStY ...ceccccecsceceecsneeeeeerseeseeseeeenseeeesennensy 140 il TABLE OF CONTENTS (continued) Page (3) Montana Powell Gomez, Appellant's Younger Sister .....ccceccceccceeseesteeeensees 145 Childhood Friends and Neighbors...............0.. 149 (1) Wanda Agnew ......cccecccccesecssestreeteees 149 (2) Kevin Brunner... cccceccceeseeeseeeees 150 Appellant's Adulthood Friends...eee 152 (1) Asim Askar oo. ccecccececsesserseeeteeeneens 152 (2) Neida Cook-Welsh..........cceececeeeeeeeees 152 Expert Medical Testimony...........ccccceeeeeees 154 (1) Dr. William Vicary ...... ec eceececeeeeecnees 154 (a) Six Categories Explain How Appellant Came to Be the Way He Is weeceseeeseeeeenees 156 i) Traumatic Family Background................0 156 ii) Brain Damage.......0....... 157 iii) Bipolar Disorder........... 158 iv) Pleas for Treatment....... 162 v) Show of Remorse......... 162 v1) Positive Institutional Adjustment..........0..00 163 (b) Malingering........eee 163 (c) Dr. Vicary's Admonishment by the Medical Board................. 164 (2) Dr. Kyle Boone wo.eeeeeeeeeereens 164 (3) Dr. Roger Bertoldi 0...ce eeeeseeeetees 167 (4) Dr. Saul Niedorf.....eeeeeteerereteeees 174 (a) Appellant's History «00... 174 (b) Dr. Niedorf's Diagnosis............. 179 ill TABLE OF CONTENTS (continued) Page 3, Rebuttal by Prosecution...eserseeereerees 181 a. Expert Medical Testimony... 181 (1) Dr. David Griesemer.............- vesevteeeees 181 (2) Dr. Kris Mohandie........sese 186 4, Surrebuttal by Defense .........ccseeeeeedevevseseasseens 190 a. Dr. Richard Romanoff..........cccece 190 ALBUMEN.oeeceeeeees es eeesseceeseseeeeeeneeeeseerensenensseeseenconsensnneneassseeenseseecannenee senses 193 lL. Thepredicate offenses of mayhem andtorture for first degree felony murder had independent felonious purposes and did not merge with the homicide within the meaning of People v. Ireland (1969) 70 Cal.2d 522wescseetcen 193 I. Substantial evidence supports the torture murder theory of first degree murder, the torture conviction, and the torture- murder special circumstance «0... secs eet rete rete eet este tsettrres 203 If. Substantial evidence supports the rape conviction, the rape murder theory offirst degree felony murder, and the rape- murder special circumstance ........ceceterete sees eteetennets 212 IV. — Substantial evidence supports the premeditation and deliberation theory of first degree murder...ceeree 217 v-A. Thetrial court properly admitted evidence of appellant’s tattoos and the gang CVideNCe ......seerseeesene eter teers eer es etettgs 225 A. Background... .ececsecsececeeceieesseseenessesssesnseasarensesssener sees 225 B. Thetrial court properly admitted evidence of appellant's tattoos and the gang CVICENCE 0... cee eeeeeteeeetenee 238 1. Waiver of Federal Constitutional Claims............. 238 2. Appellant's Tattoo Evidence and the Gang Evidence Were Relevant .0........:ccssceeeeeeeeerenertires 239 3, Appellant's Has Forfeited His Prosecutorial Misconduct Claims by Failing to Object on Those Grounds, and In any Event, No Prosecutorial Misconduct Occurred ........: 243 iV V-B. A. Vi VIL. VII. w TABLE OF CONTENTS (continued) Page The jury verdict finding appellant sane should be upheld.......... 247 Background .......cccceccecssecssssecesesesesateeeessseesesseecsecsessaeeesseseaes 248 1, Defense Evidence ......cceccesecsssecssesseessesecsteecseessesensess 248 a. Dr. Kyle Boone.o....ceeccccccesseeesseeeserseeensneeesens 248 b. Dr. Roger Bertoldi....... icc eeceeseessseseeetseeeeens 249 C. Dr. Saul Niedorfoo... cceceeecseeetesssseteeeens 252 d. Dr. William Vicary .........ceeceeceeeeeesteeeteeeeesees 253 2. Prosecution Evidence 0... .eceececssescesseeeeeeseeeeseeseaees 258 a. Dr. David Griesemet...........cceccecseeeseeeteeeneees 258 b. Dr. Kris Mohandie ..0.......ceceeeceeeeeceseeeeteeeseeees 260 The jury verdict finding appellant sane should be Upheld oo... eee eecccececceenneceneceseeeeeeceececneeeeceeeseeseeeecsneeesseesseeeeseas 263 The true findings on the felony-murder special circumstances should be upheld o0...eeeeeeeeeeeeeeeneeteeeeeeees 272 Execution of a capital defendant who is mentally impaired, but not mentally retarded, is not cruel and unusual PUNISHMENLeeec cccccceeessceeneeeetteceeeececeeeessererstateestnneeeenaeeeeees 277 Appellant's claims regarding the death penalty statute should be rejected oo... eee eecccceneeeeeceececececeeeeeeeeeseeecereeeesieeesieeeseetenneesens 283 Section 190.2 is not impermissibly broad ...........eceeeeeeeeeees 283 Section 190.3, subdivision (a) does not allow arbitrary and capricious imposition of death ......ceeeeeeeeceteeeteerenes 284 California's death penalty statute satisfies the United States Constitution... ccceeceecceceecteecesseeeeeesseeesnneesaeeeeteeesses 285 1, Unanimous Jury Agreement as to Aggravating FactOTs 000... ceecceeeseeeeeseeceeeeeeteeeeseeeeesseeeseseeeerseeeseuaaeenseas 285 2. Jury Instructions on Burden of Proof...cece 286 Written Findings .......ccceccececsseeereeeereceareeseeecneeesenees 287 4. Intercase Proportionality REVieW.......ceceees 288 TABLE OF CONTENTS (continued) Page 5. Unadjudicated Criminal Activity 0...teens 288 6. Mitigating Factors List... .ccccseseeeeesssersetneereereens 288 7. Instruction on Mitigating Factors... 289 D. California's death penalty scheme does not violate the equal protection of the ]aWS ........:ceceeeeeeee retest reir ees 290 E. California's use of the death penalty does notviolate any international norms of humanity and decency..............4. 290 IX. The penalty should not be reversed, and the case should not be remanded oc... ceccecceecccceeseceeeeeeeeerereeeeenseeeessseeennteeersenneeensneesen 292 X. Appellantis not entitled to relief as a result of the cumulative effect of the alleged CfrOrs ...... ieee eee te rtteerreeenees 293 CONCLUSION .....ccccccceseeecesesseceececssceeeeeeeessreeseeeeeesneesceeerceeeseeeeeeeeenseeegee eens 294 vi TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]..286, 287, 292 Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335]..277, 278, 280 Baird v. Davis (7th Cir. 2004) 388 F.3d L1LOoecece eeeeeeneeeeeeeeetensnescnsatensaae 280 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 1283, 17 L.Ed.2d 705]...202 Commonwealth v. Baumhammers (Pa. 2008) 960 A.2d 59...ccsssssssssusssseesssnenssseesenessssetesesseeeeesenessse 280 Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]... 286 Harris v. Vasquez (9th Cir. 1991) 949 F.2d 1497etceteraeneceeeeeteeeneenies 265 In re Hawthorne (2005) 35 Cal.4th 40.eeeeee erect eens crecneeneeneectesieceseeeseecseenes 277 Jackson v. Virginia (1979) 443 U.S. 307 oo eeccceeceeetertecneeeeteenteensesneeeneeenens 203, 212, 217 Lewis v. State (Ga. 2005) 620 S.E.20 778 .o..eiccccecencsesseeeeeseessesseeneeseeneesteseseeneenaes 280 Matheny v. State (Ind. 2005) 833 N.E.2d 454.eeecece eneneereeesseesseeseensenaes 280 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]... 39, 52 People v. Aguilar (1997) 16 Cal.4th 1023 oooessereat eseeseeeeseseeeeseseseaeens 201, 211 vil People v. Aguilar (1997) 58 Cal.App.4th 1196...ceeeter rreteieneeesrereseessseenenrens 205 People v. Allen (1986) 42 Cal.3d 1222 0 cicccccceesete tee etete rere rrereessneseeesseenees 276, 292 People v. Anderson (1968) 70 Cal.2d 15... ccccccesesetene tence ee eieneteeeetenenesseenenreeren 217, 218 People v. Avila (2009) 46 Cal.4th 680...reeeessesterererseeesernerseets 293 People v. Bacon (2010) 50 Cal4th 1082...ceceeseretseeeseteneneeserrens 284, 286, 293 People v. Barnes (1986) 42 Cal.3d 284occnents rece rsteseeserneneeseecenenees 213, 216 People v. Barnett (1998) 17 Cal.Ath 1044... cceeneteeesereenensiseerenecin 247, 273, 275 People v. Bemore (2000) 22 Cal.4th 8090...reeseenerterrcieetrersseeneneen 205, 207 People v. Bennett (2009) 45 Cal4th 577 ...cccceccceseeeeeieee eee eeeeeneneene renter reise senen passim People v. Bolin (1998) 18 Cal.4th 297... ecceeeesene ne renessesneeseseneeceneseeenesrenetesesnteg 204 People v. Bonillas (1989) 48 Cal.3d 757 .eccceccccesectesesrerestsescssenensseesssesenereneaserressereenenas 221 People v. Booker (2011) 51 Cal4th 14dceceeseeesecseeenesseneenersensesseeesessesenegs 289 People v. Brady (2010) 50 Cal.4th 547...rereereeseretneneiseicen 289, 290, 291 People v. Brown (2000) 77 Cal.App.4th 1324 .cssssscsssssseesssssssessseeeessenesseesennnseeee 209 People v. Burton (1971) 6 Cal.3d 375 v.ccecectetetesetererete tess eereenetieee 195, 196, 200, 201 Vili People v. Castaneda (2011) 51 Cal.4th 1292 ooo cceecceseseesseteteeeteeeenes 277, 278, 279, 28 People v. Cavitt (2004) 33 Cal.4th 187. cccccsceecsecseesseeseeseseetecseteteseseeees 195, 200 People v. Champion (1995) 9 Cal.Ath 879 oo. cccecceseccesecsssscssenessccseenecseeseseaeesesessseneeteeeaes 239 People v. Clark (1993) S Cal.4th 950occeccccccseccsececcsectenteceeesseseeseeensesessiesieeeaeens 247 People v. Coddington (2000) 23 Cal.4th 529ocecccceecececceecteeseceeeecseneesecneeeeeeesneeneeaes 240 People v. Cole (2004) 33 Cal.4th 1158oeceeeseeeecsessenneeeeesnetieetseesirteeesseiresatens 205 People v. Cook (2006) 39 Cal4th S66... ceececeeceeeceessessesseesescneeserenseneesiens 204, 291 People v. Crittenden (1994) 9 Cal.4th 83 occeecneessereeeereeseenaeesneeeereeneeenees 205, 207, 210 People v. Cunningham (2001) 25 Cal4th 926 oo.eneseesseeseeeeersrtisessseersesseresesseeeesgs 293 People v. Davis (1995) 10 Cal.4th 463oceceecccceneseeeeteereneeteneeesaeeeerteceseeesneessegs 238 People v. Dickey (2005) 35 Cal.4th 884 0... cccccnesresseeerecneersesneeenteeeeteeenenenenegs 244 People v. Drew (1978) 22 Cal.3d 333 ve eiceeeneestecteeneeenereeeererereesseeeenens 264, 268, 269 People v. Duckett (1984) 162 CalApp.3d L115eeeeeeeeeerrereeeeeees 265, 267, 272 People v. Dykes (2009) 46 Cal.4th 731 oiececeeceseeeneeenenerseeseeseeresereeeeeeeenenieey 286 People v. Earp (1999) 20 Cal.4th 826.00.cee eeeeeencenseeeeeeseereseeseeceseesseeeeeenseseeee 242 1X People v. Elliot (2005) 37 Cal.4th 453cccccccscseeeseeecreneeeeerieeesne terete esenenaas passim People v. Erickson (1997) 57 Cal.App.4th 1391 occccccccteneereeenetenerenenerteeesiees 243 People v. Farley (2009) 46 Cal.4th 1093 vo. ccccsseseeesseteceeteeenernenerienenesieees 194, 195 People v. Fitzpatrick (1992) 2 Cal.App.4th 1285...cesseeeeenesenereneneeees 223, 224 People v. Gionis (1995) 9 Cal4th 1196.ccceeeneee tere tersceeeesenenreeneees 240, 243 People v. Gonzales (2011) 51 Cal.Ath 894.0eccceeeretenee rene eeneens 194, 195, 196, 211 People v. Green (1980) 27 Cab.3d 1 o.ccccccesenenee teeters ee es eetereeresesenesesatns 201, 211, 272 People v. Griffin (2004) 33 Cal.4th 1015occreeseneressieeieens 212, 213 People v. Guerra (2006) 37 Cal.4th 1067... cccececeeee renee sseenereneterenseenerenesenersesnes 223 People v. Guiton (1993) 4 Cal.4th L116...ceceserene reeeenereseneneeey 201, 211, 224 People v. Hansen (1994) 9 Cal.4th 300... cccccceseseeterensrsssesesseneerssssesestieneeresseressens 196 People v. Harris (1994) 9 Cal.4th 407...reeteeseseserseenenenenens 201, 202, 211 People v. Heard (2003) 31 Cal.4th 946 .....ccccccecececeetenenee ee tseeeeteneesensene etre neasiensenees 240 People v. Hernandez (2000) 22 Cal.4th 512...ccccette reseereteesensnenenetsnesenesencezes 264 People v. Hill (1998) 17 Cal.4th 800 .....ccceceeeeeeeeesestererteseseseseeteesneasisstssssensreenes 244 People v. Holt (1944) 25 Cal.2d 59 oii cccccccecceseesseessecseecseeeseeesueseeeesseseensresesenes 224 People v. Horning (2004) 34 CalAth 871ec ceeceeeccseeceeneeseeeeeeneceeeeneeseseeesevaetueseeeeneesas 272 People v. Hovarter (2008) 44 Cal4th 983 ooo eeeecescecseeneeeeeeneenerseeseeeeeeearseeeeeneeeaeesas 218 » People v. Iniguez (1994) 7 Cal.4th 847ooentrere ee eere riers rerenetiesnensreneseeses 213 People v. Ireland (1969) 70 Cal.2d 522eectseneeeeseeersseeeseeseseesesentens 193, 194 People v. Jackson (2009) 45 Cal.4th 662... ccccccccecccssecneeeneeenreneeessaeenreenetsaseeeeerensags 285 People v. Jennings (2010) 50 Cal4th 616.00 eencceceneerne sneer teers seecsnenneesneeeee passim People v. Johnson (2000) 77 Cal.App.4th 410... cccccceeesesenecnsensesssssstecrecsenesnecees 209 People v. Johnson (1980) 26 Cal.3d 557 oi cecceeeneeseereeteeteteeneesenreeeeees 203, 212, 217 People v. Jones (2012) 54 Cal4th Lieeeecesccsersscseccecnesseeenestessesessesseees passim People v. Karis (1988) 46 Cal.3d 612eeeeseeee eerie enersettetnececiseeetseseseeseeses 240 People v. Kelly (1992) 1 Cal.4th 495ooceesseeee errs steteeseseseeeeceeneeeenens 213, 269 People v. Kelly (2007) 42 Cal.4th 763 oo... cecceceesereeeecseeesesesecrscneseressesireessascaesnees 291 People v. Kennedy (2005) 36 Cal.4th 595 oooeeecece ete eneeteerseerseenesneeteesseceseees 245 People v. Kipp (2001) 26 Cal.4th 1100...eeeeeceen cece eeeresecseseseeceessesseeenseenas 238 xl People v. Koontz (2002) 27 Cal.4th LO4ceceeseeenecteeeneetecnetnereetsrensenes 217 People v. Lawley (2002) 27 Cal.4th 102... cc ccecsnesecseceeereeeeteceneeneenierererreeneens 264 People v. Lee (1999) 20 Cal.4th 47 ci ccccecseeescseeecrenensesenscneneensientenesiesersseneeneress 224 People v. Lewis (2008) 43 Cal.4th 415 oo ccceecsenee cece ctereetent teeters teeeseeeseeeseneens 272 People v. Lindberg (2008) 45 Cal.4th Loe cccccseeeeceesseeeeeeterecieneerssseenesseseesenes 240, 241 People v. Loker (2008) 44 Cal4th 691 cccce ereteretererenna288, 290, 291 People v. Lynch (2010) 50 Cal.4th 693 ...cccccccesrreertete rene rcreieeeseetnes 285, 288, 290 People v. Mabini (2001) 92 Cal.App.4th 654...nesses264 People v. Manriquez (2005) 37 Cal.4th 547ooo.tensereienenseetenenennreras 224, 290 People v. Mattison (1971) 4 Cal.3d 177 cccccccsetetenenerereereectenserseeseneneneneneneresenertigs 195 People v. Maury (2003) 30 Cal4th 342 .....ccceeccecsenesssnesseersseeneeneneenseeeicnencnercaseerig 213 People v. McCarthy (1980) 110 Cal.App.3d 296 ..c.ccecceeeeeeeeeseeseissssesreresensnesissrarents 265 People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437ccseeesssesieierenenerenees 264 People v. Mendoza (2000) 24 Cal.4th 130... cccccsceeeeereeeseererseesesseeesesseetesicareess 272, 273 People v. Mincey (1992) 2 Cal.4th 408.0...ceeeectsSc ccecseeenseesssentaeeeseeeseneeeeass passim xii People v. Moon (2005) 37 Cal.4th Looe cceccececececneeeeeccneeeessscnesseeseensesnsessnessaeens 291 People v. Morgan (2007) 42 Cal4th 593 oo. ccceccsceeseensereecseeeseeseeneseeeseieeeneeaees 197, 201 People v. Mungia (2008) 44 Cal.4th L1O1ceeccceceeceneececeseeesseeseeeteeenesteeseneeess 291 People v. Nakahara (2003) 30 Cal4th 705 ooo ecccccccccesceceertcereeesenesserenesetecseseseaeeeneneenes 292 People v. Nelson (2011) 51 Cal.4th 198ooeececscesteeenreesneeseeseessaesseeseesneessateenes 288 People v. Ochoa (2001) 26 Cal.4th 398ooeeeeeeeerecenete recess sesteasesesseeeneeneeasags 239 People v. Panah (2005) 35 Cal4th 395 oooce eceeceecesseeeseeecseeteeetseeseesessesessneseesnsenes 204 People v. Pensinger (1991) 52 Cal.3d 1210.eeeneice rier sensereenereeeeaees 207, 219 People v. Perez (1992) 2 Cal.4th LLeceeeerer rie enenererereees 218, 221, 222 People v. Price | (1991) 1 Cal.4th 324cececress ecneereresneesseneenestieseesasees 240 People v. Prieto (2003) 30 Cal4th 226.0... eecceesecesesesecseeeressessesseneessessseseeneaeens 293 People v. Prince (2007) 40 Cal4th 1179oececstereeecnrecseseeeneeeeneesessecseeeneees 195 People v. Proctor (1992) 4 Cal.4th 499ooeeerene seers erteeetsseeeeseneeeeeeees passim People v. Raley (1992) 2 Cal.4th 870...cesssees eeecenerenseeees 204, 218, 273, 274 People v..Redmond (1969) 71 Cal.2d 745oiern teseeeernreneseesteeesessesneseeeeeniens 204 Xiil People v. Robertson (2004) 34 Cal4th 156...eccceeeeteeeeeeeneeneneteetieeesieeeee 195 People v. Rodriguez (1999) 20 Cal.4th Loerie203, 212, 217, 239 People v. Rogers (2006) 39 Cal.4th 826.0... .cccccceeseeeneesstseseerseneeerteretieseeeseneernenes 223 People v. Rowland (1992) 4 Cal4th 238occcccececeneneneeseeereeeereeenseetesseneeesennenecees 239 People v. Russell (2010) 50 Cal4th 1228occcceccsecenee ee etetereeeterenetreeneeeeseees passim People v. Salcido (2008) 44 Cal4th 93 .o.ccccceseceseseseeeerreceeeneteneeerereeeesnerenees 239, 287 People v. Samuels (2005) 36 Cal4th 96...eeeeenenerereteeesersessssenenenenteeeenens 246 People v. San Nicolas (2004) 34 Cal.4th 614occccceceseeceeeeeereteneieneneeeneneneneneneneneten 284 People v. Sanchez (2001) 26 Cal4th 834.00eteteneteeeteneteeseetenenessnsrererenenens 217 People v. Sanders (1990) 51 Cal3d 471 ccccette teeeeeeteenereeetesenenenreecin 276, 292 People v. Scott (1978) 21 Cal.3d 284ccceens eetetenenene ester neeseesesesssisesenerenees 204 People v. Silva (1988) 45 Cal.3d 604 oo. cccccssseeneeeectetetetsreteresseseenesereseteneeny 276, 292 People v. Skinner (1985) 39 Cal.3d 765 ....ccccccceseseeeeeereeretenetesteeeeeseereenrereese 264, 265 People v. Skinner (1986) 185 Cal.App.3d 1050...ceceeters rer eeeeenrertreneetens 265 People v. Smith - (2005) 35 Cal4th 334... cccceeeeterterereerereeseeseeees 287, 288, 289, 290 X1V People v. Solomon (2010) 49 Cal4th 792 oo. cccccccseceeseeeseeseeeseeneeteeees 217, 218, 219, 221 People v. Steele (2002) 27 Cal.4th 1230occcccccccsceeeeceeeeeneesereetetsrersnrenteesateeats 218 People v. Steger (1976)16 Cal.3d 539)... ceeccceecsececeeeteteeeeesnresiestieesnreneesnterieres 209 People v. Tafoya (2007) 42 Cal.4th 147ccc ccceccesceecneeneesneeneeenreneeeneers 204, 216, 223 People v. Thomas (1945) 25 Cal.2d 880 0... cccccscecesneetecereeneseeeseeeeneseseeenrenaetnaeesaees 223 People v. Valencia (2008) 43 Cal.4th 268 oo... ccccccccccecesetereeeeeeenesseeneeesseetesetettens 244 People v. Valentine (1946) 28 Cal.2d 121ecececeeeeeereeee eerste enaeeseeeeetenneeneteneetnees 223 People v. Vines (2011) 51 Cal.4th 830...ceceeceeeneeeeeeeeeeeresnscereesessieeteereseeenaes 246 People v. Watson (1956) 46 Cal.2d 818eenscesecrene esters cnestesteeseenseseenes 242, 247 People v. Wells (1938) 10 Cal.2d 610eeecs rnee eerste seeresssenssseneeseeersentens 224 People v. Wharton (1991) 53 Cal.3d 522oeeeeeeeteesneeeeeeeesenesnscesersseeestaeecsessesteesseens 219 People v. Whisenhunt (2008) 44 Cal4th 174oeecccceceeesenescnecnereseresnesneenseereeisneeeneeees 204 People v. Williams (1997) 16 Cal.4th 153oiecesses rer tneneenessecseesereenseatees 239, 241 People v. Williams ai * (2006) 40 Cal.4th 287eeeeres cieeeeseteeeeeeeee 286, 287, 288, 289 People v. Wilson (1969) 1 Cal.3d 431cecececntteeeseceeseeseeeeeenees 194, 195, 196 XV People v. Young (2005) 34 Cal.4th 1149occseceeneretreneeenrenseneesrsteneesecnasiees 204 Pulley v. Harris (1984) 465 U.S. 37 [104 S.Ct. 871, 79. L.Ed.2d 29]...ee 284, 288 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]........ 286, 292 Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1]277, 278, 279, 280 Shisinday vy. Quarterman (Sth Cir. 2007) SUL F.3d S14 occecenenetee teers reeeerseneeeesesneceens 280 State v. Hancock (Oh, 2006) 840 N.E.2d 1032 ....cceeeeere renee eesreseseeneneneseseeseneees 280 State v. Johnson (Mo. 2006) 207 S.W.3d 24 cesseste ee ieeseeetsseseaneeneeseneetenne 280 Tarasoffv. Regents of the University of California (1976) 17 Cal.3d 425 .iceccccccceeceneneeeeeeneseeesteneennenenenseneeseieen 75 Tigner v. Texas (1940) 310 USS. 141 [60 S.Ct. 879, 84 L.Ed.2d L124]...eee 280 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L-Ed.2d 750]..285, 287, 289 Yates v. Evatt (1991) 500 U.S. 391 [111 S.Ct. 1884, 114 L.Ed.2d 432]... 202 Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733, 77 L.Ed.2d 235].......... 276, 292 STATUTES | Evidence Code, | _ . . § DLO vicceccccccscsssceceetsseseessesesesseeneseneeeasarecsenssssescsssenecasesesenenensnearneeag 239 § 350 vicccccccccseteseseseseecersesesssesesenesesenesseserersenessereserseseavensenensegeenensncan 239 S35] cccccccececessesessesereseetsceeseenenesesseeenensaensenteeneessceseresessensensacenene neta 239 § 352 vieccccccssseesesesceeeseeesseeseseaenesssesersqeeseeeceseeenecesseseeacanerenenenseeatanieeg 240 § 353 veeccccscseescscsesecceseessevssscsdassesssesseeereceessessvscessseesevavenenensasesnensaenenss 242 § 356 co ceccccscsscsesesnenesenesesteeseseseneseceeneneasesertsseecsesessesssesasenenaeeererensaseas 246 Xv1 § AOD cosceccsescsssesssecesssesesuvesssiesssecsssecsarsessestesessesesnsssessesssessssesassvesevee 225 SLDccccecccsecccccseeesseesseeeeeseccsessesceeenesstsessaeeesseeeseresiteeetereas 204 § L109ccc cece ccccccsecseeseeecsseensecsceesesseseseesseseeseeersaesaeeeeenareneeeats 209 Penal Code, § 25, SUDA. (D) eeeccccceccesccsseessecnseteseseccseesseeeeeeesesaeentensteneseeeenes 264 § 187, SUD. (8) ooo eccecescesecssecesseeceeeceeceeeeseeeeeenneeersieeenseennteriesessntenas 1 S88icccccccseccecseceenssecesseeeestasecseetesateestseeesareeeetenesenaneesnaes passim § 190.2 eeccccccetecsececseecsteeceneeestevessreesesteeesisesenecceeeeeeneesnrees 1, 283, 284 § 190.2, subd. (A)(17) v.ecceccecccccccseeeceecesseesteessecnerseeeseesiessseesaeents 1,213 § 190.2, subd. (a)(17)(C) eeceeccecscscteeeeenseetseeeeseeeesneneeaes 1, 213, 272 § 190.2, subd. (A)\LT)C) ..ccceccecccccecceesectecenrestecieesaeerseeseessesnaeeneesegs 272 § 190.2, subd. (A)(18) occ ecccesccesessecseeerecssesteeeeeeneeeeeenseents 1, 205, 272 § 190.3, SUDA. (8) coeceeececseccecssescssesesescesesesesesesescaeseeseeetenereseees 283, 284 § 190.4 eeecessccsecssecseecseeenseeceeseecnsceeecseseaeceressesentessreteteneseeteneetentens 2 § 203 ieccccccsccsccsscesseacesecseeesccectecstecteesessecaeseseeeerstesenrerseeaeeeeseeaeens 1, 196 § 206 viccccccccccscsssescecsecccecsseessessteecnseseeseeceeecesceteeeeeueeseatenstetenats 196, 205 § QO] oeecccccccsccessecseecsecssesesecesecececsaeeseeereeteniecnterecseeseneesntensersreseseags 213 § 261, subd. (a)(2) .occecccccccccscecseceeteeeeeeeseeetsensenseseetesseseseeseeseeseeens 212 § 88 oii ceccccccccscesecsectsesseeseensecsecnseneeeeenestecneeeesiseeneesnessenteesseesesesnees 45 § 289, subd. (a)(1) .ccceccccccccccesescereeseeeserensessessensesseetiesesssessceseeneesseees 1 § 654 voieccccccccesccesccsesseceseesececesecneensesseseseeseeeseenetiessesesesessesceeesaseeesseeneegs 2 § 1368 wo.eevee ueseasesesecsesessseecssessessecseccseseteceesaaeecerentenieeseeneesereentes l CONSTITUTIONAL PROVISIONS Cal. Const., Article VI, § 13 oo... cccccecccneeeceteareeeeepnnneeetenaseeessnanees 242 ULS. Const., 8th Amend ........ ccc ceeeeeeeeerneeeenneeeeneseees 238, 285, 287, 291 USS. Const., 14th Amendoccccccccceeceeeeeeeseneeeneeeeniseeseeerneesseesnaeens 238 OTHER AUTHORITIES 13 California Jurisprudence, Pp. O11 .cccccccsesceteteereeteti reece 224 CALCRIM, ; NO. 522 vecticccssceseseeeeseeueeseseevenesesesesucnsnereseseseecseseasneseeeeecetnenenenees 223 CALJIC, 7 NO. 2.50.2 ccecccccseleccevcccsesvecscescacssssesssvsvssusetvsssesscseecseesetsneeesaeaeees 264, 271 NO. 2.5] ceccccccccscessscecsseccesseecesseeeecsaeeseeenseereners“cceveeeleceeseeeteeeeseesaeens 243 NO. 4.00 vee ccccccecssccsscscssssccccsseecessecsseecssesesseesseseesesqceeeseneetteneesseaeeees 268 NO. 8.73 ciccccccscceesssesseceseceesecseeccsseceseessesseecaressececeesenseecieetenteeseessaneens 223 XVil No No No No SLD eiccccceccccesccessecseenserseeseecesecseerseesneaerseeseesieesieerenerats 196, 197 B85 ccccccccccececseecsseceeeeneeseeeeeneeseessseneeessesessesseessesstaeeeieenneeniesies 289 OBO iececccccccccccseccnceseeeeseccreesnreenteeseetneecensecssaesereeteeseneeeeennnernageges 196 O90 iicccccecccccnccsseecseecneeceeesensteneeessesseestsaeeeesereteeensneetieeneesnsags 197 XVill STATEMENT OF THE CASE In an indictment issued by the Los Angeles County GrandJury, appellant was accused in count I of murdering Tammy Epperson in violation of Penal Code section 187, subdivision (a).' It was further alleged appellant murdered Epperson while engagedin the crime of rape, rape by instrument, and mayhem,all within the meaning ofsection 190.2, subdivision (a)(17), and the murder was intentional and involved the infliction of torture, within the meaning ofsection 190.2, subdivision (a)(18). In countII, appellant was accused of the forcible rape of Epperson, in violation of section 261, subdivision (a)(2). In count III, appellant was accused of the sexual penetration by a foreign object by means of force and violence against Epperson,in violation of section 289, subdivision (a)(1). In count IV, appellant was accused of committing mayhem upon Epperson, in violation of section 203. In count V, appellant was accusedof torturing Epperson, in violation of section 206. (3CT 347-350.) Before arraignment, appellant's trial counsel declared a doubtas to appellant's mental competency pursuant to section 1368. (3CT 355.) The trial court held a section 1368 hearing and found appellantto be mentally competent. (3CT 360.) Appellant wasarraigned, pled not guilty to all counts, and deniedall special allegations in the indictment. (3CT 365-366.) The prosecution determined that it would seek the death penalty. (3CT 385.) Appellant's motion to dismiss the indictment as a violation of his due processrights was denied. (3CT 392-412; 3CT 494-512.) Appellant's trial counsel represented to the court his desire to have appellant withdraw his not guilty plea and enter a plea of not guilty by - ' All further statutory references are the Penal Code, unless specified otherwise. reason of insanity. Thetrial court and both counsel conferred and agreed not to have appellant changehispleaat that time, but the trial court declared a doubt as to appellant's competency and criminal proceedings were suspended. (3CT 417-418.) Thetrial court held a competency hearing and found appellant competent to stand trial. (3CT 431-432.) Appellant pled not guilty and not guilty by reason of insanity. GCT 432.) A jury found appellant guilty as charged in count I of the murder of Epperson, foundit to be murderin the first degree, and further found the murder was committed while appellant was engaged in rape, mayhem, and torture. The jury also found appellant guilty as charged in counts II, IV, and V ofthe forcible rape, mayhem,and torture of Epperson. The jury found appellant not guilty as charged in count III of sexual penetration by a foreign object by force and fear and found nottrue that the murder was committed while appellant was engaged in rape by instrument. (12CT 2955-2961.) A sanity phase washeld, and the jury found appellant wassane at the time he murdered, forcibly raped, committed mayhem upon,andtortured Epperson. (13CT 3127-3130.) A penalty phase washeld, and the jury could not reach a verdict. The trial court declared a mistrial and discharged the jury. (13CT 3174.) Appellant's motion to dismiss the penalty phase was denied. (13CT 3177- 3186.) A new jury wasselected, and the penalty phase wasretried. (13CT 3255-3290.) The jury fixed the penalty at death. (23CT 5646.) Appellant's motion for a new penalty phasetrial was denied. (23CT5654-5661, 5687.) Appellant's motion to modify the verdict pursuant to section 190.4 was denied. Thetrial court sentenced appellant to death for Epperson's murder with the special circumstances of rape, mayhem,andtorture. The trial court imposed and stayed pursuantto section 654 the concurrent terms of eight years each for count II (rape) and count IV (mayhem)andlife in prison for count V (torture). (23CT 5667-5672, 5689-5691, 5692-5698.) Credit for 1,773 days of actual custody was given. (23CT 5698.) This automatic appeal is from the judgment of death. (23CT 5707- 5716.) STATEMENT OF FACTS A. Guilt Phase 1. People’s Case-in-Chief a. The Murder of Tammy Epperson (1) Events Leading Upto the Murder The Weingart Center in downtown Los Angeles housed multiple assistance agencies, including recovery programs and employmentservices. The Weingart Center had 12-step programs for men, women,and children recovering from alcoholism and drug abuse. Housing at the Weingart was short-term, about six months. (8RT 1021-1022.) Between 1998 and 1999, appellant, Timothy Todd,’ and Tammy Epperson wereall in the Weingart's Stairs program,a rehabilitation program for parolees. In the program, Todd, a recovering addict, met Epperson, an ex-heroin addict, and they becamefriends. (8RT 1041; 9RT 1146-1147, 1149, 1171.) Epperson did not judge Todd and was very supportive. (QRT 1163.) Todd had met appellant in prison and wasfriends with him. Appellant had protected Todd in prison and savedhislife. Because Todd was gay, he would have been stabbed in prison. (QRT 1147, 1187.) When * Todd hadprior convictions for robbery in 1992 and 1995, both for robbing "johns" when Todd wasa prostitute. The 1992 robbery was committed to support Todd's drug usage. (QRT 1147-1148.) Toddleft prison, he weighed 520 pounds and had gained 60 poundsin the last year before hetestified at trial. (ORT 1148-1149.) In 1999, Ronald Sims® also met Eppersonat the Stairs program. After Sims met Epperson, they became boyfriend andgirlfriend. (8RT 1041- 1042.) In addition, Sims knew appellant through the Stairs program where they lived in the same building, but Sims had never met or spoken to appellant. (SRT 1049, 1061-1062, 1069-1070.) One time, as Sims was leaving the Weingart Center, appellant was goingin andsaid to Sims, "You punk m.f." Sims turned around and looked at him, and appellant turned around like he was getting ready to charge Sims. Sims went out through the door. (8RT 1049.) Todd and Epperson were in the 12-step program and graduated from the program together. | (ORT 1150.) After Epperson graduated, she moved to the nearby Ballington Plaza, located at 622 Wall Street in downtown Los Angeles. (8RT 1009; 9RT 1154.) Todd movedto the Courtland Hotel. Appellant wasstill at the Weingart. (QRT 1154.) The Ballington Plaza was predominantly low-income housing for low-income wageearners, people referred from various drug rehabilitation programs, and people from inmate rehabilitation programs. The Ballington Plaza had rules for residents, including that residents must pay rent on time and abide by specific rules for visitors. (8RT 1010.) There was a master key to the apartments, and tenants were not allowed to changelocks without property manager Michael Ramakrishnan’s permission. (8RT 3 Tn 1996, Sims was convicted of grand theft, a felony. In 1997, Sims was convictedofsales of narcotics, a felony, for selling a "nickel rock"to the police. (8RT 1043.) Sims had also been convicted ofaltering a registration plate on a vehicle. (8RT 1072.) 1009, 1019-1020.) If someone changedlocks, that person would have to give a key to Ramakrishnan. (9RT 1129.) Ramakrishnan knew Epperson. She was well groomed,took care of herself, spoke well, was very proud of what she was doing, communicated well, and paid rent on time. He had never had any problemswith her. (8RT 1010-1011, 1018.) Epperson's apartment was very neat and decorated nicely. (8RT 1011, 1018.) Ramakrishnan saw Epperson with Toddat the Ballington but had not seen appellant with Epperson and Todd. (8RT 1026.) In 2000, three weeks after Epperson movedinto the Ballington, Epperson got Sims to move in as well. Simslived in the F Building, and Epperson lived in the A Building. (8RT 1016, 1042-1043.) While Sims wasat the Ballington for eight or nine months, Epperson and Sims remained boyfriend and girlfriend: (8RT 1043.) Sims gave Epperson a two-carat diamond heart with a gold chain, which Epperson woreall the time while they were boyfriend and girlfriend. (8RT 1070-1071; 9RT 1184.) At some point, Sims thought about marrying Epperson. (8RT 1064.) However, Simsstarted using drugs again, so Epperson broke up with him for about 30 days. Epperson told him he had to stop using drugs for them to be back together. (8RT 1023, 1043.) At the Weingart, when Todd was workingas a studentaid in the computer room, Epperson visited him with a girlfriend. When theyleft, appellant asked Toddto introduce him to one of women. Todd introduced appellant to Epperson. (ORT 1151, 1168.) When Todd talked to Epperson about appellant, she was hesitant because she did not wantto be ina relationship. Todd talked to her several times. Eventually, Epperson went out with appellant, and Todd went along too. (QRT 1152.) Appellant, Todd, and Epperson also watched movies in Epperson's apartment, wentto the movie theater, and got food to eat. (QRT 1153-1154.) From the time appellant met Eppersonto the time she was murdered in November 2000 was about four or five months. (ORT 1155.) Epperson got ajobatG& V Communications, located on Hollywood and Vine in Hollywood. The business had live answeringservices, mailboxes, and voicemails. When Epperson became a manager,she offered Todd a job as her secretary. (QRT 1154-1155.) Epperson had keys to the G & V office. (ORT 1161-1163.) Since appellant had a red Mitsubishi Mighty Maxtruck, he took Todd and Epperson for rides. When there wasa busstrike, appellant offered to give Todd and Eppersonrides several times. The truck was registered to appellant's father, Joseph Powell. (QRT 1154; 1ORT 1451.) On several occasions, appellant lent his truck to Epperson. (QRT 1171-1172.) During this time, appellant told Todd that he loved Epperson andthat if he could not have her, nobody would. (QRT 1155.) Appellant told Todd he was upset because Epperson was hanging around with other men. (QRT 1170.) Todd did not see anything in Epperson's behavior that would have led him to believe she and appellant were girlfriend and boyfriend. Epperson confided in Todd and saw him daily at work. (ORT 1156.) Instead, Todd saw appellant and Epperson fighting. Epperson wantedto get away from appellant, but Todd encouraged her to give him another chance. (QRT 1168.) Appellant visited Epperson at work and broughtstuffed animals, flowers, andlittle gifts. Epperson threw the stuffed animals and flowers away. Epperson would becomevery upset many times. (QRT 1 158.) Todd told appellant on many occasions to slow down,that Epperson had just had a bad relationship, and that she was not ready for another. (ORT 1159, 1185.) Appellant told Todd he hadnot been successful in trying to have a relationship with Epperson. (QRT 1185.) Appellant constantly called G & V. (ORT 1157.) Around September 2000, when Simswasstill living at the Ballington, Epperson told Ramakrishnan she had changed one ofher locks but did not give him a duplicate key. (8RT 1020-1025, 1027.) Appellant had bought the new locks and changed them while Epperson and Todd were there. At first, Epperson wasnot happythat appellant bought the locks. According to Todd, the lock change had nothing to do with Sims breaking in or stalking Epperson. (QRT 1179-1181.) But according to Ramakrishnan, Epperson was concerned about Sims getting into her apartment. (8RT 1020-1025, 1027.) Sims had had a key to Epperson's apartment, and Epperson did not want him to comeinto her apartment. (8RT 1022-1023.) Epperson told Ramakrishnan that Sims "wasbasically stalking her." (8RT 1023.) On October 14, 2000, Sims was evicted for nonpaymentofrent, after he got a month and a half behind on his rent. (8RT 1016, 1044.) When Sims was evicted, Sims and Epperson were no longer boyfriend and girlfriend. (SRT 1044.) Once a tenant was evicted for nonpaymentofrent, that person could not get back into the Ballington even as a guest. (8RT 1017.) Simstried to get back in several times. (8RT 1025.) Eppersontold Simsifhe did not take drugs and went back to work, they could resumetheir relationship. (8RT 1044-1045.) To "get clean," Sims went to the Weingart, and two dayslater, Sims got his job back as an electrician at Mobil Oil in Torrance. Epperson also got Simsto go to Bible study and church. (8RT 1045.) They went to the First Nazarene church acrossthe street from the Weingart. (8RT 1046.) Sims was aware Epperson had changed her lock. (8RT 1065.) Appellant would go on drives with Todd to Malibu. Appellant told Todd several times that he was not having any success "getting sex" from Epperson. Appellant would talk about his and Epperson's problems. Appellant said if he could not have her, no one else could. Appellant asked Todd if Epperson was having sex with others. (QRT 1214.) Once, in late October 2000, appellant took Todd for a ride to Malibu — and played some music over and over that reminded him of Epperson. Appellant said he loved Epperson andsaid, "If I can't have her, nobody will, I'll kill her and myself." (ORT 1155-1156.) Appellant said he had had a girlfriend before who had died and Epperson reminded him of the girlfriend. (ORT 1156.) Appellant made several remarks about Ronald Sims and told Todd he would kill that "nigger"if he kept trying to see Epperson. (9RT 1161.) Todd understood that once Sims "got clean and sober off of drugs"that Epperson was going to marry Sims. (QRT 1181.) In November 2000, Sims was seeing Epperson as a friend. (8RT 1043.) Just before November 12, 2000, Sims had taken his Bible to work, and on the way back to the Weingart, he lost his Bible. (8RT 1046.) On Monday, November6, 2000, appellant and Epperson had an argumentover the telephone,and appellantkept calling her workplace. Epperson wrote in her log book every time he called. (QRT 1157, 1159, 1178.) Epperson wasdistraught and in tears. (QRT 1158.) On Thursday, November9, 2000, Todd wasfired from G & V for smoking "crack." (QRT 1177-1178.) (2) Police Find Epperson Dead in Her Apartment On Sunday, November 12, 2000, Sims was planning on attending church with Eppersonat the First Nazarene across from the Weingart. Sims was runninglate, so he did not go to the service since Epperson liked to be on time. (8RT 1046.) Sims waited for Epperson to get out of church at 10 a.m. andtalked to her. While they were talking, Sims saw appellant across the street, pacing up and down fromhis red truck to the corner. (8RT 1047, 1065.) Sims and Epperson talked for about 10 minutes. (8RT 1050.) As Sims was getting ready to leave, Epperson noticed appellant and made a comment. (8RT 1048.) Simsfelt appellant was watching Epperson and him. (8RT 1049.) Epperson pointed out she had to see what appellant wanted andsaid, "I got to go deal with this matter now." Sims told her he would call once he got out of church, ran across the street to catch a bus, and left Epperson. (8RT 1050.) Appellant was squatting on the corner. (8RT 1065.) About 1:10 p.m., after Sims got out of church, he wentto the nearest pay phone on the corner of 8th Place. He paged Eppersonthree or four times, but Epperson did not call back. Epperson always returned Sims' page, so Sims went to the Ballington. (8RT 1051.) Sims saw appellant's truck parked across the street in the parking lot. (8RT 1052.) At the Ballington, Sims asked the security guard if he could go to Epperson's apartment doorandtell her he was there, but the guard refused him entry. (8RT 1025, 1051.) Ramakrishnan came out and said Sims had been barred from the Ballington and there wasa restraining order against him to stay away. Simsleft the Ballington, went across the street, and waited for someone to come out. A man cameout, and Sims asked him to go to Epperson's apartment, knock on her door, and let her know he wasoutside and wanted to see her. The man went back in the Ballington, came back outside, and told Sims he knocked on her door and no one answered.’ Sims left. (8RT 1052-1053.) At the Ballington, Security Officer Clevers Ray came on duty at the front desk just before 2 p.m. (ORT 1119, 1131.) The sign-in log, which wasfilled in by the prior security officer, showed Epperson and appellant checkedinto the Ballington at 10:45 a.m., and appellant checked out at 1:26 “ The statements that the man made to Sims were not admitted for the truth of the matter but to show Sims' state of mind in leaving afterward. (8RT 1053.) p.m. (8RT 1011-1014; ORT 1117, 1119-1121, 1131-1132, 1138.) A guest of a tenant is required to produce a California identification card with a picture, and the numbernext to appellant’s name was from his California identification card. (SRT 1013-1014.) — . Between 2 and 3 p.m., Ray saw appellant come throughthesliding doors from the interior property and walk towardsthe front exit. Ray stopped him and asked where Eppersonwas because Epperson was supposed to have escorted appellant back to the lobby when he wasleaving. Appellant said, "Tammy isin her unit resting." Appellantleft. (ORT 1117, 1121-1123, 1128, 1132, 1136.) Appellant seemed calm, and his demeanor was not unusual. (ORT 1122, 1135.) He did not have anything onhis face, hands, or clothing, such as stains. (QRT 1123, 1135.) When appellantleft the Ballington, he made a right out of the doors, went up WallStreet, and did not go to the MTAparkinglot across the street. (ORT 1140, 1142.) Pursuant to Ballington policy, if a guest checked out and wantedto get back in, the security officer should notify the resident. (9RT 1140.) Ray said appellant could have snuck back into the property after checking out earlier at 1:26 p.m. or appellant could have been fet back in without checking in. (ORT 1132-1133, 1140-1141.) Ray had seen Epperson with Todd and appellant, but after a while, Ray saw only Epperson and appellant together and had seen them about two or three times. (ORT 1121, 1134.) Between 6 and 6:30 p.m., appellant called Todd, who wasin his room at the Courtland Hotel. Appellant told Todd that he should go check on Epperson and that he had killed her. Appellant said he would be on death row. Todd did not believe him. (QRT 1160.) Appellant called a second time and asked Todd if he had checked on Epperson. Toddsaid no. Appellant said, "You should go check on Tammy. I killed her. I'm going 10 to be on death row. I want to clear my conscience." (9RT 1161, 1179.) Todd turned his phone off and turned it back on the next day. (QRT 1161.) On Monday, November 13, 2000, Sims reported for work at Mobil Oil but was sent home because of a hydrogen sulfide leak. Sims went home, showered, and changed clothes. He decided to go to Hollywoodto where Epperson workedto surprise her and take her to lunch. When Sims got to G & V, the business was not open. Epperson had not missed a day at work, so Sims knew something was wrong. (8RT 1054.) Sims called Todd but wasnot able to reach him, so Sims caught the train back to Los Angeles. (8RT 1055.) | Between2 and 2:30 p.m., appellant called Todd again. (ORT 1161.) About4 or 4:30 p.m., Sims got in touch with Todd. (8RT 1055.) Sims went to the Ballington, while Ray and a Captain Thomas were on duty. Sims was crying and "freaking out." (ORT 1123-1124.) Sims said something, and Captain Thomastold Sims he had to go back outside because he had been evicted. Once a tenant was evicted, that person could not get back in, even as a guest. QRT 1125-1126, 1128.) Sims wentto the police department on the corner of 6th and Wall Streets, which was about a half block from the Ballington. Sims told an officer what Todd had told him and askedthe police to send a car to investigate at Epperson's apartment. (8RT 1057-1058.) Sims waited about 15 to 20 minutesfor the police car to arrive; but since the police did not arrive, Sims went backto the police department, explained again, and again asked them to send acar. (8RT 1058.) Sims went back to the Ballington and spoke to a security guard, who did not help. (8RT 1025, 1059, 1072; ORT 1126.) Eventually, the police arrived. Los Angeles Police Officer Antonio Gonzalez saw Sims, who wasshaken anddistraught. Simstold the officers what Todd had said. (8RT 1025, 1029, 1059, 1072; 9RT 1126.) After 1] talking to Sims, Officer Gonzalez and Captain Thomas went to apartment A125, Epperson's apartment. The door was locked, and security did not have a key for the dead bolt lock, which had apparently been changed. Looking through the one windowin therear of the apartment, Officer Gonzalez saw the room appearedto be ransacked, with items broken, and saw Eppersonlying on the floor towards the foot of her bed. (8RT 1020- 1023, 1030; ORT 1126; ORT 1429.) | Officer Gonzalez, assisted by Captain Thomas, forced his way into the apartment by kicking the door open. (8RT 1030, 1032-1035, 1037- 1038; ORT 1141.) Officer Gonzalez saw Epperson, who was wearinga zip- up light jacket and a shirt underneath and who had a towel draped around her right leg. (LORT 1429-1430.) He requested a couple more units to respond to the crime scene. Paramedics arrived and determined Epperson had died. (8RT 1031.) When Sims saw the paramedics comeout with an empty stretcher, he realized Epperson was dead. (8RT 1060.) Later, detectives arrived, and Sims talked to them. Somebodysaid Epperson was dead. Sims gavethe police the information from Todd and a description of appellant. (SRT 1061.) At some point, Sims was handcuffed and takento the police station. (SRT 1031, 1063.) At the station, he was questioned. (8RT 1066-1067.) Todd wasalsointerviewedat the police station and told the police appellant and Epperson had broken up a couple weeks before. When Todd said they had broken up, Todd meant that Epperson had stoppedtalking to appellant, not that Epperson and appellant had been boyfriend and girlfriend. Their relationship had been an on and off relationship. (ORT 1170-1171, 1184.) In the interview, Todd described appellantas six feet, three or four inches tall and 280 pounds. Todd said Epperson would not see appellant but then would go back to him. (Q9RT 1171.) 12 On or about November 15, 2000, about 9 p.m., appellant was found at 1629 Pacific Coast Highway, room 209, in Harbor City, California, and Epperson's keys were found onthe table next to the bed in which appellant waslying. (LORT 1451.) (3) Blood Spatter Expert Testimony and DNAResults On November 13, 2000, Los Angeles Police Department Criminalist Ronald John Raquel, a blood spatter expert and sexual assault case analysis expert, went to apartment A125. (1ORT 1287-1289.) The apartment’s front door locks were bloodstained. Raquel collected samples for prints and analysis. (LORT 1324.) Asone entered the apartment, there was a sink in the foyer and directly opposite that was the bathroom. (1ORT 1289, 1355.) In the sink on the right side was an empty water bottle with bloodstains, and inside the sink were two bloody face towels. DNA analysis of a bloodstain on a washcloth showedthe bloodstain matched appellant's DNA. (ORT 1355- 1356, 1450.) DNAanalysis of a bloodstain found on the plastic water bottle showedthe bloodstain matched appellant's DNA. (LORT 1450- 1451.) There was a mirror near the sink, but no mirror in the bathroom. (LORT 1355-1356.) DNA analysis of a bloodstain found near the front door on the floor, a blood drop found further inside the doorwayonthefloor, and a bloodstain on the entry closet door showedthe bloodstainsall matched Epperson's DNA. (1ORT 1450.) Asone entered through an archway, there were the living quarters. (LORT 1289.) A set of curtains decorated the archway. (JORT 1289-1290.) In the corner opposite of the sink was an entertainment center and television. (LORT 1290.) Thetelevision screen had bloodstains. (ORT 13 1301-1302.) A chest of drawers and a bed werein the living area. The bed was adjacent to the wall next to the window. (10RT 1290.) Epperson’s body wasonthe floor in the center of the living quarters, in between the bed and chest of drawers. (LORT 1291, 1375.) Epperson was wearing a blood soaked sweatshirt, whose hood was soaked with blood too, and was nude from the waist down. The soaked hood showedthat Epperson's head, the source ofthe blood, was lying on top and hadnot moved. Underneath the sweatshirt, she was wearing a blouse. A towel covered her lower body. (ORT 1295-1296, 1372, 1400.) The center of the towel hada transfer pattern consistent with someone with bloody hands putting his hands on the towel. (1ORT 1298, 1400, 1406.) The back part of the straps of Epperson's bra were blood soaked, which wasconsistent with the pattern on her sweatshirt hood. The bloodon the back ofher bra straps was caused by blood flow pattern, which was the blood flowing dueto gravity and around an obstruction. For blood to soakinto the clothing, the source of the blood had to have beenstationary for a long period of time. (10RT 1371.) Onthe bra's right cup's inner surface, there were transfer bloodstains, which were caused when a bloody object made contact with the surface, causing bloodto transfer. (LORT 1370, 1400.) DNAanalysis of the bloodstain from the right inside cup of the bra showedthe bloodstain matched Epperson's DNA. (1ORT 1370, 1450.) Also, Epperson had a blood drop onherleft ankle, a transfer stain on the inner thigh of her right leg, and a laceration on her lower leg. DNA analysis of a bloodstain from the right lateral thigh area of Epperson matched appellant's DNA. (ORT 1372, 1450.) DNAanalysis of bloodstains from the left and right inner thighs of Epperson matched the DNA ofappellant and Epperson,as a mixture. (1ORT 1450.) Epperson's right arm wasup, and underneath her right hand wasa flat head screwdriver. (LORT 1297, 1375.) The tip of the screwdriver was 14 bloodstained. (LORT 1349, 1395-1396.) In between herright hand and her head wasa partial dental plate and a tooth. (1ORT 1297, 1374-1375.) To the left of her hand wasa piece of wood. (LORT 1298.) On the floor near her body wereparts of a broken vase, little pieces of broken wood, and a square piece of wood. (1ORT 1294, 1296-1297.) Compact discs were on the floor too. (LORT 1294-1295.) A lamp waspartially under the bed, adjacent to Epperson. The heavy and hard lamp, which wasa figure of a woman, was broken into many pieces and had bloodstains on the broken areas, indicating the lamp was used multiple times to strike Epperson. (1ORT 1349-1352.) The cord of the lamp was wrapped around Epperson's head, and a clump of hair was stuck to the switch area of the cord. (1ORT 1350.) On the bottom of the lamp's base were bloodstains and hairs, which indicated the lamp made contact with Epperson's head. (JORT 1351.) The lamp weighed at least 10 pounds. (LORT 1352.) By Epperson's feet was a pile of clothes, including a pair of blue jeans and a pair of women's underwear. Bloodstains were on the front of both sides of the jeans. Someof the bloodstains were low velocity bloodstains, which are stains dropped due to gravity. (LORT 1344.) Near the left side belt loop was a low velocity stain, dropped through gravity, and near the waistband by the button weretransfer stains, which meant something bloody made contact with the waistband and which wasconsistent with someone's bloody hands unbuttoning the jeans. On the rear of the jeans, at the right rear pocket andleft of it and below it were pattern transfer stains, meaning that an object made thetransfer pattern stains. (LORT 1345.) One of the pattern transfer stains was consistent with fingers. On the inner surface of the jeans, on the outer liner of the right pocket, was a transfer stain. (LORT 1346.) DNAanalysis of the bloodstain from the pocketliner of the blue jeans matched appellant and Epperson, as a mixture. (1ORT 1449-1450.) There were more bloodtransfer stains on the right side of the 15 jeans than the left. (LORT 1346-1347.) The patterns on the right side were consistent with fingers or a bloody hand. Onthe inside of the liner was a transfer pattern that was consistent with a pair of fingers grabbing the button as if they were unbuttoning the jeans. (LORT 1347.) Thetransfer blood patterns were consistent with a person lying on the ground wearing blue jeans and someone's bloody hands unbuttoning the jeans and grabbing and pushing the jeans down. (10RT 1348.) Thetransfer stains on Epperson’s inner thighs indicated the pattern was made whena bloody object made contact with her thighs after the blue jeans were removed. (1ORT 1381-1382.) In Raquel's opinion, Epperson’s jeans were forcefully pulled off by someoneelse because of the bloody transfer pattern on the inner liner and inner surface of the pants. (LORT 1381, 1389-1392, 1406, 1411.) Women's panties were underneath the blue jeans. Low velocity blood . stains on top of the panty crotch indicated a bloody object was directly above the panties and blood fell on top ofthe panties. (LORT 1348-1349, 1381.) DNAanalysis of the bloodstain located on the front center of Epperson's panties showed the bloodstain matched appellant's DNA. (ORT 1348-1349, 1450.) Underneath the low velocity bloodstains on the panty, at the top surfaceof the crotch, were transfer stains. (LORT 1404- 1405.) The panties had rip on the left side, on the top and bottom. (10RT 1349.) The rip may have been caused when the panties were being removed from Epperson. (1ORT 1381, 1392-1393, 1405.) Ontop of the bed were a purse with cash inside, a T-shirt, papers, a personal organizer, a driver's license, a plastic bag, a receipt, stationery, a card, and bloodspatters or stains. (10RT 1299-1300, 1306, 1367-1370.) The receipt was dated November 12, 2000, 12:09, and said, "Spirit filled life B" and "West Los Angeles." (1ORT 1369.) Underneath the items strewn on the bed were bloodstains on the bedspread, which were 16 consistent with medium velocity stains and ranged between twoand six millimeters in size. (LORT 1368.) The larger stains were consistent with someone having blood on them, standing overthat area, and dripping blood on the bedspread. The smaller ones were due to a bloody object being - struck. (LORT 1369.) On the floor next to the bed were items that appeared to have been scattered or thrown there. (LORT 1299.) In the bathroom, there was a rug on the floor, two bloodstained wash cloths in the center of the sink, a green bottle, and a clear plastic water bottle. (LORT 1303-1304, 1313, 1400.) On the top part of the rug were low velocity bloodstains, indicating a bloody object had been directly above and in front ofthe toilet, but there were no blood drops leading out from the bathroom to the runnerin the foyer, on the floor of the foyer, or out in the living quarters. (LORT 1319-1320.) Thetoilet tank lid wasslightly ajar. (LORT 1304, 1310.) On theleft side of the floor were broken, bloodstained pieces of glass near the shower. (ORT 1304, 1313.) Another piece of broken glass was in front of the waste basket. (LORT 1313.) There wasalso a glass lid or bottom on the floor. (LORT 1313-1314.) A red candle was on the floor just to the right of the toilet. (LORT 1313.) Also on the floor were multiple low velocity bloodstains, which are caused when bloodfalls to the floor from a bloodstained object. The blood drips were on the back half of the bathroom floor where the toilet was. (LORT 1314.) A little waste basket had red stains and paper towels with bloodstains. (10RT 1305.) Also, red or brown stained paper towels werein thetoilet, and the stains appeared to be bloodstains. (LORT 1304-1305.) The paper towels had dots of bloodstains in different areas, so the paper towel was either used to clean an area that hadlittle drops of bloodstains or was used to clean an object that had little dots on it, such as a weaponor a person's injured hand. (10RT 1322.) The stain patterns on the paper towels were 17 consistent with someone wiping blood off his or her hands and throwing the paper towelsinto the toilet. (LORT 1323.) A red stain wasinsidethetoilet. (LORT 1304.) On the wall in betweenthe toilet lid and shelves on the wall, there were three different bloodstains which were caused when the sourceof the blood went backwards or towards the wall three times. (LORT 1304, 1311.) The spatter was consistent with a person with a bleeding head injury being shaken three times so that the blood left the head and impacted the wall. (10ORT 1312.) The bloodstains werecast off stains, which are stains caused when something bloody is in motion and suddenly stops, causing the blood to travel and hit an intervening surface. The stains were circular rather than elongated and had a 90-degree directionality, meaning the source of the circular stains was directly opposite where the bloodstains were. (ORT 1310, 1312.) The source of the blood would have been in between the shelves and the water tanklid directly opposite the bloodstains. The stains had different sizes, and the larger ones had excess blood, causing density zones at the bottom which were darkeror denser. The smaller stains occurred first and the larger oneslater, and at least three different events caused the bloodstain spatter. (ORT 1311.) - On the showerfloor were three bloodstains and broken glass. Ifa person was in the bathroom closeto the front of the toilet and washit in the head with a heavy glass object, which then broke, and pieces of glass with blood were found in the shower, it would indicate that when the glass broke, glass fragments ended up in the shower or were on the floor and were kicked onto the showerfloor. (LORT 1324-1325.) Also in the bathroom, there were six different and separate blood transfer stains on the wall between the toilet and shower. (LORT 1304, 1306, 1315, 1318.) Someof the transfer stains were hair transfer stains, and somestains had a swipepattern, which occurs when something bloody 18 makes contact with a non-bloody surface leaving an impression ofthat bloody object. (ORT 1316-1317.) Each of the blood transfer patterns was underneath the other. (1ORT 1317-1318.) The bloodstains appearedto show that Epperson’s head wasbeing slammed against the wall, going downward. Thestains were consistent with somebody with a bloody head with hair being slammed against the wall and as her knees gave out, having her head slammed against the wall as she went lower and lower. (LORT 1318.) The bottom stains had swipe patterns, which would be consistent with somebody having her heador clothing against the wall and then leaning towardsthetoilet. (LORT 1318-1319.) Assuming a person wasattacked in the bathroom,struck about the head causing bleeding, was hit repeatedly so the blood spattered at least three times onto the wall behind the toilet, then was slammed up against the side wall at least six times, and was picked up andcarried into the living area, that scenario would producethe results in the bathroom and explain whythere was no blood spatter or blood drippings in the foyer area leading from the bathroomto the living area. (LORT 1320.) Raquel did determine that the initial blood shedding events took place in the bathroom andthat Epperson was picked up andtransferred into the living quarters. (LORT 1320-1321.) Asone entered the living quarters, there was a closet with bifolding doors to the left of the apartment entrance. There wasa series of six | bloodstains on the surface of the bifold door. The stains were elongated, meaning there wasa direction of travel. For the stains to impactthe closet door, the doors needed to be closed and the source of the bloodstains needed to be going from the entrywayto the living quarters. (LORT 1289, 1328, 1355.) Thus, when the blood shedding event took place, the doors were closed. (1ORT 1329, 1398.) The bloodstains on the closet doors and aroundthe closet came from quite a distance. (LORT 1362.) Later, the 19 closet doors were opened and clothes were placed at the entrance to the closet. When the clothes on the floor were lifted up, there were two bloodstains underneath the clothes. (ORT 1329, 1398.) There werecast off stains on the curtain adorning the archwayin the living quarters. (1ORT 1362-1364.) The stains on thecurtains probably came from the sameincident asthe cast off stains on the closet door. If someone had been standing near the curtains in the entryway and struck Epperson’s bloody head and then thrown back his arm,it could have caused a cast off blood pattern. (LORT 1364.) On the wall adjacentto the curtain were cast off stains. (JORT 1364.) Oneofthe stains was caused by a different event than the stains that caused the closet and curtain stains. (LORT 1365.) Nearthe television, there were two pieces of a broken flowervase. The bottom ofthe vase was square, and another piece formed a bowl. (1ORT 1325-1326.) The third piece of the vase wasat the far end ofthe living quarters, under papers and photographs. (LORT 1325, 1354.) Together, the vase pieces weighed 10 pounds and wereofa plaster-like material. (LORT 1326, 1354.) Twoofthe three vase pieces had bloodstains and hair, which indicated the vase made contact with Epperson’s head. (1ORT 1326, 1353, 1355.) Ontheleft side or the south wall in the living quarters, there was a hair transfer stain. (IORT 1329.) This stain was placed after the blood transfer stains in the bathroom,after the wound on Epperson’shead had produced more blood. (ORT 1330.) In the chest of drawersin the living quarters just to the right of the entryway, the top drawer wasclosed, and the one below was opena tad. (10RT 1341-1342.) In the chest of drawers were a pair of socks and a T- shirt, each with bloodstains. (1ORT 1341-1342, 1399.) The T-shirt stain 20 wasa transfer stain, which could have been madewith a bloody hand or finger. (ORT 1343-1344.) Near the chest of drawers wasa pedestal that supported a lamp. (1ORT 1356.) The area had a medium velocity spatter pattern, which had a direction of travel going towards the pedestal. (LORT 1357.) A woodenfoot stool was brokeninto several pieces, after having struck an object multiple times, and pieces were found in different areas of the apartment. One piece was underneath the bed by the wall where there wasa large head transfer stain. Other pieces were found near the chest of drawers, underneath magazines and papers in between the rocking chair and bed, near the bed by the lamp, and ontheleft side of the living quarters. (ORT 1325, 1373, 1375-1376.) The top of the foot stool was near the entertainment center. (LORT 1374.) The foot stool had been demolished. (1ORT 1376.) Nearthe television and rocking chair were cast off bloodstains, which are stains formed when a bloody object is in motion and suddenly stops. The stains were in a downward pattern, left to right, meaning the source of the stains was on the left side and was swinging overto the right side, causing blood to be deposited from left to right. (LORT 1358-1359.) The bloodstains went the length of the wall, opposite where Epperson was lying. (LORT 1359-1360.) The incident that left the bloodstains here was a separate incident from the other bloodstain incidents. (LORT 1360.) On the front of the entertainment center were cast off bloodstains on the glass. (1ORT 1360-1361.) These stains were from an incident different from the blood on the wall incident. (1ORT 1361.) Another wall in the living quarters also had blood spatter. The bloodstains were cast off spatters and were a separate incident from all the other blood spatters. (LORT 1365-1366.) 21 On the bed, a bedspread was draped over the corner closest to Epperson’s head. (1ORT 1342-1343.) The bloodstain pattern on the bedspread was a medium velocity spatter pattern; this type of pattern is caused when a bloody object is being hit or struck by a fist or a weapon and the stains go upward. That meansthe object struck Epperson’s bloody head on the floor, and blood spattered upwards onto the bed cover. (ORT 1343.) Based on Raquel's examination of the crime scene, he determined the initial blood shedding event took place in the bathroom, where Epperson’s head made contact with the bathroom wall at least six times. (LORT 1379.) She wascarried from the bathroom, which was shown by the lack of bloodstains on the floor between the bathroom andliving quarters, into the living quarters. (LORT 1379, 1397.) The blood spatter evidencein the living area showed Epperson wasstruck on the head while in the bedroom area and was not struck when she was standing. (LORT 1403.) The screwdriver could have been used as a weaponto stab herin theface. (1ORT 1409-1410.) The vase was usedto strike Epperson manytimes, based on an evaluation ofthe different parts of the flower vase, the vase’s fracture patterns, and the bloodon the fracture patterns once the vase was broken. (10RT 1379, 1396.) The lampwas used multiple timesto strike Epperson,based on the fact the lamp wasfractured, hadtransfer stains on the fractured portions of the lamp, and hadtransfer stains on the bottom of the lamp. (10RT 1379, 1395.) Epperson wasstruckby the foot stool, and once it broke, the different parts were used tostrike her again to breakit into more pieces. Epperson was struck more times, particularly down by the corner of the bed. Several cast off patterns were in the apartment, including bloodstains underneath the clothes on the floor in front of the closet, bloodstains on the closet door when itwas closed, bloodstains on the north wall where the pedestal was, bloodstains on the archway curtains, and 22 bloodstains onthe living quarters on the right side. Transfer stains were on the clothing inside the chest of drawers. (LORT 1380.) _After Epperson was repeatedly hit, the apartment was ransacked. The third piece of the flower vase by the wall near the window had clothes and paper over it. (LORT 1380-1381.) On top of the bed, there was a medium velocity spatter pattern, and then paper and Epperson’s property were placed over that. The drawers in the chest of drawers were pulled out, and some bloody objects, such as a hand, made contact with the clothes as if someone were looking for something. (JORT 1381.) (4) The Autopsy Including DNA Results Los Angeles County Coroner’s Department Deputy Medical Examiner Dr. Yulai Wang performed an autopsy on Epperson and determined the cause of death was multiple blunt force injuries. (QRT 1218-1221.) Whenbroughtin to the coroner's department, Epperson was wearing a gray hooded, front-zippered sweatshirt, a light blue shirt, and a pink brassiere pushed up abovethebreast nipples. QRT 1240-1241; LORT 1451.) Epperson had curly brown hair about 10 inches long, had brown eyes, and weighed 118 pounds. (QRT 1222, 1256.) A denture, which was broken into three pieces, was with the body. (QRT 1244-1245.) Epperson had multiple blunt force injuries on her head. (QRT 1228.) In Dr. Wang’s conservative estimate, Epperson suffered at least 10 blowsto her head. (QRT 1251, 1255.) Any one of those blows could have been fatal. (QRT 1251-1252.) She had a fairly large laceration in her forehead with an underlying open skull fracture. That penetrating injury went through the inside of her head. (QRT 1229.) At the left side of her skull, she had a seven-inchlong linear, gaping fracture extending from the front almost to the back of her head. (QRT 1237, 1240.) On the right, lower side of her skull, she had subcutaneous, subgaleal hemorrhage, which was 23 bleeding underneath thescalp at the right side of her head. The area covered almost the entire right side of her head. (QRT 1239-1240.) On the top of her head, Epperson had a large laceration extending from the front of the head towards the back of the head. (QRT 1238.) Onthe front of her skull, Epperson had extensive fractures. One fracture measured aboutfive by two inches. (QRT 1239.) The bones were: fractured into many small pieces, so they appeared to be pointed almostlike an egg shell. (QRT 1243.) The fracturesto the front base of her skull were caused by blunt force trauma. (QRT 1242.) She also had a fracture at her nose and both cheek bones. (9RT 1239.) Epperson hada large laceration at the front top of her head. She also had multiple lacerations on her forehead and face, including hereyes, nose, cheeks, and upper and lowerlips. (QRT 1228-1229.) Epperson’s eyes had confluent hemorrhages, which were caused by several small hemorrhages coalescing together to form a large hemorrhage. (QRT 1222-1223.) The lacerations on her upper and lower lips were both inside and outside her lips, with the laceration on her lowerlip going through her lip. (QRT 1229.) She had bruises, abrasions, and lacerations to the bridge ofher nose, around her cheek, and around her eyes. (9RT 1229-1230.) Epperson’s face had dark red areas. From a side view, her face seemedflattened dueto the underlying fracture of her facial bones. (QRT 1232-1233.) She had no upperteeth, partial lower teeth, and a broken upper denture. (QRT 1222.) Onthe right side of her neck were somesharp force injuries, which were caused by glass or some other object. The wounds were not consistent with knife wounds because their shape wasirregular. (QRT 1230-1231, 1245-1246.) Thecuts did not severher carotid arteries or jugular veins in her neck. Had thosearteries or veins been cut, those cuts would have been quickly fatal. (QRT 1231.) Multiple pieces of broken glass were foundin her body, head, hair, and clothing. (QRT 1246.) 24 Ontheleft side of her neck, Epperson had a fairly large incised wound about two and one half inches long. (QRT 1231.) The wound did not go throughher carotid artery or jugular vein. (9RT 1234.) Also on the left side of her head, there was a three-quarter inch laceration and a one- half inch laceration. (QRT 1231.) Epperson thus had jagged cuts to the right and left side of her throat. (QRT 1233.) Also, Epperson’s neck had bruising or hemorrhaging. (QRT 1223.) The abrasions on the back of her neck were part of the blunt force injury she suffered. (QRT 1230.) Bruising on the neck and hemorrhaging in the eyes might indicate strangulation. (QRT 1224.) Inside the neck structure, Epperson had a focal hemorrhageontheleft side of the neck underneath the skin in the soft tissue of the neck. There wasno fracture of the neck organ such as the hyoid bone andthe larynx. (ORT 1234.) The focal hemorrhage wasconsistent with pressure being put on the neck or strangulation. (9RT 1235.) On the back of both arms and hands, Epperson had multiple bruises and abrasions. The arm and hand injuries were consistent with defensive wounds, whichare injuries on the arms and hands caused when a victim tries to protect herself. On her right leg in the knee area, she also had some bruising and abrasions. (9RT 1224-1227.) Epperson suffered injuries to her brain. (QRT 1235.) She had some hemorrhaging on the rightside of the surface of the brain. Underneath the brain, she had a fairly large area of contusionsat the front ofthe brain on the top side. (ORT 1235-1236.) At the right interior area of the brain, there wasalso a contusion. She also had a defused dural hemorrhage, which was a hemorrhageinside the head that was not localized in any specific area but was defused over the brain. The defused dural hemorrhage would be caused by the blunt force trauma to the head. She also had an epidural hemorrhage outside of the dura on the left side of her head. (ORT 1236.) 25 Epperson had vaginal injuries, including semi-circular bruises and abrasions at the back andboth sides of the vaginal area. (QRT 1247-1248.) Hemorrhages were underneath the skin. (QRT 1247.) Epperson’s vaginal area suffered a significant amount of trauma. Dr. Wang rarely saw as much trauma to the vaginal area in other rape examinations. (QRT 1248.) In Dr. Wang’s opinion,the injuries were caused by blunt force penetration either by a penis with a lot of force or other object of similar shape and size. (ORT 1249, 1256-1257.) Vaginal aspirate, vaginal swabs, and external genital swabs from Eppersonall showed sperm that matched appellant's DNA. (9RT 1259; LORT 1450-1451.) Dr. Wang opined Epperson’s injuries were caused by a very severe beating, with use of blunt force trauma. In the 2,000 autopsies Dr. Wang had performed of persons with blunt force trauma, Dr. Wanghadseen these types of injuries only in a very small numberof cases. (QRT 1244.) In Dr. Wang’s opinion, the majority of the injuries were inflicted while Epperson wasalive. (9RT 1249.) Dr. Wang believed 95 percent of the wounds on Epperson’s body were inflicted while she was alive. When a personis alive and suffers an injury, one will see bruising and bleeding in the area. (QRT 1251.) Epperson wasalive when she suffered the trauma to her vaginal area and face and when she suffered the cuts and lacerations, including those to her neck. (ORT 1249-1250.) The defensive wounds on her hands indicated she was alive and conscious. (QRT 1250.) Toxicology reports on Epperson were negative for alcohol and drugs. (ORT 1259-1260.) Other than the facial, skull, and vaginal injuries and the blunt force trauma, Epperson was a normal, healthy person. (QRT 1260.) 26 b. Appellant's Prior Attacks on Women (1) Debra Colletta In the late 1980s and early 1990s, appellant and Debra Colletta were in a relationship as boyfriend and girlfriend for three years. (LORT 1443.) On July 26, 1992, Colletta wasat a friend's home, and appellant came to the backyard and wanted to speak with her. Colletta wentto the front porch to speak to appellant. Colletta wanted the relationship to end, and appellant said he would not allow that, threatening to kill her if she broke up with him. Appellant grabbed Colletta by the throat, squeezed her throat, and dragged her to the ground. Colletta could not talk and could breathe only slightly. Appellant dragged her down the driveway and said, "You're going to die." Appellant dropped her on the driveway and kicked herin the back of the head and neck. (LORT 1443-1445.) Her body moved slightly, and her head moved upon contact. She was numb butfelt the second kick, which wasalso in the upper neck and lower head area. (LORT 1445-1446.) Appellant was wearing metal "shoed"police boots or security boots. (1ORT 1445.) Colletta thought appellant was going to kill her. (ORT 1446.) Before appellantleft, he said he was going to shoot her with a shotgun, which Colletta thought he had in his truck. (ORT 1447.) Two people helped her get back in the house. (LORT 1446-1447.) Immediately afterwards, she had problems with her neck. Also, since then, Colletta had had problems with her neck. (LORT 1447.) It was difficult for Colletta to testify, and every day for the last several years, Colletta had been in fear for her life. (LORT 1447-1448.) (2) Betsy M. In January 1999, Betsy M. met appellant in an Alcoholics Anonymous meeting, and subsequently, they went out to have coffee and lunch. Beginning aroundthe secondor third week after Betsy M. met appellant, 27 appellant was very vocal about wanting to be romantically involved. They wentout on a few dates, and appellant kissed her. (LORT 1432-1433.) But by March 1999, Betsy M.tried to stay away from appellant and made her feelings known to him. (LORT 1433.) On April 9, 1999, Betsy M.received a telephonecall from appellant, whosaid he wasafraid his parole officer was going to find a parole violation and asked her to come over and keep a teddy bearsafe that his mother had given him, if he went to jail. This was aruse. Betsy M. went to appellant's apartment. She was not planning on going inside, but she needed to use the bathroom and went inside. Whenshe got out ofthe bathroom, her car keys were missing from the table where shehadleft them. A big chair was in front of the front door, and appellant started ranting about how she ruinedhis life and how he wasin love with her. (1ORT 1434.) Betsy M.initially started to cower. When she decided to stop cowering, appellanthit her in the face, knocking offher glasses. Betsy M.landed onthe floor, and appellant climbed on top of her and choked her. Betsy M. grabbed his hands and begged him to stop. She could not breathe and felt her heart stopping. Everything went black. She did not know how much time elapsed, but when she regained consciousness, appellant was on the otherside of the room,sitting with a knife. (LORT 1435-1436.) Appellant yelled at her some more. Betsy M. washysterical. Appellant told her to strip. He backed her into the bedroom section of his studio apartment. Appellant had a knife. Betsy M.started disrobing, but not fast enough for appellant, so he pulled at her clothes. Betsy M. stood there naked, pleading with appellant to let her go. After appellant agreed to let her go, appellantsaid he had to meet his parole officer and had missed the appointment. Appellant said he needed Betsy M.totell the parole officer he was sick. Betsy M. madethe call andtold the parole officer that appellant was sick. (LORT 1436.) 28 Eventually, appellant, whostill had a knife, went with Betsy M.to day care to pick up her two children, ages two and four years. Betsy M. drove. Appellant told Betsy M.that if she said or did anything that involved the police, he would kill her children in front of her and then kill her. (LORT 1437.) Onceshe picked up her children, appellant insisted she take him to her apartment. Betsy M.hadearlier called for her babysitter to be there and expected to have somebody waiting for her. When the babysitter was not there, appellant made a phonecall to his Alcoholics Anonymous sponsor and told her to take him home, which she did. (ORT 1437, 1439.) Initially, Betsy M. did not call the police because appellant had threatened to kill her children if she said anything. However, Betsy M. reported the incident to the police after attending the Friday night Alcoholics Anonymous meeting, where appellant had shown up to make sure his threat was visible to her. When Betsy M.arrived home,there were angry messages on her answering machine from appellant threatening her and her children. Betsy M.'s friend and her babysitter told her it would only stop if she called the police. (ORT 1438.) When Betsy M.was interviewed by the Bakersfield Police Department, Betsy M.said that appellant became very apologetic when she wentto pick up her children and that appellant also told her he did not know whathad gotten into him. (JORT 1439.) Betsy M. wasvery afraid whentestifying at trial because appellant made loud threats against her and her children's lives if she ever spoke about what he did to her on April 9, 1999. (LORT 1433, 1438.) 29 2. Defense Evidence a. Appellant's Testimony At the time appellant testified in October 2004, he was 36 yearsold. Appellant had previously been convicted of residential burglary and assault with a deadly weapon, both felonies. (11RT 1487.) In prison, appellant met Todd but denied fighting anyoneto protect him. (11RT 1542, 1567- 1568.) In 1998, appellant had been in the Weingart program while waiting for a transfer of his parole to Bakersfield. In 1998, his parole was transferred to Bakersfield, and he gave up plans to go to cooking school. (11RT 1490.) Epperson wasin the Stairs program for parolees who wanted to change their lives. The program provided housing, andparticipants attended meetings like Alcoholics Anonymousor Narcotics Anonymous. After 30 days, participants were allowed to get ajob. (1IRT 1487-1488.) Epperson hadleft the program before appellant came back to the program. (11RT 1488.) Around 2000, appellant was taking Sinequan, a sedative which helps control paranoid feelings, Depakote, and Paxil. (11RT 1490.) At the time of his testimony, he wasstill taking Sinequan, Paxil, and other medications. Without the medications, appellant became paranoid and thought everybody wasoutto get him. He had been on these medications off and on since he was 17 years old. (11RT 1491.) In June 2000, appellant met Epperson through Todd. (11RT 1487- 1488, 1491.) Appellant had seen Epperson coming out of the 7th floor elevator at the Weingart Center; when she walked by him, Epperson "was like whoa," because Epperson was“really small” and appellant was“really big.” (11RT 1488.) Onthe 7th floor, Epperson wentto the computer lab, 30 which Todd ran. As Epperson talked to Todd, appellant came in the lab because he was a tutor. Appellant had "tested out” on the skills taught in the computer lab, so he was asked if he could tutor. (11RT 1489.) In the summer of 2000, appellant and Epperson started "hanging out" with Todd andother friends. In the last weekend of July 2000, when there wasa Stairs picnic, appellant and Epperson started dating. Todd was no longer in the picture, and appellant and Epperson would do mostthings by themselves. After the picnic, Epperson invited appellant overall the time and would call him. Appellant got a pager so Epperson could get hold of him whenevershe wanted or needed him. (11RT 1492.) Around August 17, 2000, appellant had a standing invitation to visit Epperson at her workplace, an answering service called G & V on Hollywood and Vine, without letting her know he was on the way. (11RT 1492-1493.) Appellant took gifts to Epperson at her workplace but it was not true, as Todd said, that she threw the gifts away. (LIRT 1503.) On Fridays, when Epperson would do the payroll and collect money from the business for the week and take it to the bank, appellant would be with her because she did notlike to carry the money alone. They would go from the business to City Bank downtown. Epperson did not have a car. (JIRT 1493.) Once, when appellant went to G & V, Paul Grano, Epperson's husband, was there and wantedto stay at her apartment. Epperson and Granowerestill legally married, but appellant and Epperson called Grano her “ex.” Appellant drove Grano and Epperson back to Epperson’s apartment. (11RT 1496.) Around mid-September 2000, during the MTAstrike, appellant obtained a red Mitsubishi truck. (1IRT 1493-1494.) Appellant sometimes gave Eppersonrides to work and picked her up from work. Otherwise, Epperson dropped him off at work and then used his truck to get to her 31 work. (LIRT 1494, 1608.) Appellant gave her the keys for his truck and a permission slip to drive his truck, in case she was pulled over bythe police. (1IRT 1494-1495.) Whenappellant began dating Epperson,the relationship was not sexual right away. (1IRT 1495.) At some point, appellant began having sex with her. (1IRT 1495-1496.) They were boyfriend and girlfriend. (11RT 1552-1553.) Appellant gave Epperson a poem expressing his affection for her. (11RT 1504-1505.) At some point, Epperson’s son, Jeremy, was in county jail, and Epperson and appellant wentto the jail almost every week. Appellant could not go into the jail but would put money into Jeremy’s jail account so be could buy itemsin jail. (LIRT 1505-1507.) Epperson hired Todd at G & V, and Todd worked on Saturdays. Since Epperson had Saturdays off, appellant and Epperson spent time together. (1IRT 1507.) In Epperson’s apartment, appellant put up the curtains and decorations and helped her obtain her dresser. (1IRT 1501-1502.) Photographs of items on Epperson's bed showeda bearand other stuffed animals that appellant had given her. (LIRT 1499-1500.) Appellant bought and installed the top lock on her door. Epperson said she was afraid of Sims. (11RT 1503.) Appellant had known Simsfrom the Stairs program in 1998,before either of them had met Epperson. (11RT 1524.) Appellant had a "problem" with Sims. Appellant told the police when he was interviewed that he could not stand Sims. (11RT 1543.) He did notlike Sims because of what he did to Epperson. (11RT 1544.) According to appellant, "The only battered woman I protected was Tammy Epperson from Ron Sims." (11RT 1567.) Appellant was "absolutely not" racist and not liking Sims had nothing to do with Sims being African American. (11RT 1544.) 32 Appellant had two tattoos on his armsthat said, "White pride," and on the back of his leg calves, appellant had tattoos that said, "White anger." (11RT 1547.) Appellant got the tattoos in prison two years before his testimony. (LIRT 1547-1548.) About 90 percent of the White men in prison had the "White pride" tattoo, which did not identify the wearer with a White supremacist group. "White anger" was appellant's nicknamethe first time he went to prison in 1988 because he was angry. Appellant had never beenaffiliated with any White supremacist group. (1IRT 1621.) Appellant denied he was angry with Sims because he was African American and had a relationship with Epperson. (11RT 1548, 1621.) Appellant's closest friend was African American. Appellanttestified, "Color means nothing to me." (11RT 1621.) Appellant had a "Tam"tattoo on his body, an abbreviation used by appellant of Epperson's name. (1IRT 1622.) Onenight in late September 2000, appellant drove to Malibu with Epperson, while Grano wasstaying at her apartment. (11RT 1496-1497.) Appellant and Epperson walked on the beach and had place at the beach with a benchthat they liked. They had sex for the first time, while on that bench. The conversation that appellant had had with Todd about not having had sex with Epperson occurred about a week before appellant and Epperson went to Malibu. (11RT 1497.) Appellant did not update Todd about their sexual encounter because Todd wasa gossip. (LIRT 1498.) Right after appellant and Epperson had sexthe first time, appellant stopped taking his medications because he wasfeeling “okay” and foundit hard to maintain an erection when he wastaking Paxil. (11RT 1532, 1560.) Whenhedid not take his medications, he becameviolent and had blackouts. (11RT 1560.) Appellant was not "saying [that not taking his medications] was a smart decision." Appellant was an alcoholic and not 33 supposedto drink, but he drank "over and over and over again." (LIRT 1561.) In October 2000, the day before Epperson left on a weekendretreat sponsored by the church across from the Weingart, appellant bought a gift of a woodensign with angels on it, since Epperson liked angels. The sign was above Epperson’s bed. (11RT 1507-1509.) Epperson then went on the retreat. (1IRT 1507-1508.) Epperson wasfairly religious. (11RT 1507.) Appellant repeatedly talked to Epperson while she was away. When she returned, Epperson contacted appellant immediately. She paged appellant, and appellant responded andtold her he would be over a half hourlater. (1IRT 1508.) | On a Sundayin late October 2000, appellant and Epperson went to the movies with Todd, because Todd wasfeeling left out since appellant and Epperson were not spending time with him. (1IRT 1510-1511.) Later that day, Epperson introduced appellant to the owners of G & V when Epperson wasat their house trying to hook up a computer program. (11IRT 1511- 1512.) Epperson and appellant were invited to dinner. (LIRT 1512.) On one day in mid-October 2000, photographs of appellant and Epperson on the beachwere taken. (11RT 1628-1629.) On Sunday, November5, 2000, about 6:30 a.m., Epperson called appellant, and appellant said he was leaving Los Angelesfor a break to get some perspective on everything. Appellant told Eppersonthat he expected her to put him as numberone with respect to other men,partially due to Epperson's relationship with her estranged husband. Appellantsaid theball wasin her court, and Epperson did not respond. (11RT 1513-1514.) On Monday, November6, appellant drank in the morning. (11RT 1516.). He called Epperson at G & V. Epperson was angry because he had not consulted her about leaving Los Angeles. Epperson hung up on him, and appellant called back. They called back and forth and hung up on each 34 other. (LIRT 1514.) Later, Todd answered the phone and told appellant that Epperson was out smoking with Grano. This was the only timethat day that Todd answered the phone. (11RT 1515.) Later in the afternoon, about 20 or 30 minutes after appellant said he was done and wasnotcalling Epperson anymore, the telephone rang, and appellantlet the answering machine pick up the call. Epperson then paged him constantly. Appellant called her back at her workplace, and Epperson asked him to come back to the Stairs program. (1I1RT 1515.) Appellant told her he did not want to rejoin the program, and Epperson said she wanted him back. Appellant said he would go back to the program, they would call a truce, and they would try to work out their relationship. Appellant called the Weingart program, and they told him to come back. Appellant went back the next day. (LIRT1516.) Around November8 and 9, 2000, appellant saw Epperson a couple times, and they talked on the phone. (11RT 1517.) On Saturday, November 11, 2000, Epperson paged appellant and wanted to spend the day shopping and doing other things. (1IRT 1517.) They drove into the San Fernando Valley to a Wal-Mart andate at Pollo Loco. Appellant bought her a jacket from a man near Pollo Loco. (LIRT 1518-1519.) Epperson waspleased with the jacket. (1IRT 1520.) Appellant also bought her a stuffed dog, which was shownin a photograph of Epperson's belongings. (11RT 1500-1501, 1517.) They went back to her apartment, and Epperson put her purchases away. Appellant then drove her to county jail to see her son. Appellant did not go in, but picked her up. They ate at a nearby Denny’s and returned to her apartment. (11RT 1520.) While at her apartment, they beganto kiss or hug but were interrupted by her soncalling from county jail. After Epperson andher sontalked, appellant and Epperson had sex. (11RT 1521.) When he left Epperson’s 35 apartmentin the evening, they did not have plans for Sunday. (LIRT 1522.) On Sunday, November12, 2000, appellant wasstill living at the Weingart andleft his truck parked at the Weingart. Near the Weingart, appellant saw Epperson on the corner near the church. Appellant walked into the Weingart and saw Simsin the lobby. Sims was watching Epperson, and appellant stepped to the side to see what Sims was going to do. As soon as Epperson broke away from the person she wastalking to on the other side of the street, Sims immediately ran out of the lobby and intercepted Epperson. (11RT 1522-1523.) Appellant stayed and watched. (1IRT 1523.) After Sims left, Epperson went across the street to appellant and said, “Walk me home.” Appellant walked her to the Ballington, and when they werein front, Epperson said, “Comein.” (11RT 1524.) About 10:45 a.m., appellant signed in with Epperson. (1IRT 1525.) At some point, appellant and Epperson left for a Christian book store to get a Bible. Appellant drove, and Epperson bought a Bible. The receipt with a time of 12:09 p.m. waslater found on Epperson's bed. (11RT 1525-1526, 1627-1628.) They returned to Epperson’s apartmentno later than 12:30 p.m., but did not sign in. Epperson was wearing jeans and tennis shoes. (11RT 1526.) Appellant and Epperson had consensualsex on the bed, while the bed was made. (11RT 1526-1527, 1533-1534, 1540.) Appellant ejaculated inside Epperson. (11RT 1553.) After sex, Epperson went to the bathroom, and appellant waslying on the bed. The phone rang, and Epperson camebackto the bed, where the phone wason top of the headboard. She answered the phoneandstarted talking to someone about makingplansto go out. (LIRT 1527-1528, 1601- 1602.) She wason the phonefor one or two minutes and then hung up. Appellantsaid, “Whatthe hell is that?” Epperson told him not to “make too much outofit.” Appellant asked her if she was “screwing around,” and 36 Eppersonsaid that appellant did not run herlife. Epperson said other men hadtried to run herlife but they could not and appellant was not going to either. Appellant said that he was not trying to runherlife and that he thought they were trying to build something. (11RT 1528.) Appellant asked who had called, and Epperson said she would nottell him because appellant would confront the man. (11RT 1528-1529.) Appellant said, “Yeah, you’re right, I will.” (1IRT 1529.) Appellant asked again who called, and she said it was someone who wentto her church. Appellant asked whattheir relationship had been, and Epperson said he wasa “fill in” or temporary person while she was lonely. Epperson said appellant was not good enoughfor her because she thought he did not believe in God. (11RT 1529.) Epperson went back to the bathroom. (11RT 1529-1530.) Appellant started to walk towards the bathroom andsaid, “So this is it, huh?” Epperson said, “Yeah. It’s fun whileit lasted, but we’re done.” Appellant felt worthless and crushed. (11RT 1530.) Appellant hit Epperson in the face once in the bathroom with his fists. (1IRT 1530, 1540-1541, 1598- 1599, 1602.) Appellant only remembered hitting her once. (LIRT 1600.) » Appellant hit Epperson because he "wasbasically told that [he] was leaving." Appellant felt hurt, shocked, and crushed. (11RT 1602.) Appellant reacted by hitting her. (11RT 1603.) No one else wasin the apartment. (11RT 1541.) Appellant could not remember what happened after hitting Epperson. (11RT 1555.) Appellant had "blanked" out a few times before. (1IRT 1555-1556.) At some point, appellant saw Epperson on the groundandleft. (11RT 1530-1531.) "From all signs," appellant killed Epperson. When she was lying on the ground, he did not see her moving. Whenheleft her, appellant did not know if Epperson was breathing, making any noise, or gurgling. (1IRT 37 1541.) Appellant did nottry to help her or see if she was alive or dead. (11IRT 1542.) Appellanttestified both that after he killed Epperson he gotinto his truck, drove to Charles Vannoy's house, and got drunk andalso that he did not remember doing so. (11RT 1561, 1607.) Vannoy wasappellant's friend. Appellant was told he saw Vannoyafter he killed Epperson, but appellant did not recall seeing Vannoy and giving him his truck. Appellant admitted telling the police that he had given Vannoyhis truck. (LIRT 1548, 1561.) Appellant was not paying Vannoyfor anything, such as keeping quiet and harboring him, by giving him the truck. (1IRT 1561- 1562.) Appellant did not remember writing out a note for Vannoythat he had given him the truck but appellant had seenin his police interview statement that he had given Vannoythe note. (1IRT 1562.) It was "possibly"true if he hadsaid it to the police earlier and it was in a transcript and a videotape. Appellant was not lying to the police when they interviewed him and did not make up a story. (11RT 1563.) Appellant did not recall the conversation he had with Vannoy, so he did not remembertelling him that he used a candleholder to hit Epperson on the head, that he cut her twice on the side of the neck with glass, that he put a screwdriverright through the middle of her head, andthat he hit her with a stool. (LIRT 1618-1619.) Appellant thought he remembered a conversation with Todd. (1IRT 1533.) Before appellant went to the motel where he was arrested on November 16, 2000, appellant visited his friends, Mike and Neida Welsh in San Pedro. Hedid notrecall telling them or Vannoy anything. (11RT 1570.) _ Then, on November 16, 2000, when appellant was at a motel, the police kicked in the door. Appellant wasnotlying on the bed watching a 38 pornographic movie. Appellant was told Epperson's keys were next to him on a table, and he was not contesting the fact he had her keys. Atthat time, he did not know whathe had doneto Epperson. He wasarrested. Appellant had not told people that it was death row for him this time or that he was going to celebrate before he went back to prison. (11RT 1568- 1569.) After the police took him into custody on November16, appellant spoke to the police and gave them "a lot of detail about [his] name,[his] height, [his] weight, [his] birth date, [he] told them phone numbers,[he] told them whoto contact, [he] told them — [he] identified his parents,[his] brothers and sisters. ..." He also told them where he graduated from high school, how he got his checks, and where he worked. (11RT 1571.) Appellant remembered some of what he told them. He did not remember whetherhe was given his Miranda’rights or whether he waived his right to remain silent. Appellant continued to talk to the police about what happened on Saturday when he took Epperson driving, to Wal-Mart, and so forth. (11RT 1572.) When hetold the detectives he did not know where his truck was, appellant was confused. Appellant did notlie to hide anything. (11RT 1613.) Detective Larry Barr told appellant that Epperson was dead. Appellant had been uncertain up to that point. (1IRT 1623.) Appellant knew his hands were cut when he wasarrested, but did not know wherehegotthe cuts from, since he had lot of cuts from work. (11RT 1595.) Appellant did not remember slamming Epperson's head six times against the wall. ((IRT 1599.) Appellant did not remember Epperson asking if he was goingto kill her, that he said yes, and that Epperson asked why he wasdoing this to her. Appellant was not having a 5 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. 39 blackout in front of the jury as hetestified. (1IRT 1600.) Appellant did not recall slamming anything into Epperson’'s head, including glass, broken furniture, and ceramic items. (1IRT 1595.) Appellant testified Epperson's panties were not on in the first place and did not know how the bloody towel covering Epperson's groin area got there. (1IRT 1603-1604.) Appellant did not know how his bloody fingerprints got on her pants. (11RT 1604-1605.) Appellant did not notice if he had blood on his face after he saw Epperson lying on the floor. He did not recall using the mirror over the sink to look at himself or using the small towelsleft in the sink to wipe his hands or face. Appellant admitted his blood was on the towels. (1IRT 1597.) He did not recall trying to use paper towels to stop the bleeding from his hands. He knew Epperson had paper towels in her apartment but did not know how the paper towels got in the toilet and the waste basket. Appellant did not know howthetop ofthe toilet tank became ajar. (1IRT 1598.) Appellant did not know where Epperson's heart-shaped pendant was and did not know if she was wearing that pendant on November 12 when she went to church. Appellant did not know if he put his hands around her throat on November 12. (11RT 1554.) The day Epperson waskilled, he did not go through her apartment looking for something. (11RT 1555.) Epperson's door was locked,but he did not rememberlocking it. (1IRT 1606-1607.) He “vaguely” rememberedleaving the Ballington. Appellant did not know he killed Epperson. (11RT 1533.) Appellant would only sign in andoutof the Ballington when hefirst went in and whenheleft for the day, but did not sign in andoutevery single time he went in andout. The Ballington security people recognized him. (11RT 1522.) Whenappellant hit Epperson, he was upset, hurt, and devastated. Appellant did not know anyoneelse was "in the picture." (JIRT 1622.) 40 Appellant was not worried about Sims and had no idea about him. (LIRT 1622, 1627.) Appellant "just lost it." (J1RT 1622.) Appellant could deal with life on a daily basis, but "this" was "so far above anything else thatI ever experienced." He "reacted the wrong way." (11RT 1623.) But he "did not intentionally kill Tammy Epperson." (11RT 1617.) Appellant did not intend to kill, plan to kill, intend to disable or permanently injure her or her body or face, intend to maim ordisfigure her, intend to makeher suffer, and plan to inflict prolonged pain upon her. (AIRT 1533.) Appellant denied raping Epperson. (11RT 1534.) Appellant could not explain how Epperson got bruising in her vaginal area. (11RT 1596.) Appellant did not use something other than his penis to penetrate her. (LIRT 1597.) On the day Epperson waskilled, appellant had not been drinking alcohol. (1IRT 1560.) Appellant did not constantly think about having to control himself. Appellant and Epperson had arguments but appellant did not beat or kill her during arguments. Appellant had been calm when Betsy M.and Colletta testified. (LIRT 1608.) After the incident, appellant thought aboutkilling himself and attempted to do so. Appellant loved Epperson and thought she loved him. (11RT 1531.) Epperson waspretty and kind. They could sit in a room together and only say a few wordsin an hour and be content. He did not have to work so hard with her. (11RT 1521.) Appellant cared for Epperson. (11RT 1531.) At trial, appellant denied lying to get out of the death penalty and denied lying to get placed in a mental hospital instead of prison. (11RT 1614.) Appellant's medications kept him calm andrational, but there was no "magic pill" that cures everybody. (1I1RT 1617.) In a photographin front of a McDonald's, appellant and Vannoy had their arms around Epperson. (11RT 1550-1551.) In two other photographs, 4] appellant was posing with Vannoy. (1IRT 1552.) Vannoy had seen appellant and Epperson together many times. (11RT 1554.) Appellant had a few violent encounters with women before. (1IRT 1556.) Appellant had manygirlfriends, and it was fair to say he had, over the course oftime, 20 girlfriends. (1IRT 1624-1626.) Appellant had a girlfriend named Angel B., who was about 16 years old when he was 20 years old. (1IRT 1624-1625.) He denied beating her because she wanted to leave him. (11RT 1557.) Instead, appellant was in a fight with her new boyfriend in a closed space, and apparently Angel B. washit in the face. (JIRT 1558.) Appellant did kick Colletta in the bottom of her back, almost on her behind, but did not kick her on the neck. Appellant was not wearing steel- toed boots as Colletta said, and she was not trying to leave him. Instead, appellant hadleft her. (1IRT 1558.) Appellant did not wantto kill Colletta. (1IRT 1565.) Appellant had a tattoo that said, "Debby," for Colletta. (1IRT 1567.) Appellant denied pulling out a knife and forcing Betsy M.to strip. (1IRT 1558-1559.) Colletta and Betsy M.had reddish-brown hair. But appellant denied that they looked like Epperson. (11RT 1564.) Appellant was not aware he had broken his mother's back, and prior to the incident with his mother, appellant had been drinking heavily for 24 hours and "wasan idiot." (1IRT 1556, 1559.) Appellant remembered "doing it" but did not intend to harm her. (1IRT 1559.) Appellant denied that as to each violent incident involving his mother, sister, Colletta, and Betsy M.,he told authorities that he did not remember doing what he had done. (11RT 1559.) 42 b. Expert Testimony on Epithelial Cells Mare Scott Taylor, the Laboratory Director of Technical Associates Incorporated and a forensic scientist and criminalist, examined the panty liner from Epperson's panties in February 2004, and foundthe liner did not have epithelial cells or semen, which indicated the liner was not worn or in contact with a woman's body. There was no drainageinto the liner. (11RT 1580, 1583-1584, 1585, 1588-1589.) If epithelial cells and semen had been on the liner, that would have indicated the liner had been worn subsequent to intercourse. If only epithelial cells and no semen had been found,that would have indicated the liner had been wornprior to intercourse but not after intercourse because there was no drainage of the semeninto the panties. (1IRT 1580.) Squamousepithelial cells are a large, flat cell found in mucous membranes, andthe lining of the inside of the mouth andthe lining of the vagina are two sources where nucleated epithelial cells are found. Thecells form and moveto the surface and actually create the inner lining of the mouth or inner lining of the vagina. As the cells move to the surface and get old, they are sloughed off and will be found in saliva and in vaginal secretions in high numbers. Theyare very easily identified through a staining process and microscopic examination. (11RT 1575-1577.) Finding squamousepithelial cells gives an indication that a body fluid is present, and in conjunction with testing to look for other components of that body fluid, they can give an indication of the type of body fluid. (11RT 1577.) No amylase was foundeither on the panty liner. Amylase is an enzyme foundin high concentrationsin saliva, but lower concentrations in vaginal secretions. (1IRT 1584.) Taylor, however, was not saying that the liner had not been wornat all. Instead, Taylor did notbelieve the panty liner was worn "for any 43 appreciable amountof time." Ifa person cleaned herself sufficiently, she could put on a pair of underpants and take them off, and there might not be any deposition of epithelial cells or amylase. (11RT 1589.) Also, Taylor acknowledged a person could have goneto the bathroom,put onthe panty liner, been beaten, had the panties removed, and been raped. Alternatively, the person could not have gotten the panties up in the first place. (11RT 1589-1590.) A yellow stain on the panties wasnottested for urine, but Taylor did not believe the stain was dark enoughto be urine. Taylor acknowledged that when a personis beaten, the person sometimes could urinate. (IRT 1590.) Assuming a woman wentinto a bathroom,put on a new panty liner, put on herpanties, was beaten severely for seconds to minutes, was thrown on the ground, had her panties pulled down, and was raped bythe perpetrator whoejaculated inside her, Taylor would expect there to be some transfer of epithelial cells. However, women have different types of vaginal discharges, from a little to a lot. Taylor did not know about Epperson's vaginal discharges. (11RT 1591.) Assuming a womanstruggling on the groundhad her jeans removed forcibly, followed by her panties being forcibly removed, Taylor would expect to see an epithelial transfer if she had the panties on for a period of time before that. However, different women have different amounts of flow. Also, a transfer may depend on how much a womanhadcleaned herself. If the panties had just been put on andthen takenoff, there might not be a transfer. (11RT 1592.) The more physical activity a womanis involvedin, the more vaginal secretions tend to come out of her body. If a woman was wearing the panty liner, one would expect that with physical activity there would be some deposition of vaginal secretions into the panty liner. (1IRT 1584-15 85.) 44 There was an indication of blood on the front portion of the panties where there werelittle stains. (11RT 1583.) Also, there was a small tear on the upper seam or waistband area on the underpants, and there was no wayto tell how that tear was made. The tear could have been made by wear and tear. (LIRT 1585.) Taylor received the evidence items from the Los Angeles Police Department evidence locker about a year before he testified and returned them in the last couple weeks before hetestified. The length of time evidence is kept depends on how the case progresses, and evidenceis often kept for many years by his company. (11RT 1588.) 3. Rebuttal by Prosecution ec. Charles Vannoy Charles Vannoy° had beenin prison with appellant and got to know him a "little bit vaguely." (12RT 1701.) During the timehetestified at trial, Vannoy took medications daily and wasin the hospital ward. (12RT 1702.) Vannoy did not want to testify and denied knowing anything or remembering whathe told the police. (12RT 1689, 1691-1693, 1696-1700, 1703; 13RT 1773.) A redacted videotape of Vannoy's interview with the police was played for the jury. (Peo. Exh. 88A;/ 12RT 1754, 1764.) Vannoy said he ° In the 1980s, Vannoy had been convicted of child molestation and oral copulation, in violation of section 288, a crime of moralturpitude, and went to prison. (12RT 1701.) Later, he went to prison for assault with a deadly weapon. (12RT 1702.) ’ People's Exhibit 88A is the redacted videotape, and People's Exhibit 88B is the redacted transcript of that interview. Although the evidence of Vannoy's interview wasthe redacted videotape (Peo. Exh. 88A), the redacted transcript (Peo. Exh. 88B) is referred to here for ease of reference. (12RT 1753.) 45 had been out ofprison since May 2000. (Peo. Exh. 88B, p. 7.) He was taking medication for being "schizoid effect due to a personality disorder, being paranoid," was using heroin and "weed," and wasseeing a psychiatrist and psychologist. (Peo. Exh. 88B, pp. 10-11.) With respect to his background, Vannoysaid he used to beaffiliated with the Aryan Brotherhood, a White supremacist group, but was a "dropout" who did not affiliate anymore. (Peo. Exh. 88B, p. 9.) He had numeroustattoos, including: on his arms, a gun tower with "Bell Gardens 13," a swastika, Snoopy, Bell Gardens, a clover, and a wizard; on his hands, "F.T.W." or "Puck the World" andhis initials; on his leg, "East LA"; a skeleton and "666"; and lightning bolts and "Bad Company." (Peo. Exh. 88B,pp. L1- 15.) Vannoy said he metappellant at the California Men's Colony in December 1999. (Peo. Exh. 88B, p. 16.) Around May 2000, Vannoy and appellant were released, and probably around June or July 2000, Vannoy saw appellant at the Weingart. (Peo. Exh. 88B, pp. 17-19.) Appellant was close to Todd, and Todd wasfriends with Epperson. (Peo. Exh. 88B,pp. 52-53.) Appellant told Vannoy that he and Epperson had been regularly having sex the preceding two weeks to a month before her murder. (Peo. Exh. 88B, pp. 40, 64.) Vannoy knew that Epperson had a Black boyfriend, and appellant did notlike him. (Peo. Exh. 88B, pp. 64-65.) On November 9, 2000, appellant helped Vannoy moveto his new apartment. (Peo. Exh. 88B, p. 19.) On Sunday, November 12, 2000, just before 4 p.m., appellantcalled and asked if he could come over. About 4 p.m., appellant came over and was skittish. Vannoy asked what happened, and appellant said he did not wantto talk about it. Appellant made sometelephone calls from Vannoy's telephone to his mother, sister, someone named "Danita" in San Pedro, and "Jeff" at the Weingart to say he was leaving. Appellant said he would give 46 Vannoyhis truck if he would give him a ride to Hollywood. (Peo. Exh. 88B, pp. 19-24, 26, 32, 42-46.) On Monday, November13, 2000, about 3 a.m., appellant told Vannoy,"I killed Tammy" and "I beat her to death." (Peo. Exh. 88B,p. 26.) Appellant said she had rejected him and told him she was seeing somebody else. (Peo. Exh. 88B, p. 27.) Appellant said he and Epperson had sex, and after they finished, a man called. Epperson told the man that whathe wastalking about sounded fun and they would haveto dothat. Appellant was in bed and asked whohadcalled. They argued. Epperson said she lived herlife the way she wanted. (Peo. Exh. 88B,pp. 28-29, 64, 84-85.) Appellant threw Epperson onto the bed or couch, and Epperson got up and went into the bathroom. They argued, and appellant told Epperson to sit on the toilet. Appellant hit her with a candle holder. As he was beating her, Epperson asked, "Why are you doing this?" Appellant told her, "All I wanted you to do wasto love me, you know, and you wouldn't do that." (Peo. Exh. 88B, pp. 29, 38-39.) Epperson also asked, "Are you going to kill me, Troy?" Appellant said, "Yes, Tammy, I am. Iam going to kill you." (Peo. Exh. 88B, pp. 39, 85.) Back in the living area, appellant cut both sides of her neck with glass. (Peo. Exh. 88B, pp. 29-30.) Appellant said he hit her in the head with a little wooden stool and a big lamp and put a screwdriveror ice pick through the middle of her head, leaving a big hole in her forehead. (Peo. Exh. 88B, pp. 31, 33, 50-51.) Vannoy asked appellant if Epperson wasalive and whether they should send help. Appellant said he had just killed somebody and Vannoy would be next if he said anything. Appellant said another murder would not matter because he was already looking at the death penalty. (Peo. Exh. 88B, pp. 33, 49.) Appellant denied raping Epperson. (Peo. Exh. 88B, p. 64.) Vannoy asked appellant abouthis clothes, but 47 appellant told him he did not need to know. (Peo. Exh. 88B,p. 41.) Appellant gave Vannoyhis hat. (Peo. Exh. 88B,p. 43.) Epperson had a "message business," and appellant found her workplace keys and took them. Appellant asked Vannoy if he wanted to make some quick money, but Vannoy declined. (Peo. Exh. 88B,pp. 34, 41, 48-49.) Appellant gave Vannoy a pink Motorola pager. (Peo. Exh. 88B, pp. 75-76.) About 3 or 4 a.m., appellant went to sleep. When appellant awoke, he ate, asked Vannoyto take him to Hollywood, and signedhis truck over to Vannoy. (Peo. Exh. 88B,pp. 30, 35.) Between 11 a.m. and 1 p.m., Vannoy dropped appellant off at Hollywood and Highland in Hollywood. (Peo. Exh. 88B, pp. 36-37.) Appellant said he was going to have fun for a couple days and then turn himself in. (Peo. Exh. 88B, pp. 46-47.) Appellant said he did not want to turn himself in by himself in Los Angeles because “they” would "fucking kill" him because the crime wasvicious and the victim was female. Appellant had about $170 and gave Vannoy three twenty dollarbills. (Peo. Exh. 88B, p. 47) Appellant was going to Hollywoodto rob Epperson's workplace. (Peo. Exh. 88B, pp. 48-49.) | Vannoytold the police that he had appellant's disposable camera with photographs of appellant and Epperson from two monthsago at a McDonald's. The camera had beenin the truck. (Peo. Exh. 88B,pp. 62- 63.) During the interview, Vannoy offered to page appellant andto try to get himself to turn himself in. (Peo. Exh. 88B,pp. 54, 65-67, 81.) After the videotape was played, Vannoysaidhis recollection abouthis conversation with the police was not refreshed much. (13RT 1770-1771.) Vannoy "vaguely" remembered saying those things on the videotape and admitted it was "kind of apparent" he had been interviewed by the detectives. (13RT 1771-1772.) When asked if whathe said in the 48 videotape wastrue, Vannoytestified, "You haveit in color, yeah, I guess so." (13RT 1776.) Vannoytestified he had learned facts about how Epperson had been murdered "on the street" before he talked to the police. (12RT 1700, 1784- 1785.) Vannoy "guessed" that appellant used a stool and madethe cuts to Epperson's throat using glass. (13RT 1782-1783.) However, Vannoy admitted he had never been to Epperson's apartment. (12RT 1699.) Vannoyalsotestified that when appellant visited him, he had two one- half pints of Jim Beam bourbon,and appellant was very drunk whenhetold the stories. (13RT 1779.) Vannoy rememberedthat appellant gave him thetruck, that he was stopped in the truck in front of his apartment, that he was wearing appellant's hat, and that he was taken to the police station. (12RT 1697; 13RT 1774-1775, 1777.) Vannoy was on parole, and whenthe police took him in, he was very scared. Vannoy wanted to be cooperative so the police understood he had nothing to do with Epperson's killing. (I3RT 1777.) By telling the police that appellant was thinking of burglarizing Epperson's workplace, Vannoytried to distance himself from appellant. Vannoy made up that appellant had told him that Epperson asked if he was going tokill her and appellant said he was. (13RT 1778.) Vannoy also made up that appellant had said he was goingto kill him. (13RT 1778-1779.) The pink pager wasin his apartment but he did not know howit got there. (13RT 1783.) Even though Vannoytold the police information, his parole was violated, and he served a year. (13RT 1785-1786.) d. Detective Larry Barr On November13, 2000, Los Angeles Police Department Detective Larry Barr, the investigating officer in this case, went to apartment A125 at the Ballington Plaza. (13RT 1792-1793.) The door had been forced open. (13RT 1793-1794.) The crime scene had been preserved. (13RT 1793.) 49 The whole apartment wasin disarray. After taking a couple steps in and taking six Polaroid photographs, a criminalist was called. Criminalist Betsy Swansonarrivedfirst, and then she summonedbloodspatter expert Raquel. (13RT 1795-1796.) Swanson and Raquel were there about 12 hours. (13RT 1796.) Photographs were taken, and Epperson's body, which had a towel over the lower part, was removed. (13RT 1796-1797.) Several items were booked into evidence, including the door knob and dead bolt and keys that Todd identified as belonging to Epperson's apartment door and her workplace. (13RT 1794.) Detective Barrtried the keys in the apartment dead bolt and door lock, and one key each opened the dead bolt and door lock. (13RT 1795.) On November15, 2000, Detective Barr received a call that officers had located appellant's red Mitsubishi truck, for which a "want" had been placed earlier in the computer system. Detective Barr respondedto the location and conducted a surveillance on the vehicle. Around 8 or 8:30 a.m., Vannoy entered the driver's side of the truck, and he wasdetained by the police. (13RT 1797-1798.) The day Vannoy wasdetained, he was interviewed by Detectives Barr and Shepard. Vannoy’s interview was videotaped, but Vannoy did not know. Theinterview lasted about 55 minutes, and the videotape ofthat interview wasplayedfor the jury. Between November 13 and 15,there had been no newspaperarticles on this case. (13RT 1798, 1810.) At the time Detective Barr interviewed Vannoy,he had not received Raquel's report detailing how the cuts were made to Epperson's throat and howthe stool was used on Epperson and did not know the coroner had anopinionthat there had been twoslices to Epperson's neck, one on each side, caused by a piece of glass. (13RT 1799-1800.) Detective Barr did not know a wooden foot stool had been used to hit Epperson in the head. Detective Barr testified it was commonpractice not to talk to other people aboutthe 50 findings at a crime scene to maintain the integrity of the crime scene and crime. He did not talk to anybody about the screwdriver foundat the location. (13RT 1800.) Vannoy told Detective Barr several things that fit the crime scene, including that: there was a candle and candle holder, and Detective Barr had seen a broken candle holder and candle lying on the floor in the bathroom; Epperson had a hole to the middle of her head, which Detective Barr observed at the crime scene; a lamp wasused, and Detective Barr observed a broken lamp that appeared to have been used at the crime scene; and a screwdriver or ice pick had been used, and there was a screwdriverat the crime scene. (13RT 1802-1803.) After Detective Barr spoke to Vannoy, Detective Barr went to Vannoy's apartment and found the pager, camera, and jacket mentioned by Vannoy. Detective Barr also found a piece of paper. (13RT 1801.) At Vannoy's apartment, the police had hopedto tape record call from appellant, but the recorder was not working correctly. The telephone rang while Detective Barr was there. (13RT 1803.) Vannoy answered on the speaker phone, and the caller identified himself as "Troy." Troy told Vannoyto take him off the speaker phone, which Vannoy did, and Detective Barr listened in by putting his head close to Vannoy's. (13RT 1804.) Troy gave a location, which was the Colony Motel on Pacific Coast Highway in Harbor City. Detective Barr went to the motel, as did a team of parole agents specializing in apprehending fugitive parolees. The parole -agents verified appellant was in the room and kicked in the door. The agents entered the room, followed by Detective Barr. (13RT 1806-1807.) The agents took appellant off the bed and handcuffed him. Appellant was in boxer shorts and a T-shirt or tank top. A television wasin the room. (13RT 1807.) A pornographic movie was on the television. (13RT 1809.) Epperson's keys were on table next to the bed. (13RT 1809.) 51 Just prior to appellant's booking, photographs were taken. Appellant had numeroustiny cuts on both of his hands anda little bruising. (13RT 1810, 1812.) Appellant also had a small cut on his upper forehead. (13RT 1812.) Appellant's right calf had about a one-inch cut. (13RT 1813.) On November 16, 2000, appellant was booked and had $150 onhis person. (13RT 1810, 1813.) Appellant was advised of his Mirandarights, and appellant waivedhis rights and spoke to Detective Barr. (13RT 1809, 1813-1814.) Appellant was calm and answered questions. (13RT 1814.) Appellant said he was taking medication and had been on medications most of his life. (13RT 1816-1817.) Appellant said he hadleft the Stairs program at the Weingart twice. (13RT 1817.) Concerning the events leading up to Epperson's death in her apartment, appellant said he and Epperson hadspentall day Saturday, November 11, together and went to Wal-Mart. (13RT 1821-1822.) On Sunday, November 12, they went out to buy a Bible. (13RT 1822.) When they returned to her apartment, Epperson got a phone call and went to the bathroom. Appellant becameupset andattacked her. (13RT 1819-1820, 1822.) Appellant said he hit Epperson a few timeswithhis fists in the bathroom, and then she wason the floor. Appellant said he could not remember what happenedafter that. (13RT 1820, 1822-1823.) When Detective Shepard asked appellant if he intended to kill Epperson, appellant said no. However, Detective Barr felt appellant's real answer was when he said, "I don't knowif] still realize this." (13RT 1824-1828.) Appellant tried to distance himself from Epperson's keys. (13RT 1820.) Appellant said he was the one who had changedthe apartment's locks. (I3RT 1822.) Detective Barr went back to Epperson's apartment and recovered a Wal-Mart receipt dated November 11, 2000 and a religious bookstore receipt dated November 12. (13RT 1821-1822.) 52 Whenappellant testified at trial, he basically gave the same story as when he wasinterviewed. (13RT 1823.) However, on the stand, appellant gave elaborate testimony about what Epperson said to him, but when Detective Barr interviewed him, appellant only said Epperson got call, words were exchanged, and Epperson said she was not doing anything wrong. (13RT 1823-1824.) | In mid-November 2000, Detective Barr went to G & V to determine if Epperson's keys would unlock the business, and they did. (13RT 1810, 1815.) There had been no burglary or evidence of a burglary there. (13RT 1815.) B. Sanity Phase 1. Defense Evidence a. Dr. Kyle Boone Dr. Kyle Boone,a clinical neuropsychologist, testified that appellant's executive or problem-solving skills, reasoning, and logic were very impaired and that tests suggested appellant had some kind of brain damage or dysfunction. (15RT 2137, 2144, 2148, 2159-2160.) Dr. Boone defined neuropsychologyas the objective measurementofthinking skills. Thinking skills are located in different areas of the brain, so by measuring thinking skills, one could determine which areas of the brain are not working correctly. (1S5RT 2137.) Dr. Booneinterviewed appellant in jail and gave him objective standardized tests over a period of aboutthree to four hours. (15RT 2137, 2139-2140, 2159, 2163.) Atthe time ofthe interview, appellant was 35 years old. (1SRT 2140- 2141.) Appellant had tattoos on his arms and chest, had a red mustache and goatee, and wasleft handed. (ISRT 2164-2615.) Dr. Boone introduced herself and said she had been sent by defense counsel to obtain objective measurements ofhis thinking skills. (ISRT 2163.) Appellant was not 53 reticent, did not stop their conversation and walk away, and did not stop speaking to her and say he had a headache. Appellant was cooperative, polite, and socially appropriate. (1SRT 2164.) Appellant had completed high school but stated he had barely madeit through, graduated on the strength of his athletic ability, and thought he had learning disabilities. (I5RT 2140-2141.) Appellant's overall [Q was 90, and an average IQ was 90 to 109. (15RT 2141.) One componentofthe IQ test measured trivia or how much one learned in school, and appellant was in the 84th percentile on thattest. (15RT 2192.) Dr. Boone tested® appellant's basic attention, thinking or mental speed, language, visual and spacial skills, verbal memory, nonverbal memory, reading level, math level, and executive or problem-solving skills. (15RT 2143-2144.) Appellant did well on most domains. Attention wasat the 75th percentile, language scores were "fine," visual and spacial scores were "pretty good," and verbal memory wasexcellent at the 96th percentile. (15RT 2144.) The verbal memory test showed appellant was very goodat remembering words. (15RT 2145.) Appellant's thinking speed scores were "a little bit low," ranging from the 1st percentile to 48th percentile. (SRT 2146.) Thinking speed is how quickly one can do a pretty simpletest. (15RT 2146-2147.) Visual memory ranged from low average to average, reading skills were above the high school level, and math skills were average. However, appellant's executive or problem-solvingskills, reasoning, and logic were "very low, very impaired." (1SRT 2144,2148.) Whena personis tested, he may be "entirely normal" in every area except one. (15RT 2142.) ® The tests were not related to a review ofthe crime reports. (ISRT 2140.) 54 Executive or problem-solving skills are related to the ability to face a problem situation and think of different strategies and figure out the best one. The skills also relate to thinking through consequences of behavior, being able to stop a behavior that is not correct or appropriate to the situation, being able to generate alternative solutions to problems, and the ability to use logic. (ISRT 2148.) Dr. Boone administered six tests in the area of executive or problem-solving skills, and appellant was very low on five of six tests. (1SRT 2161-2162.) For instance, on the Stroop test, in a group of 35 year olds, appellant's score was worse than 98 out of a hundred individuals. (1SRT 2148-2149, 2152.) On othertests, appellant was at the Ath, 5th, and 10th percentile. (ISRT 2149, 2152-2158.) The Stroop test had three components: reading words as quickly as possible, which measures thinking speed; naming colors as quickly as possible, which measures thinking speed; andtelling the color of ink and not what the word says when the wordis not the color of the ink, which makesthe test taker stop himself from reading. (ISRT 2149-2150.) It was difficult for appellant to stop himself from reading, to stop behavior that was not appropriate to the situation. (1SRT 2150, 2152.) Appellant’s performance onthe trail making test, which involved sequencing of how to get from point A to point B, was “average,”in the 66th percentile. (1S5RT 2173-2174.) Executive problem-solving skills implicate real world behavior, including the ability to plan. (ISRT 2173.) A consistent pattern of low scores on the six tests "suggests" brain dysfunction in the frontal lobes. (ISRT 2158, 2161-2162.) The frontal lobes are involved in enabling flexibility and adaptability. (ASRT 2150, 2152.) Individuals with frontal lobe dementia have "huge changes in personality, they become very disinhibited." (IS5RT 2159.) The tests were administered in a quiet room, where appellant was not under pressure. If appellant was understress or drinking, his ability to 55 function in the executive or problem-solving area would be even worse. The tests "suggested" appellant had some kind of brain damage or dysfunction and that appellant would have trouble making appropriate decisions. Also, the "highest violence scored in aggression scores are in the patients who have damageto the frontal lobes." (ISRT 2159-2160.) The frontal lobes seem to inhibit violent behavior, so if frontal lobes are not working properly, violent behavior is enabled. (1SRT 2160-2161.) According to Dr. Boone, appellant did not "have the same equipment that the rest of us have to make reasoned decisions about his behavior." (ASRT 2171, 2182.) Appellant’s right frontal lobe was more compromised than the left. Dr. Boone’s judgment about which portion of the lobe was dysfunctional was based on the way a typical brain is organized. (ISRT 2171.) Dr. Boone knew Dr. Bertoldi had said the EEG showed dysfunction onthe left and not right side of appellant’s brain, but with appellant’s left-handedness and his seizure disorder, appellant’s brain dysfunction might be reversed, and then it would makesense that the detectable EEG abnormalities were on the left side. (ISRT 2171-2172.) Also, five percent of left handed people have a different type of brain organization. Moreover,if appellant had childhood seizures, the seizures would tend to change the way the brain was organized. (15RT 2171.) Even if appellant’s EEG were normal, appellantstill had executive skills dysfunction, and his test score percentiles would not change. (1SRT 2172.) However, Dr. Boone's tests did not measure brain function directly but measuredthinking skills. (15RT 2172.) Frontal lobe damage prevents a person from being able to control one's behavior. Someone could be born with frontal lobe damage. 56 Hypothetically, if one reported Jacksonian’ seizuresas a child at the ages of three years and seven years, that would be consistent with someone possibly having been born with frontal lobe damage. The seizures themselves do not cause the frontal lobe damage but whateveris causing the seizures is also interfering with the function of the frontal lobes. (15RT 2162.) Appellant passed tests for malingering or the faking of cognitive symptoms, which meant he was doing his best on the testing and was not pretending to have problemsin his thinking skills that did not exist. (1SRT 2142-2143.) One could malinger to get out of criminal prosecution. (1SRT 2190.) Dr. Boone recommendedappellant be tested for Klinefelter Syndrome DNA,because appellant reminded her of several men with Klinefelter Syndrome and thought the analysis might be useful in determining the cause for someof appellant's behavior and cognitive problems. Men with Klinefelter Syndrome have an extra X or Y chromosome, and a subset of these men have problemsin executive problem-solving skills and can have socially inappropriate behavior. (1SRT 2165-2166.) Studies in the 1970's showed an overrepresentation of Klinefelter Syndrome patients in prison populations, so Dr. Boone opined there did seem to be an increasedrisk of very socially inappropriate behavior in prison. One of out 500 men have Klinefelter Syndrome. (15RT 2166.) Dr. Boone thought appellant's very socially inappropriate behavior, his tall stature, gynecomastia or breast tissue, and problems in executive skills made her think it would be usefulto get him tested. (1SRT 2167.) However, unlike some men with Klinefelter ” Jacksonian seizures are not grand mal epileptic seizures. (15RT 2169- 2170.) 57 Syndrome,appellant had facial hair and his legs were not bare, and Dr. Boonedid not examinehis penis or genitals for evidence of Klinefelter Syndrome. (15RT 2165.) Dr. Boone wasprovided with the crime report written by the District Attorney’s Office, and she believed many of appellant’s actions were not logical and did not make sense. However, Dr. Boonebelieved the prosecutor, when questioning her about a hypothetical situation similar to what happened, selectively picked out behavior by appellant that seemed logical, which included that appellant fled the scene, hid at a friend’s house, got rid of his truck, made phonecalls to a friend, evaded police for three days, rented a motel room,lied to the police when he was apprehended, and denied all knowledge ofhow he killed the victim. (1SRT 2174-2175.) Dr. Boonewas“not saying he has noability to plan, butit’s just at a much lowerlevel. It’s at a child like level.” (15RT 2175.) The hypothetical the prosecutor related to Dr. Boone showed some“basic adaptive skills, trying to conceal a crime, hide from the police.” (15RT 2179.) Dr. Boone disputed that appellant’s statement to Eppersonthat he was going to kill her- showedplanning or goals. (15RT 2180.) Dr. Boone acknowledged she had not read the police reports ortrial or grand jury testimony. (ISRT 2179- 2180.) Dr. Boone was familiar with the DSM IV andanti-social personality | disorder. (15RT 2183.) She did not know if appellant had an anti-social personality disorder. Dr. Boone opined that appellant had “cognitive dysfunction” and whetherhe had any other psychiatric diagnosis was unknown to her. (15RT 2183-2184.) When questioned aboutthe criteria for anti-social personality disorder, Dr. Boone did acknowledgethat appellant had exhibited some of the criteria, including the “failure to conform to social norms with respect to lawful behavior” and “impulsivity and failure to plan ahead” which 58 related to his executive problem-solving skills. (ISRT 2185-2187.) Appellant had cognitive difficulties but Dr. Boone did not know if he met the criteria for anti-social personality disorder. (ISRT 2188.) Even if Dr. Boone knew that appellant had been diagnosed in 1994 at Patton State Hospital with anti-social personality disorder, Dr. Boonestill opined that appellant had objective cognitive dysfunction. (SRT 2189.) b. Dr. Roger Bertoldi Dr. Roger Bertoldi, a neurologist and clinical neuropsychologist, reviewed appellant’s neurological records, had an electroencephalogram (EEG) performed on appellant in jail, evaluated a quantitative EEG (QEEG)of appellant’s EEG results, and interviewed and examined appellant in jail. (L6ORT 2219, 2233, 2245-2247, 2253, 2261-2262.) Dr. Bertoldi opined that appellant had brain dysfunction, which was consistent with episodic loss of control and temporal lobe epilepsy. (16ORT 2265- 2266, 2281.) Dr. Bertoldi defined a neurologist as a physician whospecializes in the nervous system and neurophysiology as further specialization in the testing of the nervous system. The neurological system includes the peripheral system, the nerves and muscles, and the central system, the spinal cord, and brain. Brain activity is measured by an EEG, which measuresthe electrical activity naturally given off by the brain. (16RT 2219-2220.) The brain is a commanderofthe nerves. (16RT 2221.) The brain’s top four millimeters, the cortex, is “very columnar,” and because the brain cells are in columns,the cells project electricity, which cumulates. (16RT 2222.) Electrical activity of a normal person’s brain varies developmentally, and such developmentis called developmental or maturational tolerance. The range of normality for electrical activity is large enough to minimize false positives for abnormality on an EEG. An 59 electroencephalographer does not want to label someone abnormal unnecessarily. (L6RT 2223.) The resting background rhythm ofa brain is divided into frequencies onan EEG, (16RT 2223, 2225.) The brain emits a normal rhythm of about eight to ten hertz, which is called alpha. Anything faster is called beta, and anything sloweris divided into theta and delta, delta being the slowest. (16RT 2224.) Paroxysmalactivity, which is separate from background rhythm,is any rhythm that arises out of the background and then recedes. If the paroxysmalactivity is abnormal, one must determine whether the subject has epilepsy and the type of epilepsy. Epilepsy is more than one seizure. A seizure is when one has an abnormalportion of the brain where the electrical activity is not isolated properly and thatelectrical activity will either stay in that particular location or will spread. If the electrical activity spreads and depending on howit spreads, that will determine the type of seizure. (16RT 2227.) A seizure is a brain abnormality. An EEG can detect a brain abnormality if it is close enough to the cortex to measure. If the abnormality is deep within the brain, one only sees the projection ofthat abnormalactivity upon the cortex, because deeper structures modulate the cortex. (L6RT 2228.) Somebrain dysfunctions or epilepsy are knownto berelatedto loss of control, includingacts of violence. (16RT 2229-2230.) For example, in temporallobe epilepsy, the seizure focusis in the temporal lobe, which is above and behindtheear, and the focus can spread upward towards the cortex or spread downwardandinto the limbic system. The limbic system is the deepest, most primitive portion of the brain andlies right on top of the brain stems. The temporal lobes wrap the limbic system,so they are close to the mostprimitive portion of the brain. If a seizure occurs in the limbic system, one would exhibit uncontrollable rage. (16RT 2230.) The 60 rage a person experiences during a seizure is "usually not goal oriented.” (16RT 2287.) There are about a half dozen different types of epilepsy, not counting some additional rarer types. (16RT 2228.) Dr. Bertoldi reviewed appellant’s neurological records. (16RT 2233.) Appellant was born December22, 1967, and records from 1970 showed appellant had two seizures when he was two years old. (L6RT 2234-2235, 2242.) The seizures were focal, meaning they started in a localized area of the body, such as a twitching left leg. (L6RT 2235.) The records also showed appellant had abnormal EEGactivity in the left portion of his brain with "spike and wave" paroxysmal activity, which meansthe activity has a spike or very sharp component, and then a subsequent waveto it. That activitywas particularly abnormal, because it correlated very highly with a seizure disorder. (16RT 2237.) Aboutone offive children can have epilepsy, meaning a child can have “abnormaldischarges at one age or another." (LORT 2237-2238.) All children do not seize, and those who doseize are usually febrile, meaning the brain has not matured yet and is susceptible to abnormalelectrical discharges. Febrile seizures in children usually are not treated because the brain has not finished maturing yet. (16RT 2238.) Appellant's records showed he had a "true seizure disorder" and was put on phenobarbital. (16RT 2239.) On April 19, 1972, it appears appellant was seen by a doctor, because 1976 recordsreferred to a 1972 "tracing" (EEG). (16RT 2242.) LomaLindarecords dated 1976, when appellant was eight years old, showed an EEG was done. (16RT 2240.) The EEG showedparoxysmal activity, meaning the activity came out of and disappeared into the background. The activity was a four to five hertz spike and wave, which was an epileptic form, a seizure and discharge. (L6RT 2241.) The electroencephalographer reviewed appellant's records from when he was 61 two years old and foundthe activity had been present in both frontal lobes. (16RT 2241-2242.) The paroxysmalactivity was "not normal,” and appellant was having nocturnal seizures, thus confirming the presence of an epileptic form ofthe seizure disorder. (16RT 2242.) These abnormalities on the childhood EEGs suggested appellant had an underlying seizure disorder as a young boy andcorrelated with "true epilepsy” with a high degree of probability. Appellant had abnormalfrontal bilateral brain activity. (L6RT 2243, 2252.) When abnormalcells spread to form a Jacksonian seizure where the seizure starts in the hand and spreadsinto the faceor leg, that abnormality could spreadinto the limbic system, which could develop into loss of control or violent behavior. Appellant had a history of Jacksonian seizures. (16RT 2244.) Dr. Bertoldi acknowledged the only seizures appellant complained of in any record were the ones when he was two andeight, including a nocturnal seizure when he waseight, but those incidents were about 30 years ago. (16RT 2274-2275.) Since that time, there had been no documentation of complaints or seizures. (16RT 2275.) Dr. Bertoldi did not know how manytimesin the last 30 years that appellant had had limbic | seizures. (16RT 2276.) If a person hada limbic seizure, he would not remember whathe did. If he did remember, he would have difficulty with detail, and memories would have somedissociative qualities. (16RT 2277.) On February 17, 2004, Dr. Bertoldi asked the Q-Metrx companyto do an EEG on appellant in jail. (16RT 2247.) Q-Metrx took the EEG on a computer and gave Dr. Bertoldi a disk. The EEG, which was 20 minutes of brain wave activity, showed a couple abnormalities, including that the brain's frontal portion showed too muchslow activity. The slowing was in the same area as when he was a child. (16RT 2248-2250.) Dr. Bertoldi's 62 EEG findings were consistent with Dr. Boone's report concluding that appellant had frontal lobe problems. (16RT 2250-2251.) Dr. Bertoldi also testified the EEG showedappellant had paroxysmal activity, in the theta frequency range, and was more on the left temporal region ofthe brain than the right. (16RT 2251.) The paroxysmal activity occurred about once a minute on average and wasless specific than when appellant was a child, when doctors put him on phenobarbital. (L6RT 2251, 2278.) This paroxysmal activity was consistent with interictal activity, meaning the activity occurred between seizures. (L6RT 2251- 2252.) Less than one out of a hundred people would have appellant's theta slowing activity as shown on his EEG. (16RT 2258-2259.) Dr. Bertoldi acknowledged theta slowing could be caused by drowsiness and that some medications also could cause slowing of the brainwaves. (16RT 2267- 2268.) If a person's rhythm is slowing in a certain area of the brain, an imaging procedure could be recommendedto rule out a tumor,stroke, or infection. Dr. Bertoldi did not order a CAT scan or MRI for appellant. (16RT 2266-2267.) Dr. Bertoldi also looked at a quantitative EEG (QEEG), in which appellant's EEG frequencies were compared to a normative data base of people of the same age and sex. (L6RT 2253, 2261-2262.) To establish the data base, 2,082 people were used. (L6ORT 2279.) Only 120 seconds of appellant's 20-minute EEG tracing were used for the QEEG. (16RT 2256, 2278.) Dr. Bertoldi opined that the QEEG showedappellant had a frontal temporal brain dysfunction on the front and both sides of his brain. (16RT 2260-2261.) He also opined that the EEG and QEEG suggested appellant had epilepsy in the brain. (16RT 2262.) Dr. Bertoldi learned that at various times appellant took Depakote, an anti-epileptic drug. Appellant said that before each violent episode he 63 stopped taking Depakote. If appellant stopped taking Depakote, the epileptic focus would no longer be suppressed and wasfree to spread limbically, deeper into the brain. (L6RT 2262.) Hypothetically, if a person had epilepsy or a temporal lobe brain disorder and said he could not remember what he did, that situation would be consistent with any generalized epilepsy. (1ORT 2263.) Also, amnesia could be consistent with generalized epilepsy. (16RT 2263-2264.) Temporal lobe epilepsy along with a dissociative quality is a phenomenonin which a patient describes an event as though he was watching but without the sensation that he did anything. (16RT 2264- 2265.) On April 16, 2004, Dr. Bertoldi interviewed and examined appellant in jail. Dr. Bertoldi reviewedall charts he received on appellant. Appellant's general physical examination was within normalphysiological limits. (16RT 2245-2246.) However, appellant did have some gynecomastia, large mammarytissue, and other body features which suggested Klinefelter Syndrome, and genetic testing was recommended. (16RT 2246.) Appellant told Dr. Bertoldi that about twice a year he woke up in the morning and noticed his cheek had been bitten, and when he went to sleep and during sleep, he jerked or suddenly flung his leg or arm. (16RT 2246.) A person could have a night seizure and bite one's tongue or cheek. (16RT 2246-2247.) The jerking was not specific for epilepsy but was seen in myoclonic epilepsy, in which the focus results in myoclonus, a jerk. (16RT 2247.) A person whodoes not have overt seizures for a long time may haveseizures at night while sleeping, thus makingit appear the person is not having seizures. (L6RT 2291.) Dr. Bertoldi opined that appellant had brain dysfunction, basedon his consideration of appellant's abnormal EEGswith spike and wave discharges as a young boy,his history of Jacksonian seizures, his physical 64 examination and records, and the 2004 abnormal EEG and QEEG which showed frontal temporal slowing, paroxysmal temporal slowing, and interictal activity probably from a seizure disorder. (16RT 2265, 2281.) The brain dysfunction was frontal temporal on both sides, showing the brain was not functioning properly. The dysfunction was consistent with episodic loss of control and temporal lobe epilepsy. The paroxysmal activity in the theta frequency range was morespecific for temporal lobe epilepsy, whereas the computer data was more consistent with diffuse brain dysfunction anteriorly. (L6RT 2265.) It was common for appellant's type of problem to spread into the limbic system, because of the major highways of tissue that link the temporal lobe and limbic system. Ifthe brain abnormality spreads into the limbic system, extremely violent, primitive rage could occur. (16RT 2266.) Dr. Bertoldi opined that a paroxysmal episode contributed to appellant's acts of violence against women in his life. When appellant attacked his mother andhit his sister on the head with a lead pipe, Dr. Bertoldi thought a paroxysmal episode was contributory but did not know how much, (16RT 2281.) And, assuming that about eight years ago appellant argued with his girlfriend, grabbed her around the throat, dragged her into the driveway, kicked her in the neck at least two times with steel toed boots, threatened to kill her. until people dragged her away, and said he was going to shoot her, Dr. Bertoldi opined it was medically probablethat paroxysmal discharge was contributory to some degree. (16RT 2282- 2283.) Also, assuming appellant lured a victim to his apartment through a ruse, took her keys, threatened her, forced her to disrobe, kept her at knifepoint the whole day, yelled at her, told her to call his parole officer, and threatenedto kill her and her children, Dr. Bertoldi did not believe a paroxysmal discharge caused the situation, but aspects of the situation might have been caused by it. (LORT 2285-2286.) 65 c. Dr. Saul Niedorf Dr. Saul Niedorf, a child, adult, and forensic psychiatrist, interviewed appellant in jail on three occasions and reviewed numerousrecords. (16RT 2323-2325.) As result of his training, experience, record review and appellant's interview, Dr. Niedorf opined that appellant suffered from and still suffered from intermittent explosive disorder (IED), a condition usually linked to brain, familial, and social dysfunction and characterized by actions which can come’on suddenly without warning and are notinhibited. A typical normal person has controls to stop actions. (17RT 2327-2328.) Also, on the sanity issue, Dr. Niedorf opined that appellant did not know the nature and quality of his act and could not distinguish right from wrong at the time of the crimes. (17RT 2350-2351, 2356, 2398.) (1) Intermittent Explosive Disorder Diagnosis Overappellant's life, he developed the IED, whichis the sudden onset of an aggressive violence, often with the charactertraits of "the fang and claw." In other words, people have mammalian or animal circuits where fangs and claws are instruments for aggression, and inhibitions or a cutoff are lacking. (17RT 2328-2329.) If a person has pattern of exploiting others as part of his charactertraits andlife history, then the person could be sociopathic. However, if the sociopathy is not primary in the person, then the exploitative behaviors are secondary to another condition. (17RT 2330.) Dr. Niedorftestified about the Diagnostic and Statistical Manual IV (DSM), the manual of psychiatry diagnosis, and an Axis I and II diagnosis. Axis I is generally the psychiatric diagnosis, one of the 300 plus diagnoses in the DSM. Dr. Niedorf's Axis I diagnosis was that appellant had IED. (17RT 2331, 2374.) The DSM hadnothing to say about the cause or etiology of disorders. (17RT 2374.) 66 Dr. Niedorf's IED diagnosis was based on the facts that: appellant was diagnosed at Loma Linda Medical Center when he was twoyearsold and had treatments through his childhood and even adolescence; he had a series of terrible psychological and emotional events growing up; he had suicide attempts as a child andadolescent: his sociopathy was described at a later age in relation to his IED and verylittle was the sort of "pure culture of sociopathy"; and his choice of relationships, style of relating, chosen work, and behavioral qualities were not typical of an anti-social person, but wererelated to the IED. (17RT 2333-2334.) Four different reports corroborated Dr. Niedorf's IED diagnosis: the LomaLindareport, Dr. Bertoldi's report, Dr. Boone's report, and Dr. Wu's report. (17RT 2339.) The information from them was evidence of organic damage, which cannot be manipulated by a person. (17RT 2392.) At LomaLinda, appellant had a positive EEG showing abnormalities when he was two years old. The EEGs were repeated through the age of seven, and appellant was treated with medicine. (17RT 2334.) Dr. Bertoldi's report results evaluating the recent EEGs corroborated the existence of the IED. The same slow waves were present, which are signs of developmental failure. (17RT 2335-2336.) Dr. Boone's tests corroborated where the damage appeared in both the EEG pictures and the PET scans by another neurologist, Dr. Wu. (17RT 2336-2337.) Dr. Boone's test showed the absenceof executive functions, functions that initiate behavior or stop or inhibit behavior. Appellant's dominant side wasthe right side since he was left-handed. (17RT 2337.) Dr. Wu's PET scan showed areas which had low or below normal metabolic levels even during non-activities. (17RT 2338-2339.) Other aspects of appellant's background corroborated the IED diagnosis, including his family background. Appellant's father was very abusive, and that abuse could beinternalized into one's programs. (17RT 67 2340.) The abusive father and passive mother pattern has been researched in the psychiatric community. (17RT 2342-2343.) Patterns are laid down from societal and familial patterns. (17RT 2343.) Appellant was exposed to irrational actions, fault-finding, and punishment by his father. (17RT 2346.) Appellant's father pulled appellant out of treatment when he was young, becausehe did not think appellant deserved help. (17RT 2402.) Dr. Niedorf opined that appellant initially blamed himself, but later on identified with the abuser and becamethe abuser. (17RT 2346-2347.) One could overcomean abusive father by internalizing other inhibitory patterns that are more empatheticor spiritual, providing there is proper wiring in one's brain, proper support in your life, and proper medicines to help avoid the pathology of the IED patterns. (1L7RT 2341-2342.) Appellant was involved in a burglary when he was 19 years old; it did not surprise Dr. Niedorf that appellant involved himself in crimes. (17RT 2403-2405.) Appellant's suicide attempts in childhood and adulthoodalso corroborated the IEDdiagnosis. Suicide is often the ultimate cutoff attempt of the individual who cannotcontrol the aggression and destructiveness they feel. Because the individual cares, he tries to inhibit himself. Appellant injuredor tried to injure people he loved,felt terrible, and attacked himself. (17RT 2343-2345.) Another factor corroborated the IED diagnosis, the nature of appellant's relationships with women. He hadrelationships with women with children and who haddifficulties managing and organizing their own lives. He took on a rescueror caretakerrelationship, but could not handle any competition from another male. That competition wasa trigger for risk of losing the relationship and the rage at being deprived ofthat led to violence against the women. (17RT 2345.) Appellant's history of medication also corroborated the IED diagnosis. Whenappellant wasfirst treated, he was given phenobarbital, the classic 68 anti-Jacksonian seizure medication. In adolescence andin prison, appellant was given anti-manic, anti-rage, or anti-aggression medications. Those IED medications were mood stabilizers, which reduced arousal to a minimum so the person didnot get too agitated from stimuli or too low so that one became immobilized. Appellant improved to the point he could reflect on his behavior and even describe it. The fact the medications workedandthat he saw the positive effects corroborated that he had the mental illness. One such moodstabilizer was Seroquel, whoseside effect was reduced sexual function or dysfunction. Depakote was also a destabilizer, which indirectly affected the level of arousal. Because appellant did not like the side effects of some of his medication, he stopped taking it, and trouble ensued. (17RT 2347-2349.) Appellant needed the medication he wasprescribed and needed the security in which to takeit. (A7RT 2395.) Appellant's interest in cooking also corroborated Dr. Niedorf's IED diagnosis, because appellant had attachments to feminine and maternal people and identified himself in that way to please people. Thus, when the rage against women happened,the rage wasthe result of mental disease rather than a hatred of women. (17RT 2349-2350.) Dr. Niedorf acknowledged appellant never kept a job longer than eight months. (17RT 2389.) The IED includes rash, sudden, impulsive actions, usually with little provocation. (17RT 2371.) When appellant murdered Epperson, he wasin an episode of IED. Dr. Niedorf believed it was uncontrollable and irresistible. (17RT 2372.) Dr. Niedorf opined that appellant did not have an irresistible impulse to kill Epperson, but the irresistible impulse wasto assault her. (17RT 2372-2373.) Dr. Niedorf acknowledged there were preceding events, so it was not sudden; there was a buildup of tension and suspicion. Dr. Niedorf did not believe appellant's intention wasto kill 69 initially, but to hurt and punish. (17RT 2372.) Even though a person may have IED, the person may,at times when IED is not occurring, know exactly he is doing. When appellant was locked up or caught on a crime, he would get depressed. (17RT 2400.) The assaults in this case had to do with appellant's programming by a brutal father, genetics from that same father, the brain injury, and brain problems he hadas an infant, toddler, child, and adolescent. The brain syndromesweretreated, and his behavior improved. But, he continued to have that same injured brain. Dr. Niedorf opined "the precipitating events" did not cause the crime. (17RT 2374-2375.) IED usually occurs whenthere is "an assault on the self esteem, on the core self of the person through rejection." (17RT 2377.) When appellant wasrejected as a teenager for the first time by his girlfriend, appellant "whackedhis sister." Appellant did not mistake his sister for his girlfriend; he knew whohis sister was. Attacking his sister was similar to how he attacked himself when he could not attack someone else. (17RT 2378.) Appellanttried to injure people he loved as a child. He shoved his mother and hurt her back, breaking her vertebrae. (17RT 2388.) The police report said she wasfrightened of him because he had repeatedly threatened to kill her. (17RT 2389.) Appellant's mother andsister both said they werestill very fearful of appellant but loved him. Since his late teens, he had been estranged from his mother andsister. (17RT 2404.) However, appellant and his mother were close and talked on the phone more recently. (17RT 2405.) Dr. Niedorf believed appellant's major explosions had to do with women because "they haveto do with a terrible identification that he's made with the aggressor, with his father, and then in another and unconsciousidentification that he's made with women, with those that he 70 wants to identify with and cure or help or maybehelp raise their kids, help restore them in some way." (17RT 2393-2394.) Dr. Niedorf was familiar with appellant's Patton and otherstate prison hospital records. (17RT 2395.) In April 1993, July 1993, December 1993, and March 1994, in Patton, appellant was diagnosed with Axis I major depression with psychotic features. In March 1995,in state prison, he was diagnosed as bipolar with psychotic features. In October 1995, in prison, appellant was diagnosed with schizo-affective disorder, bipolar type. (17RT 2396.) Most bipolar people do not have an altered brain function. They have biochemical imbalances, but not structural injury or damage. In July 1996, appellant was diagnosed as schizophrenic disorder bipolar type. In 1997, at Atascadero, he was diagnosed as schizo-affective disorder bipolar type. In September 1998, appellant was diagnosed with bipolar disorder and schizophrenic disorder. In May 1999, at Wasco, appellant was diagnosed with schizophrenia and bipolar disorder. In April 2000, appellant was diagnosed with depressive disorder, seizure disorder, and major mental disorder. There was no doubt appellant had a major mental disorder. (17RT 2397.) Dr. Niedorf read the Patton record in which appellant could only think of revenge and had hatred for those whotestified against him. Appellant had hate "beaten into him from childhood on." The Patton records from March 12, 2002 to June 2002 when he was discharged showed a diagnosis of a mood disorder. (17RT 2378.) When Patton asked him abouthis memory and what had happened, appellant said he did not wantto talk about it. (17RT 2378-2379.) Appellant had individual and group therapy, had vocational rehabilitation, and went on walks. Dr. Niedorf stated in his report that appellant felt extreme remorse, but the Patton records showed he told a social worker on March 22, 2002 that he did not murder anyone and was framed. Dr. Niedorf testified it sounded as if appellant was paranoid 71 and lying, not ashamed and remorseful. (17RT 2379.) Dr. Niedorf read in the Patton records that appellant was foundto use a sufficient degree of restraint because he knew his behavior waslinked with groundprivileges. (17RT2381-2382.) Appellant could exert control over his anger and impulses,if there was no provocation. (17RT 2382.) One of the major causes of provocation involved a woman, with whom hehad relationship, telling him that she wanted to leave him. (17RT 2382.) Axis II was the secondary diagnosis. (17RT 2332.) Axis I depends on the person's age. A person could beinitially diagnosed as having a conduct disorder, and at a later age, the diagnosis could be a personality disorder. A sociopath, a person whois doing bad for bad's sake, has an anti-social personality disorder, which is a secondary diagnosis. Most Axis II diagnoses vary depending on whois making the diagnosis and for what purpose. For instance, for insurance purposes, no doctor would select an Axis II diagnosis only, becausethey are not covered. (17RT 2331-2332.) Throughout appellant's stays at Patton, state hospitals, and prisons, there had been multiple diagnoses of anti-social personality disorder on Axis II. (17RT 2398.) Dr. Niedorf acknowledged appellant may also have had anti-social personality disorder. (17RT 2383.) Appellant knew the legal system and had been to prisons and county jails. In Patton, appellant participated in mocktrials to prepare him to come back to court. (I7RT 2383-2384.) Dr. Niedorf was sure appellant knew how to manipulate the system. Appellant was intelligent. (17RT 2384.) (2) Sanity Issue Assumingthe truth of the crimereports, that appellant wentinto a rage upon learning Epperson rejected him, that he committed horrible violence onher, and that he engaged in unpermitted sex, Dr. Niedorf opinedthat at the time appellant committed the crimes, appellant did not know the nature and quality of his acts and could notdistinguish right from 72 wrong. Dr. Niedorf opined that appellant was in an altered state of consciousness. (17RT 2350-2351, 2356, 2398.) If one werein an altered state of consciousness, one would not feel the empathy or significance of the behavior. (17RT 2351.) Further, one can have a memory or recording of an event withoutreally understanding or volitionally acting during the event. (17RT 2352.) IED is not unconsciousness though. When one has an IED episode, the rage is one that humans feel when engaged in mortal combat. A person will use whatever is at hand. (17RT 2356.) Appellant could not distinguish right from wrongat the time of the crimes, because the area of the frontal lobes and the temporal lobes that initiate good behaviors or stop bad behaviors were not working. They were damaged and disconnected, and appellant did not have the medicine to help them work. (17RT 2356-2357.) Even assumingthat during the outburst of violence appellant had an erection, pulled down Epperson's pants, and had sex with her, appellant had previously engaged in these types of behaviors and could repeat them without initiating them voluntarily nor could he stop in the middle and say it was wrong. (17RT 2357.) In Dr. Niedorf's opinion, appellant was insane during the commission of the crime because he had a mentalillness or defect that led to these behaviors and did not have an intentional or voluntary consciousness. Consciousnessis the function of the brain during alert and often intentional behaviors, but there are many behaviors that are not conscious and are learned and repeated. If there is nothing to prevent repetition, those behaviors could fire off, and a person could not be aware of them. (17RT 2358.) Dr. Niedorf was aware appellant testified at trial. At the time of the commission of the crime, appellant was a different person than the one who testified. At the time of the crime, appellant was not able to answer 73 questions and able to deliberate and formulate; he was all action. (17RT 2360.) Dr. Niedorf was familiar with Dr. Richard Romanoff, another forensic doctor. Dr. Romanoff interviewed appellant and prepared a report. (17RT 2367.) Dr. Niedorf considered Dr. Romanoff's reports, as well as reports of other doctors in reaching his conclusions. (17RT 2369-2370.) Dr. Romanoff wrote that in the Minnesota Multiphasic Personality Inventory (MMPI)II testing he found appellant was probably exaggerating, was manipulating the system, overreporting symptoms, and overreporting psychiatric symptoms. Dr. Romanoffalso stated he believed appellant's 20- plus adult suicide attempts were not truly meant to end his life. Dr. Romanoff concluded the suicide attempts were used to get better housing and to movehis location in prison. (17RT 2370.) Dr. Niedorf did not disagree with Dr. Romanoff, but disagreed with the purpose of the suicide attempts; there may have been secondary andpositive effects from a suicide attempt, but the immediate effect wasrelief from internal pressure. (17RT 2370-2371.) In appellant's testimony, his police interview, police reports, Vannoy's statement, and appellant's interviews with psychiatrists or psychologists, appellant did not say he disassociated and saw himself doing the things to Epperson. (17RT 2386-2387, 2390.) d. Dr. William Vicary Dr. William Vicary, a medical doctor specializing in psychiatry, evaluated appellant for competencyto stand trial in 1993 for the crimes against Colletta and for the instant case in 2004. (18RT 2469-2470, 2472- 2473, 2533-2534, 2571.) Dr. Vicary opined that appellant suffered from bipolar disorder, or manic-depressive illness. (18RT 2475, 2481-2482.) With respectto the sanity issue, Dr. Vicary opined that appellant knew and understood the nature and quality of his actions during the time he was with 74 Epperson in her apartment, but appellant was not able to distinguish right from wrong at the time of the commission of the crime. (18RT 2488- 2490.) (1) Prior Competency Evaluation and Bipolar Diagnosis In April 1993, Dr. Vicary saw appellant by court order on the issue of whether he was competentto standtrial in the case in which Colletta was a victim. (18RT 2472-2473, 2533-2534, 2571.) Appellant had laid prostrate on the courtroom floor and said he had taken an overdose, but he had no medicationsin his system, which he later admitted. (18RT 2532-2533.) Dr. Vicary found him incompetent to go to court, but Drs. Markman and Sharmafound him to be competent, that he was malingering, that his acts were entirely volitional, and that he was able to cooperate with his lawyer but chose not to. (18RT 2532.) Dr. Vicary wrote the competency question was a "fairly close" question and reasonable experts could arrive at different conclusions. (J8RT 2541.) Dr. Vicary acknowledged appellant's actions in the courtroom were malingering. (18RT 2532-2533.) Appellant wassent to Patton State Hospital and found to be not competent to stand trial by reason of his mental illness. (18RT 2473.) At Patton, every 90 days a report was written. Appellant was treated with large doses of antipsychotic and moodstabilizing antidepressant medications. (18RT 2571.) A Tarasoff’” letter was sent to warn Colletta, because appellant said she had broken his heart and he was going to kill her. (A8RT 2533-2534, 2571.) ° Tarasoffv. Regents ofthe University ofCalifornia (1976) 17 Cal.3d 425. 75 A July 12, 1993 letter stated appellant was still incompetent to stand trial and was highly delusional. (18RT 2572.) Dr. Vicary acknowledged that trial delay favored the defense in general. (18RT 2542.) In March 1994, Dr. Michael P. Maloney wrote a report regarding appellant's competency and said appellant was a questionable historian because there were discrepancies in what he related, which Dr. Vicary found as well. Appellant had a tendency to minimize andforget what he had done, which Dr. Vicary said appellant was doingattrial. (18RT 2542- 2543.) Dr. Maloney said appellant's thinking process was logical and intact, he had no impairmentin reality testing, he was not significantly depressed, and nothing showed he could not cooperate with his attorney. Dr. Maloneysaid appellant's behavior was purely volitional rather than any manifestation of a mental illness. (18RT 2543.) On June 20, 1994, the Patton treatment team stated that it appeared appellant was not suffering from any major mental disorder, that he should be returned to court, and that any attempts to disrupt court proceedings had been volitional. (18RT 2547.) In July 1994, Dr. Vicary examined appellant again and found him competent to standtrial. Appellant was sent backto stand trial. (18RT 2473.) On April 29, 1997, at Atascadero State Hospital, after appellant was convicted for the crimes against Colletta, appellant's admission diagnosis was schizo-affective disorder, bipolar type, characterized by hallucinations and hearing voices. After appellant was examined, appellant did not appear to be hallucinating, and his Haldol and Artane medications were discontinued Appellant was upset about being sent back to the Department of Corrections. (L8RT 2553.) In a June 6, 1998 report by Dr. Osran, Dr. Osran said appellant did not have a severe mental disorder and he appeared to know that hearing voices 76 wasthe product of his own cognition, rather than a true hallucination in which an individual has no insight into reality. Those findings were not in Dr. Vicary's report, but Dr. Vicary tried to be faithful to Dr. Osran's report and putin the essence of the assessment and conclusions in his own report. Dr. Vicary stated in his report that Dr. Osran believed appellant had a severe personality disorder and that appellant appeared to know the voice inside his head wasa product of his own cognition. (18RT 2554-2556.) When appellant wasin prison, virtually all his time was spent in various psychiatric units. Doctors evaluated him, and the majority found he had a major psychiatric disorder and treated him with "heroic" doses of very powerful toxic medications. (18RT 2573-2574.) One report from a prison doctor said appellant liked to torture cats and that heset fires as a child. (1A8RT 2550.) Beginning June 2003, Dr. Vicary had interviewed appellant on five or six separate occasionsat the jail for a total period of about 10 hours. (18RT 2472.) Dr. Vicary opined that appellant suffered from a major mental disorder, the "mostlikely diagnosis" being the same diagnosis he made in 1993, manic-depressive illness whose modern nameis bipolar disorder. (18RT 2475, 2481-2482.) A person with bipolar disorder is very moody. In the manic state, a person can becomeveryirritable, agitated, hyperactive, frenetic, stay up day after day working on projects, talk a mile a minute, and have wild ideas. In the depressive state, a person can stay in bed, refuse to get out, not shave, not brush one's teeth, feel terrible, and attempt suicide. (18RT 2482.) Appellant's disorder was moreofthe classic type called bipolar one, in which a person has an up and then a downperiod, each lasting a few weeks or months. (18RT 2483.) Bipolar disorder can be triggered by something very slight, including a very slight remark or look. (18RT 2501.) 77 Dr. Vicary's opinion that appellant had bipolar disorder was based on prison, state hospital, and jail records, which described appellant with terms including depression, bipolar, manic-depression, and psychosis. (18RT 2484.) One could compare the list of symptoms for bipolar disorder with the list of appellant's symptomsrecordedin the jails and hospitals and also see that appellant's symptoms were repeated over and over again. (18RT 2485.) Thereis no relationship betweenintelligence and being bipolar. (18RT 2497.) Dr. Vicary believed appellant exhibited the following symptomsfor the manic episode: persistent elevated or irritable moodlasting for a period of weeks; decreased need for sleep; pressured speech; hyperactivity, including involvementin activities that have a high potential for painful consequences; financial irresponsibility; and sexual indiscretions. For the depressive episode, appellant exhibited: depressed mood mostofthe day or nearly every day for weeks;significant weight gain or loss; insomnia or excessive sleep; agitation or retardation (not moving), just sitting still hour after hour; feelings of worthlessness; decreased ability to think or concentrate; and recurrent suicidal ideation. (18RT 2487.) Different mental health professionals seeing the same person sometimes have different diagnoses. (18RT 2475.) Dr. Vicary stated that if one has a major mental disorder and a behavior can be accountedfor best by that major mental disorder, then all other disorders that one can have take secondary importance (18RT 2476.) For example,in this case, IED is very close to bipolar disorder, but the diagnostic manual states under IED that if the behavior can better be accounted for by bipolar disorder, one should give precedence to bipolar disorder. (18RT 2476-2477.) Also, one could have a major mental disorder and a lesser disorder, which includes personality disorders. (18RT 2478.) 78 Dr. Vicary did not agree with Dr. Niedorf's diagnosis that appellant only suffered from IED; Dr. Vicary opined that appellant could have both IED andbipolar disorder. The scientific literature indicated that 40 to 50 percent of people with IED also have bipolar disorder. (18RT 2477.) Also, one could have a major mental disorder and lesser disorder, which includes personality disorders. People with anti-social personality disorder or borderline personality disorder usually are not in the psychiatric unit of the county jail, county hospital, state prison, Patton State Hospital, and Atascadero State Hospital. (18RT 2478.) Virtually every time appellant was incarcerated, even as a juvenile, he wastransferred to a psychiatric unit and placed on anti-psychotic, antidepressant mood-stabilizing medications beginning with Thorazine and Haldol in his teenage years, continuing to the California Men's Colony East psychiatric unit, the main California hospital prison, and to Atascadero,the maximum security state hospital in California. Appellant was also in Patton State Hospital, and each time he was on extremely high doses of — medication. Appellant was on 1,500 milligramsof lithium, 2,000 milligrams of Depakote, and 60 milligrams of Haldol, whichis the equivalent of 3,000 milligrams of Thorazine, an amount that would "knock [a horse] to the ground." Appellant was also on Clozapine, an antipsychotic agent, whichis given to less than one percent of the sickest of the sick because it can wipe out white blood cells. Without white blood cells, one has no immunity. (18RT 2479-2481.) If Dr. Vicary gave a person what appellant currently took in jail, this person would be in a comafor three days. (18RT 2479.) If appellant were a "fake," he would have been underthe influence and barely able to speak. The fact that he wasalert, rational and able to communicate indicated the medications fit his illnesses and helped. Appellant's blood tests proved he took the medications. (18RT 2480-2481.) 79 Dr. Vicary's diagnosis of bipolar disorder was corroborated by appellant's family history. Dr. Vicary opined that there were very strong indications that other family members had bipolar disorder and related conditions. Both of appellant's paternal grandparents were alcoholics; the overlap between bipolar and alcohol and drug abuse was 60 to 70 percent. The paternal grandmother wasdescribed as hypersexual and neglectful of her children, who were taken away from her repeatedly. She probably had a major mental disorder, most likely bipolar disorder because bipolar people are hypersexual. One paternal uncle spent mostofhis life in a psychiatric hospital, and two paternal uncles and a cousin were alcoholic. Appellant's father was alcoholic, jealous, paranoid, irritable, and explosive to the point that he battered and beat his wife and children, even whenthe children were infants. (18RT 2504-2505.) Appellant's father smashed appellant against the wall when he was between year and half andtwo, which probably led appellant to develop the seizure disorder documented at Loma Linda. This seizure disorder was treated with phenobarbital for several years and now wasarguablystill present to some extent. About 40 to 50 percent of people with seizure disorders have some kind of mood disorder,like bipolar disorder. (18RT 2505.) Appellant's older brother was describedasirritable, aggressive, assaultive, and grandiose and was probably bipolar. The youngersister disappeared in her late teens or early twenties, was on disability, suffered from depression and wastreated with lithium, and probably had a major mental disorder, depression or bipolar disorder. (18RT 2506.) Several tests were administered: Dr. Boone's neuropsychiatric test, as a result of which she found brain damage that was knownaboutsince appellant was examined as a child (18RT 2508); Dr. Bertoldi's KEGtest, which was similar to the abnormal EEGs at Loma Linda when he was a child and which was abnormal too (18RT 2508); Dr. Wu's PET scan, which 80 showed brain damagein the frontal and temporal area of the brain and which was consistent with bipolar disorder (18RT 2509-2510); Dr. Vicary's Millon test and Dr. Mohandie's MMPItest which showed appellant had a brain disorder of a moderate to severe extent with indicationsofirritability, explosiveness, aggressiveness, paranoia, and problemsin interpersonal relationships (18RT 2510); and a Klinefelter Syndrome DNAtest, which was negative (18RT 2559). The MMPItest results indicated an explosive disorder but also that appellant was quiet, submissive, and lacked self-confidence in dealing with others. However, with the bipolar disorder, if appellant was frustrated, insulted, or maltreated, the disorder could be triggered if he was in a very bad mental state. The bad mental state could be a result of getting off medication which appellant did for the six weeksprior to the murder, drinking alcohol which appellant did on and off before the murder, or taking drugs. (18RT 2511.) Dr. Vicary testified the vast majority of treating and evaluating doctors had concluded appellant suffered from a genuine major mental disorder, which was treated with massive doses of dangerousanti- psychotic, mood-stabilizing, antidepressant medications. (18RT 2530.) The minority opinion wasthat appellant was basically just an anti-social person who becameangryat times. (18RT 2484, 2529.) Dr. Vicary acknowledged that, in most cases when someonebatters and abusesor evenkills his girlfriend or spouse, the person does not suffer from a major mental disorder. "That's exceptional. That's relatively rare.” (18RT 2518.) Further, the most likely victim of a mentally ill person is the person closest to him. (18RT 2500.) Dr. Vicary testified the murder was a "murder of passion, agitation and explosive outburst as [appellant] has repeatedly said over and overto 81 various doctors and police officers and detectives that he never planned the crime." (18RT 2512.) Dr. Vicary acknowledged there was a sexual componentto the crime; "obviously raping somebody,that has a sexual component." (18RT 2560.) Dr. Vicary also acknowledgedthat appellanthad lied to him. (18RT 2539, 2575-2576.) Appellant lied or minimized his involvement in a 1987 burglary he committed when he was 24 years old. (18RT 2539-2540, 2579.) (2) Sanity Issue Based onhis interview of appellant and record review, Dr. Vicary opined that appellant knew the nature and quality of his act at the time he was acting with respect to Epperson in her apartment. (i8RT 2488.) Dr. Vicary had interviewed appellant abouthislife and this case, had lookedat the crimereports, had read appellant's testimony in this case, and knew the jury had found appellant guilty of first degree murder with special circumstancesofrape, torture, and mayhem. (18RT 2487-2488.) Dr. Vicary's opinion was based onappellant's own statements to the police and witnesses that he realized he was hitting Epperson and on his admissions to at least one witness that he had struck her with various items. (18RT 2489.) Nothing in Dr. Vicary's conversations with appellant from July 1993 until Dr. Vicary's testimony would lead him to believe appellant did not know he was murdering Eppersonat the time. (18RT 2549.) . In Dr. Vicary's opinion, appellant understood the nature and quality of his act because herealized he wasstriking the victim with his fists and objects and that this could cause, given his size and her small size, grave bodily injury or death. It was "inconceivable that he did not have at some level some understanding that this attack could be fatal." (18RT 2489.) Dr. Vicary testified that reasonable doctors couldarrive at different conclusions about whether appellantknew the nature and quality of his act 82 and knew that Dr. Niedorf hadtestified that appellant did not know or understand the nature and quality of his act. (A8RT 2489-2490, 2524.) It was a close case on the issue of legal insanity. (18RT 2524.) The fact appellant testified and also made a statementto the police that he rememberedhitting Epperson but did not remember anything else showed, in Dr. Vicary's opinion, that appellant had an explosive outburst, wasnotthinking clearly, and remembered some things but not others. There was enough of what appellant remembered and admitted to remembering to Dr. Vicary to indicate appellant had "at least some basic understanding of what he was doing and the consequencesofhis acts." (18RT 2490.) However, Dr. Vicary opined that appellant was not able to distinguish right from wrongat the time of the commission of the crime. (18RT 2490.) Appellant had an explosive outburst. (18RT 2491.) When appellant attacked the victim, he was in an agitated, explosive, psychotic episode. (18RT 2492.) Even assuming the jury found a rape occurred, that finding did not necessarily show appellant knew the difference between right and wrong and that he knew what he was doing. The finding only proved he knew enoughto beat her to death and rape her but if he was in a psychotic, agitated frenzy it did not answer the question whether he knew what he was doing was wrongful. (18RT 2513.) Appellant was like a locomotive that had lost its brakes. (18RT 2513-2514.) Assuming appellant mentioned to Vannoythat he (appellant) had told Epperson he wasgoingto kill her, Dr. Vicary stated that it showed appellant had "some understanding of what he's doing, but it doesn't answer the question can he stop himself, can he control himself, is he thinking about right and wrong?" (18RT 2492-2493.) 83 As to appellant's testimony that from "all signs" it looked like he had killed Epperson, Dr. Vicary opinedthis testimony was consistent with someone whowastrying to get out of something, because after the explosive episode, appellant calmed down somewhatand realized what he had done. Dr. Vicary thought appellant was shocked and that he did not intend to commit the crimes. (18RT 2495, 2521.) Appellant remembered what he did. At the time hetestified, appellant had consciousness of guilt, that is, he was lying because he knew it was wrong. (18RT 2521.) When appellanttestified, he had a graspof right and wrong,butat the time ofthe killing in the middle ofa bipolar episode, appellant would not have that grasp. (18RT 2497.) Appellant was only in a psychotic state while killing the victim. Appellant was in an altered mental state. (18RT 2515.) Dr. Vicary wrote three reports regarding whether appellant knew the rightfulness or wrongfulness of his acts. (18RT 2519.) The reports were dated September 4, 2003, September 14, 2004, and November2, 2004. (18RT 2520.) He wrote his reports using the American Law Institute standard, although the M'Naghtentest is the California standard. (18RT 2525-2527, 2561-2562.) In the September 4, 2003 report, Dr. Vicary stated appellant would qualify as having been legally insane at the time of the offense. (18RT 2564.) Appellant's appreciation of the wrongfulness ofhis acts at the time of the offense was compromised by his paranoia and psychotic agitation. (18RT 2566.) Dr. Vicary would not have put that in his report unless he believed appellant met the M'Naghtentest. (18RT 2564.) The M'Naghten test states that a personis legally insane when by reason of mental disease or mental defect he or she was incapable of, one, knowing the nature and quality of his act, two, understanding the nature and quality of his act, or three, distinguishing right from wrong at the time of the commission ofthe crime. (18RT 2564-2565.) Dr. Vicary found the third factor true. (18RT 84 2565.) Also, the report stated appellant did appear to have had some awareness of the nature and consequencesof his acts. At trial, Dr. Vicary testified appellant knew the nature and consequencesof his act and that he lied about not knowing. Dr. Vicary said hechangedhis opinion from the report because he had become "more conservative" and had moredata since preparing the initial report. (18RT 2523-2524.) Dr. Vicary includedin his report some facts from defense counsel and relied on statements from appellant, even though appellant had lied to him in the past andlied to others. Dr. Vicary checked to see if appellant's statements fit with the other case data. (18RT 2550-2553.) In the September 14, 2004 report, Dr. Vicary said appellant's ability to control his behavior and appreciate the wrongfulness of his conduct was compromised, thus meeting one of the three M'Naghtencriteria. (18RT 2526-2527.) Dr. Vicary acknowledged that whether appellant knew right from wrongat the time of his explosion was "properly in the handsofthe jury becauseit's not a scientific medical decision,it's a moral social policy question.” (18RT 2496-2497, 2519.) Dr. Vicary did not go to the crime scene, was not given the grand jury testimony ofthe blood spatter expert or coroner, and did not review the interview tape of appellant or Vannoy. There wasnot an unlimited amount of money for Dr. Vicary to evaluateall the information when rendering his decision on whether appellant knew right from wrong. (18RT 2544-2545.) (3) Dr. Vicary's Removal from the Superior Court Panel of Doctors and Probation A few years before his testimony, Dr. Vicary had been removed from the superior court panel of doctors. In a 1996 murder case in which he was retained by defense counsel, Dr. Vicary made 23 deletions and changesto 85 his notes at the request of defense counsel, which was a violation of his ethics. (18RT 2556.) The changes were madeto benefit the defense. (18RT 2556-2557.) One of the deletions was a statement made by the defendant a week before he committed the murder where he said he hated the victim and wanted the victim outofhis life. As a result of making these 23 deletions and changes, the Medical Board fined Dr. Vicary and placed him on probation for three years. (18RT 2557.) Dr. Vicary was released early from probation because of exemplary behavior. (18RT 2567.) 2. Prosecution Evidence a. Dr. David Griesemer Dr. David Griesemer, a neurologist and neurophysiologist, interviewed appellant in jail, reviewed his medical neurological history, went over some cognitive skills with appellant, and conducted a simple neurologic examination of his head, neck, arms, and legs. Dr. Griesemer thought appellant's physical functioning was normal. (L6RT 2296-2298.) Dr. Griesemer did not find anything that indicated a tendency to have epilepsy as an adult or significant frontal lobe slowing. (16RT 2307.) Appellant told Dr. Griesemerhe did notrecall having had seizures as a child, although he remembered taking medication when he waslittle up until about age eight whenit was discontinued. Healso said from time to time doctors might put him back on Dilantin for a short while when they heard of his epileptic history but that he did not continue on anti-convulsant medication. Healso indicated he had norecollection of having had seizures of any type since age eight. (16RT 2298.) Appellant displayedthe scars where he had twice attempted suicide. Appellant also said he felt paranoid and scared of people in jail and throughouthis life. (16RT 2310.) Dr. Griesemer reviewed appellant's Department of Corrections and jail medical records. (16RT 2298-2299.) In all those records, there was no 86 documentation of any epileptic seizure since childhood. (16RT 2299.) Appellant had been given anti-psychotic medication, which tends to lower the seizure threshold and makeseizures more likely to happen. (16RT 2310-2311.) Appellant was given Depakote, which can manageseizures, treat bipolar depression, and prevent migraines, but was not an anti- psychotic medication. (16RT 2311.) Dr. Griesemer reviewed appellant's EEG reports from 1970 and 1976. The 1970 report reflected two nocturnal seizures, which meantthe seizures began while he wassleeping, and the seizures involvedtheleft leg, indicating they originated from the brain's right side. When appellant was examined, no neurological abnormality was found, and appellant was discharged with a phenobarbital elixir. (L6RT 2299.) Dr. Griesemer opined that one could conclude appellant had at least two events in childhood that were focal in origin arising from the right side of the brain that required medication managementat the time. (16RT 2300.) About half of childhood seizures will go away, because the brain begins to stabilize in terms of its chemical function and some ofthe inherited vulnerabilities during childhood are absent in adulthood. (L6RT 2302.) It was unclear whether appellant as a child would be amongthe 50 percent of children who outgrow their seizures. (16RT 2300.) Appellant's EEG reports from childhood showed abnormalepileptic discharges from the brain's left and right side. From one EEG studyto the next, the predominance shifted, and that pattern tended to be seen with genetic or inherited epilepsies rather than those associated with focal structural brain abnormalities. In the 1976 EEG study, there almost seemed to be a disconnect between how dramatically abnormal the EEG was and how weil appellant was doing clinically. The 1976 EEG wasread as abnormal(at times during sleep the paroxysmalactivity became nearly continuous), but nevertheless, the phenobarbital was discontinued and 87 appellant remainedseizure free after that. This pattern is not inconsistent with some benign epilepsies. (L6RT 2300-2301, 2307-2308.) Dr. Griesemer looked at appellant's most recent EEG and saw some theta activity, which Dr. Bertoldi had also seen. However, they drew different conclusions about the theta activity. Dr. Bertoldi assumed that was a marker for somedeep epileptic focus, and Dr. Griesemer did not make that assumption. Dr. Griesemer stated the theta activity was abnormaland subtle, which showed simply episodic or intermittent slowing, but was not an epileptic discharge. (16RT 2302-2303, 2312.) Dr. Bertoldi did not testify epileptic discharges were present on the most recent EEG,but he did speak aboutepileptic discharges during childhood as paroxysmalactivity and then again spoke of paroxysmalactivity on the most recent EEG,leaving listeners with the impression he wastalking about epileptic activity, despite the lack of any. (L6ORT2314.) The focal abnormality that Dr. Bertoldi testified about wasa little bit of theta activity shown more predominantly on the left side. However, the distinction should not be normal or abnormal as much asclinical relevance or irrelevance. A very generous margin exists in terms of allowing abnormalities, because many normalvariations and different types of patterns can be confused with focal abnormalities. (16RT 2306.) Dr. Griesemer did notfind anything that indicated a tendency to have epilepsy, found nothing that indicated a significant frontal lobe slowing, and found nothing to encourage him to look further diagnostically at appellant. Dr. Bertoldi did not pursue further diagnosis either. (L6RT 2307.) Dr. Bertoldi's testimony suggested the seizure focus orthe origin of the seizure was on the surface ofthe brain's right side during childhood and migrated, perhapsdeeply,to theleft side during adulthood. Dr. Bertoldi’s basis for that assumption wasa little bit of slowing on the EEG onthe left 88 side, which he called limbic seizures. Dr. Griesemertestified that typically one does not see migration ofthe epileptic foci. (16RT 2305-2306.) QEEGsare used by some people at Dr. Griesemer's university for research purposes, but are not used in the diagnostic EEG laboratory. (16RT 2303.) Dr. Griesemertestified it was not considered acceptable to use the QEEGfindingsas the basis for a diagnosis, and the American Academy of Neurology had discouraged the use of QEEGsfor diagnostic purposes. (16RT 2304, 2315.) The QEEGis of limited utility in behavioral diagnosis, becauseit is well accepted that there is no direct correspondence between neurophysiology and behavior. (16RT 2304.) Q-Metrx had a disclaimer that the QEEGhadlimitations and could not be usedto predict behavior or analyze behavior and that behavior must be studied. (L6RT 2304-2305, 2315.) b. Dr. Kris Mohandie Dr. Kris Mohandie, a psychologist, opined that appellant was sane. His diagnosis wasthat appellant had an anti-social personality disorder with narcissistic and borderline traits and secondarily, malingering. (18RT 2591-2594, 2605, 2608, 2614, 2651.) Dr. Mohandie opinedthat the best evidence of what wasin appellant's mind when he murdered, tortured, raped, and maimed Epperson was what he said and what he did. (18RT 2652.) Dr. Mohandie interviewed appellant three times, although he wentto the jail five timesto interview him. Twice, appellant refused to comeout, later indicating he was not feeling well. Appellant also cut one interview short. (1A8RT 2594, 2598-2599.) Dr. Mohandie administered objective psychologicaltesting to appellant. He administered the MMPIII, which offers at least eight different validity indicators to assess the subject’s responsesor test-taking attitude, to gauge accuracy. Dr. Mohandiealso administered the Structured 89 Interview of Reported Symptoms (SIRS) test which specifically tests for malingering, exaggerated responding, and feigning or faking. (18RT 2599.) | In addition, Dr. Mohandie reviewed medical records and psychiatric forensic reports of defense counsel's experts, looked at police reports and photographs, looked at videotapes of appellant’s police interrogation interview and Vannoy’s videotaped interview, reviewed someofthe transcripts from appellant's trial testimony, and went to the crime scene. (18RT 2594-2595, 2598.) Appeliant’s MMPIresults showed an exaggerated symptom response, meaning that appellant endorsed more itemsofalleged problems than most psychiatric patients, which is called a "fake bad" response. Appellant had a score of 98, which wasfar abovea typical significant finding of 70 and suggested he was extreme in responding. (18RT 2601.) Appellant’s SIRS test results showed evidence of inaccurate or feigned responding on two aspects, one was probably feigning and theother indicated feigning. Both tests showed appellant exaggerated what was wrong with him. (18RT 2601.) Dr. Mohandie reviewed Dr. Boone's report and looked through the tests she administered. Dr. Boone did not use the MMPIor SIRStest. The Millon test which Dr. Boone used did not have the sensitive validity indicators or research on validity indicators of the MMPI. Dr. Mohandie disagreed with Dr. Vicary's testimony that the Millon was a newer, more sensitive test. (18RT 2599-2600.) Dr. Mohandie's primary opinion wasthat appellant was sane. (18RT 2605, 2614.) His opinion was based on: appellant having beenoff his medications for six weeks prior to the murder, and the lack of objective evidence that appellant fell within the insanity definitions duringthat time; appellant’s interviews which showedhe had a very specific recollection of 90 all the events leading up to the exact momentof the homicide, including the number of AA meetings he had attended, all the conversations he and Epperson had, andhis various actions; appellant’s denial of any psychiatric symptomssuchas hallucinations, false sensations, or delusional beliefs; appellant having engagedin a variety of goal-oriented and goal-directed functional behaviors to avoid detection; appellant’s report of an unlikely state of amnesia for the exact moment when the homicide occurred until after he was taken into custody and had given damaging statements; and the objective psychological data derived from the MMPI, which showed exaggerated symptomsreporting, and the SIRS results, which showed appellant was feigning different symptoms. (18RT 2605-2607.) The type of amnesia appellant claimed was malingering amnesia, or faked amnesia, according to the DSM IV. (18RT 2607.) Appellant denied he had consumedany alcoholor drugs just before committing the crime. (18RT 2606.) Dr. Mohandie's diagnosis for appellant was anti-social personality disorder with narcissistic and borderline traits and secondarily, malingering. (18RT 2608, 2651.) All seven diagnostic criteria for anti-social personality disorder fit appellant: failure to conform to social norms with respect to lawful behavior as indicated by repeatedly performing acts that are grounds for arrest, which was shownby appellant’s numberofarrests and convictions for acts of violence; deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure, which was shownby appellant manipulating things for more favorable treatment in hospitals and the prison or judicial system; impulsivity or failure to plan ahead, which was shownbyappellant’s own acknowledgement and substantial history of being very impulsive and having angry impulses; irritability and aggressiveness as indicated by repeated physicalfights or assaults, which was supported by substantial evidence; reckless disregard 91 for safety ofself and others, which was supported by substantial information; consistent irresponsibility as indicated by repeated failures to sustain consistent work behavior or honorfinancial obligations, which was shown whenappellant wanted to leave his job outof frustration; and lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated or stolen from another, which was shownbyappellant having had no true empathy for Epperson orthe other two women whotestified in the courtroom. (18RT 2609-2611.) Appellant’s description of how the crime occurred — he was angry because he perceived the victim was treating him poorly — wassimilar to domestic violence situations when the assailant has a constellation of anti- social personality traits and narcissism. (18RT 2608.) In domestic violence cases, the abuser commonly says he loves the womanbutis control- and power-oriented, with anti-social, narcissistic, and borderline types of personality traits. (18RT 2650.) Dr. Mohandie believed there was a sexual componentto the crime because appellant raped the victim after or during commission of the crime, was able to maintain an erection while doing that, and reportedly was able to do the samein the past, which suggested "some elementof a turn on for that for him." (18RT 2649.) During Dr. Mohandie's interview, appellant said the last time he had sex with Epperson wasthe day before and explained that was why he was so angry about her being on the telephone with another man. However, appellanttestified at trial that he had had consensual sex with Epperson just before he killed her. (18RT 2650.) Even though somedoctors diagnosed appellant with a major mental disorder, Dr. Mohandie's opinion wasthat those diagnoses werenotreliably done. (18RT 2626, 2635-2636.) Dr. Mohandie did not find mental evidencethat one could reliably label appellant with a mentalillness because of his tendency to exaggerate symptoms for secondary gain over a 92 numberof years. (18RT 2602, 2622, 2626, 2628, 2643, 2651.) In addition, since Dr. Mohandie found appellant could be labeled as having an anti- social personality disorder with narcissistic and borderlinetraits, appellant was an unreliable source of information about what might be wrong with him. (18RT 2602.) Appellant might or might not have a major mental illness. (18RT 2622.) Dr. Mohandie disagreed with the testimony of the defense experts that appellant had a major mental disorderandthat as a result he was incapable of knowingright from wrongat the time he committed this crime. (18RT 2601-2602.) Dr. Mohandie did not see evidence that appellant suffered from a bipolar disorder such that he was a dangerto himself or others. (i8RT 2595.) Appellant’s behavior was not prototypical IED because appellant engaged in motivated behavior in the context of rejection and appellant’s purposefulness was more than ordinarily expected in an IED situation. The DSM states that if the behavior is better accounted for by anti-social personality disorder because ofthe pervasiveness throughout the individual's life, then anti-social personality is the disorder. (18RT 2613- 2614.) Also, Dr. Mohandie would not agree that IED was a “close cousin” of bipolar disorder as Dr. Vicary testified. (18RT 2638.) A Patton State Hospital report dated June 7, 2002, stated appellant did not have a psychotic or major mood disorder. (18RT 2648-2649.) Dr. Mohandie's recollection of the records he reviewed wasthat there was a mixture of those that showed a variety of major mental disorders and those saying something else was going on. In any event, appellant was diagnosed with anti-social personality disorder in many reports. (18RT 2649.) Even if appellant were on medication for a mental illness, one would still expect to see some evidence of the mental illness. When Dr. Mohandie interviewed appellant, he did not see any evidence of a major mental 93 disorder such as bipolar disorder. When Dr. Mohandie viewed appellant's interview tape, he did not see any evidence of bipolar disorder. One would expect to see symptomsduring the police interview because he had been off his medication for six weeks, which encompassedthe interval of the homicide as well as when he wasinterviewed by the detectives. (18RT 2604.) Pursuant to the DSM IV, a bipolar person can also qualify as having an anti-social personality disorder, so they are not necessarily mutually exclusive. (18RT 2611-2612.) C. Penalty Phase 1. Prosecution Evidence a. Epperson's Family and Friends (1) Bette Ruiz De Esparza Bette Ruiz De Esparza was Epperson's mother-in-law, since Epperson was married to Paul Grano,her son. (31RT 4579.) Epperson and Grano metin grade school. Epperson's mother, who had alcohol problems, left Epperson whenshe was a teenager, and Epperson's father wasin Chicago and did not raise her. Epperson essentially came to live with Ruiz De Esparza and Grano, and Grano looked after Epperson, essentially raising her and marrying her. Ruiz De Esparza and Epperson were very close, with Ruiz De Esparza considering Eppersonto be her daughter and Epperson considering Ruiz De Esparzato be her mother. (31RT 4580- 4581, 4584, 4587-4588.) Epperson hada sister and a brother. (31RT 4582.) Grano and Epperson had a son, Jeremy, and they married when Jeremy wastwo years old. (31RT 4588.) Jeremy had problems with drugs and wasin jail. (31RT 4589-4590.) Grano and Eppersonalso used drugs, and both got in trouble. (31RT 4588, 4591.) Epperson wentto a drug 94 program, but relapsed. (31RT 4589.) Grano and Epperson broke upat some point, but did not get divorced. (31 RT 4591-4592, 4595.) Epperson called Ruiz De Esparza quite often. When Ruiz De Esparza was going to have a heart operation, Epperson called and said she and Grano would be there. Epperson sounded "real positive," as if her life was going well. (31RT 4583-4584, 4593.) When Ruiz De Esparza had her heart operation, right before Epperson waskilled, Grano and Epperson were there. From the time of her operation forward, Epperson said she and Grano were getting back together. (31RT 4595.) Epperson did not mention Sims and did not tell her she was going to marry him. (31RT 4592.) Granotold Ruiz De Esparza that Epperson had been murdered, and she could not believe it because Epperson had been so positive. (31RT 4584-4585.) Grano, who wasbroken hearted, had Epperson's ashes. GBIRT 4594.) (2) Ruth Steward Ruth Steward worked as a lay minister at Central City Community Church of the Nazarene on 6th and San Pedro in downtown Los Angeles’ Skid Row. (28RT 4214-4215, 4223.) The Weingart was directly across the street from the church. (28RT 4223.) The Weingart had programsto help people with mental illness and anger management. (28RT 4226-4227.) The Ballington was about a block and a half away from the church and Weingart. Many people in the area lived on the streets, used drugs, drank, and were mentally ill. 28RT 4224.) Steward had known Epperson for about a year before she was murdered, and Epperson wasclean and sober the whole year. They became friends. (28RT 4214-4215, 4217.) Steward remembered Epperson's smile and that she was positive about life. Epperson worked on her drug problems, would try to overcome obstacles, and was a "successstory." (28RT 4215.) Epperson tried to help others. (28RT 4225.) Epperson 95 prepared a poem to give to about 20 people at the church. (28RT 4217- 4219.) The poem talked of faith, making changes, and God's guidance. (28RT 4219.) A couple weeks before Epperson was murdered, Steward went on a retreat with Epperson, who washappyat that time. Q8RT 4220.) The pastor told Steward that Epperson had been murdered. (28RT 4220.) The church had a memorial service for her. (28RT 4229-4221.) Steward felt Epperson's loss very deeply. (28RT 4216-4217.) Steward did not think she would meet anyonelike Epperson again because the "vibrance that radiated from Tammy was extraordinary. Words can't express the life that this young lady had." (28RT 4221.) Steward cameto court to testify for Epperson and would not have come otherwise. (28RT 4222.) b. The Murder of Tammy Epperson” Timothy Todd had beenin prison from 1995 to 1998at the California Men's Colony (CMC)in San Luis Obispo and met appellant, who wasalso incarcerated there. (31RT 4604, 4609.) CMC wasa prison for people with a physical or mentalillness. (31RT 4633.) Todd was gay. G1RT 4604.) Todd, who had been a prostitute and had a drug problem at that time, was in prison for robbing twoofhis "johns." (31RT 4606, 4631.) Appellant offered to defend Todd against men who wantedto beatand stab him, and they becamefriends. At that time, Todd respected and looked up to appellant. (31RT 4604-4605.) Appellant saved his life. (31RT 4632.) While in prison, appellant did not act like he was hallucinating,act crazy, talk to him like he was hearing voices, or act uncontrollably. (1RT 4609.) 'l Although some ofthe same evidence presented in this second penalty phase wasalso presented in the guilt and sanity phases, the evidence is summarized again here because the second penalty phase was tried to a jury different from the one that decided guilt and sanity. 96 On July 24, 1998, Todd wasparoled to the Weingart Center Stairs Program, a program for homeless parolees and a drug program. (31RT 4606.) Tammy Epperson wasalready in the program, and Todd and Epperson becamethebest of friends. (31RT 4607.) In 1998 or 1999, Ronald Sims’* and appellant were both in the Weingart program also. (32RT 4727-4728, 4739.) They did not know each other well, and Sims avoided appellant because he had tattoos on his calves — and arms. (32RT 4728-4729.) Appellant left the program at somepoint, served time for a parole violation, and returned to the Weingart again. (31RT 4607.) In 1999, Sims met Epperson at the Weingart. G2RT 4714-4715, 4738.) Sims had been in the program aboutnine or ten months before he met Epperson. (32RT 4739.) Epperson was a "real likeable person." (32RT 4737.) They started dating, and Sims was her boyfriend for a while. (32RT 4715, 4736.) Sims met both Epperson's husband and son Jeremy. According to Sims, Epperson was not going to resumeherrelationship with Grano. (32RT 4740.) At somepoint in 2000, Epperson movedout of the Weingart into the Ballington Plaza, which was low income housing, predominantly single- room apartments. (28RT 4237; 32RT 4715, 4739-4740.) Most tenants were low income wage earners or from recovery programs,including drug and inmate rehabilitation programs. (28RT 4237-4238.) The property manager was Michael Ramakrishnan, who had been a substance abuse counselor and wholived on-site. (28RT 4237, 4240, 4248.) The Ballington had manyrules, including that no drugs would betolerated. Simshad been convictedof the felonies of grand theft in 1996 and transporting or selling cocaine. Sims served time and was paroled. (32RT 4738.) 97 (28RT 4241.) The lobby entrance was at 62 South Wall Street. (28RT 4238.) Ramakrishnan knew Epperson, wholived at the Ballington a minimum ofsix months. (28RT 4239, 4254.) Epperson was a good person and tenant. She took care of herself, was very immaculate, was very detail- oriented, and spoke well. Epperson liked working and evenif she had a hard day, did not complain. (28RT 4239.) Ramakrishnan spoke to Epperson often, and Epperson wouldtell him about someofher daily events. (28RT 4249.) Epperson had an outgoing personality and talked to residents on her day off. (28RT 4242.) Epperson's apartment was well kept and very clean; she took pride in her apartment's appearance. (28RT 4248.) After Epperson movedto the Ballington, Epperson helped Simsget in by recommending him to Ramakrishnan. (28RT 4244, 4255; 32RT 4715, 4739-4740.) Todd and appellant were tutors for math and reading on the computers at the Weingart Center. At the Weingart, appellant saw Epperson and asked Todd who she was. Appellant said he would like to go out with her and asked Toddto talk to her. (@1RT 4608.) Todd talked to Epperson about appellant several times, and Epperson said she did not want to go out with anybody and had just gotten out of a relationship with Ron Sims, an African-American man. (31RT 4609-4610.) Appellant continued to ask Toddto set him up with Epperson and wasvery interested. Eventually, Todd talked Epperson into going out with appellant, andall three went out together three times. (31RT 4610-4611.) The first time appellant met Epperson was between Mayand July 2000, so appellant would have known Epperson for aboutsix or seven months. (31RT 4637.) After those three times, Todd did not see Epperson go out with appellant, and appellant continued asking him to set him up with Epperson. Appellant offered to buy Epperson a houseandcar, bought stuffed animals and flowers she did 98 not want, and bought her food. Appellant would bring gifts to Epperson and Todd's workplace, G & V Communications, an answering service where Epperson was the manager and where she had gotten Todd a job as her secretary. Epperson disposed of the gifts when she and Toddleft work. Epperson did not want anything appellant gave her. (31RT 4611-4614.) Encounters between Sims and appellant made Sims feel that appellant disliked him for certain reasons and made Simsfeel afraid. For instance, one Saturday afternoon, Epperson had little get together at the Ballington for her support group, including Todd and appellant. As Simssat nearby, he heard two voices in the Ballington kitchen. (32RT 4729.) Appellant intimidated Sims or made him fear for his safety. (32RT 4731.) In another incident, Sims was going through the doorat the Weingart, and appellant was coming in. Appellant called Sims a "punk m.f.," and as Sims turned around and looked,appellant looked like he was getting ready to rush Sims, engaging in "intimidation movements." Sims walked to the security guard area. (32RT 4732, 4736.) Sometime after Sims moved to the Ballington, Ramakrishnan allowed Epperson to change her locks, which was an exception to the rules. (28RT 4255-4256.) Epperson gave Ramakrishnan the impression she was changing the locks because Sims wastrying to get in while she was gone, possibly to steal, but she did not specifically say that. (28RT 4256, 4264- 4265.) Ramakrishnan asked for a key to her apartment, and she said she would give him one. (28RT 4256.) Ramakrishnantestified it was recommendeda person in the early stages of recovery not associate with drug users, to avoid going right back to using drugs. Epperson wanted to distance herself from Sims. (28RT 4245.) After Epperson changed her locks, Sims was evicted for non-payment of rent, possibly due to drugs. (28RT 4244-4245, 4258.) Sims was "86'd" from the property. Once a tenant was evicted for non-paymentofrent, the 99 tenant was not allowed back onto the properly from six months to two years. (28RT 4258.) After Sims was evicted, he tried twice to get in. (28RT 4259-4262.) Through the Weingart, appellant became good friends with Neida or Gretchen Black, a Black woman. (31RT 4650-4651.) Black married a White man, and Black, her husband, appellant, and Todd wereall at the Weingart and got along. (31RT 4651.) Appellant told Todd he would never hurt him or Epperson. Appellant walked them home from the Weingart. (31RT 4617.) Also, appellant said he had beento prison for beating up men who beat up women,but that was not true. (31RT 4618.) When appellant was at the Weingart, appellanttold Todd he was in a White gang. (31RT 4624-4625.) On one evening of a weekend, Todd, Epperson, and appellant were watching a movie at Epperson's apartment, and Todd wanted to go home. Appellant begged him not to go so they could all stay there together. Appellant said he would buy him anything he wantedto eat. Todd told appellant what he wanted, appellant boughtit, and theyall stayed and watched the movie. When Todd wasready to go, appellant walked him home. (31RT 4612-4613.) Todd visited Epperson's apartment frequently and identified some itemsin it that appellant said he gave her or helped her with as being there before appellant even met her. (31RT 4615-4616.) In a letter dated April 25, 2000, Epperson expressed her fondness for Todd and said she was proud of him because he had turnedhislife around, stopped using drugs, and gotoff parole. (31RT 4616-4617, 4637.) Whenthere wasa busstrike, Grano gave Eppersonrides to work, and appellant was very jealous ofthat relationship. Appellant offered his truck to. Epperson to take her and Todd back and forth to work duringthestrike. (31RT 4623.) According to Todd, Epperson was not going to get back together with Grano. Epperson gave $400 to a lawyerto file divorce papers 100 so she could marry Sims. (31RT 4635.) Appellant was very jealous of anybody who was with Epperson, including Grano, Sims, and Todd. (31RT 4639.) In October 2000, Sims started using cocaine again, and on October 14, 2000, he was evicted from the Ballington for non-paymentofrent. When Sims relapsed, Sims and Epperson broke up. To get back together with Epperson, Sims had to stop using drugs,get his life back together, and go back to work. (2RT 4715-4716, 4740-4741.) After being evicted, Sims went back to the Weingart, got in a program, went back to work, started talking to Epperson again, went to Bible study because of Epperson, and starting attending church. (32RT 4716, 4742.) Sims planned on getting back together with Epperson. (32RT 4736.) At some point, Sims and Epperson had a dispute, and Epperson was upset that he kept coming around. Epperson changed the locks on her apartment door and did not give a key to the manager. Sims did not go in her apartment when she was not there and take things. (32RT 4742-4743.) A week or two before November 6, 2000, Todd went to the beach with appellant, who liked to go to the beach when he and Epperson had an argument. (31RT 4638.) One time, when Todd and appellant werein Malibu, appellant said Epperson reminded him ofa girlfriend who had died. Epperson looked like Betsy M., whom Todd had seen waiting to testify. Appellant also said that if Sims kept pursuing Epperson, he would kill Sims. (31RT 4621.) Also, at one time, appellant said that if Sims kept coming around Epperson, he would kill both. (31RT 4622.) On many occasions, appellant told Todd that he did not like Sims and used the "N" word. (31RT 4623-4624.) On November6 and 7, 2000, appellant telephoned Epperson at work. Epperson wasvery hysterical and crying. She told appellant on the telephone notto call, but he called every few minutes. She wrote down in a 101 book every time he called. GIRT 4619, 4645-4646, 4651-4655.) Appellant said he was going to commit suicide. (31RT 4638, 4653.) Epperson told appellant she was going to call the police if he did not stop calling. (31RT 4619-4620.) Thelast time appellant called Epperson, Epperson talked to him and told him that the Stairs program would take him back. (31RT 4648-4649.) Epperson then told Todd to answerthe phone, which he did. (31RT 4648.) Afterwards, Toddtried to talk to appellant about stopping the pursuit of Epperson. (31RT 4620-4621.) At some point, appellant said he was not able to have sex with Epperson andthat she was not "giving it up to him." Appellant said, "If can't have her, nobody will. I'll kill her and myself." G1IRT 4622.) On Thursday, November9, 2000, Todd called Epperson andtold her he had relapsed, was smoking crack cocaine, and was goingto take time off. Todd felt he was stuck in the middle between appellant and Epperson and smokedcrack as his only way out. (31RT 4625-4626, 4639-4641.) On Friday, November10, 2000, Todd talked to Epperson on the telephone from home. Eppersonfired him because Todd hadrelapsed. Todd wentin to work on Friday to pick up his check, and they talked. Epperson told him to come back Mondayto discuss getting his job back once he was sober. (31RT 4625-4626, 4639-4641.) On Sunday, November 12, 2000,in the morning, Sims was supposed to attend church across from the Weingart with Epperson but waslate. Instead of going in, Sims waited for her to come out. While waiting, Sims saw appellant pacing back and forth from his truck to the corner on the opposite side of the street near the church. About 10 a.m., Sims met Epperson outside the church, and appellant wasstill across the street. Sims told Epperson he was going to attend another church and would call when he got out. After Sims talked to Epperson for a while and got ready to leave, Sims lookedat appellant, who was squatting on the corner and 102 looking at Sims fromacrossthe street. Sims left Epperson in front of the church, while appellant was looking. (32RT 4716-4720, 4732, 4743-4744.) About | p.m., Sims came back to Los Angeles from the other church service and paged Epperson. Epperson did not call back, which was unusual. Sims waited a few minutes, wentto the Ballington to ask about her, and went back to a pay phoneto call her again. Sims then went back to the Ballington to ask the security guard about her. Sims could not go back into the Ballington because he had been evicted. Sims asked a man coming out of the Ballington to knock on Epperson's door, and the man went back in and cameout, saying there had been no answer when he knocked on her door. (32RT 4721-4722, 4747.) When Sims wasat the Ballington, he saw appellant's truck across the street. (32RT 4722-4723.) Ramakrishnan saw Sims in the lobby, became upset, threatened to call the police, and said Sims had to leave. Sims went back to the Weingart. (28RT 4259; 32RT 4723.) Between 4 and 6 p.m., Todd received a telephonecall from appellant. Appellant said, "Biggy [Todd], I killed Tammy. You'd better go check on her." (G1RT 4627.) Todd told appellant that appellant was drunk and that appellant would never hurt her. (3 1RT 4627-4628.) Appellant replied, "No. [killed her. Go check on her." Appellant hung up, called back, and said, "Did you go check on her?" Todd told appellant that he had not and that appellant was drunk. (31RT 4628.) Appellant said, "No. I'm going to be on death row. I killed her." (31RT 4628, 4641-4642.) Appellant said he was going to Florida. Toddstill did not believe appellant because appellant had said he would never hurt Epperson. (31RT 4628.) Todd thought appellant was kidding. (31RT 4641.) On Monday, November 13, 2000, when Todd went to G & V,the business was closed. Todd thought it was unusual because Epperson made 103 sure the business was open. Toddtried to call Epperson's phone but got no answer, (31RT 4626-4627.) On that Monday, Sims went to work at the Mobil Oil Refinery, but since there was a gas leak, his crew went home. (32RT 4723, 4732.) Sims went home, changed clothes, and went to Hollywood to surprise Epperson and take her to lunch. Epperson's workplace was closed, which was unusual. Sims wentback to Los Angeles and called Todd, whom hefinally reachedlater in the afternoon. (32RT 4724.) Todd told Sims about the Sundaynight call from appellant, which alarmed Sims. (31RT 4628; 32RT 4724-4725.) Sims wentto the police station on 6th and Wall Streets. Sims tried to explain what Todd had told him and asked for a unit to be sent to investigate at the Ballington. (32RT 4725.) At the Ballington, Security Officer Clevers Ray came to workat 2 p.m. (29RT 4274-4275.) The sign in sheet, which had been handled by the prior security officer, showed Epperson and appellant had checkedin about 10:45 a.m., and appellant signed out at 1:26 p.m. (29RT 4246-4247, 4253, 4276, 4294.) Ballington policy required that guests have a valid California identification or driver's license, and the California driver's license number on the sign in sheet matched appellant's driver's license. Also, policy required that Epperson accompanyappellant into her apartment, and when appellantleft, that Epperson escort him to the lobby to have him sign out. (28RT 4246-4247; 30RT 4512.) However,the sign in log wasnotfool proof. A person could sign in and out, but might have gonein andout a couple times. (28RT 4253.) Before this day, Ray had seen Epperson with appellant and Toddat the Ballington. (29RT 4280-4281.) Every time she saw Epperson with Todd, appellant was with them. (29RT 4281.) Between 2 and 3 p.m., Ray saw appellant coming through the lobby, leaving the property by himself. Epperson was supposedto bring him back to the front lobby. (29RT 4275-4276, 4285.) Ray said it was possible for 104 appellant to sneak back in. (29RT 4294-4295.) Ray asked appellant where Epperson was, and appellant said, "She's resting." (29RT 4276, 4295.) Appellant looked calm and natural. (29RT 4276.) Appellant wentout the double sliding doors. (29RT 4277.) Sims wentto the Ballington. At the security desk, Simstalked to a Captain Thomasandtried to tell him something had happened. Sims was. crying. (29RT 4277-4278, 4287; 32RT 4725.) Ray was with Captain Thomasandtried to get him to do something. Captain Thomas would not let Sims in and would not check on Epperson. Sims went back to the police station and asked them to send a unit. Sims went backto the Ballington and waited. Sims was upset. (29RT 4277-4279; 32RT 4726.) Los Angeles Police Officer Antonio Gonzalez responded with his partner to a radio call to go to the Ballington, which was about a half block from the police station. At the Ballington, Officer Gonzalez spoke to Sims, who wasupset, shaking, and distraught. Officer Gonzalez also spoke to Captain Thomas, who took Officer Gonzalez to Epperson's apartment, A125. Q9RT 4279, 4307-4308.) They knocked on the door but there was no answer. The keys that security had did not work, because the locks had been changed. (29RT 4308, 4314.) Officer Gonzalez looked in the lone window in the rear of the apartment and saw the apartment wasin disarray. At the foot of the bed was a female, and Officer Gonzalez could see just | above the shoulders to the head. He saw blood. Officer Gonzalez tried to force the door in, but was unsuccessful, so Captain Thomashelped. Captain Thomaseventually kicked the door in. (28RT 4255; 29RT 4309; 32RT 4788.) Inside the apartment, Officer Gonzalez checked to make sure no one washiding. The window was closed. Hesaw a cloth or towel over the lower part of Epperson's body. (29RT 4310-4311.) 105 An ambulance. came, and paramedics went in, but came out with an empty gurney. Sims thought Epperson was dead, because the paramedics would have brought her out. (32RT 4734.) Finally, a police officer told Sims she was dead. Simstold the police he thought appellant had killed her and told them the information Todd had related. (32RT 4735.) Los Angeles Police Department Detective Larry Barr went to Apartment A125, which had already been taped off. (2RT 4784-4785.) He saw Epperson's body on the floor. Her head was towards the bed, and her legs were askew with the bloody towel over her lower area. (32RT 4785-4786.) One of Epperson's eyes was open. (32RT 4789.) A serologist was requested, and Betsy Swanson responded. (32RT 4786.) Swanson requested Ronald Raquel, a blood spatter expert, come to the scene. Swanson and Raquel werethere about 12 hours. (32RT 4786-4788.) In Epperson's apartment, Detective Barr found a receipt dated November12, 2000 at 12:09 p.m. from the West Los Angeles Christian Book Store. (32RT 4807-4808.) He also found a deposit slip for $20 dated September9, with appellant's signature, for Epperson's son atthejail. (32RT 4808-4809.) He also found a poem from appellant, expressing his desire for Epperson, on Epperson's bed. (32RT 4809-4810.) In the evening of November 13, Todd received a call from girl namedAngie, who told him they had just found Epperson's body. Five minutes later, the police knocked on Todd's door and took him to the police station. (3 IRT 4628-4629.) Todd gave them a statement. (31RT 4629.) Todd identified Epperson's apartment and business keys. (31RT 4643-4644, 4646.) Healso identified a photograph of Epperson, appellant, and Vannoyat an old style McDonald's hamburger stand. (31RT 4644- 4645.) A Detective Shepherd interviewed Sims. In his report, Detective Shepherd wrote that after Sims talked to Eppersonoutside the church, Sims 106 saw appellant, "her new boyfriend, across the street waiting for her." Detective Barr did not discuss the phrase "her new boyfriend" with Detective Shepherd. (32RT 4811-4813.) No one that Detective Barr had spoken to characterized appellant as Epperson's boyfriend. (32RT 4794.) Detective Barr obtained information about appellant's truck and entered information into a statewide system that the truck was wanted in . connection with a homicide. The truck was registered to appellant's father. (32RT 4789.) When they were trying to locate appellant, Detective Barr received information that appellant was in San Pedro. The police went to a house, but had apparently missed appellant by an hour and a half or two hours. (32RT 4795-4796.) On November 15, 2000, Detective Barr got a call that the truck had been located. He respondedto the scene with another detective and saw appellant's red Mitsubishi truck. (32RT 4789.) Charles Vannoy approachedthe truck and got into the driver's side. The police detained Vannoy, and Detectives Barr and Shepherd interviewed him. (32RT 4790.) Before Detective Barr interviewed Vannoy, Raquel did not tell Detective Barr what was used on Epperson, how Epperson was beaten, or what her injuries were. (32RT 4791-4792.) Vannoy had metappellant in the California Men's Colonyprison, which housed people with psychiatric problems, and appellant helped protect him and Todd. (30RT 4474, 4491-4492, 4496-4497.) Vannoy had a swastika tattoo and lightning bolt tattoo, which was a sign of the Aryan Brotherhood, but he said he wasnotaffiliated with them. (30RT 4486.) Appellant had given Vannoyhis truck, the red Mitsubishi Mighty Max, which wasregistered to appellant's father, Joseph Powell. (30RT 4491, 4514.) 107 In Vannoy's redacted videotaped interview,which was played for the jury, Vannoy said he had beenoutofprison since May 2000. (Peo. Exh. 88B, p. 7; 30RT 4477-4478, 4481, 4485.) He was taking medication for being "schizoid effect due to a personality disorder, being paranoid,” was using heroin and "weed," and was seeing a psychiatrist and psychologist. (Peo. Exh. 88B, pp. 10-11.) With respect to his background, Vannoysaid he used to beaffiliated with the Aryan Brotherhood, a White supremacist group, but was a "dropout" whodid notaffiliate anymore. (Peo. Exh. 88B,p. 9.) He had numeroustattoos, including: on his arms, a gun tower with "Bell Gardens 13," a swastika, Snoopy, Bell Gardens, a clover, and a wizard; on his hands, "F.T.W." or "Fuck the World" andhis initials; on his leg, "East LA"; a skeleton and "666"; and lightning bolts and "Bad Company." (Peo. Exh. 88B, pp. 11-15.) Vannoytold the police that he metappellant at the California Men's Colony in December 1999. (Peo. Exh. 88B, p. 16.) Around May 2000, Vannoy and appellant were released, and probably around Juneor July 2000, Vannoy saw appellant at the Weingart. (Peo. Exh. 88B,pp. 17-19.) Appellant was close to Todd, and Todd wasfriends with Epperson. (Peo. Exh. 88B, pp. 52-53.) Appellant told Vannoy that he and Epperson had been regularly having sex the preceding two weeks to a month before her '3 As in the guilt phase, Vannoy did not wantto testify and denied knowing or remembering what hetold the police. (30RT 4465-4469, 4493.) After the redacted videotape was played, Vannoy acknowledged he wasin the tape andsaid his recollection of the interview was, "So, so." (30RT 4485.) When Vannoy madehis statement, he was on parole for forcible oral copulation of a minor girl. (30RT 4501-4502.) After the interview, he went back to jail for assault with a deadly weapon upon a nursein a state hospital in 2001. (30RT 4502-4504.) Although the evidence of Vannoy's interview was the redacted videotape (Peo. Exh. 88A), the redacted transcript (Peo. Exh. 88B)is referred to here for ease of reference. (ORT 4478.) 108 murder. (Peo. Exh. 88B, pp. 40, 64.) Vannoy knew that Epperson had a Black boyfriend, and appellant did notlike him. (Peo. Exh. 88B,pp. 64- 65.) On November9, 2000, appellant helped Vannoy moveto his new apartment. (Peo. Exh. 88B,p. 19.) On Sunday, November12, 2000, just before 4 p.m., appellant called and asked if he could come over. About 4 p.m., appellant came over and wasskittish. Vannoy asked what happened, and appellant said he did not wantto talk about it. Appellant made sometelephonecalls from Vannoy's telephone to his mother, sister, someone named "Danita" in San Pedro, and "Jeff" at the Weingart to say he was leaving. Appellant said he would give Vannoyhis truck if he would give him a ride to Hollywood. (Peo. Exh. 88B, pp. 19-24, 26, 32, 42-46.) On Monday, November 13, 2000, about 3 a.m., appellant told Vannoy, "I killed Tammy." Hesaid, "I beat her to death." (Peo. Exh. 88B, p. 26.) Appellant said she had rejected him and told him she wasseeing somebodyelse. (Peo. Exh. 88B, p. 27.) Appellant said he and Epperson had sex, and after they finished, a man called. Epperson told the manthat what he wastalking about sounded fun and they would haveto dothat. Appellant was in bed and asked whohad called. They argued. Epperson said she lived herlife the way she wanted. (Peo. Exh. 88B,pp. 28-29, 64, 84-85.) Appellant threw Epperson onto the bed or couch, and Epperson got up and wentinto the bathroom. They argued, and appellant told Epperson to sit on the toilet. Appellant hit her with a candle holder. As he was beating her, Epperson asked, "Why are you doing this?" Appellant told her, "All I wanted you to do was to love me, you know,and you wouldn't do. that." (Peo. Exh. 88B,pp. 29, 38-39.) Epperson also asked, "Are you going to kill me, Troy?" Appellant said, "Yes, Tammy, I am. J am going to kill you." (Peo. Exh. 88B,pp. 39, 85.) 109 Backin the living area, appellant cut both sides of her neck with glass. (Peo. Exh. 88B, pp. 29-30.) Appellant said he hit her in the head with a little wooden stool and a big lamp and put a screwdriver or ice pick through the middle ofher head, leaving a big hole in her forehead. (Peo. Exh. 88B, pp. 31, 33, 50-51.) Vannoy asked appellant if Epperson wasalive and whether they should send help. Appellant said he had just killed somebody and Vannoy would be nextif he said anything. Appellant said another murder would not matter because he wasalready looking at the death penalty. (Peo. Exh. 88B,pp. 33, 49.) Appellant denied raping Epperson. (Peo. Exh. 88B, p. 64.) Vannoy asked appellant about his clothes, but appellant told him he did not need to know. (Peo. Exh. 88B,p. 41.) Appellant gave Vannoyhis hat. (Peo. Exh. 88B, p. 43.) Epperson had a "message business," and appellant found her workplace keys and took them. Appellant asked Vannoy if he wanted to make some quick money, but Vannoy declined. (Peo. Exh. 88B, pp. 34, 41, 48-49.) Appellant gave Vannoy a pink Motorola pager. (Peo. Exh. 88B, pp. 75-76.) About 3 or 4 a.m., appellant went to sleep. When appellant awoke, he ate, asked Vannoyto take him to Hollywood, and signedhis truck over to Vannoy. (Peo. Exh. 88B, pp. 30, 35.) Between 11 a.m. and 1 p.m., Vannoy dropped appellant offat Hollywood and Highland in Hollywood. (Peo. Exh. 88B, pp. 36-37.) Appellant said he was going to have fun for a couple days and then turn himself in. (Peo. Exh. 88B, pp. 46-47.) Appellant said he did not want to turn himself in by himself in Los Angeles because “they” would "fucking kill" him because the crime wasvicious and the victim was female. Appellant had about $170 and gave Vannoythree twenty dollarbills. (Peo. Exh. 88B, p. 47.) Appellant was going to Hollywoodto rob Epperson's workplace. (Peo. Exh. 88B, pp. 48-49.) 110 Vannoysaid he had appellant's disposable camera with photographs of appellant and Epperson from two months ago at a McDonald's. The camera had beenin the truck. (Peo. Exh. 88B, pp. 62-63.) During the interview, Vannoy offered to page appellant and to try to get him to turn himself in. (Peo. Exh. 88B, pp. 54, 65-67, 81.) Vannoytold the detectives he was expecting a call, so the police went to Vannoy's apartment and were goingto try to get appellant to revealhis location. When appellant called, Vannoy put him on the speaker phone, but appellant told him to take him off the speaker phone. (32RT 4793.) Detective Barr put his ear next to the phone next to Vannoy's head and told Vannoythingsto tell appellant so appellant would reveal his whereabouts. Appellant told Vannoy that he was in Harbor City at the Colony Motel. (32RT 4794-4795.) On or about November 15, 2000, about 9 p.m., Detective Barr and other law enforcement officers went to the motel, and the fugitive parole team broke the door in. As they were taking appellant off the bed, Detective Barr went into the room. (30RT 4514; 32RT 4797, 4804-4805.) Appellant was wearing boxer shorts and a white T-shirt or tank top. G2RT 4797.) Appellant was watching a pornographic movie. (32RT 4797-4798, 4805-4806.) Epperson's apartment and workplace keys anda G & V Communications business card were ona table nextto the bed. (30RT 4514; 32RT 4798-4799.) Appellant's hands had a number of small cuts, and his head and calf had a cut. His jeans had blood on them. (32RT 4799- 4802.) In Vannoy's apartment, Epperson's pink pager and appellant's disposable camera were found. The camera had photographs taken at McDonald's, at the beach, and on Epperson's bed. (30RT 4493-4495, 4497- 4498; 32RT 4792-4793.) 111 Ramakrishnan was shocked by Epperson's death because it happened at the Ballington which he took pride in, because Epperson was deprived of the chanceto live a full life, and because other tenants were concerned about their own safety. (28RT 4249-4251.) Epperson's death affected him greatly. (28RT 4252.) Five years after her murder, Toddstill thought of Eppersonall the time and wasdistressed and cried. (31RT 4629-4630.) (1) Blood Spatter Expert Testimony and DNAResults On November 13, 2000, at 11 p.m., Los Angeles Police Department Criminalist Ronald Raquel, a blood spatter expert, went to the crime scene at the Ballington. (29RT 4322-4324, 4331-4332.) Bloodspatter interpretation deals with the identification of blood patterns. When a personishit, the first strike causes a laceration, and blood flows from the wound. A successive strike causes the flowing blood to leave the body and cause a pattern. Patterns can reveal how they were made, the sequence in which an event occurred, and what objects were nearby when bloodletting events occurred. (29RT 4343-4344, 4324.) Onetype of bloodspatter is the impact spatter pattern, and three different types of impact spatter patterns exist: low, medium,and high velocity patterns. Low velocity impact patterns can be caused by blood dripping dueto gravity, and bycast off stains, which occur when a bloody object gives off blood and that blood strikes an intervening surface. (29RT 4324, 4341.) Medium velocity impact patterns, which are associated usually with beatings, are caused when the blood source may have been beaten by a fist or weapon. (29RT 4324-4325.) High velocity impact patterns are usually caused as a result of gunshot wounds or high-powered equipment like circular saws. (29RT 4325.) Generally, the velocity level correlates to the stain size. Low velocity is in the range of a five millimeter 112 or larger diameter stain, medium velocityis in the range of a twoto five millimeter diameter stain, and high velocity is about a tenth of a millimeter diameter stain. (2ORT 4325.) Anothertype of blood spatter pattern is the transfer pattern, which is a stain caused when a bloody object comes in contact with a non-bloody object. One can recognize what bloody object made the transfer pattern. (29RT 4325.) | In Epperson's apartment, the door knob and deadlock on the back of the door were bloodstained with transfer stains. (29RT 4364.) DNA from bloodstains found nearest the front door on the floor and a stain further inside the doorway matched Epperson's DNA. ORT 4513-4514.) Just inside the doorway wasa light green runner onthefloorin the foyer. To the left of the foyer, which lead to the living quarters, was a closet with its doors open and a sink. In the sink and trash can near the sink were paper towels. (29RT 4364-4365.) To the right of the foyer was the bathroom. (29RT 4332-4333.) In the bathroom, on the wail behind the toilet was a spatter pattern of cast off stains. (29RT 4339.) The stain could have been caused by shaking or pushing an already-bloody personsitting on the toilet and then suddenly stopping the shaking or pushing, causing blood to leave the person and impact the wall. The bottom blood drip on the wall showeda drip pattern, meaning the stain had excess blood which dripped downthe wall due to gravity. (2ORT 4342.) The water tank lid on the toilet was ajar. Bloodstained paper towels, which had the sameprinted pattern as those in the entryway sink, werein the toilet. (Q9RT 4339, 4364-4365.) Paper towels in the toilet and trash can and on the floor were consistent with a person with very bloody hands wiping his hands with paper towels and throwing them in the toilet and trash can and one towelfalling on the floor. (29RT 4341.) 113 Onthe bathroom floor were broken pieces of a glass candleholder, which contained a red candle. Some pieces were bloody, and some were not. In addition to the parts on the bathroom floor, two parts were in the little foyer just outside the bathroom. (29RT 4339.) A fair amountof glass wasalso on the showerfloor. (2Q9RT 4339, 4351.) Ifa person sitting on the toilet was hit on the head with a glass candlestick holder hard enough to haveit shatter so that pieces landed where Raquel found them, Raquel opined that scenario was consistent with the blood spatter in the bathroom. (29RT 4340.) On another wall in the bathroom weresix transfer patterns. (29RT 4338.) Four werehair transfer patterns, meaning that strands of bloody hair contacted the wall. (29RT 4340, 4344-4345.) One was a combination swipe pattern; a swipe is when a bloody object contacts something, and the motion reveals directionality. (29RT 4340-4341, 4345.) The bottom pattern was just a swipe pattern. (29RT 4341.) Assuminga five-foot, two-inch woman wasbludgeonedin the head and bled, the bleeding caused cast off patterns behind the toilet, she was either shaken or hit, and she had blood coming out of her face and head and blood on her hair, Raquel opined the bloodstain patterns on the wall were consistent with her head being forced against the wall at least four times causing the hair transfers onto the wall, her legs giving out, and her being hit against the wall with another part of her body moving across or making contact with the lower part of the wall, causing swipe patterns, until she was on the floor. (29RT 4346-4347; 30RT 4448.) One swipe pattern was consistent with her head being up against the wall and falling to either side. (29RT 4347.) The other swipe pattern could have been caused by her clothing or face, something with blood that could transfer. The patterns showed Epperson was physically thrown or pushed against the side of the wall six times. (29RT 4348.) Raquel opined that after Epperson was 114 beaten in the bathroom, she wascarried to the living quarters, given the lack of bloodstains leading from the bathroom to the living quarters. (29RT 4352.) In the living quarters, Epperson suffered multiple blows. (29RT 4363.) In the cornerof the living quarters, medium velocity bloodstains showed Epperson washit there, and the blood struck three different surfaces. (29RT 4353-4354; 30RT 4448.) Onthe north side of the living quarters was a cast off blood pattern with oval andelliptical stains. The oval stains indicated the source was close to the wall, impacting it at 90 degrees. The elliptical stains indicated the source was further away from the wall, since the blood traveled at an angle. This particularcast off pattern was almost the full length of the wall, indicating a bloody object was in motion in the air, blood ejected from the bloody object to the wall when it swung back, and great force was used. (29RT 4360-4361.) The entertainment center in the northwest corner of the living quarters had medium velocity stains, caused when a bloody object was struck and blood spattered onto the surface. This incident was separate from the one that caused the north wall stain. (29RT 4361-4362.) Also, near the television and entertainment center were cast off stains. (2ORT 4362- . 4363.) Compact discs, which had been stacked, had been tipped over and _ were strewn on the floor. (29RT 4336.) | | On the south wall of the living quarters was a hair transfer pattern, . just west of the bed. The stain had a lot of blood when it was deposited and was much wider and thicker than the patterns in the bathroom,indicating the assault occurred first in the bathroom and continuedin the living quarters because areas with more blood were areas of subsequentassaults. (29RT 4355-4357.) The last time her face or bloody hair was slammed against the wall was in the living quarters. (29RT 4355-4356.) 115 Epperson's body wason thefloor at the corner of the bed, lying face up. (29RT 4332, 4359-4360.) Her right eye was open,andthe left one could have been but there were massive injuries and a large hole below her eye. (30RT 4427.) She was nude from the waist down with a towel draped over her lower body. (29RT 4335.) She was wearing a sweatshirt on her upper body. (29RT 4381.) Her bra had large bloodstains onthe inner surface, which was consistent with someone with bloody hands attempting to take off her bra while she was wearing it. (2ORT 4387; 30RT 4440- 4443.) DNAanalysis of the bloodstain inside the bra's right cup matched Epperson's blood. The backs of the bra straps were soaked with blood, which wasconsistent with her lying on her back and bleeding. (29RT 4387; 30RT 4513-4514.) Epperson's left elbow was adjacent to a corner of the bed. (29RT 4335.) Underneath her wrist was a screwdriver with a bloody tip. (29RT 4371.) Near her body was a broken denture, and under her body was anotherpart of a broken denture. (29RT 4372, 4382.) Epperson's right and left thighs had blood smears, and DNAtests showedthe stains were a mixture of appellant's and Epperson's blood. Eppersonalso had blood onthe lowerpart of her leg around the knee, and in Raquel's opinion, the blood wasa transfer stain of a bloody object, such as a bloody hand that made contact with her thigh and knee. (2Q9RT 4381; 30RT 4431, 4513-4514.) From DNAanalysis, it appeared appellant was bleeding from his hands. (30RT 4431.) Under Epperson's feet were women's blue jeans, and under the jeans was women's underwear. (29RT 4337, 4381-4383.) Adjacent to her right shin was a pair of socks, which had blood drops. (29RT 4337; 30RT 4438-4439.) Epperson's jeans had bloodstainson the front of the waistband over the zipper near the button andinside the waistband too. The inside pocket liner had transfer bloodstains, which DNAresults showed were a mixture of appellant's and Epperson's blood. The waistband and pocket blood 116 patterns were consistent with a bloody Epperson lying on her back and appellant's bloody hands unbuttoning her jeans by pulling down her zipper or opening up the pants, putting his hands inside her pants, and pushing the pants down herlegs. (29RT 4383-4385; 30RT 4513-4514.) Transfer stains _on the rear right pocket of the pants were consistent with a person with bloody hands pulling on, opening, or touching the pants. (2ORT 4384- 4385.) Spermatozoa wasdetected in Epperson's vaginal canal. GO0RT 4435-4436.) DNA from vaginal aspirate, vaginal swabs, and external genital swabs from Epperson all showed spermatozoa which matched | appellant's DNA. (30RT 4513-4514.) It was unknown whenthe spermatozoa was deposited. (30RT 4436.) Epperson's panties had low velocity stains, caused when a bloody object directly abovethe panties drips blood onto the panties. DNA analysis on a bloodstain on the front center of Epperson's panties matched appellant's DNA. The panties also had a rip along the seams on the edge of the panties. (2ORT 4386; 30RT 4513-4514.) The panties had a panty liner with no blood on it. QORT 4437.) On the corner of the bed were mediumvelocity cast off spatter patterns, with directionality, showing that Epperson was being beaten on the floor and the blood from her wounds wasprojected upwards onto the corner of the bed. (29RT 4359-4360.) Around Epperson on the floor were many pieces of broken glass, broken pieces of furniture, and a broken flower vase. Q9RT 4335.) A lamp wasslightly underneath the bed near Epperson. (29RT 4388-4389.) The lamp, about two feet in length, was a figurine of a woman. The lamp base wascast iron and had blood on the bottom. The lamp wasin broken, bloodstained pieces. (29RT 4390-4391.) When the lamp struck Epperson, pieces broke off, and the lamp wasstill used to strike the victim. The bloodstains on opposite ends of the lamp, with hardly any in the middle, 117 was consistent with the lamp being held in one hand, perhapsat the base, and the top part striking Epperson multiple times. Then, that top piece would break, and the top was held and swung while the base struck Epperson. (29RT 4391.) Near Epperson's body was a dark lamp cord. (29RT 4371-4372.) The flower vase was very heavy and had a very heavy base. The vase was made of a hard material like marble and was broken into three pieces, which weigheda total of 10.6 pounds. Two pieces were next to the entranceto the living quarters on the left side, and the third wasat the opposite end of the room underneath magazines and debris. The base ofthe vase had transfer stains with hair adhering to the base. The stains showed the vase wasintact whenit struck Epperson, forcing transfer stains onto the base, and then the vase was used moretimes before it broke again. (29RT 4335-4336, 4392-4394, 4397.) The pieces were consistent with someone hitting someoneonthe head with lot of force. (29RT 4395.) The part of the vase underneath the magazines wasbloodied, indicating the vase was initially intact, struck Epperson, and fractured; then, a piece was picked up and used to strike her and thrownacross the room, where paper and magazines were thrown overit. (29RT 4396.) A broken foot stool was demolished, and parts of it were in different corners of the room. (29RT 4370-4371, 4398-4399.) Raquel opined that the stool was used to hit Epperson whenit was in one piece, and whenit broke, pieces were usedto strike her, breaking that part of the stool into yet smaller parts. (29RT 4371, 4398.) On her bedspread were low velocity bloodstains, caused by blood dropping or dripping onto the bed from a blood source above the bed. On top of the stains, covering them, were scattered items, including a magazine, a blue shopping bag, a purse with United States currency,a little pocket organizer with a driver's license, and a piece of paper. (29RT 4336, 118 4357-4359.) A fairly large man's T-shirt with blood on it was also on the bed. (30RT 4426, 4428.) In the dresser, Raquel found a sock with a bloodstain in the top drawer. (29RT 4354.) Raquel also opened the drawer below and found a shirt with a transfer bloodstain, which was consistent with bloody hands. rifling through the drawers. (29RT 4355.) The closet doors were opened, and clothes were on the groundin front of the doors. Raquel moved the clothes, closed the doors, and found blood on the ground, which meantthat the blood was deposited when the doors were opened andclothes were taken from the closet and placed on the floor. (29RT 4365-4366.) When closed, the closet doors revealed they had cast off stains going towards the apartment's exit door and in a downward direction, meaning the blood source would have been someplace in the living quarters and was consistent with someone throwing back a bloody object. (29RT 4366-4367.) Also, DNA from stain on the closet door matched Epperson's DNA. (30RT 4513-4514.) On the right side of the sink near the entryway was an empty water bottle and in the sink were two face cloths with bloodstains. 29RT 4368.) The water bottle had blood on it which was consistent with someone bleeding from a cut and holding onto the bottle. (29RT 4369-4370.) DNA from blood on the plastic water bottle and a wash cloth matched appellant's DNA. (29RT 4369; 30RT 4513-4514.) Given Raquel's findings, he opined that the five-foot, two-inch Epperson wasin the bathroom sitting with the toilet seat down, she was first struck with the candlestick holder with such force that glass went flying, the glass got blood onit, there was blood spatter, appellant next either hit or shook her so cast off blood went behindthetoilet seat, and the toilet tank top went ajar, he picked her up or stood her up as her blood poured and shookher sothat her head hit the wall repeatedly, her knees 119 gave out as he was pounding herhead against the wall, he hit her against the wall six times, and she crumbledto the floor, slipping sideways either on her face or back of her head, leaving a swipe pattern. (29RT 4400; 30RT 4448.) Then, appellant picked her up, took her into the bedroom area, hit her in the face or shook her so that there was a cast off pattern in the corner where the pedestal was, put her up against the wall andhit her head against it so there was a heavy pattern on the wall where blood dripped, threw herat the foot of, the bed or held her overthe bedso that the bedspread had drips, hit her so cast off blood wentall the wayto the closet doors, and hit or shook her again so blood cameoff her head onto the television and entertainment center and clear across the wall. (29RT 4400- 4401; 30RT 4448.) Then, at some point, appellant threw her on the ground and hit her over and overin the face with the foot stool and pieces of the foot stool. (29RT 4401; 30RT 4448.) Then, appellant hit her repeatedly in the head and face with the lamp base until it broke, turned the lamp around, and hit her in the face and head. (29RT 4402; 30RT 4448.) Then with his bloody hands,he either pushed uporfelt inside her bra to fondle her breast or push up her bra. (29RT 4402; 30RT 4449.) With his and her blood on his hands, he unbuttoned her jeans, reached inside, and pulled down her jeans, reaching inside so blood transferred to the waistband, outside the jeans near the button, andinside the pockets. (29RT 4402-4403.) Then, appellant handled her jeans, as shownby the fingerprints or bloodtransfer on the back of her jeans. His hand dripped blood on her panties, and he took her panties off. (29RT 4403.) The blood swipes on herupper thighs were consistent with him pushing open her thighs with his bloody hands. (29RT 4403; 30RT 4448.) Epperson's right and left hands had defensive wounds, which were consistent with her putting her hands up to shield her face. Epperson had to be consciousto put her hands up in a defensive mode. (30RT 4453-4454.) 120 Since Epperson wasonly hit in the bathroom bythe candlestick holder, Raquel opined that Epperson had more defensive injuries than would have been caused only by the candlestick holder. (30RT 4456-4457.) Lacerations and small cuts on her hands would be consistent with pieces of furniture, plaster from the lamp, and pieces of a lamp hitting and cutting her hands. If the defensive wounds were puncture wounds, those would be consistent with the tip of a screwdriver. GORT 4459.) (2) The Autopsy and DNA Results On November 15, 2000, Los Angeles County Coroner’s Department Deputy Medical Examiner Dr. Yulai Wang performed an autopsy on Epperson and determined the cause of death was multiple blunt force injuries and exsanguination or bleeding to death. GIRT 4529-4530, 4576.) Epperson was a Caucasian female, 38 years old, 118 pounds, andfive feet, four inches tall. (31RT 4550.) When Epperson was broughtin, she was wearing a bra pushed abovethe breast nipples, a light blue shirt, and a blood-soaked gray hooded, front-zipped sweatshirt and was nude from the waist down. (30RT 4514; 31RT 4549.) A person hasto be alive in order for blood to pour out of the body and soak the sweatshirt. (31RT 4549- 4550.) Epperson's major injuries were to her head, mainly in the face and the top of her head. (31RT 4530.) Epperson suffered at least 10 blows to her craniocerebral area, the skull and brain area. The 10 blows was a conservative estimate of the numberof blowsto the front, side, and back of her head. (31RT 4530, 4532, 4555, 4573.) Epperson was alive when she suffered those head injuries. (31RT 4555.) Epperson hadthree different severe injuries to three different areas of her head. One injury was at her mid forehead, where she had a one- to one- and-three-quarter-inch open skull fracture, exposing the brain through the skull. Her forehead, nose, cheek bones, and orbit or eye socket bone were 121 . smashed. Shealso had lacerations to her upper eyelid, forehead, andall over her face. She had multiple abrasions to her cheeks, nose, upperlips, lower chin, and basically, her whole face. Another injury was on theleft side of her skull, where she had a long linear fracture that went to the back of her skull. This fracture was displaced and little bit separated. A great amount of force was used to fracture the skull. Another injury was on the top of her head, where she had a five-and-one-half-inch vertical laceration of her scalp, which was caused by one blow. The laceration had abraded edges, meaning the wound edges had a kind ofabrasion,not like a sharp force injury. The laceration was consistent with a heavy lamp of very hard material hitting the top of her head. Dr. Wang would expect a person to be upright when hit with the lamp, because the laceration ran from the front to the top of her head andit would difficult to receive that blow if she was lying completely on her back. The person wasalive when the injury was suffered because there was bleeding into the tissue. She also had a contusion at the front part of the brain. (31 RT 4530-4531, 4535-4539, 4541-4544, 4569-4570, 4575.) In addition, externally, on the right side of her head, Epperson had a two-and-one-half-inch diameter contusion, and on the left side of her head, she had a half-inch laceration. (31RT 4531-4532.) Internally, when the ~ scalp was removed during the autopsy, a seven-inchlong,linear skull fracture running from the front to the back ofthe skull wasrevealed. (31RT 4532.) Dr. Wang found diffusive dural hemorrhages, mainly over the right cerebral hemisphereofthe brain. She also had bleeding underneath the membranescovering the brain. (31RT 4545.) In addition to the facial injuries described above, Epperson had other injuries to the front of her face caused by multiple blows. (31RT 4531.) Onherleft forehead above the eyebrow, she had a one-and-one-half-inch 122 diameter contusion abrasion with one-half and one-and-one-half-inch lacerations. (31RT 4537.) Epperson's eyes were open when he examined her. (31RT 4575- 4577.) Epperson had multiple hemorrhagesin her eyes, in the conjunctiva inside the eyelids and in the sclera, the white part of the eyeball. The injuries could have been caused by blunt force trauma to her eyes. (31RT 4550-4551.) The eye hemorrhages could have also been caused by strangulation. Epperson had bleeding in the neck muscle on herleft side, which wouldalso be consistent with strangulation. (31RT 4551, 4570- 4572.) Epperson also suffered multiple sharp force injuries. (31RT 4534.) Epperson's neck had sharp force injuries to the left and right side. On the upper part of her neck at the right back, she had a gaping injury, an incised woundthat cut the skin and soft tissue, but not deep enoughto cut the carotid or jugular. There was bleeding. (31RT 4534, 4546-4548.) Also on the right side of her neck, she had three long, linear incised wounds and other small abrasions. (31RT 4548.) Incised woundsare caused by a sharp object longer than the stab wounds. (31RT 4534.) The incised wounds were consistent with someone taking a piece of sharp glass and cutting Epperson's neck with it. GIRT 4548-4549.) Inside her mouth, Epperson had a bruise and lacerations to her upper and lower lips. There was bleeding. (31RT 4539.) Epperson was missing her upper palate and had a partial lower denture. When Dr. Wang received Epperson's body, an upper dental plate, which was in three pieces and appeared to be broken, was delivered to him with Epperson's body. (31RT 4540.) To her hands and arms, Epperson had multiple contusions and abrasions. (31RT 4532-4533.) The injuries were concentrated on the back of both forearms and back of both hands. In Dr. Wang's opinion, the 123 injuries were defensive wounds. (31RT 4533.) She had a few small cuts on the back ofher right hand, which could be caused by being struck with some object but not by a humanfist. (31RT 4568.) When she suffered the bruises and abrasions to her hands, she was alive. (31RT 4555.) To her leg, Epperson had a contusion onherright knee area and an abrasion on the right shin area.1RT 4545-4546.) To her vaginal area, Epperson had a severe injury including abrasions and contusions. (31RT 4558, 4560-4561.) She had bruising and abrasions at the vaginal area's posterior part, and she had three-quarter-inch and three- sixteenth-inch wide abrasions on both sides of her vaginal area, which formed a semicircle. There was blood underneath the abrasions. (31RT 4558-4559.) She also had abrasions to her labia majorain her vaginalarea. (31RT 4533.) Dr. Wang only saw the typeof injury Epperson suffered to her vaginal vault very rarely. In his opinion, the trauma to her vagina was inflicted while she was alive. (31RT 4565.) The injury to the vagina was consistent with being caused by a penis. (1RT 4572.) A rape kit was collected. (31RT 4555.) DNAanalysis of vaginal aspirate, vaginal swabs, and external genital swabs all showed spermatozoa which matched appellant's DNA. (30RT 4513-4514.) The rest of the autopsy showed that Epperson's chest and abdominal cavity were normal, her bony framework and muscles were normal, she had mild coronary disease in one vessel but her cardiovascular system was otherwise normal, and her respiratory system was normal. She had a small amount ofbloody fluid in her trachea, which could have been caused by bleeding from insideheroral cavity aspirating downto the tracheaarea. (31RT 4552-4553.) Epperson's brain showed a generalized mild swelling, but not to the extent it would have depressed her respiratory system and killed her. (31RT 4553.) Her blood wasnegative for alcohol, barbiturates, cocaine, methamphetamine, opiates, and PCP. (31RT 4554.) 124 Dr. Wang opined that Epperson wasalive in the bathroom,in response to a hypothetical assuming she wasin the bathroom whenstruck in the head with a glass candle holder, her head was shaken, she was slammedup against the bathroom wall at least six times, she wasstill bleeding, and she was picked up and taken into the other room and wasstill bleeding. (31RT 4555.) Further assuming Epperson had beenstruck on the top of the head with a lamp, washit on the head and face with other different items, suffered blunt force trauma, andas the final blow washit on the head with a hugeplanter causing it to break into pieces and causing the big, open fracture in the front of her head, Dr. Wang opined that Epperson wasalive and bleeding during those times as well. (31RT 4556-4557.) Dr. Wang opined that Epperson wasalive at the time of the rape also. (31RT 4557.) Almostall of Epperson's injuries were inflicted while she was alive. 31RT 4565.) Dr. Wang acknowledged that one could be alive but unconscious, whichis a loss of brain functioning. (31RT 4566.) Hypothetically, assuming Epperson washit in the head in the bathroom several times, she could have lost consciousnessbefore being hit in another room. (31RT 4567.) c. Appellant's Prior Attacks on Women (1) Debra Colletta and Appellant's Assault Conviction Colletta testified she was currently "scared to death" of appellant. (31RT 4659.) There was "not a day that goes by that [she was] not in fear." (31RT 4676.) In 1990, Colletta was about 20 or 21 years old and wasin a boyfriend and girlfriend relationship with appellant. (31RT 4661.) Appellant brought her teddy bears, muffins, and flowers. (31RT 4701-4702.) In early 1990, 125 appellanttried to get to Colletta inside her house and pushed Colletta's mother against the doorjambto get inside. (1RT 4666-4667, 4688.) During a period of about four to six months, appellant committed acts of violence upon Colletta. (31RT 4664.) Oneofthe first things appellant did was sit on her stomach and punchher in the chest several times, leaving bruises across her chest. (31RT 4664, 4686.) Then, when Colletta was at homewith her 18- or 19-year-old brother and appellant and Colletta were in her room, appellant came up behind her, grabbed herby the throat, and choked her until she could not breathe. She gasped for air. GIRT 4665, 4686-4687.) The police were called, and she told them nothing happened. (31RT 4686.) Another time, at her next door neighbor's home, aroundthe latter part of 1990, Colletta tried to get away from appellant and getin her car, but appellant grabbed her arm and threw her downin the driveway. Since the driveway was inclined, she landedin the street. Colletta injured her knee and had two reconstructive knee surgeries. (31RT 4666, 4687-4688.) Once, when appellant and Colletta were having an altercation at her home, appellant became angry and cameafter her. Colletta's brother tried to defend Colletta with a bat. Appellant grabbed the bat from her brother. (31RT 4669, 4691.) Anothertime, while Colletta was babysitting her friend's twins at her own home, Colletta would not open the door to appellant, who was angry. Appellant kicked the door in, came after Colletta in her den, grabbedher by the throat off the couch, threw her on the ground,and hit her head on the concrete ground in front of the twins. (31RT 4669, 4690.) Oncein early 1991, when Colletta was speaking to a male friend in the street and appellant saw them, appellant threw her friend down on the street, grabbed Colletta by the arm,told herto get in the house,called her a "blank blank bitch," and draggedherin the house by her arm. Colletta was 126 afraid for herlife. She thought appellant was going to beat or kill her. (31RT 4669-4670, 4692.) Once, after Colletta and appellant returned to her house from a road trip during which he threatened to kill her, appellant threw a car's jack at her and took off downthe street. However, a couple houses down, appellant decided to come back, threw her puppyin the street, andleft. (31RT 4677, 4698-4699.) Colletta thought her puppy would die. (31RT 4677.) Once around 1992, when Colletta was at appellant's friend's home, appellant wastrying to force her into a bedroom in frontof his friends. Appellant said "blank blank bitch" and told her to get into the bedroom. Appellant got a knife from the kitchen, forced her into the bedroom, and closed the door. Appellant wanted her to perform oral sex or have anal sex with him. Colletta would not do what he wanted, so he pushed her onto the floor. Colletta got up and ran for the car. As Colletta was driving away, appellant jumped on the hood of the car and started pounding on the windshield, breaking it. Colletta drove away. (31RT 4670-4672, 4693- 4694.) Shortly afterwards, Colletta moved from Santa Clarita to Arizona to get away from appellant and because she had found out she was pregnant. Colletta was not going to have his child, and when she went to the hospital for an abortion, the fetus was starting to abort itself. (1RT 4672-4673, 4694-4698.) In July 1992, Colletta returned to Santa Clarita. G1RT 4673.) Before she returned, Colletta called a mutual friend of appellant's and hers, and appellant got on the telephone. Appellant told her that if she was not home in a short time, he was goingto start killing her family one by one, he knew wherethey lived, and he was going to comeafter her. Colletta knew he would do that. (31RT 4673-4674.) 127 On July 27, 1992, Colletta wasat a friend's house, and the friend talked her into going out to the porch, where appellant was. Colletta wanted appellant out of herlife, and she told him it was over andthat he needed to go away. Appellant grabbed her by the throat, pushed her up against the screen door, and started choking her. Colletta thought she was going to die. Appellant said something to effect that she was going to die and he was goingto kill her. Appellant grabbed her by the throat, pushed her up against the screen door, and started choking her. Then, appellant dragged her out to the driveway, started smashing her head on the ground, droppedher, and started kicking her in the back of the head and neck. Colletta lost consciousness. When shestarted regaining consciousness, people took her into the house. Appellant said he had a shotgun in his truck and was going to comeback andfinish her off. Colletta knew he had a shotgun. The police were called, and appellant was putin jail, but that did not make her feel less fear. Appellant wastried for this offense. 31RT 4674-4676, 4689-4690.) For this assault upon Colletta, appellant was convicted on February 6, 1995, of assault with intent to cause great bodily injury, with use of a dangerous or deadly weapon,in violation of section 245(a)(1). Appellant was sentenced to four years. (32RT 4748-4749.) Colletta's relationship with appellant ended on July 27, 1992. During their two-and-one-half-yearrelationship, Colletta had to be with appellant "24-7" except when he wasat work, and she hadto be at home, even when they were notliving together. (31RT 4683.) Colletta feared him. (31RT 4684, 4702.) Colletta told him she loved him even though she wasscared to death of him, to keep herself and her family alive. Appellant proposed marriage, and she took the ring but was never going to marry him. (31RT 4684.) Colletta knew appellant had been convicted of the rape, torture, mayhem, and murder of Epperson. (31RT 4704.) Colletta knew appellant 128 was going to kill somebodyandthat it was only a matter of time. 31RT 4706.) Appellant told Colletta the "ultimate for him would be to have somebody lookin his eyes as he took their last breath and murdered them. He wanted to kill somebody." (31RT 4681.) Colletta testified that if she could have put him away longer, he would not have killed Epperson because appellant said he was going to kill. Colletta felt guilty, "[e]very day of[her] life." (31RT 4707.) (2) Betsy M. At one point, Betsy M. was attending 12-Step Alcoholics Anonymous (AA) meetings in Bakersfield, where she wasliving. (32RT 4751-4752.) At an AA meeting, Betsy M. met appellant, who said his truck was broken and was not sure how he could attend meetings. Betsy M. gave him her phone numberand offered him rides. Betsy M. was separated from her husband and had twochildren, two and four years old. (32RT 4752.) Betsy M. gave appellant rides to the meetings. Appellant gave her stuffed animals, cigarettes, flowers, and toys for her children and told her he had feelings for her. Betsy M. told him she liked him asa friend but she was seeing someone else. Appellant persisted. (32RT 4753.) Betsy M.did not give appellant her home address and kept her address guarded. However, one night she ordered pizza and appellant delivered it. After that, appellant regularly came to her house. (32RT 4753.) On March 14, 1999, Betsy M.had an asthmaattack, and appellant and her children were there. Appellant took her to the hospital for a breathing treatment and took her back home. Betsy M. wasverytired andfell asleep on the couch about 10 p.m. About 2 or 3 a.m., when Betsy M. awokein her room, appellant was on top of her having sex with her. Betsy M. told him to stop, get off, and that she did not want to have sex. Appellant did not get off until he was done. Appellant said, "You wanted this. I did not rape 129 you." Appellant was very agitated. (32RT 4753-4756.) When appellant got off her, he paced and wasagitated. Appellant ranted and raved, and Betsy M.rushedinto her bathroom to get dressed. When she cameout, he was more agitated, raising his voice. Her children were sleeping, and she did not want them to witnessthat. (2RT 4756.) Appellant had things he found in her apartment, including condoms from when she was married, and threw them at her. (32RT 4756.) Appellant made comments about Betsy M. having sex, and he wasagitated that she had condoms. Betsy M.wasvery frightened, tried to get him to leave, and asked him to leave. She feared forher life. (32RT 4757.) Betsy M.wasfive feet, four and onehalf inchestall, and appellant was "three times" her size; she could not make him leave if she wanted to. Betsy M. tried to calm him down,but appellant continued. (32RT 4758.) Between 6 and 7 a.m., Betsy M.'s children awoke, and she panicked. The children cameout of their bedroom andup toher, and Betsy M. pushed them behind her, trying to hide them. Appellant grabbed her by her neck and hair and tried to drag her into her bedroom. Betsy M. screamedfor her four-year-old son to save her. Her son kicked appellant, who swatted him away like a fly. Betsy M.brokefree, grabbed her son, and tried to get out of the apartment. She pulled the screen off her children's bedroom window and told her son to go out the window and get help. Appellant caught her son and threw him back into his room, where he landed on his bed. Betsy M.got two knives outofthe kitchen, and appellant laughedather, telling her there was nothing she could do to him with the knives. She told him that if she did not show up at the day care center with the children soon, they would call the police. She was alwaysat the center before 8 a.m. Appellant told her she better nottell anybody anything or he would kill her and her children. She believed him. (32RT 4758-4760.) 130 Betsy M. wentto the day care center in her car and dropped her children off. (32RT 4760-4761.) When she got back to her apartment, her front door was wide open, and appellant was gone. Betsy M.did not report the incident because appellant said he would kill her children and she | believed him. (32RT 4761.) Betsy M. did not see appellant for a couple days and thoughtthat maybehe had gone away for good. She had someonestay with her in her apartment, her best friend or her brother. Betsy M. wasafraid appellant would return. (382RT 4761.) After that, when Betsy M.was in grocery store, appellant walked up to her and her children. Appellant had something for them and apologized. (32RT 4761-4762.) Betsy M.attended AAmeetings and took extra precautions, such as having someone walkherto her car or getting rides from other male attendees. (32RT 4762.) On April 4, 1999, Betsy M.'s children were with her ex-husband, who was giving her a hard time about not reporting the incident with appellant and wasthreatening to take custody of the children away. Betsy M. wanted to die and was goingto kill herself that night. Appellant showed up that night, and Betsy M.told him to leave her alone, he had cost her enough, and she wanted to die. (32RT 4762-4763.) On April 9, 1999, appellant called and said he had a stuffed teddy bear that his mother had given him and that he wanted her to hold onto, because he wasafraid his parole officer was going to accuse him ofviolating parole. Appellant said he wanted to drink and used AA "trigger words" which caused her to respondto his request. that she would have respondedto in the program. Betsy M. said she would come over. (32RT 4763-4764.) Whenshe got to his apartment about | p.m., she had nointention of going inside, but had to use the bathroom. She went inside, and out of habit, she 131 put her keys on the kitchen table. When she came outof the bathroom, appellant's reclining chair was against the front door, and her keys were missing. Betsy M. went to grab the telephoneto call for help, but appellant had removedthe battery. Appellant screamed profanities at her and told her he loved her, he was not goingto let her get away with this, and she should understand. G2RT 4764-4765, 4767.) Betsy M.started to cower, but then decided she would go down fighting if she was going to die. She stood up to him, and appellant hit her across the face, knocking her glasses off, and took her downto the ground, where shehit her left shoulder. Appellant had his hands aroundherthroat and wasclosing off her air. Betsy M. grabbed his hands, begging him to stop. Everything started to go dark, and she could feel her heart stopping. Betsy M. thought she was going to die. (32RT 4765.) Betsy M. passed out, and whenshe regained consciousness, she saw appellant across the room up against the wall holding his testicles, rocking back and forth. Betsy M. tried to get to her feet and tried to breathe. Appellant had a knife in his hand, dragged her into the bedroom,andtold her to disrobe. When she would not disrobe fast enough for him, he pulled at her clothes. He had her strip naked, and Betsy M. thought he was going to have sex with her again. Appellant held the knife close to her throat but did not touch the skin, Appellant kept her at knifepoint naked for hours. (32RT 4766-4767.) About 4:30 p.m., appellant told her that he missed an appointment with his parole officer and needed somebodytotell the officer he wassick. Appellantput the battery back in the phone, dialed the phone, and handedit to her. Betsy M.told the officer that she had been with appellant all day and stressed that he was very sick. After the officer said okay, Betsy M. hung up the phone. (32RT 4767-4768.) Appellant then had Betsy M.pick up her children in her car because her ex-husband would havecalled if she had not shownupat the day care center. She had to pick up her children at 132 5 p.m. Appellant insisted on going with her to pick them up, which she did. She then drove back to her apartment with appellant because she thought her best friend's brotherwould be there, and the brother could help. No one was at her apartment. Before she took appellant hometo his apartment, appellant told her that if she wentto the police, he would kill her children in front of her and then kill her. (32RT 4768-4769.) Less than 24 hours after the incident, Betsy M.told the police, because an AA friend and her best friend's brother pushed herto call the police. She told the police she had bruises on her neck, blood in her eyes, and a big bruise on her left shoulder. (32RT 4770-4773.) As a result of this incident, Betsy M. was diagnosed with post- traumatic stress disorder and had not been able to hold down a job because she was afraid. (32RT 4769.) The fear had been transmitted to her children. At the time oftrial, her older sonstill tried to protect her and was overbearing and overprotective of her. Her younger son had a fear of abandonmentand wasafraid he could nottalk to her. G2RT 4769-4770.) 133 2. Defense Evidence a. Appellant's Family The Powell family consisted of appellant's father and mother, Joe and Joyce Powell, appellant's older brother Lance and older sister Terri, and appellant's youngersister Montana.'* (32RT 4870, 4872.) Joyce, Terri, and Montanatestified about their childhoods and family life with appellant. (1) Joyce Powell, Appellant's Mother Joyce Powell, appellant's mother, was born in Baltimore, Maryland and grew up in Ohio and West Virginia. (35RT 5378, 5381.) She had 11 brothers and sisters. When she waseight or nine years old, Joyce was sexually abused by her alcoholic father. After he abused her once,he tried again, and Joyce said she wouldtell her mother. Joyce's mother was an alcoholic too, but stopped drinking when she becameill. (35RT 5379.) When Joyce was 15 anda half, she met Joe Powell, who was 17 and from Ohio. (35RT 5379-5380.) Joe's mother drank a lot, was not a nice person, and put her children into foster care every chance she got. Joe was raised in foster homes. (35RT 5380.) In 1960, twenty-year-old Joe and eighteen-year-old Joyce married and lived in Ohio. (35RT 5380-5382.) Joe and Joyce's son Lance wasborn that year, and the next year, 1961, their daughter Terri was born. (35RT 5381.) When Lance was one year old, Lance burned his hand on the oven and started to cry. Joe spanked Lance to make him stop crying, but Lance continued to cry. (35RT 5383.) As time went on, any time Lance or Terri would cry, Joe would get upset and spank them to try to make them stop 4 Montana was originally named Marcia,but changed her name later in life. For consistency, she will be referred to throughoutas Montana. 134 crying. Joyce tried to tell Joe that spanking them would notstop the crying and that he should pick them up and love them, but "it wasn't his way." Although Joe spanked Lance and Terri, their punishment was mostly verbal. (35RT 5383.) In 1964, the four family members moved to Quartz Hill, California, which wasnext to Lancaster. (35RT 5380-5382.) Then, in 1965, the family movedto Barstow, California. In 1967, appellant was born, and in 1970, the youngest Powell child, Montana, was born. (35RT 5381.) Joe first hit appellant when he was two years old. Appellant pushed downa little boy he was playing with outside. Joe picked up appellant, threw him into a pole, and asked him how it made him feel. (35RT 5383- 5384.) About six monthslater, appellant started having seizures. After appellant fell asleep, one side of his body would jerk "really badly" and not stop. Appellant's tongue wouldstart rolling back into his mouth. At the hospital, appellant was given phenobarbital, which brought him out of the seizure. A couple monthslater, appellant had another seizure and was rushed to the hospital. The doctor watched him andsaid appellant would not die. They took him to Loma Linda, where tests were run, and brain damage was found. (35RT 5384-5385.) Appellant was on phenobarbital until he was seven anda half, and the drug caused his teeth to become dark colored and deformed, for which appellant was teased. (35RT 5385-5386.) Appellant was a very sensitive child, very loving, and very caring. (35RT 5386.) Whenappellant was between the ages of eight and ten, Joe became angry at him at the dinner table, picked him up, and threw him acrossthe room so hard hehit the wall really hard and went behind the couch. (35RT 5387.) Whenappellant was about 11 years old, Joe thought appellant and another boy werefighting, although they were just playing roughly, and Joe 135 kept telling appellant to beat him. Appellant would not beat the boy, so Joe kicked him all the way down and upthe street. (35RT 5388.) The neighbors called the police, but Joe warned Joyce and the family not to say anything or they would pay for it. G5RT 5390.) When appellant was 13 years old, he did not go to school because children were teasing him badly. Appellant was upset and pulled out a long . butcher knife from a drawer, told Joyce he was not going to school, and told her he was goingto kill himself. G5RT 5392.) Joyce talked appellant into putting the knife down and told him they would get him help andthat she would call his father. Whenhis father got home from work,he told appellant they would get him help. Appellant saw a psychologist, but the psychologist wanted to talk to Joe. When Joe wentin, the psychologist told him that he was the problem, and Joe would not pay for the treatment anymore. (35RT 5393.) Joe had the money andusedit to control Joyce. (35RT 5393-5394.) The house of a neighbor, Wanda Agnew,was a "safe house" for Joyce, appellant, and Montana,since they could be safe from Joe there. (35RT 5390-5391.) Joe was a racist, "major big time." He did not like anyone unless the person was “total White." However, appellant was not that way, because he brought Black and Hispanic friends home. (35RT 5415.) Whenappellant was 14 and a half years old or 15 years old, Joe threw him out of the house while Joyce wasvisiting her ill mother. (35RT 5394.) WhenJoyce returned, she went to child protection services and askedfor help. They told her there was nothing they could dofor her. (35RT 5395.) Appellant had problems with children at school because Lance shot a child with whomhehad beenfighting for a long time. Becauseofthat, appellant and Montana were both teased and harassed. Joe wouldtell appellant to beat the children teasing him. (35RT 5397.) 136 Joe would abuse the children every time he came home and was angry. Joe would call the children names andtell them they were worthless. Joe would call appellant a "pantywaist." (@5RT 5388.) When Joe was away working onthe railroad, the family would play games and enjoy themselves, which they could not do when he was there. (35RT 5399.) WhenJoe beat or kicked appellant, Joyce tried to stop Joe andtell him it was enough. Joyce would try to draw Joe's attention towards herself, and Joe would grab her and hit her. One time, Joe picked her up and threw her across the kitchen into the wall. Then, he choked her, put her down on the ground, and chokedthe breath out of her. (5RT 5389.) Joe's abuse of Joyce continued until appellant was about 14 or 15 years old, when Joe found a girlfriend. (35RT 5389-5390.) One day, Joe came homeand told Joyce to leave because he had a girlfriend. Joe told her that if she tried to take his house, possessions, or money, he would kill her. Joyce moved into a duplex with Montana. Appellant was about 15 and a half years old, and Joe told Joyce that appellant had told him he wanted to live with him. (35RT 5399-5400.) Joyce did not leave Joe before because she was afraid of him; he said he would take the children and raise them however he wanted, and she had no money or anyone to help her. She knew that as long as she was with her children in the family home, she could do something to keep Joe from hurting them sometimes. She did not call the police because she was afraid. (35RT 5390.) After Joyce left, Joe treated appellant worse. (35RT 5399-5400.) Joe let appellant visit a girlfriend in San Francisco, and when appellant came back, appellant said he had been offered a job there and was going back. Appellant went back and stayed there many months. (35RT 5401.) 137 In late 1985, appellant was almost 18 years old and came back to southern California. Appellant visited Joyce and Montanaattheir duplex. (35RT 5401.) Appellant arrived at night and fell asleep on the couch. Joyce went to bed, and the next morning, as Joyce was taking a shower, Montana pounded onthe door and yelled. Joyce saw that Montana had blood on her head. Montana said she did not know what happened. Joyce asked appellant, and appellant said he wasupsetat his girlfriend Lisa, that he had throwna pipe at the wall, and that the pipe hit Montana. Appellant had a ook "like where am I and what am I doing.” (35RT 5402.) Appellant had had this look before. (35RT 5403.) Appellant tried to prevent his mother and Montana from going to the hospital and wasafraid. (35RT 5402-5403.) As aresult of hitting Montana, appellant went to juvenile hall and received psychiatric treatment. When they told Joe he had to pay for a portion of the treatment, he said no and did not pay. The help stopped. (35RT 5403.) At somepoint, appellant tried to get into the Navy but was discharged since he had asthma. (35RT 5404.) On November28, 1989, when appellant was 22 years old, he attacked Joyce at her apartment. Appellant had come back from Las Vegas with his _. friends, wanted money, and had been drinking. He was"realstrange." Joyce said she did not have money, and appellant became angry. He hada blank look on his face and said he wanted money. Appellant picked her up and threw her across the room, where she hit a dresser and broke a vertebra in her back. A neighborcalled the police because Joyce could not. (35RT 5404-5406, 5413-5414, 5419.) The look appellant had when he threw his mother was the same look he had whenhetried to stop her and Montana from going to the hospital when he hit Montana. Joyce, who had been 138 disabled since 1988, went to the hospital, and appellant went to jail. (G5RT 5406.) Joycetestified that appellant had positive qualities. When he did not drink, appellant was a very caring and loving person. He wasprotective of others and a "good kid." Joyce forgave appellant for what he did to Montanaand to her. Appellant called Joyce all the time. (35RT 5407.) Whenappellantdrank, he reacted violently when a woman did not give him what he wanted. Joyce had not known appellant to behave in such a manner when he wasnot drinking. It would surprise her to hear there was no evidence appellant was drinking before the murder. (35RT 5416.) Appellant had not apologized to Joyce about anything he did to Colletta, Betsy M., or Epperson. (35RT 5417-5419.) Joyce testified that when she saw appellant with Colletta, they were very loving. Once Colletta called Joyce looking for appellant, told Joyce appellant wanted to. break up, and that if she could not have him, she would make sure nobodyelse did. (35RT 5423.) Appellant told Joyce that he attacked Colletta because she wastrying to attack him and that Colletta had pulled a gun on him a few days before. (35RT 5426.) Appellant said he did not remember what he did to Epperson. (35RT 5427.) Joyce did not see Lance because she wasafraid of him, he was an angry person, and he would hurt her. Lancetried to kill his father when he was young becausehe hated the way he wasbeing treated. Lance was a "mean person." (35RT 5408.) Once, Lancetried to get into Joyce's secure housing complex and threatened the manager. (35RT 5408-5409.) Lance lied. When Lance had problemswith his girlfriend and was angryat her, he dragged herto his car, threw herinto it, gave her a concussion, and drove her over two county lines, which caused him to be jailed. Also, Lance threatened to steal his and his girlfriend's one-year-old daughter, so a restraining order was obtained. (5RT 5409.) 139 Joyce last heard from Terri four years ago. Two days before Terri's fortieth birthday, Terri called her mother and said she did not want to see her anymore. (35RT 5410.) Joyce knew that Joe gave appellant the red Mitsubishi truck and sent appellant money in jail. G@5RT 5420.) (2) Terri Powell, Appellant's Older Sister Terri Powell, appellant's older sister, was born in Ohio and then moved with the family to Lancaster first and then Barstow. (32RT 4872.) They were a "middle class" family. (32RT 4879.) Appellant had seizure problems when he wasabouttwoorthree years old. At around midnight or | a.m., when appellant had a seizure, the family would rush him to the hospital with a spoon on his tongue so he would not swallow it and die. (32RT 4872.) For his seizures, appellant took phenobarbital, which turnedhis teeth grey and for which he wasteased. (32RT 4872-4873.) Terri took appellant everywhere with her. G2RT 4873.) Whentheir father Joe was home, the house wastense, because there was an "internal fear" of not knowing what would happen next, of not knowing if someone would get slappedor yelled at. If Joe "was in a good mood,it would be a good day, if he was in a bad mood,it would be a bad day." (32RT 4880.) Joe was not a good father. He verbally abused all the children,telling them they were no goodandstupid andthat they would never be anything. (32RT 4873.) Joe physically abused the boys, picking them up, throwing | them against the wall, kicking them, slapping them, and beating them. Terri had not spokento herfather for 20 years. (32RT 4874.) When Joe was verbally abusive to the family and physically abusiveto the boys, their mother Joyce "did nothing. She stood there...." Terri thought Joyce was 140 afraid she was going to be hit so she stood back and "tookit all in." (32RT 4878.) Their youngersister, who wasinitially named Marcia and who changed her name to Montana, was favored by Joe, and Terri did not actually see Joe strike or hit her. Terri did not know why Montana had changed her name. (32RT 4877-4878.) The family had good times at Christmas, when they would open presents. (32RT 4879.) Once in a while in the afternoon, when Christmas was hectic or somebody was not happy, Joe started verbally abusing the children. (32RT 4879-4880.) Joe started physically abusing appellant in his early teens. One time, whenappellant was in elementary school, Joe yelled at appellant, kicked him, and chased him upthe street. (32RT 4875.) To escape the family situation, appellant could go to Agnew's house. (32RT 4900-4901.) Also, appellant had a friend named Kevin Brunner and had other places to go that were not abusive. (32RT 4901.) Terri saw Joe abuse Lance more, picking him up and throwing him against the wall. One time, in the kitchen, when Terri was about 12, 13, or 14 years old and appellant was 8 or 9 years old, Joe picked up Lance, threw him on the ground, and kicked him. Lance was huddledin little ball yelling for his father to stop, while their mother just stood there. Terri ran to her room and covered her head with pillows so she did not have to hear it. That incident was the worst that Terri saw, and "that happened quite a bit too." (32RT 4876.) When Terri was 13 years old, Joe hit Terri once when she wassitting on the porch. Joe picked her up, shook her around, and pushed her through the house, while shaking and slapping her. He threw her down onher bed, shook her, and ripped her blouse, causing it to open. When Joe realized he had ripped her shirt, he stopped and walked away. Later that night, Terri 141 told her parents that if Joe ever touched her again they would never see her again. Terri thought her parents believed her, and Joeleft her alone. (32RT 4877.) Joe also accosted Terri in a sexual manner. While Terri washed dishes in the kitchen, Joe would come up behind her and rub up againsther. Terri would tell him to get away and leave her alone. In the backyard pool with other children, Joe would try to "grab a feel of [her] breasts." (2RT 4879.) Also, Joe was verbally abusive to Terri, saying hurtful things, such as accusing her of "screwing around." (32RT 4878.) WhenTerri was about 13 years old and appellant was about 7 or 8 years old, Lance, who was a freshmanin high school, sat in the middle of the living room with a rifle pointed at the door. Their mothertried to talk to him. Lance was upset with their father for the abuse and was going to kill him when he walked through the doorat 5 p.m. after work. Terri took the gun away from Lanceandtold him he was goingto ruin his ownlife if he did this. (32RT 4881.) Terri told Lance to get himself together and calm down. (32RT 4882.) Twoyears later, while Lance wasstill in high school, Lance took a pistol to schoolto kill or scare a boy who wasbullying him andshot several ~ people, injuring three of them. Lance was sentto a juvenile center. (32RT 4882-4883, 4908.) After Lance gotout, he wentto jail or prison for possessing a gun in a car. Since then, he had not been back in jail or prison. (32RT 4909.) Terri believed Lance should not be on the street because he was dangerous. He "pimped"out his wife, was deceitful, and was notto be trusted. (32RT 4913.) Joe's abuse and Lance's problemsaffected appellant. (32RT 4883.) Appellant was told he wouldend upinjail like Lance, and appellant had no role model. Terri believed appellant became somewhat like Joe. (32RT 4884.) 142 Terri went to college at the University of California at Irvine and would drive from Irvine to Barstow to visit her family. While at college, Terri heard appellant attacked Montanawith a lead pipe. (32RT 4884- 4886.) Appellant told Terri he was sorry and did not remember doingit. (32RT 4910.) Also, while Terri was at college, appellant attacked their mother, pushing her against the couch and fracturing her vertebrae. (32RT 4885, 4903.) Appellant was "never actually really happy." (32RT 4886.) While Terri was in college, Joyce called and said appellant was upset and neededto talk to her. Terri drove from Irvine to Barstow. Appellant had a gunin little duffle bag and was upset with Joe for all the abuse and wastired of dealing with it. Terri talked to him for hours and thought he was going to harmhimself or their father. (32RT 4886.) Terri told him to ignore their father's verbal abuse, but appellant was sensitive and was not able to do that. (32RT 4887.) In the late 1990s on an Easter Sunday, Terri visited appellantat his apartment in Santa Clarita because appellant said he was very depressed, did not want to be around anymore, was hurt, and had been drinking. Terri brought appellant dinner. Appellant resisted eating, and when Terri tried to put somebreadin his ear in a joking fashion, appellant got "extremely mad," jumped off the couch, and turned into "this Tazmanian devil type person." Terri knew she hadto leave, and as she was going out the door, appellant cameat her and pushed her downthestairs. Terri twisted her foot, and appellant screamedat her for trying to make him eat. Terri threw a can of green beans at him, missed, and jumped in her car. Appellant started beating on the hoodofher car and ripped the mirror off the driver's side of her car. Terri told him to move or she would hit him. Terri drove a little way, and appellant yelled at her. Appellant was enraged andstarted running to her car. Terri drove away andfiled a police report to force appellant to get help. Appellant agreed to get help, paid a fine, and paid the 143 deductible for the damageto Terri's car. (32RT 4887-4890.) Appellant apologized to Terri, who forgave him. (32RT 4911.) When appellant wasin a facility in San Bernardino, he was given medication. Whenhe gotout ofjail, appellant continued taking medication for atime. When he took medication, appellant looked "kind of groggy and look[ed] just sort of drugged." At other times, appellant said he did not need the medication and did not take it. (32RT 4891.) Terri knew about Colletta and that appellant wentto prison for that incident. Appellant told Terri that Colletta was very jealous and they did not trust each other. Appellant said Colletta got pregnant and got an abortion. When Colletta told him about the abortion, appellant was very upset. Terri did not see the incident. (32RT 4892-4894.) Terri did not know about Betsy M. or Angel B. (32RT 4902.) Terri had met Epperson and Todd whenshevisited appellantin downtown Los Angeles. (32RT 4907.) Terri did not know how Epperson died. (32RT 4902.) Appellanttold Terri he could not have killed Epperson "because ofthe situation." (32RT 4911.) Terri acknowledgedthat generally appellant fell in love immediately when a womangave him attention and liked him, would give them everything, and spent money on them. (32RT 4909-4910.) However, when a woman rejected him, he becameangry, hurt, and frustrated. (32RT 4894.) Heslapped them around because that was what he saw as a child. (32RT 4909-4910.) Terri had met someofappellant's girlfriends and did not detect any problems. He seemedto get along with the women,and they seemedpretty normal. (32RT 4894.) Based on a hypothetical posed by the prosecutor in which Joyce said appellant came home from Las Vegas, wanted money, became angry when he did not find cash in her purse, picked her up, and threw her, causing her 144 to break her back, Terri acknowledgedthat situation was not one in which a womanrejected him. (32RT 4903-4904.) Terri did not talk to her father, mother, Lance, or Montana. (32RT 4895-4897.) Terri did not want them to know where she lived. (32RT 4895, 4897-4898.) Lance was "psychotic" and a liar. She did not trust him. (32RT 4897.) Terri chose to get away from her family becausethelittle bit of happiness of having the family there for her was outweighed by the hurt her family caused her. (32RT 4896.) However, Terri had a "pretty good relationship" with appellant, with whom sheshared confidences. Terri believed appellant needed help and had "never gotten that help." (32RT 4898.) Terri thought appellant had a "big heart" and "been dealt kind of a crappy hand." Terri thought appellant was "very misdirected, very angry, [had] no way to let that anger out." (32RT 4899, 4913-4914.) Even though Terri had succeededin the world, she believed appellant had not because he was more sensitive and unsure of himself. (32RT 4914-4915.) Apparently, Joe gave appellant the red Mitsubishi truck. (32RT 4908.) Appellant had a very "mixedrelationship" with his father. At one point, Joe tried to help appellant in Bakersfield, but help always came with conditions that he hadtolive up to. (@2RT 4911-4912.) (3) Montana Powell Gomez, Appellant's Younger Sister Montana Powell Gomez, appellant's youngersister, was born in 1970 and was two and a half years younger than appellant. (35RT 5326-5327.) Lance was nine and a half years older than her, and Terri was eight and a half years older than her. (35RT 5327-5328.) Montana grew up in Barstow but now lived in Arizona. (35RT 5330.) Montana was married and had two children. She had good days and bad days, was in therapy, and struggled every day. (35RT 5332.) She had 145 feelings of worthlessness. Over the years, Montana had taken anti- depressants and anxiety medications. (35RT 5333.) Montana could not workand was on disability. (35RT 5334.) Montana's childhood was"really bad," a "nightmare." Her father was always kicking the children and putting them down. Shedid nottalk to her father now because she could not deal with it. Her father would alwaystell the children they were worthless andtell the boys they were "pieces of shit." He told Montana she would be pregnant before she was 13, and she did not even know whatthat wasat the time. She wasscaredall the time that her mother would be dead in the morning and that they would have no place to live because they had no friends. (35RT 5330-5332.) She was not allowed to have friends. (35RT 5335.) Whentheir father was in the house, the house was very tense. Whenheleft, they had fun. (35RT 5338.) In their family, Montana wastaught that Whites stay with Whites. Her father "flipped out" when Montana danced with an African-American boy in the first grade. More recently, her father "flipped out" when he found out her last name was "Gomez." (35RT 5359.) Herfather was verbally and physically abusive to the boys. He would tell the boys they were worthless and "pantywaists." She saw her fatherhit appellant and throw him around. (35RT 5336.) Her father would push her arounda little bit but would not hit or punch her. He did throw herinto a wall one time. When she waslittle, he would make her take down her own pants and would spankher with a belt until she bled. (35RT 5337.) Her father would hit her motherall the time from the time she could remember until her mother left when she was 14 and appellant was 16 or 17. (35RT 5335.) When Montanawas aboutfive or six years old and Lance was about 15 and a half years old, Lance would take her to the garage and made her give him oral sex all the time. That wenton for a couple years until Lance 146 wentto jail for the first time. (35RT 5339-5340.) Montanadid nottell anyone until she was in her twenties. (35RT 5340.) When they were growing up, Montana and appellant had fun together. They would ride motorcycles in the desert, which got them away from their father. They played baseball and swam in the pool. (35RT 5343.) Appellant played in Little League and went to church. He had other friends, like Kevin Brunner. Appellant was smart. (35RT 5367.) When appellant was young, he wasvery sensitive and gave Montana hugs. (35RT 5344.) Others would tease him, call him "pinky" because he had really light hair and waslight-skinned, and call him "Troylet paper." He was alwaysbigger than everybody. (35RT 5345.) When Montana was very young, somechildren tied appellant to a pole and were going to beat him, but Terri stopped it. (35RT 5345.) Once when appellant was about 11 or 12 years old andthe family was eating dinner, her father said appellant was chewinglike a pig, picked him up, and threw him over the couch. The children did not know what to do becausetheir father was so much bigger and they were afraid. (35RT 5337.) Lance took a gun to school and said he was going to shoot somebody. Since she wassolittle, Montana did not know the details or if Lance shot someone. Montanadid not talk to Lance after what he did to her. (35RT 5341-5342.) She had a daughterand did not want Lance near her family. (35RT 5342.) Appellant and Montana would get harassed at school about Lance. The children would tease them that they would be like Lance, that they were bad people, or that Lance would come shoot them. Appellant wassensitive about being teased. (35RT 5345-5346.) Whentheir parents separated, appellant was about 16 and a half. (35RT 5366.) Montana, who was 15 years old, lived with her motherin a 147 duplex. Although appellant did not live at home, he would visit Montana and try to makeherfeel better. (35RT 5347-5348.) In 1985, when Montana wasliving with her mother, appellant went to northern California with his girlfriend's family but it was "too much"forhis girlfriend. Appellant then visited his mother and Montana and was upset and hurt because he had just broken up with his girlfriend. Appellant stayed up late, and Montana went to sleep. In the morning, Montana awoke with a sensation in the back of her head. She got up and touchedher head, which was covered in blood. Appellant was standing there and asked what happened. Appellant comforted herandtried to figure out what happened. Montana showed her motherthe injury, and appellant tried to stop them from going to the hospital by jumping on the hood of the car. Eventually, the police came, there was a standoff, and appellant was arrested. ($5RT 5348-5349, 5362-5362, 5368-5369.) Appellant had hit Montana on the back of her head with a lead pipe. Appellant "just lost it" and "just went to that place he goes to and just came andhit [her]... ." Appellant "had no clue what had happened." (35RT 5349.) Appellant wentto juvenile hall. Appellant was seen by psychiatrists one or twotimes, but her father "put a stop to that as well." Their father refused to pay a portion of the treatment because he wasafraid people would find out what he had donetohis | children. (35RT 5350.) Appellant had a problem with rejection. (35RT 5362.) sew “ie * | Whenappellant visited Montana after she had moved out, appellant had just hurt their mother, and the look on his face waslike a blank,like nobody wasthere. It was the samelook as whenhe had hit Montana. (35RT 5351.) | When she wasyounger, Montanawasclose with Terri, but did not see her anymore. Terri left the family because she could not take it anymore. (35RT 5342.) Montana described Terri as hardened, cold, and not loving 148 and did not want a relationship with her if she was that way becauseit was too hard for Montana. If Terri could be the way she was when they were children, Montana would love to have a relationship with her. (35RT 5373.) Montana wasclose to her mother and appellant. (@5RT 5343.) Montanaalways loved appellant and gave him unconditional love, as did their mother. (35RT 5351, 5367.) He did not meanto hurt her or her mother and just had no help dealing with his problems. (35RT 5352.) Montana did not abuse her own son and daughter and did not mimic the behaviors she saw in her family. (35RT 5372.) She thought her mother was a wonderful role model. (35RT 5374.) Montana changed her name from Marcia because she could not be that person anymore and did not want to have been named byherfather. Years later, she found out it was very common for people in abusive families to change their names. (35RT 5340-5341.) Appellant and Montana's son had great times together, including at Disneyland. Her son loved appellant. (35RT 5354-5355.) Montana thought appellant could be useful in prison in helping her son because he could tell him not to make bad choices.. Havingto tell her son that appellant was in prison would devastate her son. (35RT 5356-5357.) Appellant's positive qualities were that he loved her son unconditionally and that he was a warm, loving person. (35RT 5358.) b. Childhood Friends and Neighbors (1) Wanda Agnew Wanda Agnew, whohadlived in Barstow for about 52 or 53 years, had known appellant since he was born. (32RT 4845.) Appellant was a "neat pretty little blond curly haired boy." She was goodfriends with appellant's mother, Joyce, whom she knew from church. (32RT 4846.) 149 Agnew's house was knownas the "safe house," because the Powell children were safe from their father there. (32RT 4847.) The children cameto her house three or four times a week on occasion for 10 to 15 years. (32RT 4847, 4853.) Joe, appellant's father, was "quick tempered." He was domineering and expected Joyce and the children to do what he said whenhesaidit. Joyce and appellant were afraid. (32RT 4848.) Agnew saw bruises on appellant, just below his shirt edge or his leg where he might have been kicked or hit with a belt. Joyce had bruises from time to time. 32RT 4847.) In church, appellant would sit quietly. Appellant attended Sunday school from age twoto past the age of 12. (32RT 4849.) When appellant was about two years old, appellant had hit his head on an iron pole and was emotionally upset the next year or so. (32RT 4849.) (2) Kevin Brunner Kevin Brunner was appellant's childhoodfriend in Barstow, and their mothers knew each other and taught at the Barstow Christian school. (33RT 5079.) Appellant's father had a horrible reputation for having a violent temper, being mean, and just not being a real nice guy. 33RT 5081.) When appellant was a child, he was mostly passive and not aggressive by nature. Appellant had a lot offrustrations. (33RT 5087.) When Brunner wasin elementary school and appellant's brother Lance was in high school, Lance shot some people at the high school and was convicted. Brunner heard that Lance thought he needed to defend himself from gang members, and onebullet hit an innocent girl. Brunner thought it wasself-defense as to the gang members, but Lance was convicted of shooting the girl. However, Brunner wasnotthere. (33RT 5081-5082.) 150 Appellant and Brunner becamefriends in high school, when appellant wasa freshman and Brunner was a sophomore. (33RT 5080.) Appellant had troubles in high school because he wasa nice kid, was related to Lance which wasa real negative thing, appellant's father repeatedly said he would be just like Lance, and a teacher said appellant was Lance's brother, labeling him. (33RT 5082.) On a couple occasions, appellant cried because his father failed to show up on Friday night to spend time with him. Appellant got depressed about his circumstances, his father calling the house and arguing with his mother, the house being in disrepair, his mother being broke, and his father failing to send money. (33RT 5083.) As teenagers, Brunner and appellant had beer, and appellant cried and confided in him abouthis father and troubles. (33RT 5083-5084.) At one time, appellant dated a pastor's daughter, and the pastor liked appellant, saw potential in him, and spent time with him. The pastor was a father figure. (33RT 5089.) One time, while playing basketball and associating with some mentally handicapped children during lunchtime, Brunner was beaten by gang members whenhetried to defend the mentally handicapped children from the gang members. Appellant helped Brunnerto the nurse's office, and after that, appellant and Brunnerplayed with the mentally handicapped children together and were left alone since they were large boys. (33RT 5084-5085.) On the weekends, appellant went to church and saw Brunner. Appellant's mother thought Brunner would be a good role modelfor appellant, and Brunner's family opened their home to appellant. (33RT 5089.) Appellant had a solid work ethic and enjoyed spending timeat Brunner's farm and doing chores. Appellant was shy in some cases and had a big heart. (33RT 5084.) 151 In his senior year of high school, Brunner enlisted in the Marine Corps, spent seven years in the Corps, and saw appellant a couple times. (33RT 5085-5086.) When he saw appellant at age 18 or 19, appellant had basically the same personality, but appellant had gotten in trouble and his mother was unhappy with him. (33RT 5086.) The last time Brunner saw appellant was when appellant was 18 or 19 years old. (33RT 5087.) Appellant graduated from high school. @3RT 5089.) Brunnerbelieved that if appellant had grown up in a loving homelike Brunner's he would not be on trial. (33RT 5086.) Appellant's essential character wasto be helpful, and he liked the underdog and stuck up for anybody. (33RT 5086.) c. Appellant's Adulthood Friends (1) Asim Askar About 15 yearsbefore trial, Asim Askar met appellant at Askar's workplace, a Santa Clarita liquor store. 32RT 4856, 4858.) They became friends and wentplaces together, including Las Vegas. (32RT 4857, 4864.) However, Askar had not seen appellant in the last seven years. (32RT 4861.) Appellant was always calm when around Askar. (32RT 4862.) Askar knew Colletta, who never complained to him about appellant. They seemedlike a typical couple. (32RT 4858.) At least eight years before Askartestified, Colletta had called his store, at least once. (32RT 4863-4864.) However, Askartestified there was no incident where Colletta called him at work and appellant grabbed the phone from him and threatened to kill her and her parents. (32RT 4859.) (2) Neida Cook-Welsh In 1998, Neida Cook-Welsh and appellant were in the Weingart Center's Stairs program for parolees. Cook-Welsh had three convictions and two paroleviolations for strong armed robbery, possession ofa 152 controlled substance with an intent to sell, and possession of cocaine with usage. She served three prison terms. (33RT 5070.) Cook-Welsh used the name Gretchen Black before. (83RT 5074.) Cook-Welsh met appellant in the dining room, whenshesatat his table. They conversed and becamefriends. They ate together on a regular’ basis. (33RT 5071.) Appellant helped her with anger issues, such as when she became overly angry about someonecutting in front of her to use the microwavein the television room. Appellanttold her to stop and think before acting, which she did.3RT 5071-5072.) She did not understand why appellant would wantto be her friend and asked if she was his token "N-word." Appellant became very angry at her and told her not to let him hear hercall herself that ever again. Cook- Welsh had seen appellant's tattoos, and they did not bother her. (33RT 5077.) At the Weingart, appellant got medication. (33RT 5074.) Cook-Welsh had been out of prison seven years and drug-free for six and a half of the seven years. She was discharged from parole, married a man she met at the Weingart, and had been married for three years. She managed and ran a 36-unit apartment building in Carson City, Nevada and was about to buy their first home. (33RT 5072.) Cook-Welsh stayed out of trouble, and appellant's friendship played a big part in that. She had never had friends before. (33RT 5072.) Appellant treated her as a person and would always have a special place in her heart. (33RT 5076.) In 2000, appellant visited her and was real quiet. The next day, the police raided her house. (33RT 5074-5075.) 153 d. Expert Medical Testimony (1) Dr. William Vicary Psychiatrist Dr. William Vicary, who has a law degree from Harvard, evaluated appellant in 1993 for competencyto standtrial for the Colletta assault and evaluated him for the instant case. (32RT 4927-4928, 4930- 4931.) With respect to this case, Dr. Vicary opined that appellant suffered from a major mental disorder, bipolar disorder. (32RT 4948-4949.) In addition, appellant had a traumatic family background, brain damage, pled for treatment, showed remorse, and adjusted positively to institutionalization. (32RT 4934, 4942, 4962-4963, 4966.) Dr. Vicary reviewed thousands of pages of documents, consisting of police reports, appellant's prison records, state hospital records, multiple prior psychiatric evaluations, a complete battery of hospital tests, and more recent tests, including EEGs, PET scans, and neuropsychologicaltests. He interviewed appellant approximately seven times for a total of about 14 hours and had spent over 70 hours on this case. (32RT 4929.) However, Dr. Vicary had not readthetrial testimony because there was not unlimited money. (33RT 4993-4994.) ~ Appellant's institutional records went back to when he wasa teenager at the San Bernardino County Mental Health Department, where he was hospitalized three times, treated with antipsychotic medication, and was evaluated for the court. (32RT 4932-4933.) In 1985, in a report after appellant's pipe attack on his sister Montana, appellant was evaluated as having major depression, single episode, a major mental disorder, and having anti-social traits. (33RT 5050.) The report stated appellant assaulted staff and continued to threaten his mother and sister, saying he wantedto kill them. (3RT 5056.) 154 In 1993 and 1994, Dr. Vicary saw appellant for court-ordered examinations to determine if he was competent to standtrial for the Colletta assault. (32RT 4930-4931.) In a competency determination, there are two factors, one being whether the defendant understands the nature of the proceedings, and one being whether the defendant can meaningfully assist in his own defense by cooperating with his attorney in a rational way. (33RT 5001-5002.) In the Colletta case, appellant disrupted the proceedings by lying prostrate on counsel table and claiming he took an overdose, which waslater found to be false. Later, while appellant was in lockup, he tried to cut his wrists. Such actions delayed the proceedings. (33RT 5003.) Appellant was sent to Patton State Hospital because Dr. Vicary andat least one other doctor said he wasbipolar, agitated, paranoid, irrational, very destructive, and self-destructive. When appellant was admitted to Patton, their opinion wasthat appellant was bipolar. Dr. Vicary saw appellant at Patton as well. Within a year, appellant was returned to court, with a discharge diagnosis. (32RT 4930-4931; 33RT 5004.) The report stated appellant did not appear to be suffering from a severe mental disorder, he understood the court's procedures, he had the ability to cooperate with an attorney if he chose, and his current behavior and expressed symptoms were viewedas volitional and characteristic ofhis anti-social personality rather than a major mental illness. (33RT 5005- 5006.) Appellant stoodtrial for the Colletta incident and wentto prison. (32RT 4930-4931.) Everystate prisoner is screened, usually by a counselor, and if there is evidencethe prisoneris sick, the prisoner is referred for a psychiatric evaluation. If the psychiatrist determines the prisoneris sick, the psychiatrist can start him on medication and recommendhebe placed with psychiatric patients in prison. Also, a prisoner can be transferred from a state prison to Atascadero State Hospital, a maximum security facility 155 designed to treat prisoners who cannot be handled bythe prison psychiatric units. (32RT 4931-4932.) Appellant was placed at Atascadero andtreated with massive doses of tranquilizing and antidepressant medication. (32RT 4932.) One person who examined appellantin prison described him as a ~ serial killer in the making. (33RT 4990.) Dr. Vicary disagreed with that. (33RT 4991.) In 2002, while this case was pending, appellant wasat Patton for three monthssince he had been declared incompetent. After Patton, appellant was in countyjail for three years. In the Los Angeles Countyjail, appellant wasin the psychiatric section. (32RT 4934.) (a) Six Categories Explain How Appellant Cameto Be the Way He Is i) Traumatic Family Background Based upon his review of appellant's records, other records, and conversations with appellant, Dr. Vicary testified six major categories explained how appellant cameto be the wayhe is. First, appellant had a traumatic family background. (32RT 4934.) Appellant's fraternal grandparents were alcoholics, his paternal grandmother died from alcoholism and was describedas neglectful and hypersexual, his maternal grandfather molested appellant's mother for three years when she was a little girl, a paternal uncle spent most ofhis life in a psychiatric hospital, and two paternal uncles and a cousin were alcoholics. Appellant's father was an alcoholic who wasdescribed as paranoid, impulsive, irritable, and explosive. Appellant's father was verbally, emotionally, and physically abusiveto everybody in the family and would beat, tie up, and slam the children, primarily the boys, into the walls. Appellant's father beat Lance so badlythat he fractured his ribs. Appellant's mother was beaten by his 156 father and could not seem to protect anybody. The neighbors described the family as one of the most violent and chaotic in the neighborhood, with constant physical and mental abuse of primarily Lance and appellant. (32RT 4938.) Lance wasdescribedasirritable, aggressive, assaultive, grandiose, having pressured speech, alcoholic, a heroin addict, having been in jail and prison, and having a history of beating women. Terri reached the point whereshe tookoff, disappeared, and spentparts ofherlife on disability. Montana was diagnosedas having a serious mental disorder and was prescribed lithium, which is given to manic depressives. Apparently, Montanahad the same mental disorder as appellant, their father, their brother, and their uncle. (@2RT 4939.) Being physically, verbally, psychologically, or sexually traumatized as a child can be very devastating and damage one's central nervous system. (32RT 4935.) Such damage can be proven with MRIs and PETscans, which show structural changes in the brain. (2RT 4935-4936.) However, Dr. Vicary testified that having a traumatic family background was "not an excuse for anything." (32RT 4936.) Appellanttried to find love with a stable woman,but instead encountered a series ofgirlfriends who rejected him, making him feel rejected, betrayed, and humiliated. @3RT 4987.) Appellant did not have any positive mentors to intervene and help. (@2RT 4940.) However, Dr. Vicary did acknowledgethat in his report dated September 14, 2004,he stated appellant had opportunities to have good influences and role models in his life. (33RT 5035.) ii) Brain Damage Second, appellant had brain damage. When he was one and half to two years old, appellant started to act differently, likely because his father had punched him or smashedhis head into a wall. Appellant was described as addled,less alert, and less responsive, and shortly thereafter, he started 157 having seizures. (32RT 4942.) At LomaLinda, he had an EEG or brain wavetest, and they found he had a seizure disorder and put him on medication (phenobarbital), which he stayed on for six years. Despite the medication, appellant continued to have seizures mostly at night. (32RT 4942-4943.) Appellant was moody andproneto rage. Testing indicated he had damageto the frontal and temporal parts of his brain, areas which control one's ability to control emotions. A neuropsychologist, Dr. Boone, concluded appellant lacked the ability to exert reason to controlhis behavior, and a neurologist, Dr. Bertoldi, found appellant had an episodic loss of control, difficulty with emotionalstability, and aggression. (32RT 4943-4944.) Dr. Boonetested appellant and found appellant had brain damagethat could be seen on the EEGtracings and colored PET scan. (32RT 4943- 4944.) Children with brain damage, mental disorders, and a traumatic family background make drawingslike appellant's first grade drawings with recurrent themesof destruction and death. (32RT 4945-4947.) Dr. Vicary agreed with Dr. Romanoff's assessmentthat appellant had an underlying organic impairment and "severe character or logical difficulties that were the result of forces beyondhis control," which produced both mental disease and defect making it much more difficult and perhaps impossible for appellant to control himself in the course of the alleged offense. (33RT 5057-5058. ) Dr. Romanoff also stated appellant hadbitten his lip or inside of his mouth at night, which was consistent with someone whohad hada seizure, if one believed appellant. However, Dr. Romanoff believed appellant malingered or manipulated on occasion. (3RT 5034, 5057.) iii) Bipolar Disorder Third, appellant had a major mental disorder, bipolar disorder. (32RT 4948-4949.) The DSM IV,the standard guideline for evaluating 158 psychological problems, diseases, and disorders, is an attempt to give namesor labels to a group of behaviors so psychiatrists and psychologists can talk intelligently to each other, conduct research, and decide on appropriate treatment. The DSM has diagnostic criteria, but is just a guideline. Also, the DSM cautionsthat the diagnostic categories may not be relevant to legal conclusionsor legal judgments, because it does not answer questions such as individual responsibility and volitional behavior, whichare for the jury to decide.3RT 4976-4977.) Appellant's bipolar disorder was a major mental disorder. Dozens of doctors back to his childhood, and several institutions, including the San Bernardino County psychiatric hospital, Patton State Hospital, Atascadero State Hospital, and prison psychiatric units, diagnosed him with a major mental disorder. The current jail psychiatrists diagnosed him as having bipolar disorder, and appellant was on large doses of tranquilizing mood stabilizing medication, including 600 milligrams each day of Seroquel and lithium, which is primarily given to treat bipolar disorder. (32RT 4948- 4950.) Dr. Vicary testified appellant had the classic symptomsof mania, such as staying up for days without sleeping, being euphoric, hyperactive, impulsive, grandiose, and irritable, and having racing thoughts. He also had the symptomsof depressive episodes, including sleeping days at a time, withdrawing from people, and feeling miserable to the point of suicide. At 13, appellanttried to hang himself in the garage, but the rope broke. (32RT 4951.) Hetried other times to kill himself. (@2RT 4952.) . Records showed appellant had a hypersensitivity to rejection. His mother rejected him and did not protect him. His girlfriends tired of him and wantedto break up, thereby hurting him. Appellant expected to be betrayed and exploded, not because of meannessbut becauseof his illness and background. (32RT 4956.) The severity of appellant's bipolar disorder was so extremethat he actually had psychotic symptoms, meaning 159 appellantlost touch with reality. Appellant complained about hearing voices and had been very afraid and paranoid aboutothers hurting or killing him. (32RT 4952.) Dr. Vicary did acknowledge that even those with the worst bipolar disorder may be in the zone between mania and depression, whichis called normality, and can be like anybody else. (32RT 4954.) Appellant knew he wassick, but every time he gotoutofjail or prison, he stayed on his medicine for a while, started to feel better, and figured he did not need the medicine. Then, an "inflammatory element" caused him to drink or get high and go into a downwardspiral. (32RT 4958.) Appellant did tell Dr. Vicary he stopped taking Paxil because he could not get an erection while taking it. (33RT 4988.) With respectto the Epperson murder, Dr. Vicary opined appellant's crimes were "not a premeditated, deliberated carefully thought out type of plan. This is a crime ofpassion,it's an explosive, irrational outburst." (32RT 4959.) There wasnorationalbasis for this crime. Appellant had been sick ever since childhood and could explode in a rage where helost touch with reason andrationality. (32RT 4960.) In the sexual disorders portion of the DSM,there is a category of sadistic rapist, under sadistic paraphelia. (33RT 4988.) Paraphelia means abnormality in an individual's sexual behavior. (33RT 5039.) For sadistic rape, the object of the sexual assault is not necessarily the sex, but the victim's pain and suffering, which is pleasurable to the perpetrator. (33RT 4988.) A perpetrator can be alone with the victim for an extended period of time in which he can takehis time with her. (33RT 5001.) In general, Dr. Vicary did not believe appellant fit into the category of a sexually sadistic parapheliac, but someof his behavior resembled that behavior. However, other crimes such ashis attack on his mother, sister, and Colletta did not have sexual elements. (33RT 5039.) Generally, the category applied to cases where the victim was a stranger. (33RT 5039-5041.) 160 A report dated December 17, 1985 from the San Bernardino Department of Health, which Dr. Vicary considered when opining about appellant, stated the then-17-year-old appellant had been talking to a young Northern California woman whorejected him, just before assaulting his sister with a pipe. Appellant tried to prevent his mother from transporting his sister to the hospital by climbing on the hood of the car while in motion and causing a standoff with the police who cameto arrest him. While in custody, he threatened to assault the staff and said he intendedto kill his mother andsister. The report stated no evidence of psychotic symptoms existed. (33RT 4978-4979.) Appellant was diagnosed on Axis I with major depression and atypical impulse control, and on Axis IT with paranoid and anti-social traits, less than the full blown anti-social personality disorder but indicating a problem with authorities. A hallmark for anti-social personality disorder is a pervasive pattern of disregard for and violation of the rights of others that begins at childhoodor early adolescence and continues into adulthood. (33RT 4980.) Part of anti- social personality disorder is showinglittle remorse for the consequences of one's acts, providing a superficial rationalization for having hurt or mistreated someone,believing life is unfair and losers deserveto lose, blaming the victim, and minimizing the harmful consequencesof one's actions. (33RT 4980-4981.) Dr. Vicary opined that 80 percent of people in prison had anti-social personality disorder. (33RT 4989.) The report stated appellant had the potential to "step outside the boundaries of society when he perceiveslife to be unfair to him." (33RT 4981-4982.) Similarly, in Dr. Maloney's report, appellant said voices told him to kill his sister. If appellant said he did not rememberhitting her, Dr. Vicary opined that one possible inference was that he was minimizing ortrying to get away with what he did. 33RT 4983.) 161 When appellantsaid he was unaware that he broke his mother's back, appellant could have been minimizing what he did or could not have been aware. (33RT 4982.) Dr. Vicary was aware appellant pushed her against dresser drawers or something that struck her back. The police werecalled, and appellant was arrested. He continued to say he wanted to kill his mother. (33RT 4982-4983.) Appellant told Dr. Vicary that his mother was the only person in the world whom hereally loved. (3RT 4986.) Dr. Vicary also conceded that when appellant said he did not kick Colletta in the neck but did kick her in the back almost to her butt, appellant was minimizing to some extent. (33RT 4983-4984.) With respect to Epperson's murder, if appellant said he remembered everything upto hitting her but nothing after that, appellant was minimizing whathe did to some extent. (33RT 4984-4985.) He believed appellant was lying to some extent. (33RT 4985.) iv) Pleas for Treatment Fourth, appellant made repeated pleas for treatmentandhelp to various mentalhealth professionals for 20 years. Appellant tooklife- threatening Clorazil and had been on massive doses of Haldol, Thorazine, lithium, and Depakote, potent drugs with serious side effects. 32RT 4962.) v) Show of Remorse Fifth, appellant showed remorse. Dr. Vicary believed appellant was sorry andtalked about how guilty and ashamed hefelt. Appellant said he knew he wasresponsible anddid nottry to "duck out ofit." (G2RT 4963.) Appellant attempted suicide as a child and adult. In March 2005, he becameso frustrated and depressedthat he took an overdoseofhis medication and had his stomach pumped. (32RT 4964.) Some of appellant's suicide behavior had involved serious attempts, and othertimes, 162 the behavior was more a gesture indicating he could not take it anymore. (32RT 4968.) When appellant took pills to prevent deputies from searching his cell, the deputies found homemade weapons, bats, and shanks. (32RT 4969.) Appellant was paranoid and thought somebody wastrying to kill him. (33RT 5045.) vi) Positive Institutional Adjustment Sixth, appellant adjusted positively to being institutionalized when on psychiatric medication. (32RT 4965.) Appellant was cooperative, got along with others, and wasnot a threat to anybody. (32RT 4966.) Dr. Vicary did acknowledge that having three shanks and twobats in one's cell while being closely watched wasnot positive institutional adjustment. (33RT S037.) (b) Malingering Dr. Vicary evaluated appellant for malingering, the conscious production of false symptomsfor a rational purpose. Dr. Vicary gave appellant the Structured Inventory of Malingered Symptoms (SIMS)test. In Dr. Vicary's opinion, appellant was not a malingerer, an opinion which wasbased on everything including the SIMStest. (33RT 5010-5014.) Dr. Vicary discounted some answers to questions because the test was one part of an overall assessment of malingering. (33RT 5013-5014, 5018.) On the psychotic scale, appellant received a two, and in general, a score greater than two meant appellant was malingering. On the neurologicalscale, appellant received a four, and a score greater than two wasindicative of malingering. (33RT 5014.) Dr. Vicary said the scores could have been much higher, and appellant was on the margin or borderline. (33RT 5015.) Dr. Vicary conceded there were times when appellant malingered, but he was not malingering the bulk of his symptoms. (33RT 5016.) However, when appellant said he did not remember what happenedafter he started 163 beating Epperson, Dr. Vicary agreed that indicated malingering or outright lying to some extent. (33RT 5016-5017.) Also, appellant lied to Dr. Vicary regarding a prior burglary, according to the police reports. (33RT 5017.) Dr. Vicary also acknowledged that Dr. Romanoff believed appellant was a manipulator. (33RT 5034.) (c) Dr. Vicary's Admonishmentby the Medical Board In 1993, Dr. Vicary had interview notes of a person charged with a double homicide, and at the behest of the defense attorney, he made 23 different deletions and changesto benefit the defense attorney's interpretation. (32RT 4970; 33RT 5018.) Dr. Vicary deleted that the defendant hated his parents, wanted them outofhislife, and wantedto kill them. (33RT 5018-5019, 5029-5031.) Ethically, that was wrong. Dr. Vicary was admonished by the Medical Board in California, fined, and placed on probation. He was taken off the court-approvedlist of forensic psychiatrists. (32RT 4971-4972.) He was granted an early release from probation for exemplary behavior. (33RT 5043.) | (2) Dr. Kyle Boone Dr. Kyle Boone, a clinical neuropsychologist, tested appellant and found he had consistent weaknessesin the area of executive or problem- solving skills, which related to planning, organization, thinking through consequencesofbehavior, logic, and inhibiting behavior. Theresults suggested appellant had some kind oforganic frontal lobe brain dysfunction. (33RT 5091-5092, 5107, 5123, 5140-5141.) Dr. Boone testified a neuropsychologist objectively measuredthinkingskills, such as the intelligence quotient (IQ), memory,attention, and higher level problem- solving skills. (33RT 5091-5092.) Dr. Boone saw appellant and administered standardized paper and pencil tests to him. (33RT 5094-5095.) To determine whether someone 164 has a psychoneurological problem, she did not need to know anything about the alleged crime or any of the subject's activities. (33RT 5094.) To - compare thetest taker's scores against the scores of normal people of the same age, education, and gender, she only needed to know theperson's age, education, and gender. To interpret the scores, she needed to know the person's medical and educational history. (33RT 5095.) Varioustests embeddedin the battery specifically check for malingering. The indicators showed appellant was doing his best on the tests. (83RT 5096.) However, Dr. Boone acknowledged appellant could have malingered in other situations. (33RT 5128.) Eight different areas of brain activity were tested: basic attention; thinking speed; language; visual-spacial skills; overall intelligence, executive or problem-solving skills, higher level skills where one has to use logic and deduce patterns; verbal memory; and nonverbal memory. (33RT 5097, 5099.) Appellant’s overall intelligence was average. (33RT 5099.) His basic attention was high average, scoring at the 75th percentile. (33RT 5100.) Appellant’s verbal memory was above average, meaning that his ability to remember whatpeople said to him was above average. (33RT 5102.) Appellant was average in language. (33RT 5101.) Appellant’s visual perceptionorvisual spacial skills was average to low average overall. (33RT 5101-5102.) Appellant’s nonverbal memory, basically his memory of diagramsandthe like, was generally average to low average. (33RT 5103.) Appellant’s thinking speed was low average. (33RT 5100.) On the executive or problem-solving skills, appellant had a clear deficiency. (33RT 5103.) It was usual for a person to have a high score on onepart of the brain test and score very poorly on another. (33RT 5103-5105.) The executive or problem-solving skills area of the brain is most closely related to the frontal lobes of the brain. (33RT 5106.) These skills 165 are very important for humansto function and that is why the frontal lobes are so much larger in humansthan animals. The frontal lobes are involved in planning, organization, thinking through consequences of behavior, logic, weighing risks and benefits of particular decisions, and being able to stop behavior that used to be but is no longer appropriate. The skills involve flexibility and adaptability as one interacts with the environment. If a personis low on these skills, the person will have trouble thinking through consequences of behavior, be impulsive, engage in behaviorsthat are not helpful in the long run, have difficulty understanding the impact of his behavior on other people, not be empathetic, and havetroublelogically making plans and following through on those plans. (33RT 5107.) A person could have been born with frontal lobe problems, or those problems could have been the result of something not of their own making. (33RT 5108.) Appellant took several tests to measure his executive or problem- solving skills. On onetest, appellant scored in the second percentile, meaning 98 out of 100 people of his same age and education would score better. On othertests involving this skill, appellant scored in the percentiles ranging from less than the first percentile to the 11th to 16th percentiles. (33RT 5108.) On oneStrooptest, which tests these skills, appellant scored in the second percentile. (3RT 5110.) This Stroop test in particular measured the ability to inhibit, was very predictive of impulsivity, and correlated with violence and aggression. (33RT 5116-5117, 5125-5126.) On anothertest involving executive or problem-solvingskills, the Wisconsin card sorting test, which tests the ability to look at a problem situation, figure out an appropriate strategy, and be flexible, adaptive, and logical, appellant’s scores were low, ranging from the sixth, 11th, 13th, to 16th percentile. (33RT 5118-5122.) 166 In all, Dr. Boone gave appellant six executive or problem-solving skill tests and concluded appellant had consistent weaknessesin this area, suggesting there might be dysfunction of the frontal lobes of his brain. (33RT 5123.) Appellant's tests suggested that he suffered from organic brain dysfunction, meaning the dysfunction was inborn and that something wasnot wired correctly. (33RT 5140-5141.) Dr. Boonealso stated that seizures can influence the functioning of the frontal lobe. (33RT 5124.) Also, a paper in a professional journal in 1996 found that violence was most frequent in patients who had damageorlesionsin the frontal lobe of the brain. Further, two studies in a 1995 book found that if one does poorly on the executive or problem-solvingskills tests, is intoxicated, and provoked,these three things are very predictive of violence. (33RT 5125.) Acceptedliterature in the scientific community correlates poor performance on the frontal lobe tests and aggression, the theory being that one is unable to control or stop oneself at the appropriate time. (83RT 5126.) If a person scores low on the executive or problem-solvingtests, those scores could be caused by factors other than organic brain damageor brain dysfunction. For example, depression, acute intoxication, and medications could cause sometypes of brain dysfunction that would lower performance. (33RT 5129.) (3) Dr. Roger Bertoldi Dr. Roger Bertoldi, a neurologist, reviewed appellant's records, had an EEG administered to him, conducted a quantitative EEG (QEEG)analysis, and examined him. (34RT 5157-5169, 5182, 5220-5221, 5253-5254, 5258.) Dr. Bertoldi opined that appellant had brain damage and focalized epilepsy. (4RT 5173-5175.) He diagnosed appellant with seizure focus limbic or temporal limbic disorder, which caused episodic discontrol, emotional mobility, and intermittent rage. (34RT 5194-5195, 5227-5228.) He further opined that appellant’s deep focus limbic or temporal limbic 167 illness contributed to his criminal behavior. (34RT 5209-5210, 5247- 5248.) Dr. Bertoldi defined a neurologist as a doctor who specializesin the nervous system, which includesthe brain, spinal cord, nerves, muscles, and all structures like the skin, heart, and lungs. (34RT 5152.) The brainis the central nervous system, and an EEGtests how the brain works. 34RT 5154.) An EEG can measureelectrical activity in the brain, because the cortex of the brain is very columnar, with columnsof negative and positive cells, and brain activity projects past the skull. The EEG imageis a functional image, not an anatomical image. (34RT 5155-5156.) An EEG has twoparts, the background and the paroxysmalactivity. (34RT 5171.) Dr. Bertoldi defined epilepsy as when one has an abnormalfocus in the brain, which dissipates and spreads throughout the brain. (34RT 5157, 5258.) An abnormalfocusis an irritable area, which dischargeselectricity inappropriately or intermittently for many different reasons. An inappropriate discharge ofelectricity could be localized and then spread. (34RT 5157-5158.) When the movementspreads to the otherside of the brain, one loses consciousness. The abnormal focus spreads throughoutthe brain and is called a seizure. (4RT 5157, 5258.) About a third of children outgrow seizures, a third continue to have seizures, and a third are equivocal, meaning they can outgrowit and haveit returnlaterin life. GB4RT 5161-5162.) Dr. Bertoldi reviewed records on appellant. Loma Lindareports showedthat appellant's mother brought him in on March4, 1970, when he was two and a half years old. The report stated that appellant’s seizure was preceded by a moan,thathis left leg, left arm, and left face were jerking, that the seizure lasted 30 minutes, that he was given phenobarbital, an anti- epileptic drug, and that appellant was admitted for evaluation. The description was of a Jacksonianseizure, a rhythmic movement which 168 started in the periphery, in the hand and arm, and moved centrally to the face. G4RT 5157, 5159-5161, 5258.) March 6, 1970 records showed appellant was given an EEG. The EEG showed appellant had an abnormal "spike and wave"brain discharge, a left parietal occasional atypical spike and wave complex that was noted at three cycles per second. Thelocalization of the spiking wave showedthat brain portion was abnormalorpossibly an epileptic focus. (34RT 5164- 5165.) March 6, 1970 records also showed appellant was given a radioencephalogram (but Dr. Bertoldi believed it was a pneumoencephalogram), which checked for tumors or large masses in the brain and wasanatomical, not functional, imaging. The test did not identify a “definite abnormality.” (34RT 5162-5163, 5220-5221.) Asa result of his 1970 tests, appellant was given phenobarbital, which suppressed the focus so the brain portion where the spike and wave discharge emanated from would no longer propagate to involve other brain portions, thus limiting the focus to the left parietal occipital brain portion. (34RT 5165.) January 26, 1976 records showed a Dr. Schneider gave an EEG to appellant when he was seven years and nine months old. The EEG was abnormal, mainly in the left posterior, frontal region, a place different from when appellant was two years old. The EEG showed a spike and wave of four to five hertz. A spike and wave, an abnormal discharge, is associated with a high incidence of epilepsy and with the seizure focus at the anterior brain portion. (34RT 5166.) The record showed the EEG was“highly suggestive of a focal seizure disorder,” meaning the discharge was emanating from a particular location,the left frontal lobe. (34RT 5167.) The records further stated that the current EEG showed paroxysmal activity, abnormalactivity arising out of and dissipating back into the background, in the left posterior frontal region rather than the right as in an April 19, 1972 EEG. The focus probably did not move from one place to 169 another, because the abnormality varied electrographically. (4RT 5168- 5169.) Based on appellant's 1972 to 1976 records, Dr. Bertoldi concluded “almost unequivocally that [appellant] had a seizuredisorderat that time.” (34RT 5169.) Appellant had signs of complex epilepsy, and the chances of outgrowing this disorder were small.4RT 5169-5170.) On February 17, 2004, appellant was given an REG by Q-Metrx,as Dr. Bertoldi directed, and the EEG test results were provided to Dr. Bertoldi. (34RT 5158-5159.) The backgroundportion of appellant's EEG pointed to structural damage, frontal or posterior. The paroxysmalactivity or abnormalities that arose out of the background and went away helped determineepilepsy or seizure disorder. (4RT 5171-5172.) Dr. Bertoldi opinedthat the EEG’s background and paroxysmswere consistent with brain damage andepilepsy, whichare related. Brain damage is when the brain is damaged but does not haveto seize. Epilepsy is when one has an abnormal focus within the brain that spreads to involve other structures intermittently and causes a seizure. (34RT 5173-5174.) Appellant's epilepsy was focalized, not general, and focalized epilepsy is a form of brain damage. (34RT 5175.) To confirm his opinion, Dr. Bertoldi ran a QEEG. The QEEG compared the EEG data to a database of 2,082 normative subjects, with age and sex matches and including men and women, and mappeddifferences to give a statistical deviation from normal. (34RT 5182, 5253-5254.) The speed of brain impulses are dividedinto different bands, alpha, beta, delta, andtheta. Delta is less than four hertz, theta is four to seven, alphais eight to 13, and beta is greater than 13. Hertzes are cycles per second of electrical activity. G4RT 5184-5186.) Appellant’s QEEG showed “way too much”theta in the front portion of his brain, meaning that his front portion brain functioning was too slow. (34RT 5185-51 86.) The QEEG 170 also showed abnormaldelta frequency slowing in the front part of his brain. Dr. Bertoldi ruled out “artifacts,” such as eye movement, sweat, and sleepiness, which would have caused delta slowing. (34RT 5188.) Appellant’s brain abnormality was consistent with that seen in him as a young person, consistent with structural brain dysfunction everywhere but mainly frontal. 34RT 5189.) The epileptic focus can be deep within the brain, as was probably in appellant’s case. (34RT 5190, 5193-5194.) The limbic portion of the brain is the deepest portion of the brain. (34RT 5190.) The limbic system consists mostly of the brain stem and the deepest portion of the cerebrum and contains our primordial impulses. (34RT 5192.) If one becomes disinhibited with alcohol, the limbic structures are brought out and are those associated in scientific literature with violence. (34RT 5193.) Dr. Bertoldi opined that the limbic system contained the focus of appellant’s abnormality, and that was consistent with someone whohas explosions of uncontrollable rage or terrible anger. (4RT 5194-5195.) Medications could decrease the numberandseverity of episodes but it was very difficult to suppress a limbic focus. (34RT 5195.) Depakote was a good medication for behavioral control. (4RT 5196-5197.) However, Dr. Bertoldi acknowledgedthat over the past 30 years, appellant had not had any doctor or neurologist prescribe Depakote or phenobarbital for seizures. Appellant was taking Depakote, presumably to keep him calm or perhapsto prevent migraines. (34RT 5226.) Dr. Bertoldi also acknowledged that appellant’s EEG did not show any indication of epileptic wave activity. (34RT 5226.) Many people without any sort of epileptic seizures have EEG abnormalities. And, even though a person hasepileptic seizures, that person does not necessarily engage in criminal behavior. (34RT 5261.) 171 On April 16, 2004, Dr. Bertoldi examined appellant. (34RT 5158- 5159.) Appellant related that he engaged in nocturnal tongue or cheek biting, which confirmed epilepsy andthe fact that he wasstill probably seizing. Dr. Bertoldi did not see the tongue or cheekbiting and took appellant at his word on that. (33RT 5135-5136; 34RT 5209.) Dr. Bertoldi’s diagnosis of appellant wasthat he had seizure focus limbic or temporallimbic disorder causing episodic discontrol, emotional mobility, and intermittent rage. (34RT 5227-5228.) In making this diagnosis, Dr. Bertoldi would have preferred to have the "clinical picture" in addition to the EEG information, but when he spoketo appellant, appellant did not havea clear idea aboutthe incidents. (34RT 5230-5231.) If appellant were able to give more details about Epperson’s killing, Dr. Bertoldi’s opinion might change. (34RT 5231-5232.) Also, Dr. Bertoldi based part of his opinion on Dr. Boone’s opinion. If Dr. Boone was incorrect, Dr. Bertoldi might change his opinion, depending on how incorrect she was. (34RT 5235.) Further, Dr. Bertoldi reviewed psychiatric reports and had the impression nobody had said appellant was manic-depressive. (34RT 5243.) | Given appellant’s childhood EEG,current EEG,Dr. Bertoldi’s interview of appellant, and Dr. Bertoldi’s records review, Dr. Bertoldi opined there was an organic componentto appellant’s behavior, to a reasonable medical certainty.’ The organic component was located in appellant’s brain, possibly in the limbic system. Dr. Bertoldi did not think 15 De Bertoldi knew his medical opinion wasnot relevant unless he gave an opinion to a medicalcertainty, and he had never said that any of the matters hetestified to were true to a medical certainty in his opinion. Instead, Dr. Bertoldi used “probable.” However, Dr. Bertoldi testified he would be happyto say “to a high medical degree of certainty every time [he said] probability.” (34RT 5249-5250.) 172 the organic component wasthe exclusive cause of appellant's behaviors, but was contributory. (34RT 5171, 5263.) Dr. Bertoldi opined that it was “highly probable” appellant suffered from a brain disorder which likely affected or could affect his actions, based upon the EEG. (34RT 5197.) Manic-depressiveness would not be consistent with the organic component Dr. Bertoldi saw, but an intermittent explosive disorder would be, to a high degree of medical certainty. (4RT 5266.) If one had an anti-social personality disorder, that disorder does not have an organic cause;thus,if one had an organic cause of a behavior, the disorder would be something besides anti-social personality disorder. However, one could also have an anti-social personality disorder. (34RT 5266-5267.) Dr. Bertoldi opined that appellant’s deep focus limbic or temporal limbic illness contributed to his criminal behavior, but was not suggesting a limbic seizure caused appellant to engagein all the criminal behavior in this case. Dr. Bertoldi did read a report of the Epperson crime. (34RT 5209- 5210, 5247-5248.) Dr. Bertoldi also acknowledgedthat appellant's attack on Betsy M. wastoo prolongedforit to be the result of a limbic seizure. (34RT 5210- 5211.) Luring Betsy M.to his apartment and keeping her at knifepoint for four hours while having herstrip and verbally terrorizing her was not consistent with limbic rage. (34RT 5283.) Dr. Bertoldi did opine that appellant’s Jacksonian seizures were probably a contributing factor for his behavior, but Dr. Bertoldi had difficulty determining the degree because appellant did not recall details of these episodes. (34RT 5229-5230.) Dr. Bertoldi was not given the police reports on the Betsy M. crime. G4RT 5255.) . Whenappellant hit his mother, hit his sister with a pipe, and attacked Colletta, Dr. Bertoldi believed appellant was having a paroxysmal episode which was probably contributory, but he did not know how much. (34RT 173 5259-5260.) Dr. Bertoldi was not given the police reports on the Colletta crime. 34RT 5255.) Dr. Bertoldi acknowledged appellant's records did not say he had an epileptic seizure before or during anyofthe times he brokethe law and assaulted women. (34RT 5227.) Also, Dr. Bertoldi testified it was possible appellant was a malingerer. 34RT 5250.) (4) Dr.Saul Niedorf Dr. Saul Niedorf, a specialist in adult and child psychiatry who worked with mentally ill offenders, visited appellantin jail and reviewed records, including crime reports and doctors’ reports. (35RT 5433-5434, 5437-5437.) In his opinion, appellant suffered from a major mentalillness. Appellant had two major conditions, a seizure disorder and intermittent explosive disorder (IED). (35RT 5437-5438.) (a) Appellant's History Appellant had seizures when he was two-plusyears old. The Loma Linda EEG,which recordedelectrical activity of the brain, was positive, and he had subsequentpositive EEGs. (35RT 5442-5443.) Appellant's brain damagedid not go away, but his behavior changed from childhood through adulthood with experience. A person with brain damagethat used to cause consciousness loss would not always suffer consciousness loss. (35RT 5443.) Dr. Niedorf agreed with the statement that the biggest indicator ofa child's future aggressiveness wasthe family situation and that the more physical punishment was meted out, the more aggressive the child would be. Appellant suffered repetitive violence from his father primarily andhis brother, as well as passive abuse, meaning that the people he hoped would protect him could or did not. An abused person could identify with the abuser. (35RT 5449-5450.) When one hasa propensity for aggression set 174 up by brain chemistry or structure and one gets programmed to respond with fear at the loss of love, that could lead to attack or injury.5RT 5450.) Appellant's drawings when he wassix or seven years old showed he was preoccupied with fragmentation or things coming apart or blowing up, indicating emotions out of control and aggressive impulses that were poorly controlled or uncontrolled but that transferred into words or imagery. (35RT 5506.) Fragmentation was one of the most common things shown by abused children. (35RT 5507.) Whenappellant was recommendedfor treatment and his father did not want him to accept it, Dr. Niedorf's theory wasthat the father did not want him to expose his own violent actions. (35RT 5450.) An aggressive person could changeif treated before the teenage years conclude. (35RT 5451.) Appellant's suicide attempts were very muchpart of his psychology and that of people raised like him with his mental condition. Those people felt a tremendoussense of guilt and shame at the aggression they had endured. (35RT 5451.) When one cannot express aggression outwardly, one expressesit inwardly by "acting in." In bipolarity, the depressive side made the person feel worthless and in need to harm and punish oneself. (35RT 5452.) The 1985 doctor's report after appellant attacked hissister set forth appellant's evaluations under the DSM's Axes. Under AxisI, the primary or most important diagnosis, appellant was found to have the two mental illnesses of major depression, single episode, and atypical impulse control disorder. Atypical meant the impulse contro! disorder was deeper and more disturbing than someone whoalways gotinto trouble. Under AxisII, usually a descriptive elaboration of Axis I and more a quality of general personality, appellant was found to have paranoid and anti-socialtraits. Appellant wasa seriously depressed young man whodisplayed unresolved 175 anger, distrust of authority, confusion, and poor impulse control, attempted to step outside the boundaries of society, and perceivedlife to be unfair. He did not have psychotic symptoms but experienced periodic suicidal ideation. Appellant did not receive treatment then. (35RT 5456-5459.) In a 1993 report, a Dr. Hochter, who was appointed to evaluate appellant's competency tostandtrial, diagnosed appellant with major mental depression with psychotic features, alcohol dependence,andanti- social personality disorder. Dr. Niedorf agreed with Dr. Hochter's diagnosis. (35RT 5460-5462.) Dr. Hochter's diagnosis was consistent with appellant's diagnoses over the years. While others had diagnosed appellant with different illnesses over the years, the diagnosis depended on what aspect of appellant was considered or seen. (35RT 5462.) In 1993 and 1994, while appellant was in Patton state hospital, a Dr. Morenodiagnosed appellant with the major mentalillness of major depression with psychotic features, alcohol abuse, and anti-social personality disorder. The depression coexisted with the anti-social personality disorder, which described appellant's lifestyle. Appellant's general assessmentof functioning (GAF)level of 35 waspoor, meaning appellant needed supervision, considerable observation, and structure. (35RT 5463.) Appellant was getting 20 milligrams orally twice a day, a "w[h]opper dose," of Prolixin, which was the most potent antipsychotic medicine, and Cogentin, which wasusedto prevent Prolixin's side effects. Appellant was also getting Sinequan, a sleep medicine which was used about 25 years ago for depression, phenobarbital, which was consistently used for epilepsy, and Dilantin, the oldest consistently used drug for epilepsy. In Dr. Niedorf's opinion, Patton was giving appellant anti- epilepsy medicineto prevent seizures. (35RT 5464-5465.) Dr. Vicary had testified that when appellant wasreleased from Patton he did not have an Axis I psychiatric disorder. Dr. Niedorf stated that a 176 psychotic person improved whentreated vigorously with antipsychotic medication. At the time of trial, appellant's medications were Risperidone, an anti-psychotic medicine, and Desyrel, an antidepressant. (35RT 5465- 5467.) In an October 13, 1995 CDCreport by a Dr. Benson, appellant's Axis I diagnosis was schizoaffective disorder, bipolar type. Appellant was referred for occupational therapy as a cook in prison and wasbeing given Haldol, a very potent antipsychotic medication, Cogentin as needed for side effects, and Depakene, an anti-epilepsy medicine. Appellant was getting a lot of medicine to prevent seizures and psychosis. (35RT 5467-5468.) An annual report on April 8, 1996 by social worker Vernon Banyard showed appellant's diagnosis was schizoaffective disorder bipolar type, a major mental illness. Appellant was being given 1,500 milligrams of Lithium, the anti-mania drug Valproic acid, Sertraline which is Zoloft, 60 milligrams of the antipsychotic Haldol, and an anti-side effect medicine given with potent anti-psychotics, Artane. Appellant was getting the maximum possible dose ofall these medicines. (G5RT 5468-5469.) On August 21, 1996, appellant was transferred from Vacaville to Atascadero, a maximum security mental hospital, because he wasin need of psychiatric treatment. He was treated with 30 milligramsof the antipsychotic Haldol, 1,500 milligrams of the anti-epileptic and anti- depressive bipolar-type stabilizer Depakote, 1,500 milligrams of Lithium, and the anti-depressant Prozac. (35RT 5469-5470.) A 1997 Atascadero report showed appellant had schizoaffective disorder, bipolar type, and IED, provisional. The level of dangerousness was high, meaning the potential of IED wasstill present. (35RT 5470- 5471.) In a report before appellant was released from prison on April 19, 2000, Dr. Portnoff said appellant had a severe mental disorder and a parole 177 condition could be that he receive medication consistently. Thus, seven months before appellant killed Epperson on November 12, 2000, the prison diagnosed him with a several mental disorder. (35RT 5471.) Whenappellant stopped his medication, he was at risk for committing a violent offense. Sometimes people do not want to take prescribed medications because of interference with sexual feelings, drowsiness, or preclusion of driving. (35RT 5501-5502.) Dr. Niedorf thought appellant's medications had, at times, cleared up his major mental disorder symptoms. (35RT 5501.) In November 2000, appellant was arrested. In 2002, appellant was sent to Patton as incompetent, and his March 12, 2002 admission report showed his diagnosis was mood disorder "nos"or not specific, which was the doctor's way of saying appellant had a mental disorder but he did not want to attach a definitive label because it was going to change. Theillness was a serious mental disorder. Appellant's GAF level was 40. G5RT 5472-5473, 5480-5481.) In a June 2, 2002report, a Dr. Kulkarni stated appellant was being returned to court with the recommendation to find him competent to stand trial. Appellant was diagnosed with IED. Appellant was given the anti- convulsant and anti-bipolar medication Depakene, the antipsychotic | Seroquel, an adjunctto seizure disorder medicine (which induced sleep) Klonopin, and the anti-high blood pressure medicine (which induced a semi-sedated condition) Inderal. (35RT 5473-5474.) Dr. Niedorf opined that whomeverhad seen appellant thought he was psychotic but not symptomatic. (35RT 5474.) Appellant was sent back to court, with a report saying he had exaggerated his symptoms. (35RT 5486-5487.) When Dr. Niedorftalked to appellant, Dr. Niedorf avoidedtalking about the crime. Most attorneys instructed Dr. Niedorf not to talk to their clients about the crime, just the mental illness. (85RT 5488-5490.) 178 (b) Dr. Niedorf's Diagnosis Given the reports and everything Dr. Niedorf reviewed, he opined that there was "no doubt [appellant] has consistently suffered from at least one and usually two mental illnesses." (35RT 5475.) Appellant had two major conditions, a seizure disorder and IED. Theseizure disorder wasthe brain's condition since his Loma Linda diagnosis at the age of two. That condition continued and expresseditself currently as IED. TED was a type of epilepsy in which one lost physical activity control but not consciousness, as opposedto appellant's childhood and teenage condition when helost consciousness during seizures. (35RT 5437-5438.) Dr. Niedorfstatedit would be unethical and illegal to diagnose a mental illness when a doctor knew there was no mental illness. (35RT 5505.) Appellant's mental illness was an ongoing condition with components beginning in genetic inheritance, possibly a condition picked up in pregnancyor delivery in which the brain was injured. That condition or injury wasthe origin of the epileptic or seizure disorder, which could becomebehavioral. One behavior component was IED. Appellant's condition was one in which hestarted an aggressive and violent behavior and could not inhibit it. The stimulated aggression camefrom threat, which could be physical, psychological, or emotional in which the person felt he lost something and could not defend himself except through aggression. Most people developed waysofinhibiting aggression but in some conditions the message wascut off. (35RT 5440-5442.) At least 15 percent of incarcerated criminals have a mentaldisorder, although 80 to 85 percent do not. In Dr. Niedorf's opinion, appellant was one ofthe 15 percent. (35RT 5439.) Dr. Vicary's diagnosis of appellant as bipolar was not inconsistent with Dr. Niedorf's IED diagnosis. A person could be both bipolar and have IED,and both are major mentalillnesses. (35RT 5438-5439.) 179 Dr. Niedorfdid not believe appellant was a sexual sadist, because he obtained sexualgratification from non-violent ways, including ordinary sex. Sexual sadism was when a person degrades, humiliates, and harmsa female and gets sexual gratification. The sexual sadist got no gratification from sexual sadism other than from the sadism itself. (5RT 5496-5497.) Assuming appellant had not had sex with Epperson but wastrying to, beat her to a bloody pulp, cut her throat, and raped her, Dr. Niedorf did not believe what appellant did was for pleasure but was for revenge or some other reasonrather than a sexual pattern. (35RT 5497-5498.) Appellant's attacks on his mother, sisters, Betsy M., Colletta, and Epperson were consistent with IED. The very strong feelings of love and hate could be overwhelmingtriggers for actions. (35RT 5446.) Appellant wasthreatened by a loss of a sense of possession, significance,or meaning in some relationship, triggering uninhibited rage. When ongoing repetitive, consistent behavior occurs intermittently over time, a brain processis dysfunctional. (3 SRT 5447.) Ifa person wentinto a frenzy, could notstop, repeated it over and over, and had a history of violent ageressive acts where one could lose everything, that was a mentalillness andnotjust an act of aggression. (35RT 5496.) Assuming appellant tookintelligent steps to hide and described in » detail various parts of Epperson's killing, those actions of appellant's were not inconsistent with brain damage or a mental disorder. If one had IED and did not lose consciousness, one could act as anyoneelse, including committing a criminal act-and trying to hide or disguise it. (5RT 5444.) Dr. Niedorf believed appellant was not malingering, because he examined him,read reports, and others that Dr. Niedorf respected concluded appellant's situation was genuineor real. G5RT 5453.) Appellant perpetrated some exaggerations, but they were rare and usually done to emphasize theterrible regret or sorrow hefelt. Appellant expressed 180 remorse to Dr. Niedorf. However, depending on whether appellant wasin his manic phase or not, sometimes appellant felt his victims had it coming and should not have betrayed him; at other times, he felt it was all on him, which wasthe nature of the bipolar condition. (85RT 5454.) Dr. Niedorf stated there was no treatment for anti-social personality disorder, just containment. There was very little proven treatment for personality disorders and very little medication that really worked for them. (35RT 5499-5500.) 3. Rebuttal by Prosecution a. Expert Medical Testimony (1) Dr. David Griesemer In November 2004, Dr. David Griesemer,!° whohad a specialty or board certification in child neurology and clinical neurophysiology and whoseprimary clinical and research interest was in the area of epilepsy, examined appellant. (34RT 5287-5288, 5290.) Dr. Griesemer performed a neurological examination and also took a neurologic history. 34RT 5290.) Dr. Griesemer found that appellant had a normal neurological examination, as Dr. Bertoldi did. (4RT 5291.) However, Dr. Griesemer concluded that appellant had childhood epilepsy that went away and there was no evidence of seizure activity since childhood. (G4RT 5292-5293.) Dr. Griesemer disagreed with many of Dr. Bertoldi's opinions. (34RT 5295-5301.) In his interview, appellant told Dr. Griesemer that he recalled taking phenobarbital until he was about eight years old, having noseizure activity after that time, and being put on Dilantin for a brief period from time to '° Dr Griesemer wascalled by the prosecution out of order in the midst of the defense case. (34RT 5287-5288.) 181 time when physicians heard ofhis seizure history. (34RT 5291-5292.) Appellant had an abnormal EEGas an eight year old. (34RT 5302.) Dr. Griesemer reviewed the Loma Linda reports and opined the "evidence strongly favors the fact that he had a childhood epilepsy that simply went away." About 50 percent of children who have seizures outgrow them. (34RT 5292-5293.) In his university practice setting where he had been for 12 years, Dr. Griesemer had probably followed 500 children patients for that 12-year period. (34RT 5294.) Also, the records showed appellant was given a radioencephalogram,not a pneumoencephalogram,as Dr. Bertoldi thought. Fora radioencephalogram,a radioactive trace was injected into the vein, and radioactivity in active areas of the brain was counted. Such a procedure was not risky and at the time was the only procedure that came even close toa CAT or MRI scan. (34RT 5316.) . Dr. Griesemer also reviewed appellant's state prison and countyjail medical records. Those records did not have any objective evidence of seizure activity since childhood. (34RT 5292.) The fact appellant responded to Depakote did not necessarily mean he had seizures. More psychiatrists prescribe Depakote as a moodstabilizer than neurologists prescribe it for treating epilepsy. (34RT 5317.) Dr. Griesemer reviewed appellant's EEG from Q-Metrx and opined that the EEG tracings were mildly abnormal. Dr. Griesemer thought Dr. Bertoldi was correct in identifying some intermittent slowing, but was incorrect in the significance he attributed to that. 34RT 5294-5295.) Dr. Griesemerdid not agree with Dr. Bertoldi that there was some limbic focal point or focus; Dr. Griesemer believed that was a hypothesis that remained to be proven. (34RT 5295.) Dr. Griesemer reviewed appellant's EEGrecords, consideredtrial testimony, and opined that appellant had benignepilepsy as a child. Intrial 182 testimony, witnesses said that when appellant was two and a half or three years old he had a couple of seizures, each involvingtheleft side of the body and lasting up to 30 minutes. Since the left side of the bodyis controlled by the right side of the brain, Dr. Griesemer opined there was evidenceclinically of right brain dysfunction. However, dysfunction does not equal damage; one can have temporary brain dysfunction without permanent brain damage. (34RT 5295-5296.) A childhood EEG showed "very subtle abnormalities," and the LomaLindainitial study was somewhat equivocal about calling the EEG abnormal, although Dr. Griesemer suspected it was. Later EEG studies showed a reference to a right-sided abnormality, and the 1976 EEG was administered to determine if appellant could safely be taken off medicine. That EEG was very abnormalat that time, showing both left-and right-sided abnormalities, although appellant had been seizure-free for two years. Despite the EEG, appellant was taken off phenobarbital and did fine. Dr. Bertoldi indicated correctly that benign Rolandic epilepsy in childhood began with jerking of the hand or face on one side and was associated with abnormal EEG discharges on either side. (34RT 5296.) However, Dr. Bertoldi failed to point out that there is a disconnect between how child looks clinically with this syndrome and how child lookselectrically, particularly during: drowsiness or sleep whenthe epileptic activity becomes very constant. The fact that appellant had abnormalities on both sides of his brain, had EEG abnormalities that increased during sleep, had abundant EEG abnormalities without having clinical seizures, and wentseizure-free, all suggested appellant as a child had a benign epilepsy syndrome. With a benign epilepsy syndrome, one need not search for a deep focus and any continuity that Dr. Bertoldi would tie to the present day is broken. (34RT 5297.) Also, children can have an abnormal EEG withoutalso having seizures. One could have an inherited abnormal EEG pattern and have no 183 seizures or havejust a few seizures until the brain matures between the ages of 10 and 13 years whenthe seizures go away. (34RT 5297.) Dr. Bertoldi testified appellant's current EEG wasconsistent with a deep limbic epilepsy. However, a normal EEGis also consistent with deep limbic epilepsy or an EEG pattern that shows temporal lobe sharp waves is also consistent with deep limbic epilepsy, but neither is diagnostic ofit. (34RT 5298.) A clinical diagnosis needed to be made on firm clinical grounds, as opposed to Dr. Bertoldi's clinical speculation based on an EEG- driven hypothesis. (34RT 5298-5299.) Dr. Bertoldi concluded there must be some deep focus that projects to one area ofthe brain and then to others so that over time the abnormality could appearleft posterior temporal, right frontal, and left posterior frontal. Dr. Griesemer did not believe that was not a credible hypothesis. Instead, Dr. Griesemer thought it was reasonable to recognize that in the immature brain, one can have epileptic discharges from several different regions and there maynotbe a strong correlation betweenthe source of the seizure and the clinical manifestation of the EEG. 34RT 5299.) Although Dr. Griesemerbelieved appellant had a mildly abnormal EEG because of excessive beta activity, Dr. Griesemerclarified the issue was whether that had any clinical relevance. Appellant did not have a history of seizure-like activity as an adult, based on the medical history he provided, information from family members who observed him from age eight until he left home, reports of multiple psychiatrists who evaluated him over the years, and the records of those who supervised his care while incarcerated. Appellant had been observed and evaluated many times by many people, and the history of epilepsy was not among the identified problems. (34RT 5300.) Dr. Griesemer did notfind anything epileptic about the current EEG and questioned the significance that Dr. Bertoldi placed on appellant 184 supposedly biting his cheek once or twice a year. Dr. Griesemer foundit interesting that appellant did not bite his cheek during any of the criminal events and that the cheek-biting happens during the night. Dr. Griesemer did not think the biting was necessarily a neurological disorder. (34RT 5313.) Dr. Bertoldi's theory of deep limbic rage was an extremely controversial area in neurology. While limbic rage maybe brief, explosive, unpredictable, and uncontrollable, as Dr. Bertoldi said, as one begins to apply those commonly accepted observations to appellant's behavior, particularly in the context of criminal acts, some of the comparisons break down. Many ofappellant's criminal behaviors extended over hours and involved planning that was inconsistent with a momentary explosive outburst. Dr. Griesemer also disagreed with Dr. Bertoldi's standard of recall that would allow a determination of whether someoneis having a seizure during an event. Patients who havea partial or focal seizure have no recollection of anything once a seizure begins and are very confused and disoriented. They have to be told what they have done because they do not have a recollection of what they have done. (34RT 5301.) An EEG was not a goodtool for assessing behavior, but was an excellent tool for assessing seizures. 34RT 5298.) Regarding the Epperson murder, appellant did not demonstrate the normalsleepiness, drowsiness, or unresponsivenessthat often lasts for a couple hoursafter an intense seizure. Instead, appellant took Epperson's keys, locked her apartment, and gave away his vehicle. (34RT 5306.) Dr. Griesemer did not believe Dr. Bertoldi's opinion wascorrect, because: Dr. Bertoldi did not have a solid clinical history of seizures offered by appellant or any professional suggesting there were active seizures; Dr. Bertoldi correlated intermittent slowing on the EEG with executive problems anddifficulty with judgment but those were nota part 185 of or a justification for diagnosing limbic epilepsy; and limbic epilepsy does not originate from thefrontal lobe, thus indicating Dr. Bertoldi was using appellant's brain weaknessincorrectly to substantiate a limbic epilepsy diagnosis. (34 RT 5315-5316.) (2) Dr. Kris Mohandie Dr. Kris Mohandie, a psychologist, opined that appellant malingered and had an anti-social personality disorder with prominentnarcissistic and borderline traits. (36RT 5522-5526, 5534-5535.) Also, Dr. Mohandie diagnosedappellant with sexual sadism. (36RT 5540.) Dr. Mohandie had dedicated his career to understanding violence and extreme violence in particular. (36RT 5522-5526.) Dr. Mohandie administered the MMPIII and SIRStests to appellant, interviewed him, went to the crime scene, and reviewed medical reports by defense experts, reports back to the 1980s,trial transcripts from the lasttrial andthis trial except for the most recent days, statements to defense | investigators, the videotape and transcript of appellant's interview with detectives, a transcript of appellant's testimony, the tape and transcript of Vannoy's interview, appellant's records from Patton, Atascadero, county jail, and prison, and a report on the Betsy M.incident. (36RT 5529-5532, 5534, 5539.) Dr. Mohandie administered the MMPIII test to appellant and interviewed him. (36RT 5529-5530.) The MMPIII was used by experts in this case and had 567true/false questions, with nine validity indicators showing theattitude or approachofthe test taker. (36RT 5528.) The test also had a numberofclinical indicators measuring things like depression and a scale measuring anti-social tendencies. (36RT 5529-5530.) Appellant's MMPIindicated symptom exaggeration,at a significant elevation. (36RT 5532-5533.) One explanation for that wasthat appellant 186 had a motive to exaggerate because of the case he might be involvedin. (36RT 5533.) Appellant's SIRS test showed evidence of malingering in two ways. Results showed appellant was trying to demonstrate blatant symptoms and reached the cutoff for probably feigning at an 86.5 percentlikelihood. (G6RT 5531-5534.) Combining the total SIRS score with the overall test score showed appellant was overthe threshold for the total SIRS score, which meant appellant was malingering or feigning. (36RT 5534.) When appellant was interviewed after the murder by the police, appellant reported he had been off his medication for about six weeks, but there was no residual evidence during the interview of any impairment. Appellant was focused and addressed questions. There were no indications he was respondingto external stimuli, such as seeing or hearing things, or that he was reading anythinginto the officers’ intentions. However, when people go off medication, psychiatric symptomsreturn in two weeks. At six weeks, symptoms would have expressed themselvesfairly overtly,if gross impairments happened, such as hallucinations, delusions, and paranoia. (36RT 5536-5537.) When Dr. Mohandie interviewed appellant, appellant was very engaging and had noresidual symptoms, such asblunting of affect, traces of suspiciousness,or social inhibition. (36RT 5537-5538.) Dr. Mohandie talked to appellant about the events leading up to the murder, and appellant had perfect recall ofall his actions duringthat time period. (36RT 5538.) Appellant claimed amnesia for the time whenhefirst hit Epperson to when the door was kicked in at the motel when he wasarrested. (36RT 5539.) Appellant told Dr. Mohandie that he was "being played for a sucker" by Epperson and wasnotbeing treated fairly. In Dr. Mohandie's dealings with anti-social personalities, a failure to accept responsibility is fairly strong. (36RT 5583-5584.) 187 Based on the MMPI and SIRSscores and the abundant other material he reviewed, Dr. Mohandie diagnosed appellant with Axis I malingering, which was not a mental disorder. (36RT 5534-5535.) Dr. Mohandie's Axis II diagnosis was anti-social personality disorder with prominent narcissistic and borderline traits. Anti-social personality disorder is when a person pervasively disregards society's rules andthe rights of others. Narcissistic traits are when a person hasa senseof entitlement, may have difficulty feeling empathy for others, and may experience feelings of grandiosity, superiority, or domination over another. Borderline traits are when a person hypersensitive to rejection hasfeelings of abandonment and may engage in marked impulsivity, including suicidal gestures. The objective psychological data from appellant's tests went beyond what people with true psychiatric impairmentsordinarily did and lead Dr. Mohandieto the malingering conclusion. Substantial data in the records supported suspicions of malingering. (36RT 5535-5536.) Also, Dr. Mohandie could reliably diagnose appellant with sexual sadism. Dr. Mohandie reviewed thetranscripts of the prior victims’ testimony and knew appellant had been convicted of rape and murder. (36RT 5540.) Appellant's rape of Epperson after he beat and cut her indicated a sexual component to the homicide and categorization as a sexual homicide, thus warranting the sexual sadism diagnosis. (36RT 5549-5550.) People involved in sexual homicideshad fantasies involving the suffering of another, domination, and control and experienced arousal in response to violence and suffering by a non-consensual partner. G6RT 5548-5550.) Dr. Mohandie could not reliably find appellant had a major mental disorder because appellant's anti-social personality disorder diagnosis included deceptiveness as a componentand appellant had a tendency to malinger. (36RT 5541.) Also, appellant wasusually in trouble when 188 evaluated, giving him reasons to exaggerate symptomsto gain more favorable treatment. (36RT 5550.) However, Dr. Mohandietestified appellant might suffer from a major mental illness. (36RT 5550, 5554.) Dr. Mohandie disagreed with Dr. Niedorfthat appellant suffered from IED, because JED wasnot be diagnosed when a personality disorder more accurately accounted for the behavior, according to the DSM IV. Ordinarily, IED and a personality disorder were mutually exclusive. (36RT 5542-5544.) Also, malingerers could use IED to claim they blanked out or were out of control when instead they just had anti-social personality disorder and acted aggressively voluntarily. (36RT 5544.) Dr. Mohandie did not believe, like Dr. Bertoldi, that appellant had a limbic epileptic seizure disorder resulting in primal rage. Appellant had not had any seizures after childhood, and there was no indication of that kind of activity happening in conjunction with or related to the murder. (6RT 5544.) Dr. Mohandie did not see underlying organic impairment, like Dr. Romanoff. One would have seen diagnosesin the prior record to that effect, but there were none. Dr. Romanoff's opinion that appellant had severe characterological difficulties amounted to.a personality disorder. (36RT 5545-5546.) Dr. Mohandie would not ever say one particular event in a person's life caused him to have a particular personality. Many factors went into the formation of personality, including how one wasborn,the natural personality style one had at birth, how life shaped a person, and choices made. It was an interactive process. (6RT 5547-5548.) 189 4. Surrebuttal by Defense a. Dr. Richard Romanoff Dr. Richard Romanoff, a clinical and forensic psychologist, opined that appellant had a complexset of mental disorders. (36RT 5593, 5598.) He believed appellant had an organic brain disorder, which caused appellant difficulty regulating affect and controlling his behavior. (36RT 5594, 5618-5619.) Appellant also had anti-social personality disorder and a borderline personality disorder with histrionic and narcissistic features. (36RT 5595, 5609.) Dr. Romanoff reviewed about 2,000 to 3,000 pages of materials including arrest materials in the Epperson case, post-arrest records, probation records, medical records, Atascadero State Hospital records, Patton State Hospital psychiatric treatment records, Los Angeles County jail medical records, psychiatric treatment records, summaries of interviews conducted by the defense with appellant's family members, and reports by Drs. Vicary, Niedorf, and Mohandie. (36RT 55 89-5592.) Dr. Mohandie interviewed appellant on 10 occasions for a total of about 13 or 14 hours. . (36RT 5592.) Dr. Romanoff believed appellant had a complex set of mental disorders. Dr. Romanoffdid not think in terms of specific labels but thought of people as whole people. (36RT 5593, 5598.) In appellant's infancy, there was evidence of organic impairment. At age three, he had a seizure and developed a seizure disorder documented in the Loma Linda records. (36RT 5593-5594.) He had produced abnormal EEG results since then, in adolescence and in 2004 in connection with this case, which showed abnormalbrain functioning. (36RT 5594.) Dr. Romanoff believed appellant had an organic brain disorder, consistent with Dr. Boone's neuropsychological testing which found evidence offrontal lobe 190 impairment. Some evidence suggested the organic brain disorder was present either since or shortly after birth. Appellant was "fated" to have difficulty regulating affect and controlling his behavior becauseof the limitations in the way his brain was operating. (36RT 5594, 5618-5619.) Appellant's family taught him impulsivity and aggression, and appellant began developing the seeds of personality disorders, such as the anti-social personality disorder that Dr. Romanoff believed appellant had as a diagnosable illness. (36RT 5595, 5609.) Dr. Romanoff also diagnosed him as having a borderline personality disorder with histrionic and narcissistic features. (36RT 5595, 5609.) In addition, appellant developed substance abuse difficulties in adolescence, including alcohol and drug abuse. G6RT 5596.) Also, a history of depression permeated his history, and suicidal activity wentback to early adolescence. (36RT 5597.) Dr. Romanoff believed factors in appellant's life shaped him and contributed to the crime, with some factors beyondhis control. Those factors included: the organic-based difficulties such as the neuropsychological results showing frontal lobe damage and the abnormal EEGs; and the negative home environment. (36RT 5600-5601.) Alcohol ~ abuse wascontrolled to someextent but he wasat high risk to develop difficulties in life. (36RT 5601.) If one needed to reduce appellant to a DSM diagnosis, Dr. Romanoff said appellant had IED. On manyoccasions over the course of a long period, appellant exploded with violence disproportional to what the reaction should have been. (36RT 5597.) Dr. Romanoff did not view appellant's murder of Eppersonas related to the anti-social personality disorder because there was immediate remorse. (36RT 5597-5598.) However, Dr. Romanoff believed one could be diagnosed with IED and anti-social personality disorder at the same time, but one would have to have separate and independentjustification for the IED diagnosis beyond 191 what was already provided by anti-social personality disorder. (36RT 5625-5626.) Dr. Romanoff gave appellant an MMPItest, andthe results suggested exaggeration, a reporting of symptomsof such a high elevation that he considered the test results invalid. (36RT 5609-5610.) Assuming the facts of the Epperson killing, Dr. Romanoff opined appellant's actions were consistent with his overall evaluation that a complex set of problems existed. Appellant had largely lost control ofhis ability to regulate his actions, but that did not mean he was unaware of what he was doing. (36RT 5612-5615.) Dr. Romanoff opined that the IED or anti-social personality disorder did not cause Epperson's death. (36RT 5616.) No one diagnosis could account for what happened. (36RT 5616- 5617.) Appellantdid nottell Dr. Romanoff that voices made him kill . Epperson, and there was no evidence appellant waslaboring under any strange delusion or hallucination whenhe killed her. (36RT 56 10-5611.) Dr. Romanoff opined the evidence was consistent with appellant knowingit was wrong whenhe waskilling Epperson. (36RT 5611.) Further, assuming Epperson wasbeaten and bleeding, appellant then raped her, and they did not have a sexual relationship, Dr. Romanoff viewed those actions as having underlying sexual deviance to the extent it was present. (36RT 5622-5623.) Assuming family and friends testified appellant was teased, was shy and inhibited, and was big-hearted, that side of appellant was consistent with the notion that a more complexset of problems existed than simply anti-social personality disorder and malingering. (36RT 5604.) Most individuals suffering from anti-social personality disorder alone had a conduct disorder as an older child or early adolescent, a disorder where misbehaving, defiance, and aggression occurred, and appellant did not 192 behavein a typically anti-social-oriented fashion during that time. (36RT 5605.) Assuming family memberstestified that they lived in a climate of fear and feared their father even today, that was consistent with Dr. Romanoff's diagnosis of appellant. (36RT 5605-5606.) Dr. Romanoff thought Dr. Mohandie's diagnosis that appellant was suffering from anti-social personality and malingering and that he could not give an opinion as to whether he suffered from a mental disorder was an "insufficient diagnosis." (36RT 5592-5593.) Dr. Romanoff thought Dr. Mohandie's diagnosis omitted important and relevant pieces of appellant's psychiatric difficulties. (36RT 5593.) ARGUMENT 1. THE PREDICATE OFFENSES OF MAYHEM AND TORTURE FOR FIRST DEGREE FELONY MURDER HAD INDEPENDENT FELONIOUS PURPOSES AND DID NOT MERGE WITH THE HOMICIDE WITHIN THE MEANING OF PEOPLE V. [IRELAND (1969) 70 CAL.2D 522 Appellant contends that since the mayhem andtorture allegations were integral to the homicide, a conviction for first degree felony murder based on those felonies violated the merger principle of People v. Ireland (1969) 70 Cal.2d 522. (AOB 72-84.) Specifically, appellant claims his intent to kill arose from a sudden quarrel and heat of passion and the instrumentalities used to assault Epperson were household objects, and thus, the disfiguring injuries suffered by Epperson did not prove beyond a reasonable doubt that appellant had an independent felonious purpose to torture and maim. (AOB 72-84.) Thus, appellant claims "the infliction of disfigurement and pain were integral to the homicide, not the result of an independent or concurrent intent to maim or torture." (AOB 77.) Respondent disagrees. The crimes of mayhemandtorture had independent 193 felonious purposes and did not merge with the homicide within the meaning of Ireland. In Ireland, supra, 70 Cal.2d 522, this Court held that a second-degree felony murder instruction may not properly be given when based upon a felony “which is an integral part of the homicide and which the evidence produced by the prosecution showsto be an offense includedinfact within the offense charged." (Jd. at p. 539,italics in original.) Such use of the felony murder rule was foundto “effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides.” (/bid.) The Ireland “merger doctrine” was “extendedtofirst degree felony murder in People v. Wilson (1969) 1 Cal.3d 431, 441-442 [parallel citations omitted].” (People v. Gonzales (2011) 51 Cal.4th 894, 942.) In Wilson, the felonious purposeof the burglary was assault with a deadly weapon. (1 Cal.3d at p. 440.) This Court held that “the same bootstrapping is involved in instructing a jury that the intent to assault makes the entry burglary and that the burglary raises the homicide resulting from the assault to first degree murder without proof of malice aforethought and premeditation.” (Id. at p. 441.) However, in People v. Farley (2009) 46 Cal.4th 1053, this Court recently overruled Wilson and held, prospectively, that the merger doctrine has no applicationto first degree felony murder. (/d.at pp. 1121-1122.) Farley’s 2009 rule does not apply in the instant case, though,as itapplies prospectively, and appellant committed his crimes in 2000. (See Gonzales, supra, 51 Cal.4th at p. 942; Farley, supra, at pp. 1121 ["Because, due to ex post facto concerns, an unforeseeable judicial enlargement of a criminal statute may notbe applied retroactively, our overruling of Wilson does not 194 apply retroactively to defendant's case."], 1122 ["today's overruling is prospective only."].) Prior to Farley, this Court had limited Wilson to "cases of burglary felony murder where the defendant's only felonious purpose wasto assault or kill the victim." (Gonzales, supra, 51 Cal.4th at p. 942, citing People v. Prince (2007) 40 Cal.4th 1179, 1262 and People v. Burton (1971) 6 Cal.3d 375, 387-388.) Indeed, the merger doctrine has traditionally "not been extended to offenses other than assault." (People v. Robertson (2004) 34 Cal.4th 156, 170.) The rule was adopted because otherwiseall assaults where the victim died would be elevated to murder. (/bid.) However, the merger doctrine does not apply when the underlying felony has an independent purpose from the murder, when the felony has a “collateral and independentfelonious design.” (/bid., quoting People v. Mattison (1971) 4 Cal.3d 177, 185.) In the instant case, the predicate crimes of mayhem andtorture had independent felonious purposes which support the mayhem felony murder and torture felony murder theories in this case. Appellant was convicted of first degree murder based on severaltheories, including a felony murder theory with mayhem,torture, and rape as predicate felonies.'’ (12CT 2932, 2955; 14RT 2002-2003.) All murder committedin the perpetration of certain enumerated felonies, including the three here--mayhem,torture, and rape--is first degree murder. (§ 189.) The mentalstate required is the specific intent to commit the underlying felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197.) Of the enumerated felonies in section 189, only burglary when the felonious purpose was an assault with a deadly weapon, ’ The jury wasalso presented with a sexual penetration by a foreign object felony murder theory, but the jury found appellant not guilty of penetration by a foreign object. (12CT 2959.) 195 has been held to be subject to the merger doctrine. (Gonzales, supra, 51 Cal.4th at p. 942 ["our preexisting jurisprudence had limited Wilson to cases of burglary felony murder where the defendant's only felonious purpose wasto assault or kill the victim"]; see Wilson, supra, | Cal.3d at p. 440.) Thus, as a matter of law, the merger doctrine should not be extended to mayhem andtorture, whichare specifically enumerated insection 189. With respect to the crime of mayhem felony murder, this Court has stated that mayhem felony murder has an "independent felonious purpose," thus ‘removing it from the ambit of the Jreland merger doctrine. (Gonzales, supra, 51 Cal.4th at p. 943, italics in original, citing Burton, supra, 6 Cal.3d at p. 387.) For mayhem felony murder, a defendant "must intend to permanently disfigure the victim, which goes well beyond the merely assaultive purpose ...." (Gonzales, supra, at p. 943.) Mayhem has a purpose independent of murder—to deprive a human being of a memberof his or her body,to disable, disfigure, or render the memberuseless, to cut or disable the tongue,to put out an eye,orto slit the nose, ear, orlip. (§ 203.) To commit mayhem, onehasto go above and beyond an ordinary assault. The jury was instructed that to convict appellant offirst degree felony murder based on mayhemthat they mustfind that he had the specific intent to commit mayhem, which was defined as permanently disfiguring or disabling a human being's member ofhis or her body. (12CT 2932, 2935; 14RT 2002-2003, 2038-2039; CALJIC Nos. 8.21 & 9.30.) With respect to the crime of torture felony murder, torture has a purpose independent of murder—tointend to cause cruel or extreme pain and suffering for revenge, extortion, persuasion, or for any sadistic purpose by inflicting great bodily injury. (§ 206.) Asset forth above, this Court has specifically declined to extend the merger doctrine beyond those felonies in which the only underlying purpose wasassault. (See People v. Hansen 196 (1994) 9 Cal.4th 300, 312 [/reland doctrine not extended “beyond the context of assault, even under circumstances in which the underlying felony plausibly could be characterized as ‘an integral part of and ‘included in fact within’the resulting homicide.”]; see, e.g., People v. Morgan (2007) 42 Cal.4th 593, 617-620 [unlawful penetration with a foreign object has an independent felonious purpose, to sexually arouse, gratify, or abuse].) To commit torture, one has to go above and beyond an ordinary assault. The jury wasinstructed that to convict appellant offirst degree felony murder based on torture that they must find he had the specific intent to commit torture, which was defined as the infliction of great bodily injury with the specific intent to cause cruel or extreme pain and suffering for the purpose of revengeor any sadistic purpose. (12CT 2932, 2936; L4RT 2002-2003, 2042-2043; CALJIC Nos. 8.21 & 9.90.) Moreover, even assuming arguendo the merger doctrine were not inapplicable to mayhem andtorture as a matter of law, the evidence herein clearly showed appellant had independent felonious purposes when he committed mayhem uponand tortured Epperson. It was clear appellant intended to disfigure and disable Epperson and to causeher cruel or extreme pain and suffering for the purpose of revengeor any sadistic purpose, as required for mayhem andtorture. The nature of the beating, the extendedperiod of timeit took, the injuries inflicted, and the statements appellant made demonstrated the independent felonious purposes for the mayhem andtorture predicate felonies. Appellant repeatedly bludgeoned Epperson in several placesin the apartment overa periodoftime and used multiple objects to beat, stab, and cut her, instead of quickly killing her. In the bathroom, appellant hit Epperson in the head with a glass candle holder causing her head to bleed, shook her three times while her head was bleeding, and slammed her head againstthe wall six times, as her knees buckled and she slumpedto the 197 floor. (LORT 1304, 1306, 1311-1312, 1315, 1318, 1320, 1324-1325, Peo. Exh. 88B, pp. 29, 38-39.) In the living quarters, appellant continued to bludgeon Epperson about the head and face with a heavy vase, wooden footstool, and lamp. He cut her neck with glass in several places and stuck a screwdriver through her face. Even when an item broke, appellant used the broken pieces to continue to bludgeon Epperson. (LORT 1294, 1296- 1298, 1304, 1313-1314, 1325-1326, 1349-1354, 1373, 1375-1376, 1379, 1395-1396, 1409-1410; Peo. Exh. 88B, pp. 31, 33, 50-51.) The lamp cord was wrapped around Epperson's head. (10RT 1350.) Eppersonsuffered, by a conservative estimate, at least 10 severe blowsto her head. (ORT 1251, 1255.) Appellant's beating of Epperson wasso severethat blood was splattered all over the apartment, in the bathroom and living quarters, on the walls, furniture, floor, and personal items. (LORT 1289, 1303-1305, 13 13- 1314, 1319-1320, 1328, 1355, 1368, 1400.) The deputy coroner had seen similar types of injuries in only a very small numberofthe 2,000 autopsies of persons with blunt force trauma he had done. (QRT 1244.) Appellant focusedhis beating and infliction of grievous injuries on Epperson's face, head, and neck. Appellant's concentration of injuries to Epperson's face and head showedanintentto disfigure a woman who was knownto be well groomed and to care about her appearance. (8RT 1010- | 1011, 1018.) Appellant fractured Epperson's skull! in multiple places and. disfigured her face. (ORT 1238-1240, 1242.) She had multiple lacerations on her forehead and face, including her eyes, nose, cheeks, and upper and lower lips. (ORT 1228-1230.) From a side view ofherface, her face seemed flattened due to the underlying fracture of her facial bones. (9RT 1232-1233.) Appellant put a screwdriver through the middle of Epperson's head,leaving a big hole. (Peo. Exh. 88B, pp. 31, 33, 50-51.) Appellant struck Epperson so hard that her dental plate and a tooth came out of her mouth and broke. (QRT 1222; 10RT 1297, 1374-1375.) 198 Appellant carefully cut Epperson's neck to inflict crue! pain and suffering. He cut the sides of Epperson's neck with glass, but notably, without severing her carotid arteries or jugular veins, which would have caused a quicker death. (QRT 1230-1231, 1233-1234, 1245-1246; Peo. Exh. 88B,pp. 29-30.) Also, bruising on her neck and hemorrhaging in the eyes could have beenthe result of strangulation, which would have also inflicted cruel pain and suffering. (QRT 1224, 1235.) Appellant also caused cruel pain and suffering when heinflicted a significant amount of trauma, including large bruises and abrasions, in Epperson's vaginal area. (QRT 1247-1248, 1259; 1ORT 1450-1451.) Indeed, the deputy coroner had rarely seen as much traumato the vaginal area in other rape examinations. (ORT 1248.) These grievous injuries were inflicted by appellant while Epperson wasalive, thereby causing cruel pain and suffering. Epperson's defensive wounds demonstrated she wasalive and conscious during appellant's brutal attack. (ORT 1224-1227.) Also, the deputy coronertestified the majority of Epperson's injuries had been inflicted while she was alive. (QRT 1249.) Appellant's statements also showed the mayhem andtorture had independent felonious purposes. Appellant's statements to others showed he acted out ofjealousy and revenge due to Epperson's spurning of his attentions. Before appellant murdered Epperson, appellant told Toddthat he wasjealous of other men being with Epperson andthat if he could not have her, no one else would. (QRT 1155-1156, 1214.) After appellant murdered Epperson, appellant told Vannoy he beat Epperson out of jealousy and revenge because Epperson would not love him and was going out with another person. (Peo. Exh. 88B, pp. 29, 38-39.) Appellantalso told Vannoy that Epperson asked if he was going to kill her and appellant's affirmative response indicated that he would but not without further injury and pain. (Peo. Exh. 88B, pp. 39, 85.) Appellant disfigured Epperson and 199 caused her cruel pain and suffering because she did not love him and he could not haveher. Further, the primary policy reason for the felony-murder doctrine is satisfied here. Once a person “has embarked upon a course of conductfor one of the enumerated felonious purposes,” the Legislature determinedthat if a death results from the commission ofthe felony “it will be first degree murder, regardless of the circumstances.” (Burton, supra, 6 Cal.3d at pp. 387-388; Cavitt, supra, 33 Cal.4th at pp. 187, 197.) This Court has stated numeroustimes that the purpose of the felony murderruleis “’to deter’ felons from killing negligently or accidentally by holding them strictly, 299 responsible for killings they commit. [Citation.].’” (Burton, supra,atp. 388.) The “deterrent purpose outweighs the normallegislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whetherthe killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly.” (Burton, supra, 6 Cal.3d at p. 388; Cavitt, supra, 33 Cal.4th at p. 197.) | Nonetheless, appellant contends the mayhem andtorture were not independentof the homicide. (AOB 72-81.) If this Court were to adopthis approach, a person whointendedto put out a victim’s eye orslit someone’s tongue or whoinflicted great bodily injury with the intent to cause cruel or extreme pain and suffering for the purpose of revenge or any sadistic ‘purpose would escape a murder conviction if the victim died in the course of the mayhemortorture, clearly nota result intended by the Legislature whichlisted mayhem and torture as enumerated felonies in section 189. In this case, as demonstrated above, appellant's acts--in disfiguring Epperson’s face, neck, and head while she wasalive by repeatedly bludgeoning her with a candlestick holder, heavy plaster vase, footstool, lamp, and planter, cutting the sides of her neck with glass, sticking a screwdriver through her 200 face, and slamming her head against walls--had independent purposes: to deprive her of a memberof her body or disable and disfigure her; and to inflict great bodily injury with the intent to cause cruel or extreme pain or suffering for revenge or a sadistic purpose. Thus, the mayhem andtorture did not merge into the homicide, as a matter of law and based on the evidence presentedattrial. Mayhem andtorture have independent felonious purposes, as demonstrated above, aside from assault. Just because mayhem andtorture will include assaultive conduct does not mean they do not have independent felonious purposes. Armed robbery includes assaultive conduct, butis not included within the Ireland doctrine. (Burton, supra, 6 Cal.3d at p. 387.) Thus, because mayhem andtorture have independent felonious purposes, they do not merge into the homicide and can be predicate felonies for first degree felony murder, as section 189 expressly provides. Appellant's constitutional rights were not violated. (Morgan, supra, 42 Cal.4th at pp. 93, 620 [rejecting defendant’s constitutional claims of due process of law and fair trial based on his conviction for first degree felony murder where the underlying felony (unlawful penetration with a foreign object) was held not to merge with the homicide underthe Jreland doctrine].) Even assuming the mayhem andtorture felony murder theories were "incorrect" legal theories which permitted the jury to find guilt in violation of the merger doctrine, reversal is not mandated. "[I]f the inadequacyis legal, not merely factual, that is, whenthe facts do not state a crime under the applicable statute, . . . the Green [People v. Green (1980) 27 Cal.3d 1, 69] rule requiring reversal applies, absent a basis in the recordto find that the verdict was actually based on a valid ground." (People v. Guiton (1993) 4 Cal.4th 1116, 1129; see People v. Aguilar (1997) 16 Cal.4th 1023, 1034.) It must be determined whetherit appears "beyond a reasonable doubtthat the error complained of did not contribute to the verdict obtained." (People 201 v. Harris (1994) 9 Cal.4th 407, 424, quoting Chapmanv. California (1967) 386 USS. 18, 24 [87 S.Ct. 1283, 17 L.Ed.2d 705].) “To say that an error did not contribute to the verdict, is... , to find that error unimportantin relation to everything else the jury considered on the issue in question, as revealed in the record.” (Harris, supra, at p. 430, quoting Yates v. Evatt (1991) 500 U.S. 391, 403 [111 S.Ct. 1884, 114 L.Ed.2d 432], italics added.) Here, any assumederrorarising from presenting the mayhem or torture felony murder theories to the jury was harmless beyond a reasonable doubt. The prosecution presented a rape felony murder theory to the jury as well, and the jury convicted appellant of forcible rape and foundtrue the rape special circumstance, as acknowledged by appellant. (AOB 82; 12CT 2956, 2958.) Thus, the rape felony murder theory provideda viable basis for the jury's first degree murderverdict, irrespective of the mayhem and torture felony murder theories. Appellant does not claim the rape felony murdertheory violates the Ireland merger doctrine. (AOB 72-84.) Instead, appellant only claims there was insufficient evidence of forcible sexual intercourse for rape, as set forth in his Argument ITI. (AOB 82-83.) Respondenthas addressed appellant's challenge to the sufficiency of the forcible rape conviction in this brief's ArgumentIII. In addition, the prosecution proceeded undera premeditation anddeliberation theory of first degree murder, which supports the judgment below and whichis addressed in this brief in Argument [V. | Further, the prosecutor clearly demarcated the theories forliability for first degree murder whenshe argued the case to the jury. She informed the jury about the standards for premeditated anddeliberatefirst degree murder (13RT 1872-1873) and also explained the felony murder theory and that rape was oneofthe predicate felonies (13RT 1861-1864, 1873). The prosecutor's argumentfurther supports a finding that any assumed error with respect to the presentation of the mayhem andtorture felony murder 202 theories to the jury was harmless beyond a reasonable doubt. The claim must be rejected. Il. SUBSTANTIAL EVIDENCE SUPPORTS THE TORTURE MURDER THEORYOF FIRST DEGREE MURDER, THE TORTURE CONVICTION, AND THE TORTURE-MURDER SPECIAL CIRCUMSTANCE Appellant contendsthat even if all the charged felonies are not integral to the homicide,there is insufficient evidence to support the torture murdertheory offirst degree murder, the torture conviction, or the torture murder special circumstance. Specifically, appellant claims there is insufficient evidence he specifically intended to inflict extreme pain for personalgain or satisfaction and that the condition of the bodyis insufficient to prove beyond a reasonable doubtthat an assailant necessarily intended to inflict extreme or prolonged pain. (AOB 85-95.) Respondent disagrees. In assessing a claim of insufficiency of the evidence, the reviewing court must review the whole recordin the light most favorable to the judgment below to determine “whetherit discloses substantial evidence— that is, evidence that is reasonable, credible, and of solid value—suchthat a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [parallel citations omitted].)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Further, under federal due processprinciples, sufficiency-of-the-evidence review “entails not the determination whether the reviewing court itself believes the evidenceattrial establishes guilt beyond a reasonable doubt,” but “whether, after viewing the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [parallel citations omitted].)” (Rodriguez, supra, at p. 11.) 203 An appellate court's duty is not to reweigh evidence or reevaluate a witness's credibility. (People v. Whisenhunt(2008) 44 Cal.4th 174, 200.) - Where a jury’s findings rest upon circumstantial evidence, a reviewing court must determine whether the circumstances reasonably justify those findings. That the circumstances may be reasonably reconciled with a contrary finding does not render the evidence insufficient. (People v. Tafoya (2007) 42 Cal.4th 147, 170.) Further, only one witness's testimony, which does not need to be corroborated, is substantial evidence and may uphold a judgment, even if the testimony is contradicted oris inconsistent or false as to other portions. (People v. Scott (1978) 21 Cal.3d 284, 296; see People v. Panah (2005) 35 Cal.4th 395, 489; Evid. Code, § 411.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive provinceofthetrier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Only if an individual witness's testimony is physically impossible or inherently improbable will an individual witness's testimony be insufficient to sustain a conviction. (Scott, supra, at p. 296.) Reversalis "unwarranted unless it appears'that upon no hypothesis whateveris there sufficient substantial evidence to support [the conviction].(People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) For the torture murder theory offirst degree murder pursuantto section 189, a jury mustfind "'(1) acts causing death that involve a high degree of probability of the victim's death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or anothersadistic purpose. [Citations. ]'" (People v. Jennings (2010) 50 Cal.4th 616, 643, quoting People v. Cook (2006) 39 Cal.4th 566, 602; People v. Raley (1992) 2 Cal.4th 870, 899; People v. Mincey (1992) 2 Cal.4th 408, 432.) To prove the intent to inflict extreme pain, the circumstances of the crime, nature ofthe killing, and 204 condition of the victim's body may be considered. This Court, though, has "cautioned against giving undue weight to the severity of the victim's wounds, as horrible wounds may beas consistent with a killing in the heat of passion, in an “explosion of violence,” as with the intent to inflict cruel suffering.’ [Citation.|” (People v. Elliot (2005) 37 Cal.4th 453, 467, quoting People y Cole (2004) 33 Cal.4th 1158, 1213-1214.) Thetotality of the "brutal acts and the circumstances whichled to the victim's death" can support a torture murder finding. (Jennings, supra, at p. 643, quoting People v. Proctor (1992) 4 Cal.4th 499, 530; Mincey, supra, at p. 433.) For torture pursuant to section 206, the jury hadto find that a person inflicted great bodily injury upon another "with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (See People v. Aguilar (1997) 58 Cal.App.4th 1196, 1200-1201 [section 206 not unconstitutionally vague].) For the torture murder special circumstance pursuant to section 190.2, subdivision (a)(18), it must be proven that the "murder wasintentional and involvedthe infliction of torture." (See Elliott, supra, 37 Cal.4th at p. 469; People v. Bemore (2000) 22 Cal.4th 809, 839; People v. Crittenden (1994) 9 Cal.4th 83, 140.) The intentto torture is required for the torture murder special circumstance, as well as the torture murder. (Cole, supra, 33 Cal.4th at p. 1194.) In the instant case, substantial evidence supports the torture murder theory of first degree murder, the torture conviction, andthe torture murder special circumstance. Since appellant's attack focuses on thealleged failure to prove an intent to cause extreme pain for the torture murdertheory, the torture conviction, and the torture murder special circumstance (AOB 88), respondentwill focus its response accordingly. Evidence ofthe nature of the beatings, the extended period of time it took, the injuries inflicted, the expert medical testimony, the expert blood spatter testimony, the 205 circumstancesofthe killing, and appellant's own statements clearly constituted substantial evidence. (See ArgumentI, ante.) Although appellant could have quickly killed Epperson, the evidence showed he intended to cause extreme pain, given the nature of the beatings, the amountoftime it took, and the injuries inflicted. As set forth in ArgumentI, ante, the evidence showed appellant beat Eppersonin the bathroom andliving quarters, over a period oftime, with a glass candle holder, heavy vase, wooden footstool, and lamp, shook her, and slammed her head against the wall at least six times. (ORT 1304, 1306, 1311-1312, 1315, 1318, 1320, 1324-1325; Peo. Exh. 88B,pp. 29, 38-39.) Appellant also used broken pieces to further bludgeon Epperson. In addition, he stuck a screwdriver through her face and wrapped a lamp cord aroundher head. (1ORT 1294, 1296-1298, 1304, 1313-1314, 1325-1326, 1349-1354, 1373, 1375-1376, 1379, 1395-1396, 1409-1410; Peo. Exh. 88B,pp. 31, 33, 50- 51.) The beating wasso severe that bloodsplattered all over the apartment. The blood spatter expert testified extensively about the sequence of beatings, the weaponsused,andthe circumstancesofthe killing. (ORT 1289, 1303-1305, 1313-1314, 1319-1320, 1328, 1355, 1368, 1400.) Epperson suffered, by a conservative estimate, at least 10 severe blows to her head. (ORT 1251, 1255.) Appellant fractured Epperson's skull in multiple places anddisfigured her face. (QRT 1238-1240, 1242.) She had multiple lacerations on her forehead and face, including her eyes, nose, cheeks, and upper and lowerlips, and her face seemedflattened due to the underlying fracture of her facial bones. (QRT 1228-1233.) He struck Epperson so hard that her dental plate and a tooth came out of her mouth and broke. (ORT 1222; 1ORT 1297, 1374-1375.) The deputy coroner had seen similar types ofinjuries in only a very small numberofthe 2,000 autopsies of persons with blunt force trauma he had done. (ORT 1244.) The nature of the wounds and the number of woundsnecessarily indicated 206 they were inflicted over an "appreciable period oftime,” thus showing an intent to inflict cruel pain. (Mincey, supra, 2 Cal.4th at pp. 433-434.) Ofparticular note, appellant carefully cut the sides of Epperson's neck, showinghis intentto inflict extreme pain. He cut her neck with glass, but notably, without severing her carotid arteries or jugular veins, which would have caused a quicker death. (ORT 1230-1231, 1233-1234, 1245- 1246; Peo. Exh. 88B,pp. 29-30.) Carefully cutting Epperson's neck in this mannersurely demonstrated a "meticulous, controlled approach,”inflicting cruel pain and suffering. (Elliott, supra, 37 Cal.4th at p. 467 ["The nature of these woundsstrongly implies the use of controlled force designed to torture."], citing People v. Pensinger (1991) 52 Cal.3d 1210, 1240 ["nearly scientific air" of incision woundsprovided strong evidenceofintent to inflict pain]; Proctor, supra, 4 Cal.4th at pp. 531-532 ["woundsrevealed that a relatively slow, methodical approach had been employedin their infliction, rather than their having resulted from sudden, explosive violence."].) These wounds demonstrated appellant's intent to cause cruel pain. (Crittenden, supra, 9 Cal4th at p.133.) The jury could properly conclude the neck wounds "were neither accidental nor lethal in nature, and that they were inflicted because the victim was alive, helpless, and capable of experiencing pain." (Bemore, supra, 22 Cal.4th at pp. 840-841, emphasis in original.) In addition, bruising on Epperson's neck and hemorrhaging in the eyes could have been the result of strangulation, another means by which appellant's intent to inflict extreme pain was shown. (9RT 1224, 1235.) Appellant had grabbed his female victims in the past by the throat. Colletta and Betsy M.bothtestified appellant grabbed them bythe throat and choked them so they could not breathe. Betsy M. even passed out. (LORT 1435-1436, 1443-1445.) Certainly, appellant could have strangled 207 Epperson to death if his sole intent were to kill her but, instead, he chose to keep heralive and inflict extreme pain. Appellant's intent to inflict extreme pain was also shown by the significant amountof trauma,including large bruises andabrasions,that he caused in Epperson's vaginal area. (QRT 1247-1248, 1259; LORT 1450- 1451.) Indeed, the deputy coroner had rarely seen as much traumato the vaginal area in other rape examinations. (ORT 1248.) Again, these grievous injuries were inflicted by appellant while Epperson was alive and conscious, further showinghis intent to inflict extreme pain. (9RT 1224-1227, 1249.) Appellant had Epperson underhis complete control. Evidence that Epperson was "isolated and prevented from resisting or escaping during these acts" also establishes appellant's intent to inflict cruel pain. (Proctor, supra, 4 Cal.4th at pp. 531-532.) In addition to the evidence of Epperson’s injuries and the expert medical and blood spatter testimony, appellant's statements to others showed his intent to cause extreme pain. Evidence showed appellant acted out of longstanding jealousy anda desire for revenge due to Epperson's alleged spurningofhis attentions. He wantedto cause her extreme pain for rejecting him. Appellant told Todd that he was jealous of other men being with Epperson and that if he could not haveher, no one else would. (QRT 1155-1156, 1214.) Appellant told Vannoy he beat Epperson outofjealousy and revenge because Epperson would not love him and was | going out with another person. (Peo. Exh. 88B,pp. 29, 38-39.) Appellant also told Vannoy that Epperson askedif he was goingto kill her and appellant's affirmative response indicated that he would but not without further injury and pain. (Peo. Exh. 88B,pp. 39, 85.) Further, appellant's actions in monitoring Eppersonafter church while she was talking to Sims on the day of her murder could have been interpreted as part of the plan to seek revenge for Epperson's lack of 208 attention. (8RT 1047, 1065; Elliott, supra, 37 Cal.4th at pp. 467-468 [pre- murder events supported torture murder theory].) Appellant intended to cause Epperson cruel pain and suffering because she did not love him and he could not have her. Also, based on the evidence that appellant had previously assaulted Colletta and Betsy M., the jury could properly infer that he had a disposition to commit another act of domestic violence and infer that he committed the instant crimes. (LORT 1425-1426 [prior assaults evidence admitted pursuant to Evidence Code section 1109]; 12CT 2928; 14RT 1987-1989; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334 [evidence of prior violence against two girlfriends admitted pursuant to Evidence Code section 1109]; People v. Johnson (2000) 77 Cal.App.4th 410, 416 [prior acts of domestic violence admissible to show a propensity to commit the charged offenses]; see also 12CT 2850-2879.) In the Colletta incident, appellant grabbed and squeezed Colletta's throat, dragged her to the ground, and kicked her in the back of the head and neck while wearing metal shod boots. (1ORT 1443-1446.) In the Betsy M.incident, appellant choked Betsy M. to unconsciousness and whenshe regained consciousness, madeherstrip at knifepoint and terrorized her. (ORT _ 1436.) Notably, appellant attacked both womenbythethroat, and the evidence also suggested he grabbed Epperson by the throat. (QRT 1224.) Moreover, appellant's claim that Epperson may not have been conscious and presumably may not have suffered pain is without merit. (AOB 91-92.) Torture murder does not require that the victim suffer pain. "TA] defendant may be found guilty of murder by torture evenifthe victim is never aware of any pain." (Elliott, supra, 37 Cal.4th at p. 469.) Instead, the defendant must act with the intent to inflict extreme and prolonged pain (id. at pp. 468-469, citing People v. Steger (1976) 16 Cal.3d 539, 546), which wasclearly shown here. Also, appellant relies on isolated bits of 209 evidence instead of looking at the whole record presented to the trier of fact. Appellant's claim that evidenceofthe intentto inflict extreme pain was only supported by the condition of Epperson's body is without merit. (AOB 85-94.) As demonstrated above, other evidence showedappellant's intent to cause extreme pain, including theblood spatter expert's testimony about the wide-ranging splatters of blood throughout the apartment and the weaponsused, appellant's statements to Todd and Vannoyabout jealousy and revenge, appellant's actions in monitoring Epperson before the murder, and appellant's prior conduct in choking Colletta and Betsy M. And, in any event, the condition of Epperson's body does provide an inference of intent to torture. (Mincey, supra, 2 Cal.4th at p. 433.) "Intentis a state of mind which, unless established by the defendant's own statements, must be proved by the circumstances surrounding the commissionof the offense [citations], which includethe severity of the victim's wounds. [Citation. |" (Proctor, supra, 4 Cal.4th at p. 531; see also Crittenden, supra, 9 Cal.4th at p. 141.) Also, the prosecutor did not give undue weightto the severity of the wounds as appellant contends. (AOB 90.) The prosecutor did argue Epperson's injuries showedtorture, but she also specifically argued evidence from the blood spatter expert and appellant's statements to Vannoyrendered appellant culpable. For instance, the prosecutor argued the blood spatter expert testified appellant hit Epperson repeatedly with a woodenstool, using broken pieces to continueto hit her, and that the expert had been able to determine how and where appellant beat and injured Epperson. (13RT 1861, 1880.) The prosecutor also argued that Vannoy testified about appellant's statements in which he taunted Epperson before he killed her, indicating that he would makeher sufferfirst. (13RT 1867, 210 1875.) Thus, the prosecutor argued the import of other evidence supporting an intent to inflict cruel pain. Clearly, in this case, substantial evidence supports the torture murder theory offirst degree murder, the torture conviction, and the torture murder special circumstance. (See Gonzales, supra, 51 Cal.4th at p. 942 [sufficient evidence of intent to inflict extreme pain for torture murder andintent to kill for torture murder special circumstance]; Elliott, supra, 37 Cal.4th atp. 469 [sufficient evidence of torture murder theory and torture murder special circumstance]; Mincey, supra, 2 Cal.4th at p. 436 [sufficient evidence of torture murder theory found based on circumstancesof death, “including the numberand nature of the wounds, and the length of time over which they were inflicted—and the expert testimony presented”’].) Even assuming the torture murder theory was not factually supported by the evidence,reversal of the murder conviction is not required. The jury was presented with other felony murder theories offirst degree murder, based on the predicate felonies of mayhem and rape. The jury found appellant guilty of the mayhem and rape counts and found the mayhem and rape special circumstancesto be true. (12CT 2956, 2958, 2960.) Thus,it is apparentthe jury found the first degree felony murder theories based on mayhem and rapeto be true. Thus, even assuming invalidity of the torture murder theory,the first degree murder conviction need not be reversed. (Guiton, supra, 4 Cal.4th at p. 1129 [reversal required under Green, "absent a basis in the record to find that the verdict was actually based on a valid ground," referring to Green, supra, 27 Cal.3d at p. 69]; see Aguilar, supra, 16 Cal.4th at p. 1034; see Harris, supra, 9 Cal.4th at p. 424.) In addition, the prosecution proceeded under apremeditation and deliberation theory of first degree murder, which supports the judgment below and whichis addressed in this brief in Argument IV, post. Further, as set forth in ArgumentI, ante, the prosecutor clearly demarcated the theories for 211 liability for first degree murder when she arguedthe case to the jury. She informed the jury about the standards for premeditated and deliberate first degree murder (13RT 1872-1873) and also explained the felony murder theory and that mayhem and rape were predicate felonies (13RT 1861- 1864, 1873). The prosecutor's argument further supports a finding that any - assumederror with respect to the presentation ofthe torture murder theory to the jury was harmless beyond a reasonable doubt. The claim must be rejected. Ilf. SUBSTANTIAL EVIDENCE SUPPORTS THE RAPE CONVICTION, THE RAPE MURDER THEORYOF FIRST DEGREE FELONY MURDER, AND THE RAPE-MURDER SPECIALCIRCUMSTANCE Appellant contends there wasinsufficient evidence to convict him of rape, to support the rape murder theory of felony murder, or to support the true finding on the rape-murder special circumstance. (AOB 96-110.) Specifically, appellant claimsthat establishing that sexual intercourse took place andthat a grievous assault took place does not prove rape beyond a reasonable doubt. He claims the evidenceis consistent with his "claim of consensual intercourse followed by an assault and inconsistent with the prosecution's claim of forcible rape." (AOB 110.) Respondent disagrees. Asset forth in ArgumentII, ante, regarding the standard of review for sufficiency-of-the-evidence claims,incorporated herein by reference, the reviewing court must review the whole record in the light most favorable to the judgment below whenassessing a sufficiency claim. (Rodriguez, supra, 20 Cal.4th at p. 11, citing Johnson, supra, 26 Cal.3d at p. 578 and Jackson, supra, 443 U.S. at pp. 317-320.) For forcible rape pursuantto section 261, subdivision (a)(2), a jury mustfind the act of sexual intercourse was “accomplished against a person’s will by meansofforce, violence, duress, menace, or fear of immediate and unlawful bodily injury ....“ (See People v. Griffin (2004) 212 33 Cal.4th 1015, 1022; People v. Maury (2003) 30 Cal.4th 342, 403, citing People v. Iniguez (1994) 7 Cal.4th 847, 856.) “Force” is not specifically defined in the statute and does not have any specialized legal definition. Whenevaluating the evidence for the element of force, the reviewing court considers the circumstances of the case. (Griffin, supra, at pp. 1022-1024, 1028; People v. Barnes (1986) 42 Cal.3d 284, 304.) Proof of resistance is “no longer the touchstone of the element of force.” (Barnes, supra, at p. 304; see Griffin, supra, at pp. 1024-1025.) Indeed, the Legislature “has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape.” (Griffin, supra, at p. 1027.) For the rape theory of felony murder pursuant to section 189, the murder must be committed in the perpetration of rape. (People v. Kelly (1992). 1 Cal.4th 495, 524 ["Felony murder includes a killing ‘committed in the perpetration of .. . rape’"].) For the rape-murder special circumstance pursuant to section 190.2, subdivision (a)(17)(C), the murder must be committed while the defendant was engaged in rape in violation of section 261. (Kelly, supra, 1 Cal.4th at p. 524.) In the instant case, substantial evidence supports the rape conviction, the rape murder theory of felony murder, and the rape murder special circumstance. Appellant concedes there was evidence of sexual intercourse between Epperson and him,but “no direct evidence of rape.” (AOB 102.) Since appellant's attack apparently focuses on the alleged failure to prove the element of force, respondent will focus its response accordingly. Force was shownbythe injuries to Epperson’s body, especially the vaginal area, the placement and condition of her clothes, the blood on her thighs and lower body, appellant’s statements to others, and the evidenceofprior assaults on other women. 213 The injuries to Epperson’'s body, particularly the vaginal area, demonstrated a forcible rape had occurred. Epperson had multiple severe injuries to her head, neck, and facial area, as set forth in Arguments I andII, ante, and had a significant amountoftrauma in her vaginalarea,all of which supporteda finding of forcible rape. She had semi-circular bruises and abrasions at the back and both sides of the vaginal area. (QRT 1247- 1248.) Indeed, Dr. Wang had-rarely seen as much traumato the vaginal area in other rape examinations. (9RT 1248.) Dr. Wangopined the injuries were caused by blunt force penetration either by a penis with a lot of force or other object of similar shape and size. (QRT 1249, 1256-1257.) Vaginal aspirate, vaginal swabs, and external genital swabs from Epperson all showed sperm which matched appellant's DNA. (QRT 1259; LORT 1450- 1451.) Dr. Wang opined Epperson wasalive whenshe suffered the trauma to her vaginal area and face and whenshe suffered the cuts and lacerations, including those to her neck. (QRT 1249-1250.) The defensive wounds on her hands indicated she was alive and conscious when appellant inflicted | the injuries. ORT 1250.) The placement and condition of Epperson's clothes and the blood on her thighs and lower body also supported a finding of forcible rape. Epperson’s jeans and panties were on the groundat her feet and had been forcibly removedafter she was onthe floor, bloody and beaten. (ORT 1300-1301.) Bloodstains on her jeans near her waistband by the button and a pattern transfer stain consistent with fingers raised a reasonable inference | that someone’s bloody hands unbuttoned the jeans. (LORT 1344-1345, 1347.) On the inner surface ofthe jeans, on the outerliner of the right pocket, was a transfer stain with a mixture of appellant’s and Epperson’s DNA. (10RT 1449-1450.) The transfer blood patterns were consistent with a person lying on the ground wearingblue jeans and someone's bloody hands unbuttoning the jeans and grabbing and pushing the jeans down. 214 (ORT 1348.) The transfer stains on Epperson’s inner thighs indicated the pattern was made when a bloody object made contact with her thighs after the blue jeans were removed. (1ORT 1381-1382.) Thus, the blood on her thighs indicated appellant had spread her legs to forcibly rape her after he had already beaten and bloodied her. In blood spatter expert Raquel's opinion, Epperson’s jeans were forcefully pulled off by someone else because of the bloody transfer pattern on the inner liner and inner surface of the pants. (LORT 1381, 1389-1392, 1406, 1411.) In addition, Epperson’s panties had bloodstains, and appellant’s DNA was foundin the bloodstain on the front center of Epperson’s panties. (LORT 1348-1349, 1381, 1450.) Also, the panties were ripped on theleft side, on the top and bottom, and the rip could have been caused when the panties were removed from Epperson. (1ORT 1349.) Epperson's brassiere was pushed up aboveher breast nipples. (QRT 1240-1241; 1ORT 1451.) Notably, Epperson's lower body and breasts were unclothed, but her shirt and sweatshirt werestill on. (ORT 1240-1241; 1ORT 1451.) Thus, aside from the traumato the vaginal area, the condition and placement of Epperson's clothes and the blood on her thighs and lower body clearly demonstrated appellant had forcibly raped her and defeated any claim of consensualsex. Appellant’s statements to others also provided evidence offorcible rape. Hisstatements showed he wanted to have sexual relations with Epperson, had been unsuccessful, was jealous of others having sex with her, and was goingto use force against her. Appellant told Todd several times that he was not having any success "getting sex" from Epperson and that if he could not have her, no one else could. (QRT 1214.) Appellant also told Todd that he was upset because Epperson was hanging around with other men, asked Todd if she was having sex with others, and made remarks indicating he was jealous of Sims. (ORT 1161, 1170, 1214.) Indeed, a short time before he murdered Epperson, appellant told Todd in 215 late October 2000 that he loved Epperson andsaid, "If I can't have her, nobody will, I'll kill her and myself." (QRT 1155-1156.) Also, appellant said Epperson reminded him a prior deceased girlfriend. (QRT 1156.) Appellant’s prior assaults on Colletta and Betsy M.also showedthat he used force upon women whenhebelieved he wasnotreceiving desired attention. (See ArgumentI, ante.) When Colletta and Betsy M.did not want to reciprocate appellant's amorous affections and wantedto endtheir dating relationships, appellant attacked them. Appellant grabbed and squeezed Colletta's throat, dragged her to the ground, and kicked her in the back of the head and neck while he was wearing metal shod boots. (ORT 1443-1446.) Appellant choked Betsy M.until she lost consciousness, and when she cameto, he madeherstrip at knifepoint and terrorized her. (1ORT 1435-1436.) Despite the substantial and indeed overwhelming evidence of forcible rape in the record, appellant selects varying bits and pieces of testimony from the prosecution’s case and focuses on the defense evidence in an attempt to demonstrate insufficient evidence offorcible rape. (See AOB 99-105.) However, such an approachis contrary to the appellate standard of review for an insufficiency of the evidence claim. The evidence supporting a judgmentis not rendered insufficient merely because the circumstances might be reasonably reconciled with a contrary finding. (Tafoya, supra, 42 Cal.4th at p. 170.) Indeed,appellant's version of the events was not credible, and the jury properly rejected it. Given thetotality of the circumstances, the jury properly concluded appellant committed forcible rape. (See Barnes, supra, 42 Cal.3d at p. 305.) There was substantial evidence of forcible rape, the rape felony murder theoryoffirst degree murder, and the rape-murder special circumstance. 216 IV. SUBSTANTIAL EVIDENCE SUPPORTS THE PREMEDITATION AND DELIBERATION THEORY OF FIRST DEGREE MURDER Appellant contends his conviction forfirst degree murder must be reversed because the evidence was insufficient to prove premeditation and deliberation. He claims there was no evidence of planning and no viable evidence of motive and the manner in which Epperson waskilled. (AOB 111-118.) Substantial evidence supports the premeditation and deliberation theory of first degree murder. Asset forth in ArgumentI, ante, regarding the standardofreview for sufficiency-of-the-evidence claims, incorporated herein by reference, the reviewing court must reviewthe whole record in the light most favorable to the judgment below when assessing a sufficiency claim. (Rodriguez, supra, 20 Cal.4th at p. 11, citing Johnson, supra, 26 Cal.3d at p. 578 and Jackson, supra, 443 US.at pp. 317-320.) A deliberate and premeditated killing is murder of the first degree. (§ 189.) "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]”’ (People v. Solomon (2010) 49 Cal.4th 792, 812, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Deliberation and premeditation can occur in a "brief interval" and is not tested by time but by reflection. """Thoughts may follow each other with great rapidity and cold, calculated judgment maybearrived at quickly.""" [Citation.]" (Solomon, supra, at p. 812, quoting People v. Sanchez (2001) 26 Cal.4th 834, 849.) In People v. Anderson (1968) 70 Cal.2d 15, this Court discussed three types of evidence in premeditated murder cases--planning activity, preexisting motive, and mannerofkilling. (/d. at pp. 26-27; Elliot, supra, 37 Cal.4th at p. 470; Proctor, supra, 4 Cal.4th at p. 529.) A first degree murder conviction will be upheld when evidence ofall three Anderson categories exists, but if not, a conviction has generally been upheld where 217 there is "either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate mannerof killing." [Citations.|" (Proctor, supra, at p. 529, citing Raley, supra, 2 Cal.4th at p. 887; Elliot, supra, at pp. 470-471.) However, the Anderson categories are not exclusive, and other types of evidence can support a finding of premeditation and deliberation. (Solomon, supra, 49 Cal.4th at p. 812, citing People v. Perez (1992) 2 Cal.4th 1117, 1125, People v. Hovarter (2008) 44 Cal.4th 983, 1019, and People v. Steele (2002) 27 Cal.4th 1230, 1249; Proctor, supra, at p. 829.) In the instant case, substantial evidence supports the premeditation and deliberation theory offirst degree murder. There was evidence of planning, motive, and mannerof killing. With respect to planning, the evidence showed appellant’s actions before, during, and after the murder constituted evidence of premeditation and deliberation. Before the murder, appellant was watching Epperson and Simsafter Epperson got out of church. (8RT 1047-1049, 1065.) A jury “could have interpreted [appellant’s] actions earlier during the evening of the murderas surveying the [place] for a later attack.” (Elliot, supra, 37 Cal.4th at p. 472.) Later that day, appellant got Eppersonalone in her apartment, as shownby the sign in log and forensic evidence. (8RT 1011-1014; 9 RT 1117, 1119- 1121, 1131-1132, 1138; see, e.g., LORT 1450-1451.) Then, when appellant attacked her, repeatedly beating her in the bathroom, Epperson askedif he was goingto kill her, and appellant clearly said, "Yes, Tammy, Iam. I am goingto kill you." (Peo. Exh. 88B,pp. 39, 85.) Epperson was underhis control, and appellant carried her to the living quarters wherehe inflicted further grievous injuries upon her. (ORT 1320-1321, 1379, 1397.) Thus, the evidence showsappellant watched Eppersonearlier in the day, got her alone in her apartment, told her his plan wasto kill her, and then after initially beating her, “had a significant period of time in which to 218 contemplate and plan her eventual death. (Proctor, supra, 4 Cal.4th at p. 529; see Solomon, supra, 49 Cal.4th at p. 816; Pensinger, supra, 52 Cal.3d at p. 1237 [“the total vulnerability of the victim and the evidence of a previously selected remote spot for the killing do suggest planning.”’].) Further, appellant’s actions after the murder showed evidence of planning. When appellantleft the Ballington, he did not go to the parking lot across the street, where he often left his truck; instead, appellant went up Wall Street and left. (ORT 1140, 1142.) The jury could haveinferred that appellant had not left his truck in the lot because he had planned to kill Epperson and wanted to avoid having someone see him leave Epperson’s apartment. In addition, appellant’s claim that his testimony showedonly a killing without "any sort of planning or careful consideration” is without merit. (AOB 114-115.) Appellant bludgeoned Epperson with a numberofitems, including a candle holder, lamp, footstool, and vase, stabbed her in the face with a screwdriver, and cut the sides of her neck with broken glass. The wide selection of items and the time it must have taken to select the items, use the items, use pieces of items once they broke, and use someofthe items very carefully to inflict wounds suggested that appellant carefully plannedhiskilling activities. (See Elliot, supra, 37 Cal.4th at p. 471 [wounds could have showed a "preconceived design to kill"]; People v. Wharton (1991) 53 Cal.3d 522, 547 [likely use of hammer andits removal from toolbox indicated defendant might have “planned to be in a rage.”’].) Moreover,that appellant used “materials that were close at hand does not _ preclude the inference that he thereafter considered a course of action to kill.“ (Solomon, supra, 49 Cal.4th at p. 816.) And again, even assuming the facts could be reconciled with theory that the killing was unplanned, the | judgment maynotbe reversedif there was substantial evidence of premeditation and deliberation. (/d. at p. 819.) 219 There was also evidence of motive. The evidence showed appellant wasjealous of Epperson seeing other men, was unsuccessfulin his pursuit of sexual relations with her, and said he would kill her if he could not have her. Appellant told Todd that he loved Epperson,that he was upset she was hanging around with other men including Sims, and that if he could not have her, nobody would. (ORT 1155, 1161, 1170.) Healso told Todd several times that he was not having any success "getting sex" from Epperson and asked Todd if Epperson was having sex with others. (ORT 1214.) In October 2000,just a short time before appellant killed Epperson, appellantsaid, "If I can't have her, nobody will, I'll kill her and myself." (ORT 1155-1156.) Appellant also told Vannoy that Eppersonhadrej ected him, was seeing someoneelse, and that he told Epperson, "All I wanted you to do was to love me, you know, and you wouldn't do that." (Peo. Exh. 88B,pp. 27, 29, 38-39.) In addition, the jury could have believed that appellant killed Epperson to “avoid detection for the sexual and other physical abuses he had committed against her.” (Proctor, supra, 4 Cal.4th at p. 529.) The manner of killing also showed premeditation and deliberation. The numberandseverity of wounds suffered by Epperson and the wide- ranging blood spatter showed appellant had ample time for reflection, as he was using multiple items to bludgeonher, used pieces ofthe items after they broke, and carefully used certain itemsto inflict injuries which were not immediately fatal. Epperson suffered at least 10 blowsto her head, as a conservative estimate. (QRT 1228, 1251, 1255.) She also had multiple injuries to her face, including lacerations on her forehead and face, including her eyes, nose, cheeks, and upper and lowerlips. (ORT 1228- 1229.) These injuries were caused by multiple items, including a candle holder, vase, footstool, and lamp, and whenthe items broke, appellant used the broken pieces to bludgeon her more. (LORT 1379-1380, 1395-1396; 220 Perez, supra, 2 Cal.4th at p. 1129 (“defendant had time to reflect upon his actions when the knife broke. That he went searching for another knife is indicative of a reasoned decision to kill.”].) Using the broken pieces was similar to “reloading a gun or using another gun whenthefirst one has run -out of ammunition.” (Perez, supra, at p. 1127.) The evidence further showed appellant inflicted injuries which were not immediately fatal but were carefully placedto inflict more grievous injuries upon Epperson. Appellant stabbed Epperson in the face with a screwdriver. (LORT 1409-1410.) Appellant also carefully cut the sides of Epperson’s neck with glass or some other object, without severing her carotid arteries or jugular veins, which would have been quickly fatal. (ORT 1230-1231, 1233-1234, 1245-1246.) Also, bruising on the neck and hemorrhagingin the eyes, which might have indicated strangulation, could have contributed to the manner of killing. (QRT 1224; Solomon, supra, 49 Cal.4th at p. 815 [“From this mannerof killing, the jury reasonably could infer that defendant had time to consider the murderousnature of his actions.|; People v. Bonillas (1989) 48 Cal.3d 757, 792 [“Ligature strangulationis in its nature a deliberate act”].”].) Epperson’s vaginal area suffered a significant amount oftrauma, which wascaused by blunt force penetration either by a penis with a lot of force or other object of similar shape and size. (ORT 1248-1249, 1256-1257.) The fact that Epperson also had defensive wounds on her hands and arms showed Epperson wasalive during this brutal attack. (QRT 1224-1227, 1249-1250.) “These circumstances do not suggest an unreflecting explosion of violence, but rather a preconceived design to kill the victim by the particular means chosen, and to prolong her agony in the process.” (Proctor, supra, 4 Cal.4th at p. 530.) Thus, the deputy coroner’s testimony about Epperson’s numerous and grievous injuries showed a mannerof killing indicative of premeditation and deliberation. (Solomon, supra, 49 Cal.4th at p. 815 221 (“what the pathologist can say from a laboratory examination is more limited than what a reasonable trier of fact may find beyond any reasonable doubt, after considering the evidence as a whole.’”].) Evidence that appellant had assaulted Colletta and Betsy M. when they did not reciprocate his attentions also showed how he conducted himself in such situations. (See Arguments I and IL, ante.) When both womendid not want to reciprocate his attentions, appellant responded by attacking both of them. (LORT 1434-1436, 1443-1445.) Also, he told Colletta, "You're going to die," and told Betsy M. he would kill her and her children. (LORT 1437, 1443-1445.) Other evidence also showed premeditation and deliberation. Appellant’s conduct after the killing, including searching dresser drawers and the closet, going through Epperson’s personal belongings, ransacking her apartment, taking Epperson’s keys, wiping his hands with paper towels and cloth towels, locking the apartment door whenheleft, andtelling the security guard that Epperson wasresting “would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing.” (Perez, supra, 2 Cal.4th at p. 1128; see ORT 1117, 1121-1123, 1138, 1132, 1136: 1ORT 1299-1300, 1306, 1341-1344, 1355-1356, 1367-1370, 1380- 1381, 1399, 1450.) Indeed,the security guard testified appellant seemed calm, and his demeanor was not unusual. (QRT 1122, 1135.) The evidence showed planning, motive, and manner ofkilling, sufficient to uphold the premeditation and deliberation theory. Moreover, appellant's claim that he may be guilty only of second degree murder because he was "subjectively precluded from deliberating becauseofprovocation . . . even if a reasonable person would not have been so precluded"is without merit. (AOB 117.) Provocation which may be inadequate to reduce a murder to manslaughter may nevertheless negate premeditation and deliberation, thus reducing a murder from first to second 222 degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 [provocation which might be insufficient to reduce the offense to manslaughter might be adequate to raise a reasonable doubt about premeditation or deliberation, “leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice atorethought but without premeditation and deliberation”]; see People v. Rogers (2006) 39 Cal.4th 826, 877-878; People v. Valentine (1946) 28 Cal.2d 121, 132.) To reduce murder from first to second degree, the provocation must have precluded the defendant from deliberating. "This requires a determination of the defendant's subjective state." (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) Instruction on the principle that "provocation inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to negate premeditation and deliberation”is a pinpoint instruction and need not be given on the court's own motion. (Rogers, supra, at pp. 877-878; see CALJIC No. 8.73; CALCRIM No. 522.) Here, as set forth above, the prosecution's evidence showedsufficient evidence of appellant's premeditation and deliberation in murdering Epperson. To the extent appellant's claim on appeal is one of sufficiency to prove premeditation and deliberation, the fact that appellant alleges there was countervailing evidenceis of no accord in this sufficiency-of-the- evidence evaluation. (Tafoya, supra, 42 Cal.4th at p. 170 [that the circumstances may be reasonably reconciled with a contrary finding does not render the evidence insufficient]; People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Moreover, even considering appellant's subjective mentalstate, the evidence of provocation wasnot sufficient to show appellant was precluded from deliberating. In his brief, appellant simply states, without attribution or citation to any portion of the record, that the "evidence here clearly showsthat [he] was subjectively under the influence of heat of passion as a 223 result of Ms. Epperson's demeaning language at the breakup and thus did not act with premeditation and deliberation." (AOB 117.) Appellant apparently relies on his owntestimonyin the defense case, in which he testified he hit Epperson once whenhe becamejealous and offended after Epperson said that she was ending their relationship and that he had been a “fill in” or temporary while she was lonely. (LIRT 1529-1530, 1540-1541, 1598-1599, 1600, 1602.) However, appellantalso testified he could not remember anythingafter he struck Epperson once and did not know how he killed Epperson. (11RT 1533.) Appellant also denied drinking alcoholthat day. (1IRT 1560.) Andcertainly, Epperson's alleged statementsto appellant would not have been sufficient provocative conduct under an objective standard to support a heat of passion claim for voluntary manslaughter. (People v. Manriquez (2005) 37 Cal.4th 547, 586 [no manslaughter instruction based onheat of passion simply because the victim called the defendant a "mother fucker" and taunted him]; People v. Lee (1999) 20 Cal.4th 47, 59; People v. Wells (1938) 10 Cal.2d 610, 623 [words of reproach or even a blow are insufficient to arouse heat of passion in a reasonable man], overruled in parton another ground in People v. Holt (1944) 25 Cal.2d 59, 87, and quoting 13 California Jurisprudence,p. 611.) Even considering appellant's subjective mentalstate, the evidence of provocation wasnotsufficient to have reduced the murder from first to second degree. (See Fitzpatrick, supra, 2 Cal.App.4th at p. 1295.) ° Moreover, appellant is not entitled to have his first degree murder conviction reduced to second degree, since the jury necessarily found him guilty of felony murder. (Guiton, supra, 4 Cal.4th at p. 1129; see Arguments I andIII, ante.) The mayhem,torture, and rape felony murder theories provided viable bases for the jury’s first degree murder verdict, irrespective of the premeditation anddeliberation theoryoffirst degree murder. (Ibid.) Further, as set forth in ArgumentI, ante, the prosecutor 224 clearly demarcated the theories for liability for first degree murder when she argued the caseto the jury, explaining the standardsfor first degree felony murder (13RT 1861-1864) as well as premeditated and deliberate first degree murder (13RT 1872-1873). The claim must be rejected. V-A. THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S TATTOOS AND THE GANG EVIDENCE” Appellant contends the trial court erred by refusing to exclude irrelevant evidence of his purported gangaffiliation and gangtattoos in the guilt and penalty phases. (AOB 119-172.) Specifically, appellant claims the trial court erred because the evidence wasirrelevant, the prosecutor committed misconduct in eliciting it, the trial court compoundedthe misconduct by mistakenly asserting appellant invited it, and appellant was prejudiced by the gang evidence. (AOB 146-172.) Thetrial court properly admitted evidence of appellant's tattoos and the gang evidence. A. Background Prior to selection of the guilt phase jury, the issue of gang evidence arose as the court was discussing the jury questionnaire. The prosecutor explained that there was some evidence appellant and a witness, Vannoy, were associated with the Aryan Brotherhood, appellant had "White power" tattooed on his arms, and appellant's motive to kill Epperson was based in part on the fact Epperson's ex-boyfriend, Sims, was Black and waswith her on the morning appellant killed her. The prosecutor said she would ask for an Evidence Codesection 402 hearing for the court to decide whether such evidence would be admissible. Defense counsel also had proposed questions about gangs on his jury questionnaire. (2RT 143-144.) In the '8 Appellant has two arguments in his brief enumerated as Argument V, so respondent has designated the first as "V-A." and the second as "V-B." (See AOB 119-172, 173-216.) 225 juror questionnaire, the prospective jurors were asked if they had an opinion about gangactivity, had ever witnessed gangactivity, had been affected by gang activity, had ever been acquainted with a gang member,or would automatically reject the testimony of a witness shownto be a gang member. (See, e.g., 4CT 575.) During the prosecution's guilt phase case-in-chief, Simstestified about his relationship with Epperson and about appellant. Sims, whois African American, testified he met Epperson, who was White, in 1999 and thereafter became her boyfriend. (8RT 1041-1042.) In 2000, Epperson got Sims to move into the Ballington, and while they were both there, for a period of eight or nine months,they werein a boyfriend and girlfriend relationship. (8RT 1016, 1042-1043.) However, when Simsstarted using drugs again, Epperson broke up with him and told him hehad to stop using drugs for them to be back together. (8RT 1023, 1043.) When Sims was evicted from the Ballington on October 14, 2000 for nonpayment of rent, Sims and Epperson were no longer boyfriendandgirlfriend. (8RT 1016, 1044.) Sims then testified that on the day of Epperson's murder, Sunday, November 12, 2000, he met Epperson outside her church at 10 a.m. and talked to her. Appellant wasacross the street, watching them and pacing up and down from his red truck back to the corner. (8RT 1046-1047.) The prosecutor asked Sims how he felt when he saw appellant across the street, and defense counsel unsuccessfully objected on relevancy grounds. (8RT 1048-1049.) Simstestified that he felt appellant was watching them. The. prosecutor then asked Simsif he had had anyprior contact with appellant. Simstestified that he had never spoken to appellant but that one time,as Sims wasleaving the Weingart, appellant was going in andsaid to Sims, "You punk m.f." Sims turned around and lookedat him, and appellant turned aroundlike he wasgetting ready to charge him. Sims wentout 226 through the door. (8RT 1049.) The prosecutor again asked Sims how he felt when he saw appellant watching them, and defense counsel objected on relevancy grounds. Whenthetrial court overruled the objection, Sims said he felt intimidated and added that he "knewthat he was like White supremacist." (8RT 1049-1050.) Defense counsel movedto strike, and the trial court sustained the objection, struck the answer, and admonishedthe jury to disregard the answer. (8RT 1050.) The prosecutor then asked about Sims'activities after he got out of a later church service, how hetried to contact Epperson, and how Simshad the police summonedto the Ballington to discover Epperson's body. (8RT 1050-1061.) On cross-examination of Sims, defense counsel began by questioning him about how he knew appellant and intimated in questioning that it was odd that he had "nevertalked to [appellant] once" even though they had lived at the Weingart at the same time for two years. (8RT 1061-1062.) Defense counsel also questioned Sims about whetherhe told the policeat the station that appellant had called him a "punk mother fucker," about whether he had intended to marry Epperson, and about whether Epperson had changedher locks because of him. (8RT 1061-1067.) Defense counsel also questioned Sims about whetherhe had told the grand jury in 2002 that appellant called him a "punk mother fucker." Realizing that Sims had indeed sotestified in the grand jury proceedings (2CT 276 ["he called me a | punk m.f."]), defense counsel acknowledged his mistake and concluded his cross-examination shortly thereafter. (8RT 1067-1069.) Onredirect examination, the prosecutor asked Sims again about appellant and the Weingart. Simstestified he "didn't go looking for him." (8RT 1069-1070.) Simsalsotestified he had given Epperson a two-carat diamondheart with a chain, which Epperson woreall the time. (8RT 1070.) 227 Toddthentestified for the prosecution. At appellant's request, Todd introduced appellant to Epperson aboutfour or five months before her murder, and they socialized as a group. (QRT 1151-1155, 1168.) During this time, and specifically in late October 2000, appellant told Todd he loved Epperson andsaid, "If I can't have her, nobody will, I'll kill her and myself." (QRT 1155-1156.) Appellant also made several remarks about Sims and told Todd he would kill that "nigger" if he kept trying to see Epperson. (9RT 1161.) Defense counsel did not object to the testimonyat that time, but at a sidebar, defense counsel said he had not hadany discovery on Todd's testimony that appellant had used the word "nigger." (ORT 1164-1165.) The prosecutorrelated that she had not heard that before from Todd, but she believed that a taped interview had statements that appellant belonged to a White supremacist group and had had problems with the group because he was with Epperson, who had been with a Black man. Defense counselstated that he did not recall such a statement. The trial court stated that regardless of whether Todd's statement was in a written or recorded statement, that would not make the statement inadmissible. (ORT 1165.) Thetrial court further stated that the issue of "White supremacy and whether the defendant is adverse to people of color" had beenkept outinitially by the court, was now relevant because "the defense has gone into the fact that the witness [Sims], who was African[{]American, wasbasically staying away from the defendant and they went into it...." Defense counsel did not object to thetrial court's recitation of the proceedings. (QRT 1166.) On cross-examination, defense counsel asked Todd if appellant had an African-American female friend named Gretchen Black, whom hecalled his "sister" named "Nada," and Todd confirmed this. (QRT 1172.) Defense counsel also questioned Todd about appellant and Epperson's friendship or relationship. (ORT 1170-1180.) 228 The prosecutor recalled Todd and asked if appellant told him that he had had sexual relations with Epperson. Toddtestified appellant told him "he wasn't having any success getting sex from Tammy.” Defense counsel asked when appellant said this to Todd, and Toddtestified appellant told him that several times on several occasions when they went to Malibu. Appellant would talk about his and Epperson's problems and say she was not giving him sex. Appellant said if he could not have her, no one else could, and appellant asked Todd if she was having sex with others. (QRT 1214.) In the defense case, appellanttestified at length during his direct examination about his relationship with Epperson, which included sex, and the events leading up to the time whenhesaid he hit her once in the face but did not remember more. (11RT 1487-1540.) On cross-examination, the prosecutor asked about appellant's relationship with Sims. Appellant said he could not stand Sims because "of what he did to her." (1IRT 1543-1544.) Appellant denied being racist and testified that not liking Sims had nothing to do with Sims being African American. Whenthe prosecutor asked about appellant's tattoos, defense counsel asked to approach the bench. (11RT 1544.) At the bench,the prosecutor stated that she was going to ask appellant aboutthe tattoos on his arms and legs "and then mark them, not saying what they were, approachorat least give it to the bailiff and see if he can identify those as his tattoos." She stated appellant had a "White pride" tattoo on his arm and a rather large "White anger" on his leg. Defense counsel argued the tattoos. were a "collateral issue," that appellant was not a member of a White supremacist group, that the record already showedappellant had Black friends, and the tattoos were "inflammatory and prejudicial." (11RT 1545.) Thetrial court overruled the objection,stating, 229 To begin with, the defense brought this in in asking why [Sims] was not responsive to yourclient, and at that point I would have reversed [my] original ruling that this was too prejudicial to bringin. . It madeit look like Mr. Sims was avoiding yourclient unfairly, that he was unfriendly and aloof and in fact it appeared that the answer wasthat he recognized that your client did not like African Americans, but in any case, this part is directly responsive. . Yourclient can give an excuse, but it doesn't meanit's excludable. It would go to the weightofit. (1IRT 1545-1546.) The prosecutor then questioned appellant abouthis tattoos. Appellant testified that his arm tattoos said, "White pride," and the large tattoos on the back of his leg calves said, "White anger." (11 RT 1547.) Appellant testified he got the tattoos in prison two years ago. (11 RT 1547-1548.) Appellant denied that he hated Sims because he was Black and Epperson was White. (11RT 1548.) The prosecutor also questioned appellant about Vannoy and whether he was connected to the Aryan Brotherhood. Defense counsel movedto strike, the trial court sustained the objection, and defense counsel asked to approach the bench. At the bench, defense counsel objected that he had not been provided evidence that Vannoy wasin the Aryan Brotherhood,that he was "connected," and that appellant had any such connection. Defense counsel asked the jury be admonishedto disregard the question and answer. The prosecutorsaid, "Fine," and the trial court instructed the jury to disregard the question and answer. (11RT 1548-1549.) Onredirect examination of appellant, defense counsel questioned appellant about his "White pride" and "White anger" tattoos. Appellant testified that about 90 percent of the White menin prison had the "White pride" tattoo, which did not identify the wearer with any White supremacist 230 group. Appellant testified "White anger" was his nickname and that the first time he went to prison in 1988 he was angry. He denied being affiliated with any White supremacist group. Hetestified he had Black friends, including his closest friend, and denied that he was angry with Sims because he was Black. (11RT 1620-1621.) Appellant testified, "Color means nothing to me." (11RT 1621.) In the rebuttal case, the issue of Vannoy's and Vannoy's brother's affiliation with a White supremacist group wasraised. Thetrial court excluded asirrelevant references in Vannoy's videotaped statementthat his brother was a "shot caller" for the Aryan Brotherhood while in prison. However, the trial court did allow Vannoy's statements about his own past membership in the Aryan Brotherhood. (12RT 1723-1726.) Thetrial court further stated that regardless of how appellant wanted to describe his . Owntattoos, "they tend to suggest it's far more than affiliation with Mr. Vannoy...." (12RT 1725.) Vannoy's redacted videotaped interview wasthen played for the jury. Vannoy said he usedto be affiliated with the Aryan Brotherhood, a White supremacist group, but was a "dropout" who did notaffiliate anymore. (Peo. Exh. 88B, p. 9.) He said he had numeroustattoos, including a swastika. (Peo. Exh. 88B, pp. 11-15.) Vannoy also said he knew that appellant did not like Epperson's Black boyfriend. (Peo. Exh. 88B, pp. 64- 65.) In the prosecutor's opening and rebuttal argumentsat the guilt phase, she did not mention the tattoos or gang evidence. (13RT 1854-1884, 1947- 1960.) Neither did the defense in its closing argument. (13RT 1886-1946.) In the prosecutor's rebuttal argumentin the first penalty phase, she argued appellant was not afraid of prison. She argued appellant was "not the man in the life boat. He's the shark. Because howelse is he going to protect anybody in prison unless he's got his gang to back him and he 231 knowsthat he can protect somebody?" Defense counsel objected to the reference to the gang as not supported by the evidence, but the trial court overruled the objection. (22RT 3230.) Thetrial court received notification that the penalty jury had deadlocked at 10 to 2 and also that appellant had becomeagitated after hearing the arguments. (22RT 3234.) Thebailiff stated that appellant had becomeagitated over the prosecutor's statements that he belonged to any type of gang. (22RT 3238.) The trial court explained thatit had overruled the defense objection to the gang argumentdueto appellant's tattoos which seemed "self-evident that that shows gangaffiliation, and normally while in prison, you haveto be involved with someaffiliation with others that are going to help protect you." The court thought it was a "fair argument." (22RT 3239.) At a hearing before retrial on the penalty phase, the defense asked to preclude evidenceof appellant's gang affiliation because appellant was not a gang memberand the prosecution had not provided an adequate foundation for the gang evidence. (23RT 3268-3269, 3279-3280.) The prosecutor asked whetherthe trial court was planning on deleting the gang questions from the jury questionnaire, and the trial court stated, _..—[Mly position on it is the sameas it was duringthetrial. Whenan individualhas in large block prints a tattoo that says, "White power," regardless of their denials, it seems to me that's self-evident that there was,if not currently, a — not only a gang affiliation, which is less important, but an animosity toward people that are not White. The oddity here is that he had a good friend who was African American, but I think the reason I let it in was thatit did tend to explain his animosity toward an African[-]American male involvedin the trial and very closeto the victim in the case. 232 (23RT 3286.) The prosecutor stated that the gang questions on the questionnaire "really cuts both ways" because if someonefelt strongly about gangs, defense counsel would want to know. (23RT 3286.) The questions remained in the questionnaire. (See, e.g., 14CT 3301.) During the second penalty phase jury selection, defense counsel raised the issue of the admissibility of the gang evidence. (24RT 3363-3364.) Defense counselsaid he was concerned African-American jurors would be offended by the White powertattoo. He argued the gang evidence wasnot an integral part of the prosecution's case and was unnecessary. Thetrial court stated, Well,if it were true that [appellant] hated Mr. Sims, this would be a reason for it and excuse forit. There was a question asked during the previoustrial in which Mr. Sims was asked about his contacts with [appellant], and there was something along the lines of we never talked in over two years that we saw each other, which seems awfully strange. It tends to suggest that either Mr. Simshasa bias or [appellant] has a bias, andthe tattoos, especially not just small tattoos but large block print administered to [appellant] does tend to suggest that he has a problem with African Americans. (24RT 3364-3365.) Before the presentation of the penalty phase evidence, defense counsel's motion to exclude evidence of the gang tattoos was heard. (28RT 4157-4166.) Defense counsel argued it was speculation to say the killing had anything to do with race. (28RT 4163-4164.) The prosecutor explained that racial animus wasthe "additional spur that caused [appellant] to murder her and to torture her... . That was the People's theory at the time for him to go that far, to destroy her faceandto torture her." (28RT 4162.) Thetrial court denied the defense motion, finding that a racial animusagainst African Americans "goes to the motivation and explosive nature of [appellant's] conduct at the time of the crime." (28RT 4166.) The 233 trial court stated appellant had the "White power" and "White anger"tattoos put on himself, the tattoos were permanentindicating a "declaration on his part of someattitude," and defense counsel had emphasized a bias on Sims' part against appellant and Sims staying away from appellant could be explained by the tattoos. (28RT 4157-4158.) In addition, Welsh-Cook testified that she asked appellant if she were his sole African-American friend, suggesting she "felt she was alone in his realm of friends." (28RT 4161.) The trial court also stated that the evidentiary standards were more lenient in the penalty phase andthat evidence that might be inadmissible in the guilt phase could be admissible in the penalty phase. (28RT 4159.) Thetrial court also stated that the evidence was susceptible to the interpretation that the person whocalled Epperson before appellant murdered her was Sims and that appellant might have been aggravatedthat Epperson wasinterested in a Black man. Thetrial court acknowledged there was nospecific evidence ofthis, however. (28RT 4159-4160.) Aspart of the prosecution's penalty phase evidence, Vannoy was questioned about his tattoos, and he admitted he had a swastika tattoo and a lightning bolt tattoo, which was a symbolofthe Aryan Brotherhood. Vannoy deniedbeingaffiliated with the Aryan Brotherhood. (30RT 4486.) Before the prosecutor could complete a question asking whether appellant and Vannoy belonged to something, defense counsel objected and asked to approachthe bench. Defense counsel objected that there was no evidence that appellant was an Aryan Brotherhood memberandthatit had nothing to do with the case. The prosecutor argued appellant obtained the tattoos in prison, presumably whenin prison with Vannoy and that appellant had told others he was in a White supremacist gang. (30RT 4486-4487.) Thetrial court sustained the defense objection as to Vannoy. (30RT 4487.) The prosecutor then asked Vannoy if he saw anysignificance to his ownstatement during his police interview that Epperson's ex-boyfriend was 234 Black. Defense counsel objected and stated at a bench conferencethat a detective had raised the issue that the ex-boyfriend was Black, not Vannoy. The prosecutor realized her error and withdrew the question. (30RT 4488- 4489.) Just before Todd testified in the penalty phase, defense counsel raised an issue about racial animosity testimony by Todd. Defense counselstated that Todd had testified appellant said he "would kill that nigger if he kept trying to see Tammy." Defense counsel asked the racial epithet of "nigger" notbe elicited from Todd because it was more prejudicial than probative. Thetrial court overruled the objection, stating it showed a degree of anger and why he engaged in the violent attack on Epperson, "[t]hat he's not only angry that she was interested in somebodyelse, but that he was African[]American, and he didn’t use that word, he used the N word instead." (31RT 4598.) Defense counsel also objected on relevancy and undueprejudice grounds to the prosecutoreliciting testimony that appellant bragged he was in a White supremacist gang. The prosecutor stated that Todd would testify appellant told him he was in a White supremacist gang but Todd did not know which gang. The court overruled the objection, stating, "Well, it obviously is relevant to the extentif it relates to the time around the commission of the crime." Thetrial court further stated membership in a White supremacist gang could show he did not like Sims because he was an African-American suitor and appellant did not treat his other victims as he treated Epperson,thus explaining "the explosive anger that he shows by essentially the torture and ultimate death of Tammy." (31RT 4598-4600.) Toddtestified on direct examination that appellant told him that if Sims kept pursuing Epperson he would kill Sims. The prosecutor's question whether appellant used a racial epithet when hesaid this was objected to by defense counselas irrelevant, leading, and suggestive. The 235 trial court sustained the objection “at this time." (31RT 4621.) Over a defense relevancy objection, Todd also testified that appellant told him in 2000 when he wasat the Weingart that he was in a White gang but could not recall which one. (31RT 4624-4625.) Simsalsotestified at the penalty phase. Over a defense relevancy and speculation objection, Simstestified he avoided appellant at the Weingart because appellant had tattoos on his calves and arms. (32RT4728-4729.) Simsalso testified there had been incidents between appellant and himself that made him feel appellantdisliked him for certain reasons and that made Sims feel afraid. (32RT 4729.) Sims recounted the incident in which appellant called him a "punk m.f." as Sims wasentering the Weingart and looked like he was getting ready to rush Sims, engaging in "intimidation movements." (32RT 4732.) In the defense case, Cook-Welshtestified on appellant's behalf that appellant befriended her. She did not understand why he would want to be her friend and asked if she was his "token Nigger." Appellant became very angry at her and told hernot to let him hear her call herself that ever again. (33RT 5076-5077.) Cook-Welsh had seen appellant's tattoos, which did not bother her. (33RT 5077.) Appellant's youngersister, Montana,testified that their family was taught that Whites stay with Whites. Her father "flipped out” when Montana danced with an African-American boy in the first grade and "flipped out" when he found out her last name by marriage was "Gomez." (35RT 5359.) | Appellant's mother, Joyce,testified appellant's father was a racist, "major big time" and did not like anyone unless the person was "total White.” However, appellant was not that way, because he brought Black and Hispanic friends home. (35RT 5415.) 236 In her closing argumentat the second penalty phase, the prosecutor focused on the circumstancesof the crime and the aggravating evidence and did not mention the tattoos or gang evidence. (37RT 5657-5695.) In his closing argument, defense counsel argued there was no evidence of premeditation and extensively argued that the mitigation evidence weighedin favor oflife without parole. (37RT 5720-5764.) Defense counselalso talked about appellant's tattoos and denied appellant was aracist. (37RT 5759-5760.) Appellant made a motion for a new penalty phasetrial, alleging as one ground that the trial court erroneously permitted the prosecutor to offer evidenceofhis tattoos, refer to his alleged prison gangaffiliation, and refer to his alleged uses of racial epithets. He argued he did not belong to any prison gang,the tattoos and epithets were irrelevant, and Epperson's death had nothing to do with racial bias or animus. He claimed the references violated his constitutional right to a fair and reliable penalty phase. Q3CT 5658.) | At the hearing on the new trial motion, the prosecutor referred to the gang tattoos, pointed out appellant had not taken the stand in the second penalty phase, and stated the tattoos had not been admitted in the second penalty phase. (38RT 5934-5935, 5937.) However, the prosecutor noted that evidence of appellant's racial animus came in through Todd's testimony that appellant had called Sims by a racial epithet and that appellant belonged to a White supremacist gang. (38RT 5934-5935.) Thetrial court denied the motion and rejected the issues regarding the gang tattoos. The court stated, ... I think the White power designation, when somebodyallows themselves to be tattooed with the wordsin blockprint, as I recall, on each leg White power, nobody is going to convince me that that doesn't show racial bias on his part, and since the victim's boyfriend was African{]American and not White, that I 237 think went directly to the motivation for the viciousness ofthe attack, not just the attack but the viciousnessofit, so for those reasons advancedby the defense andthe allegation ofjury misconduct, the motion for new trial and in the penalty phaseis denied. (38RT 5942.) After the denial of the motion, defense counselclarified that appellant's tattoos said, "White anger, White pride." (38RT 5943.) B. The Trial Court Properly Admitted Evidence of Appellant's Tattoos and The Gang Evidence 1. Waiver of Federal Constitutional Claims Preliminarily, appellant's claim that the admission of the gang evidence wasfederal constitutional error should be deemed waived because he did not present it below. (AOB 171-172.) Instead, appellant only objected attrial to the evidence on non-constitutional bases. (See 8RT 1048-1049 [relevancy objection only]; 11RT 1545 [collateral, cumulative, and inflammatory objections]; 23RT 3268-3269, 3279-3280 [inadequate foundation objection]; 24RT 3363-3364 [collateral and unnecessary objection]; 28RT 4163-4164 [speculation objection]; 31RT 4598-4600 [relevancy and prejudice objection]; 31RT 4624-4625 [relevancy objection only]; 32RT 4728-4729 [relevancy and speculation objection]; People v. Kipp (2001) 26 Cal.4th 1100, 1122 [defendant's claim that admission of evidence violated his rights under the state and federal Constitutions waived wherehe did not raise such objections below]; People v. Davis (1995) 10 Cal.4th 463, 501, n. 1 [defendant's claimsthat exclusion of evidence violated the Due Process Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment waived where,attrial, he "failed to make any argument whatever based on federal constitutional provisions"].) Appellant did reference a denialof his constitutional right to a fair and reliable penalty phase in his motion for a new penalty phasetrial, which 238 alleged as one groundthatthe trial court erroneously permitted the prosecutor to offer evidenceofhis tattoos, refer to his alleged prison gang affiliation, and refer to his alleged uses ofracial epithets. (23CT 5658.) However, appellant did not raise any specific federal constitutional objections to the evidence in a timely manner and, thus, has not preserved them for appellate purposes. 2. Appellant's Tattoo Evidence and the Gang Evidence Were Relevant Relevant evidence is evidence "having any tendency in reason to proveor disprove any disputed fact that is of consequenceto the determination of the action." (Evid. Code, § 210; see also Evid. Code, §§ 350, 351.) “The concept of relevance is very broad [citation omitted], encompassing evidence depicting the crime scene and injuries inflicted [citation omitted], and that bearing on the defendant’s accountof events and state of mind.” (People v. Salcido (2008) 44 Cal.4th 93, 147; see People v. Champion (1995) 9 Cal.4th 879, 922 [evidence is relevantifit tends to logically, naturally, and by reasonable inference establish material facts such as identity, intent, or motive].) A trial court has broad discretion in determining the relevancy and admissibility of evidence, including such questions as probative value and undue prejudice. (Rodriguez, supra, 20 Cal.4th at p. 9.) Such a discretionary ruling on the relevancy of evidence will not be reversed unless an abuse of discretion can be shown. (Peoplev. Rowland(1992) 4 Cal.4th 238, 264.) _ Evidenceof tattoos and gang membership may be admissibleattrial whenrelevant to the issues, which may include identity, motive or intent. (People v. Ochoa (2001) 26 Cal.4th 398, 438 [tattoo evidence represented “admission of defendant's conduct and a manifestation of his consciousness of guilt"]; People v. Williams (1997) 16 Cal.4th 153, 193 [gang evidence relevant to motive or identity]; Champion, supra, 9 Cal.4th at p. 922 [gang 239 evidence relevant to identity]; see People v. Lindberg (2008) 45 Cal.4th 1, 45-47 [expert testimony on White supremacist groups relevant to establish defendant's state of mind and special circumstance].) While Evidence Code section 352 allowsa trial court to exclude evidenceif its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption oftime or create substantial danger of undue prejudice, confuse the issues, or mislead the jury, “prejudicial” in this context is not synonymouswith “damaging.” (People v. Coddington (2000) 23 Cal.4th 529, 588.) Instead, “undue prejudice” involves the admission of “evidence which uniquely tendsto evoke an emotional bias against the defendantas an individual and which has very little effect on the issues.” (People v. Gionis (1995) 9 Cal.4th 1196, 1214, quoting People v. Karis (1988) 46 Cal.3d 612, 638; emphasis in original.) Ultimately, the court’s exercise of discretion should not be disturbed on appeal unlessthe prejudicial effect of the evidence clearly outweighs its probative value. (People v. Heard (2003) 31 Cal.4th 946, 976; People v. Price (1991) 1 Cal.4th 324, 441.) Here, the evidence of appellant's tattoos and the gang evidence were relevant and properly admitted, in the trial court's discretion. The evidence was relevant to show appellant's intent and motive in committing the crimes against Epperson, as the trial court stated. (See, e.g., 23RT 3286 [tattoos show "an animosity toward people that are not White"].) The prosecution had to show the requisite intents for mayhem, torture, rape, and murder,as set forth in ArgumentsI,II, II, and IV, ante. As the guilt phasetrial evidence showed, Epperson, a White woman,had been in a romantic relationship with Sims, an African-American man, and the two remained friends, with the possibility or likelihood that they would resumetheir romantic relationship. (8RT 1016, 1023, 1042-1043.) Appellant, who wanted to have a relationship with Epperson, did not like Sims, told Todd 240 he would kill that "nigger" if he kept trying to see Epperson, andin late October 2000, said no one would have Epperson if he could not. (ORT 1155-1156, 1161.) Appellant had engagedin "intimidation tactics” with Simsat the Weingart, calling him a "punk mother fucker" and making a show oftrying to charge him. (8RT 1049.) On the day he murdered Epperson, appellant watched Epperson and Simstalk outside the church and paced up and downthestreet and had also taken Epperson to buy a new Bible, presumably a replacement Bible for Sims, whohadjust lost his. (8RT 1046-1047; 13RT 1821-1822.) The evidence further showed appellant had savagely beaten and murdered Epperson and caused mayhem, tortured her, and forcibly raped her. (See ArgumentsI, IT, If, and IV, ante.) It could readily be inferred that appellant was incensedat his lack of success in having a relationship with Epperson,at the fact she had had a relationship with Sims, an African-American man,andat the fact that Epperson wasstill friendly with that same African-American man. Appellant's tattoos and the White supremacist gang evidence were relevant to show the savage nature of the crimes was motivated at least in part by racial animus andalso to prove, for example, appellant's intent to torture the victim for rejecting him in favor of an African-American man. (See Williams, supra, 16 Cal.4th at p. 193 [gang evidence relevant to motive or identity]; see also Lindberg, supra, 45 Cal.4th at p. 45 [expert evidence on White supremacist groups relevant to establish defendant's state of mind] ) Likewise, in the second penalty phase, the evidence wasrelevant to show appellant's intent and motive. Notably, as the prosecutor stated at the new trial motion, the more extensive evidence of appellant's tattoos and gang evidence did not comein during the second penalty phase. (38RT 5934-5935, 5937.) Evidence from Todd that appellant told him in 2000 that he was in a White gang and from Simsthat he avoided appellant because of his tattoos was properly admitted. G1RT 4624-4625; 32RT 241 4728-4729.) As the trial court stated, the evidence was relevant since a racial animus against African[]Americans "goes to the motivation and explosive nature of [appellant's] conduct at the time of the crime." (28RT 4166.) | Moreover, even considering appellant's testimony that he hitEpperson after she received a call from another person and even assumingthatcaller was not Sims (see AOB 120), the tattoo and gang evidence wasstill relevant to appellant's intent and motive. It could still be inferred that appellant bore ill feelings about Epperson having had a romantic relationship with an African-American manand the potential that the relationship might resume, given Todd's guilt phase testimony about the racial epithet appellant used to describe Sims, appellant's attempt to intimidate Sims at the Weingart, and appellant's monitoring of Epperson and Sims onthe day of her murder. A racial animus could have been festering andstill been the impetus and demonstrated appellant's intent for the crimes. Even assuming the evidence of appellant's tattoos and the gang evidence should not have been admitted, any such error was harmless. A judgment should not be reversed for erroneous admission of evidence unless the error resulted in a miscarriage ofjustice. (People v. Earp (1999) 20 Cal.4th 826, 878.) A “miscarriage ofjustice” should be declared only when the reviewing court, after an examination of the entire record,is of the opinionthatit is reasonably probable that a result more favorable to the defendant would have been reachedin the absenceofthe alleged error. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); Earp, supra, at p. 878; People v. Watson (1956) 46 Cal.2d 818, 836.) Excluding the evidence of the tattoos and gang evidence,the prosecution's case wasstill extremely strong and a different result would not have obtained. Appellant's racially-based intent and motivestill could 242 have been proven by other evidencein the record, including, as set forth above, Todd's testimony that appellant used a racial epithet to describe Sims, appellant's attempt to intimidate Sims at the Weingart, and appellant's monitoring of Epperson and Sims on the day of her murder. Moreover, motive need not even be proven by the prosecution and is not an element of the crime. (12CT 251; 14RT 1990-1991; CALJIC No.2.51.) Furthermore, in the context of the case, evidence of appellant's tattoos and the gang evidence was buta discrete piece of the overwhelming evidence in this case showing appellant's guilt for the charged crimes. (See ArgumentsI,II, If, and IV, ante.) Indeed, the prosecutor did not mention the tattoos or gang evidencein her opening or rebuttal argumentat the guilt phase (13RT 1854-1884, 1947-1960) or in her argumentat the second penalty phase (37RT 5657-5695). Defense counsel did not mention the tattoos or gang evidencein his closing argumentat the guilt phase (13RT 1886-1946), and only briefly mentioned appellant's tattoos in his second penalty phase argument (37RT 5759-5760). In addition, as to the penalty phase verdict, the tattoo and gang evidence washardly inflammatory or prejudicial compared to appellant's savage and cruel killing of the victim and his history of violence toward women. Appellant cannot possibly show he would have obtained more favorable verdicts but for the alleged error. 3. Appellant's Has Forfeited His Prosecutorial Misconduct Claims by Failing to Object on Those Grounds, and In any Event, No Prosecutorial Misconduct Occurred Appellant's claim that the prosecutor committed misconduct by eliciting testimony abouthis alleged racism and gang membership has been forfeited. (AOB 147-153.) A defendant cannot complain on appeal that the prosecutor's misconductat trial unless he timely objects on grounds of prosecutorial misconduct and requests the jury be admonishedto disregard the impropriety. (Gionis, supra, 9 Cal.4th at p. 1215; People v. Erickson 243 (1997) 57 Cal.App.4th 1391, 1403.) An exception lies where a timely objection and/or request for admonition would be futile, or if an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Given the failure to timely object on the ground of prosecutorial misconduct and request an admonition, the claims have been forfeited. (See 8RT 1048-1049 [relevancy objection only]; LIRT 1545 [collateral, cumulative, and inflammatory objections]; 23RT 3268-3269, 3279-3280 [inadequate foundation objection]; 24RT 3363-3364 [collateral and unnecessary objection]; 28RT 4163-4164 [speculation objection]; 31RT 4598-4600 [relevancy and prejudice objection]; 31RT 4624-4625 [relevancy objection only]; 32RT 4728-4729 [relevancy and | speculation objection].) Even assuming the claim has not been forfeited, the claim is without merit. Under the federal Constitution, a prosecutor commits misconduct only whenhis or her behavior "comprises a pattern of conductso egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." (Hill, supra, 17 Cal.4th at p. 819.) Understate law, a prosecutor commits misconduct by using deceptive or reprehensible methodsto persuadeeither the court or jury, even if such actions did not render the trial fundamentally unfair. (/bid.) Indeed, a prosecutor has a duty to prosecute vigorously, is afforded wide latitude in arguing the case, and may makefair commenton the evidence, including reasonable inferences and deductions to be drawn therefrom. (People v. Valencia (2008) 43 Cal.4th 268, 284; People v. Dickey (2005) 35 Cal.4th 884, 915.) In the instant case, the prosecutor did not commit misconduct. Appellant makes much of the supposed manner in which the prosecutor questioned Sims about how hefelt being watched by appellantas he talked to Epperson outside the church on the day appellant murderedher. Appellantassigns blame to the prosecutor's repeated questionsin this area, 244 | - which he claims caused Simsto state he felt intimidated because appellant was a White supremacist. (AOB 148-150.) The record belies any claim that the prosecutor committed misconduct in the questioning of Sims. The record shows the prosecutor was merely questioning Sims about his contacts with appellant before Epperson's murder and wasnoteliciting any statement about appellant's White supremacist beliefs. Simstestified appellant had previously called him a "punk m.f." and looked like he was going to charge towards him at the Weingart. The prosecutor then asked how Sims felt when appellant was watching him outside the church. (8RT 1049-1050.) Over a defense relevancy objection, Simstestified hefelt intimidated and added, without prompting from the prosecutor, that he "knew that [appellant] was like White supremacist." (8RT 1049-1050.) Appellant acknowledgesin his brief that the "White supremacist" statement was"volunteered" and "blurted out" by Sims, but still curiously claims prosecutorial misconduct for supposedly eliciting this statement. (AOB 148, 150.) It is apparent from the record that the prosecutor did not attempt to elicit this statement, which wasstricken by the court. The jury was also admonishedto disregard it. (8RT 1050.) Indeed, the prosecutor did not pursuethis line of questioning, but went on to ask about Sims' later activities, how hetried to contact Epperson, and how Simshad the police summonedto the Ballington to discover Epperson's body. (8RT 1050- 1061.) Moreover, there is no indication the prosecutor was aware that Sims might make the "White supremacist" statement; Sims did not make such a. statement when hetestified about the incident at the grand jury. (See, e.g., 2CT 276 ["he called me a punk m.f."].) No misconduct occurred. (People v. Kennedy (2005) 36 Cal.4th 595, 618-619 [no prosecutorial misconduct for introducing a photograph of defendant's gang and swastika tattoos and eliciting testimony about defendant's gangaffiliation].) 245 Moreover, appellant's claim that the trial court compounded the prosecutorial misconduct by claiming the defense invited the evidenceis without merit. (AOB 153-156.) Asthetrial court stated, the defense, on cross-examination, challenged Sims' direct examination testimony that he stayed away from appellant. Indeed, at the very outset of cross- examination, defense counselintimated in his questioning that it was odd that Sims had "nevertalked to [appellant] once" even though they both lived at the Weingart at the same time for two years. (8RT 1061-1062; see 24RT 3364-3365[trial court states it seemed "awfully strange" that appellant and Simshad not talked in two years at the Weingart].) In this manner, defense counsel raised the issue ofwhy Sims avoided appellant, an issue different from the prosecutor's direct examination questioning of how Sims felt when appellant taunted him. Thetrial court stated it had initially disallowed the White supremacist evidence but found it was made relevant because "the defense has gone into the fact that the witness [Sims], who was African[]American, was basically staying away from the defendant and they went into it...." (9RT 1166; see Evid. Code, § 356; People v. Vines (2011) 51 Cal.4th 830, 861 [in applying Evidence Codesection 356, narrow lines are not drawn around the exact subject of the inquiry]; People v. Samuels (2005) 36 Cal.4th 96, 130 [purpose of rule of completenessis to "avoid creating a misleading impression"].) Also, notably, defense counsel did not object to the trial court's summary of the proceedings. (QRT 1166; see 8RT 1061-1067.) During-the defense case,the trial court again reiterated that the defense had raised the issue of why Sims was not responsive to appellant and had "madeit look like Mr. Sims was avoiding your client unfairly, that he was unfriendly and aloof" whenin factit appeared Sims recognized appellant "did not like African Americans." (11RT 1545-1546.) Thetrial court properly allowed the evidence. 246 Further, even assuming prosecutorial misconduct occurred, reversalis not warranted. Prosecutorial misconduct is cause for reversal only whenit is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney not committed the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133; People v. Clark (1993) 5 Cal.4th 950, 1009; Watson, supra, 46 Cal.2d at p. 836.) As set forth above, without evidence of the tattoos and gang evidence, the prosecution wasstill able to present evidenceof racial animus from Todd's testimony about appellant's use of a racial epithet to describe Sims, appellant's attempt to intimidate Sims at the Weingart, and appellant's monitoring of Epperson and Sims on the day of her murder. Also, the prosecutor did not mention the tattoos or gang evidence in her opening or rebuttal argumentat the guilt phase (13RT 1854-1884, 1947-1960) or in her argument at the second penalty phase (37RT 5657-5695). Moreover, as demonstrated above, the prosecution's case wasstill extremely strong and a different result would nothave obtained. The claim mustfail. V-B. THE JURY VERDICT FINDING APPELLANT SANE SHOULD BE UPHELD Appellant contends the verdict finding him sane must be reversed because the evidence of insanity was of such weight and quality that a jury could not reasonably reject it. He claims norationaltrier of fact could have concluded hefailed to prove insanity by a preponderanceof the evidence. (AOB 173-216.) He claimshis sanity phase evidence showeda lifetime of brain damage or dysfunction and multiple diagnoses of major mental illness, as shown by abnormal EEGs, abnormalbrain functiontest results, and high dosages of psychiatric medications. (AOB 173, 175-190, 198- 200.) Appellant further claims the prosecution did not dispute the defense evidence, but merely urged the evidence wasnotillustrative of brain dysfunction or mental illness, and that the prosecution's evidence only 247 showed appellant malingered and suffered from an anti-social personality disorder. (AOB 173-175, 190-196, 200-212.) The jury verdict finding appellant sane should be upheld. | A. Background In the sanity phase, appellant presented evidence from four doctors, Drs. Kyle Boone, Roger Bertoldi, Saul Niedorf, and William Vicary, while the prosecution presented evidence from two doctors, Drs. David Griesemer and Kris Mohandie. Forease of reference, the doctors’ most salient testimony is summarized here, but a fuller recitation of their testimony may be found in the Statement of Facts. 1. Defense Evidence a. Dr. Kyle Boone Dr. Kyle Boone, a clinical neuropsychologist, testified appellant's executive or problem-solving skills, reasoning, and logic were very impaired andthat tests suggested appellant had some kind of brain damage or dysfunction. (1SRT 2137, 2144, 2148, 2159-2160.) Dr. Boone interviewed appellantin jail and gave him objective standardizedtests over a period of aboutthree to four hours. (15RT 2137, 2139-2140, 2159, 2163.) The tests were not related to a review ofthe crime reports. (ISRT 2140.) Appellant's overall 1Q was 90, which was within the average range. (15RT 2141.) With respect to appellant's basic attention, thinking or mental speed, language, visual and spacial skills, verbal memory, nonverbal memory, reading level, math level, and executive or problem-solvingskills, appellant did well on most every domain, except in the areaof executive or problem-solvingskills, reasoning, and logic, which were "very low, very impaired." (15RT 2143-2144, 2148.) 248 Executive or problem-solving skills relate to the ability to face a problem situation, think of different strategies, and figure out the best one. Theskills also relate to thinking through consequences of behavior, being able to stop a behaviorthat is not correct or appropriate, being able to generate alternative solutions, and the ability to use logic. (SRT 2148.) Dr. Boone administered six tests in the area of executive or problem- solving skills, and appellant was very low onfive ofsix tests. (ISRT 2161- 2162.) A consistent pattern of low scores on the six tests "suggests" brain -damage or dysfunction in the frontal lobes and that appellant would have trouble making appropriate decisions. (ISRT 2158-2160, 2161-2162.) Also, the "highest violence scored in aggression scores are in the patients who have damageto the frontal lobes." (1SRT 2159-2160.) The frontal lobes seem to inhibit violent behavior, so if the frontal lobes are not working, violent behavior is enabled. (ISRT 2160-2161.) However, Dr. Boone's tests did not measure brain function directly but measured thinking skills. (ASRT 2172.) b. Dr. Roger Bertoldi Dr. Roger Bertoldi, a neurologist and clinical neuropsychologist, opined that appellant had brain dysfunction, which was consistent with episodic loss of control and temporal lobe epilepsy. (16RT 2219, 2233, 2265-2266, 2281.) He reviewed appellant’s neurological records, had an EEGperformed on appellantin jail, evaluated a QEEGof appellant’s EEG results, and interviewed and examined appellant in jail. (L6RT 2233, 2245- 2247, 2253, 2261-2262.) | Dr. Bertoldi reviewed appellant’s neurological records. (16RT 2233.) Appellant's records from 1970 showed he had twofocal seizures when he was two years old and that he had abnormal EEGactivity in the left portion of his brain. (16RT 2234-2235, 2237, 2242.) Appellant's records showed he had a "true seizure disorder," and he was put on phenobarbital. (16RT 249 2239.) In 1976, when appellant was eight years old, he had another EEG, which suggested he had an underlying seizure disorder as a young boy and correlated with "true epilepsy" with a high degree of probability. Appellant had abnormalfrontal bilateral brain activity. (L6RT 2240, 2243, 2252.) Dr. Bertoldi acknowledged the only seizures appellant complained of in any record were the ones when he was two andeight years old, but those were about 30 years ago. (16RT 2274-2275.) Since that time, there had been no documentation of complaints or seizures: (16RT 2275.) A 2004 EEG,taken while appellant wasin jail, showed a couple abnormalities, including that the brain's frontal portion showed too much slow activity. The slowing was in the same area as when he wasa child. (16RT 2247-2250.) The EEG showed paroxysmalactivity which was consistent with interictal activity, meaning that the activity occurred between seizures. (L6RT 2251-2252, 2278.) Dr. Bertoldi acknowledged such slowing can be caused by drowsiness and that some medications also cause slowing of the brainwaves. (16RT 2267-2268.) Although an imaging procedure could be recommended to rule out a tumor, stroke, or infection, Dr. Bertoldi did not order a CAT scan or MRI. (16RT 2266- 2267.) Dr. Bertoldi opined that the QEEG showedappellant had frontal temporal brain dysfunction on the front and both sides of his brain. (16RT 2260-2261.) He also opined that the EEG and QEEG suggested appellant had epilepsy in the brain. (16RT 2262.) Dr. Bertoldi learned that at various times appellant took Depakote, an anti-epileptic drug. Appellant said that before each violent episode, he stopped taking Depakote. If appellant stopped taking Depakote, the _ epileptic focus would no longer be suppressed and wasfree to spread limbically, deeper into the brain. (16RT 2262.) 250 On April 16, 2004, Dr. Bertoldi interviewed and examined appellant in jail. Dr. Bertoldi reviewed all charts he received on appellant. (ORT 2245-2246.) Appellant told Dr. Bertoldi that about twice a year he woke up in the morning and noticed his cheek had been bitten, and when he wentto sleep and during sleep, he jerked or suddenly flung his leg or arm. (L6RT 2246.) A person could have a night seizure and bite his tongue or cheek. (16RT 2246-2247.) Dr. Bertoldi opined that appellant had brain dysfunction, based on his consideration of appellant's abnormal EEGswith spike and wave discharges as a young boy,his history of Jacksonian seizures, his physical examination and records, and the 2004 abnormal EEG and QEEG which showedfrontal temporal slowing, paroxysmal temporal slowing, and interictal activity probably from a seizure disorder. (16RT 2265, 2281.) The brain dysfunction was frontal temporal on both sides, showing the brain was not functioning properly. The dysfunction was consistent with episodic loss of control and temporal lobe epilepsy. The paroxysmal activity in the theta frequency range was more specific for temporal lobe epilepsy, whereas the computer data was more consistent with diffuse brain dysfunction anteriorly. (L6RT 2229-2230, 2265.) It was common for appellant's type of problem to spread into the limbic system,andif the brain abnormality spread into the limbic system, extremely violent, primitive rage could occur. (16RT 2266.) Dr. Bertoldi opined that a paroxysmal episode contributed to appellant's acts of violence against women. Dr. Bertoldi also opinedthat, whenappellant attacked his mother, hit his sister on the head with a lead pipe, and attacked Colletta, itwas medically probable a paroxysmal discharge was contributory to some degree. (JORT 2281-2283.) However, Dr. Bertoldi did not believe a paroxysmal discharge caused the Betsy M. situation, but aspects of the situation might have been. (L6RT 2285-2286.) 251 c. Dr. Saul Niedorf Dr. Saul Niedorf, a child, adult, and forensic psychiatrist, opined that appellant suffered from andstill suffered from IED, a condition usually linked to brain, familial, and social dysfunction and characterized by actions which can come on suddenly without warning andare notinhibited. A typical normal person has controls to stop actions. (16RT 2323-2325; 17RT 2327-2328.) On the sanity issue, Dr. Niedorf opined that appellant did not know the nature and quality of his act and could not distinguish right from wrongat the timeofthe crimes. (17RT 2350-2351, 2356, 2398.) Dr. Niedorf interviewed appellant in jail on three occasions and reviewed numerous records. (16RT 2323-2325.) Dr. Niedorf's DSM Axis I diagnosis was IED,the sudden onset of an ageressive violence in which inhibitions or a cutoff were lacking. (17RT 2331, 2328-2329, 2374.) However, the DSM had nothingto say about the etiology of disorders. (17RT 2331, 2374.) Dr. Niedorf's IED diagnosis was based on appellant's childhood medical and family history, medical reports, suicide attempts as a child and adolescent, history of medication, and his choiceofrelationships, style of relating, chosen work, and behavioral qualities. (17RT 2333-2345, 2346-2350, 2392.) The IED includes rash, sudden, impulsive actions, usually withlittle provocation. (17RT 2371.) Dr. Niedorf opined that, when appellant murdered Epperson, appellant was acting under an uncontrollable and irresistible episode of IED. (17RT 2372.) Dr. Niedorf acknowledged there were preceding events, so it was not sudden; there was a buildup of tension and suspicion. Dr. Niedorf did not believe appellant's intention wasto kill initially, but to hurt and punish. (17RT 2372.) Even though a person may have IED, a person may,at times when IEDis not occurring, know exactly what he is doing. (17RT 2400.) The assaultsin this case had to do with appellant's programming by a brutal father, genetics from that same father, 252 the brain injury, and brain problems he had as an infant, toddler, child, and adolescent. The brain syndromes were treated and improved his behavior, but he continued to have that same injured brain. (17RT 2374-2375.) Dr. Niedorf acknowledged appellant may also have had anti-social personality disorder, an Axis II secondary diagnosis. (17RT 2331-2332, 2383.) With respect to the sanity issue, assumingthe truth of the crime reports, that appellant went into a rage upon learning Epperson rejected him, that he committed horrible violence on her, and that he engaged in unpermitted sex, Dr. Niedorf opined that appellant did not know the nature and quality of his act and could not distinguish right from wrongat the time he committed the crimes. Dr. Niedorf opined that appellant was in an altered state of consciousness. (17RT 2350-2351, 2356, 2398.) Appellant could notdistinguish right from wrongat the time of the crimes, because the area of the frontal lobes and the temporal lobes that initiate good behaviors or stop bad behaviors was not working. The lobes were damaged and disconnected, and appellant did not have the medicine to help them work. (17RT 2356-2357.) In Dr. Niedorf's opinion, appellant was insane during the commission of the crime because he had a mental illness or defect that led to these behaviors and did not have an intentional or voluntary consciousness. (17RT 2358.) At the time of the crime, appellant was not able to answer questionsand able to deliberate, formulate, and claim his statements; he wasall action. (17RT 2360.) d. Dr. William Vicary Dr. William Vicary, another psychiatrist, evaluated appellant for competency to standtrial in 1993 for the crimes against Colletta and for the instant case in 2004. (18RT 2469-2470, 2472-2473, 2533-2534, 2571.) Dr. Vicary opined that appellant suffered from bipolar disorder. (18RT 2475, 2481-2482.) With respectto the sanity issue, Dr. Vicary opined that 253 appellant knew and understood the nature and quality of his actions during the time he was with Epperson in her apartment, but appellant was notable to distinguish right from wrongat the time of the commission of the crime. (18RT2488-2490.) In 1993, Dr. Vicary found appellant incompetentto standtrial for the Colletta crimes, but Drs. Markman and Sharma found him to be competent, that he was malingering,that his acts were entirely volitional, and that he was able to cooperate with his lawyer but chosenotto. (18RT 2472-2473, 2532-2534, 2571.) Appellant was sent to Patton State Hospital and found to be not competentto stand trial. (18RT 2473.) After his admission to Patton, Dr. Michael P. Maloney wrote a report in March 1994 regarding appellant's competency and said appellant was a questionable historian because there were discrepancies in whatherelated, which Dr. Vicary found as well. (L8RT 2542-2543.) Dr. Maloney said appellant's thinking process waslogical and intact, he had no impairmentin reality testing, he was notsignificantly depressed, nothing showed he could not cooperate with his attorney, and appellant's behavior was purely volitional rather than a manifestation of a mentalillness. (18RT 2543.) The Patton treatment team subsequently, on June 20, 1994, stated that it appeared appellant wasnot suffering from any major mental disorder, that he be returned to court, and that any attempts to disrupt court proceedings were volitional. (18RT 2547.) In July 1994, Dr. Vicary examined appellant and found him competentto stand trial. Appellant was sent back to court. (I8RT 2473.) On April 29, 1997, at Atascadero State Hospital, appellant's admission diagnosis was schizo-affective disorder, bipolar type, characterized by hallucinations and hearing voices. (18RT 2553.) Ina June 6, 1998 report, Dr. Osran concludedappellant did not have a severe mental disorder and appeared to know that hearing voices was the productof his own cognition, 254 rather than true hallucination in which an individual has no insight into reality. (18RT 2554-2556.) When appellant wasin prison, virtually all his time was spent in psychiatric units. Doctors evaluated him, and the majority found he had a major psychiatric disorder and treated him with "heroic" doses of very powerful toxic medications. (18RT 2573-2574.) Beginning June 2003, Dr. Vicary saw appellant on five orsix separate occasionsin jail for a total period of about 10 hours and interviewed him. (18RT2472.) Dr. Vicary opined that appellant suffered from a major ~ mental disorder, the "most likely diagnosis" being the same diagnosis he made in 1993, bipolar disorder. (18RT 2475, 2481-2482.) Dr. Vicary's opinion was based onprison,state hospital, and jail records, which _ described appellant with terms including depression, bipolar, manic- depression, and psychosis. (18RT 2484.) Dr. Vicary did not agree with Dr. Niedorf's diagnosis that appellant suffered from IED; Dr. Vicary opined that appellant could have both IED and bipolar disorder. The scientific literature indicated that 40 to 50 percent of people with IEDalso have bipolar disorder. (18RT 2477.) Different mental health professionals sometimes have different diagnoses. (18RT 2475.) Dr. Vicarytestified the vast majority of treating and evaluating doctors had concluded appellant suffered from a genuine major mental disorder, which was treated with massive doses of dangerousanti- psychotic, mood-stabilizing, antidepressant medications. (18RT 2530.) If Dr. Vicary gave a person the medication that appellant wastaking currently in jail, this person would be in a comafor three days. (18RT 2479.) The minority opinion was that appellant was basically just an anti-social person who becameangry at times. (18RT 2484, 2529.) Dr. Vicarytestified that one could have a major mental disorder and a lesser disorder, which includes personality disorders. (18RT 2478.) 255 With respect to sanity, based on his interview of appellant and record review, Dr. Vicary opined that appellant knew the nature and quality of his act at the time he was acting with respect to Eppersonin her apartment. (18RT 2488.) Dr. Vicary had interviewed appellant abouthis life and this case, had looked at the crime reports, had read appellant's testimony in this case, and knew the jury had found appellant guilty offirst degree murder with special circumstancesofrape, torture, and mayhem.(1 8RT 2487- 2488.) Dr. Vicary's opinion was based on appellant's own statementsto the police and witnesses that he realized he washitting Epperson andto at least one witnessthat he hadstruck her with various items. (18RT 2489.) In Dr. Vicary's opinion, appellant understood the nature and quality ofhis act because herealized he wasstriking Epperson with his fists and objects andthat this could cause, given his large size and her smallsize, grave bodily injury or death. It was "inconceivable that he did not have at some level some understanding thatthis attack could be fatal." (18RT 2489.) The fact appellant testified and also made a statementto the police that he remembered hitting Epperson but did not remember anything else showed, in Dr. Vicary's opinion, that appellant had an explosive outburst, was not thinking clearly, and remembered some things but not others. There was enough of what appellant remembered and admitted to remembering for Dr. Vicary to conclude that appellant had "at least some basic understanding of what he was doing and the consequencesofhis acts." (1 8RT 2490.) Dr. Vicary testified that reasonable doctors could arrive at different conclusions about whether appellant knew the nature and quality of his act and knew that Dr. Niedorfhad testified that appellant did not know or understand the nature and quality of his act. (I8RT 2489-2490, 2524.) Dr. Vicary testified it was a close case on the issue of legal insanity. (18RT 2524.) 256 Dr. Vicary further opined that appellant was not able to distinguish right from wrongat the time of the commission of the crime. (18RT 2490.) When appellant attacked the victim, he had an explosive outburst and was in an agitated, explosive, psychotic episode. (18RT 2491-2492.) Even assuming the jury found a rape occurred, that finding did not necessarily show appellant knew the difference between right and wrong. Thefinding only proved he knew enoughto beat her to death and rape her but if he was in a psychotic, agitated frenzy it did not answer the question whether he knew what he was doing was wrongful. (18RT 2513.) Whenread a portion of appellant's testimony that from "all signs”it looked like he killed Epperson, Dr. Vicary opined that testimony was consistent with someonetrying to get out of something, becauseafter the explosive episode, appellant calmed down somewhatandrealized what he had done. Dr. Vicary thought appellant was shocked and did not intend to commit the crimes. (18RT 2495, 2521.) When appellant testified, he had a grasp of right and wrong,butat the timeof the killing in the middle of a bipolar episode, appellant would not have that grasp. (I8RT 2497.) Appellant was only in a psychotic state, an altered mental state, while killing the victim. (18RT 2515.) In his September 4, 2003 report, Dr. Vicary stated appellant would qualify as having been legally insaneat the time of the offense. (18RT 2564.) Hestated appellant's appreciation of the wrongfulnessofhis acts at the time of the offense was compromised by his paranoia and psychotic agitation. (18RT 2566.) Also, the report stated appellant did appear to have had some awarenessof the nature and consequencesof his acts. At trial, Dr. Vicary testified appellant knew the nature and consequencesofhis act and that he lied about not knowing. Dr. Vicary said he changedhis opinion from the report because he had become "more conservative" and had more data since preparing theinitial report. (18RT 2523-2524.) Dr. 257 Vicary did not go to the crime scene, was not given the grand jury testimony of the bloodspatter expert or coroner, and did not review the interview tape of appellant or Vannoy. There was not an unlimited amount of money for Dr. Vicary to evaluate all the information when renderinghis decision on whether appellant knew right from wrong. (18RT 2544-2545.) Dr. Vicary acknowledged that whether appellant knew right from wrongat the time of his explosion was "properly in the handsof the jury becauseit's not a scientific medical decision, it's a moral social policy question." (18RT 2496-2497, 2519.) 2. Prosecution Evidence a. Dr. David Griesemer Dr. David Griesemer, a neurologist and neurophysiologist, did not find anything indicating appellant had a tendency to have epilepsy as an adult or had significant frontal lobe slowing. (L6ORT 2296-2298, 2307.) Dr. Griesemerinterviewed appellantin jail, reviewed his medical neurological history, went over some cognitive skills with appellant, and conducted a simple neurological examination ofhis head, neck, arms,andlegs. (16RT 2297-2298.) Appellant told Dr. Griesemerhe did notrecall having hadseizures as a child, although he remembered taking medication when he was young, up until about age eight. He also said from time to time doctors might put him back on Dilantin for a short while when they heardofhis epileptic history but that he did not continue on anti-convulsant medication. He also indicated he had norecollection of having had seizures of any type since age eight. (16RT 2298.) Appellant demonstrated the scars where he had twice attempted suicide. (16RT 2310.) Dr. Griesemer reviewed appellant's prison and jail medical records. (16RT 2298-2299.) In all those records, there was no documentation of any 258 epileptic seizure since childhood. (16RT 2299.) Appellant had been given anti-psychotic medication, which tends to lower the seizure threshold and make seizures morelikely to happen. (16RT 2310-2311.) Dr. Griesemer reviewed appellant's EEG reports from 1970 and 1976. (16RT 2299.) Dr. Griesemer opined that one could conclude appellant had at least two seizure events in childhood that were focal in origin arising from the rightside of the brain, which required medication management at the time. (16RT 2300.) Appellant's EEG reports from childhood showed abnormalepileptic discharges from the brain's left and right side. In the 1976 EEGstudy, there almost seemedto be a disconnect between how dramatically abnormal the EEG was and how well appellant was doing clinically. The phenobarbital was discontinued, and appellant remained seizure free after that. This pattern is not inconsistent with some benign epilepsies. (16RT 2300-2301, 2307-2308.) Abouthalf of childhood seizures will go away, because the brain beginsto stabilize in termsofits chemical function and someofthe inherited vulnerabilities during childhood are absent in adulthood. (16RT 2302.) Dr. Griesemer looked at appellant's most recent EEG and saw some theta activity, which Dr. Bertoldi had also seen. However, they drew different conclusions about the theta activity. Dr. Bertoldi assumedthat was a marker for some deep epileptic focus, and Dr. Griesemer did not make that assumption. Dr. Griesemerstated that the theta activity was abnormal and subtle, which showed simply episodic or intermittent slowing, but was not anepileptic discharge. (L6RT 2302-2303, 2312.) Dr. Bertoldi did not testify epileptic discharges were present on the most recent EEG. (16RT 2314.) Dr. Griesemerdid not find anything that indicated a tendency to have epilepsy, found nothingthat indicated a significant frontal lobe slowing, and found nothing to encourage him to look further diagnostically at appellant. (16RT 2307.) 259 QEEGsare not used in the diagnostic EEG laboratory. (16RT 2303.) Dr. Griesemertestified it was not considered acceptable to use the QEEG findingsas the basis for a diagnosis, and the American Academy of Neurology had discouraged the use of QEEGsfor diagnostic purposes. (16RT 2304, 2315.) The QEEGis oflimited utility in behavioral diagnosis, becauseit is well acceptedthat there is no direct correspondence between neurophysiology and behavior. (16RT 2304-2305, 2315.) b. Dr. Kris Mohandie Dr. Kris Mohandie, a psychologist, opined that appellant was sane. His diagnosis was that appellant had an anti-social personality disorder with narcissistic and borderline traits and secondarily, malingering. (18RT 2591-2594, 2605, 2608, 2614, 2651.) Dr. Mohandie interviewed appellant three times, although he went to the jail five times to interview him. Twice, appellant refused to come out, later indicating he was not feeling well, and once, appellant cut the interview short. (18 RT 2594, 2598-2599.) Dr. Mohandie administered objective psychological testing to appellant, including the MMPIII and SIRStests. (I8RT 2599.) In addition, Dr. Mohandie reviewed medical records and psychiatric forensic reports of defense counsel's experts, looked at police reports and photographs, looked at videotapes of appellant’ s police interrogation interview and Vannoy’s videotaped interview, reviewed someofthe transcripts from appellant's trial testimony, and went to the crime scene. (18RT 2594-2595, 2598.) Appellant’s MMPIresults showed an exaggerated symptom response, meaningthat appellant endorsed moreitems of alleged problems than most psychiatric patients, whichis called a "fake bad" response. Appellant had a score of 98, which was far above a typical significant finding of 70 and suggested he was extreme in responding. (18RT 2601 .) Appellant’s SIRS test results showed evidenceof inaccurate or feigned responding on two 260 aspects, one was probably feigning and the other indicated feigning. Both tests supported that there were exaggerated reports of what was wrong with him. (18RT 2601.) Dr. Mohandie's primary opinion was that appellant was sane. (18RT 2605, 2614.) His opinion was based on: appellant having been off his medications for six weeks prior to the murder without any objective evidencethat he fell within the insanity definitions; appellant’s interviews which showedhe had a very specific recollection of all the events leading up to the exact momentof the homicide, including the number ofAA meetings he had attended,all the conversations he had with Epperson, and his various actions; appellant’s denial of any psychiatric symptomssuch as hallucinations, false sensations, or delusional beliefs; appellant having engagedin a variety of goal-oriented and goal-directed functional behaviors to avoid detection; appellant’s report of an unlikely state of amnesia for the exact moment when the homicide occurred until after he was taken into custody and had given damaging statements; and the objective psychological data obtained from the MMPI, which showed exaggerated symptomsreporting, and the SIRS results, which showed appellant was feigning different symptoms. (18RT 2605-2607.) The type of amnesia appellant claimed was malingering amnesia, or faked amnesia, according to the DSM IV. (18RT 2607.) Dr. Mohandie's diagnosis for appellant was anti-socialpersonality disorder with narcissistic and borderline traits and secondarily, malingering. (18RT 2608, 2651.) All seven diagnostic criteria for anti-social personality disorder fit appellant: failure to conform to social norms with respect to lawful behavior as indicated by repeatedly performing acts that are grounds for arrest, which was shownby appellant’s numberofarrests and convictions for acts of violence; deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure, which 261 was shownby appellant manipulating things for more favorable treatment in hospitals and the prison or judicial system; impulsivity or failure to plan ahead, which was shownbyappellant’s own acknowledgement andhistory of being very impulsive with having angry impulses; irritability and aggressivenessas indicated by repeated physicalfights or assaults, which was supported by substantial evidence: reckless disregard for safety ofself and others, which was supported by substantial information; consistent irresponsibility as indicated by repeated failures to sustain consistent work behavior or honor financial obligations, which was shown whenappellant wantedto leave his job out of frustration; and lack of remorse as indicated by beingindifferentto or rationalizing having hurt, mistreated or stolen from another, which was shown by appellant having had no true empathy for Eppersonor the other two women who testified in the courtroom. (18RT 2609-2611.) Dr. Mohandiebelieved there was a sexual componentto the crime because appellant raped the victim after or during commission of the beating, was able to maintain an erection while doing that, and reportedly was able to even dothat in the past, which suggested "some element of a turn on for that for him." (18RT 2649.) During his interview with Dr. Mohandie, appellantsaid the last time he had sex with Epperson was the day before and explained that was why he was so angry about her being on the telephone with another man. However, appellant testified at trial that he had had consensual sex with Epperson just before hekilled her. (I8RT 2650.) Even though some doctors diagnosed appellant with a major mental disorder, Dr. Mohandie's opinion wasthat those diagnoses were not reliably done. (18RT 2626, 2635-2636.) Dr. Mohandie did not find mental evidencethat one could reliably label appellant with a mentalillness because of his tendency to exaggerate symptoms for secondary gain over a 262 numberof years. (18RT 2602, 2622, 2626, 2628, 2643, 2651.) In addition, since Dr. Mohandie found appellant could be labeled as having an anti- social personality disorder with narcissistic and borderline traits, appellant was an unreliable source of information about what might be wrong with him. (18RT 2602.) Appellant might or might not have a major mental illness. (18RT 2622.) Dr. Mohandie disagreed with the testimony of the defense experts that appellant had a major mentaldisorder andthatas a result he was incapable of knowing right from wrongat the time he committedthis crime. (18RT 2601-2602.) Dr. Mohandie did not see evidence that appellant suffered from a bipolar disorder such that he was a danger to himself or others. (18RT 2595.) Also, appellant’s behavior was not prototypical IED because appellant engaged in motivated behavior in the context of rejection and appellant’s purposefulness was more than ordinarily expected in an IED situation. (18RT 2613-2614.) A Patton State Hospital report dated June 7, 2002, stated appellant did not have a psychotic or major mood disorder. (18RT 2648-2649.) Dr. Mohandie's recollection of the records he reviewed wasthat there was a mixture of those that showeda variety of major mental disorders and those saying something else was going on. In any event, appellant was diagnosed with anti-social personality disorder in many reports. (18RT 2649.) Even if appellant were on medication for a mental illness, one would still expect to see some evidenceofthe mental illness. When Dr. Mohandie interviewed appellant and reviewed appellant's police interview tape, he did not see any evidence of a major mental disorder. (18RT 2604.) A bipolar person can also qualify as having an anti-social personality disorder, so they are not necessarily mutually exclusive. (18RT 2611-2612.) 263 B. The Jury Verdict Finding Appellant Sane Should Be Upheld In California, legal insanity "meansthat at the time the offense was committed, the defendant was incapable of knowing or understanding the nature ofhis act or of distinguishing right from wrong." (People v. Hernandez (2000) 22 Cal.4th 512, 520-521, citing § 25, subdivision (by? and Skinner, supra, 39 Cal.3d at pp. 776-777.) This test for legal insanity is the rule in M'Naghten's Case (1843) 10 Clark & Fin. 200, 210, 8 Eng.Rep. 718, 722, as construed by this Court. (Lawley, supra, 27 Cal.4th at pp. 169-170; Skinner, supra, at pp. 776-777; Peoplev. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1447.) The defendanthas the burden to prove insanity by a preponderanceof the evidence. (s 25, subdivision (b); Hernandez, supra, at p. 521; People v. Drew (1978) 22 Cal.3d 333, 351.) A preponderanceofthe evidence means "evidence that has more convincing force than that opposed to it." (CALJIC No. 2.50.2; People v. Mabini (2001) 92 Cal.App.4th 654, 663.) Further, if the evidence is so evenly balanced that neither side of the evidence on the issue preponderates, the party with the burden of proof by a preponderanceofthe evidence hasfailed to carry its burden. ([bid.) In assessing the evidence, jurors may critically evaluate the experts’ opinions,including the material the experts relied upon and the experts’ reasoning. (See Drew, supra, 22 Cal.3d at pp. 350-351 [jury could reject sychiatric insanity opinion "on the groundthat the psychiatrists did notpsy Pp g : '9 Section 25, subdivision (b) provides the accused must prove insanity "by a preponderance ofthe evidencethat he or she 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." Although this section speaks in the conjunctive, the test for insanity is disjunctive. (People v. Lawley (2002) 27 Cal.4th 102, 169-170; People v. Skinner (1985) 39 Cal.3d 765, 769.) 264 present sufficient material and reasoningto justify that opinion"].) Indeed, jurors are "not automatically required to render a verdict which conformsto unanimousexpert opinion as to a defendant's sanity." (People v. Duckett (1984) 162 Cal.App.3d 1115, 1119.) On appeal, the following standard of review applies: Because the burden was on the defense to show by a preponderanceof the evidence that appellant was insane, before we can overturn trier of fact’s finding to the contrary, we must find as a matter of law that the court could not reasonably reject the evidence of insanity. (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059; People v. McCarthy (1980) 110 Cal.App.3d 296, 300.) After listening to the testimony (see Statement of Facts, ante), the jury herein found appellant had not established by a preponderanceofthe evidence that he was not guilty by reason of insanity. On appeal, appellant improperly asks this Court to reevaluate the credibility of the witnesses and reweigh their testimony. The jury wasentitled to give more weight to the prosecution’s evidence that appellant wasnotlegally insaneat the time of the murder than to the opinion of appellant’s mental health experts. (See, ¢.g., Skinner, supra, at p. 1060; see Harris v. Vasquez (9th Cir. 1991) 949 F.2d 1497, 1522 [“Differences in psychiatric opinions are evidence to be presented to the jury, which ultimately chooses amongthe opinionsin findingthe facts. Psychiatric opinionsare notlegal precedent that determine the guilt or innocence of the defendant.”].) Ultimately, the jury’s verdict must be upheld since appellant cannot show that, as a matter of law,the jury could not reasonably reject the evidence ofinsanity. Only two of appellant’s four witnesses, Drs. Niedorf and Vicary, testified that appellant was insane atthe time of the commission ofthe crimes. The two doctors differed in their opinions about appellant’s AxisI 265 diagnosis and thebasis for an insanity opinion, and the jury could properly find the defense evidence was contradictory and insufficient to show insanity by a preponderanceof the evidence. Dr. Niedorf diagnosed appellant as suffering from IED andtestified that appellant was in an episode of IED, which was uncontrollable andirresistible, when he murdered Epperson. (17RT 2331, 2328-2329, 2372, 2374.) With respect to sanity, Dr. Niedorf opined that appellant did not know the nature and quality of his act and couldnotdistinguish right from wrongat the time of the crimes, assumingthe truth of the crime reports, that appellant wentinto a tage upon learning Eppersonrejected him, that he committed horrible violence onher, and that he engaged in unpermitted sex. (17RT 2350- 2351, 2356, 2398.) Hetestified appellant could not distinguish right from wrong, because the area of appellant’s frontal lobes andthe temporal lobes that initiate good behaviors or stop bad behaviors were damaged and disconnected, and appellant did not have the medicine to help the lobes work. (17RT 2356-2357.) | In contrast, Dr. Vicary opined that appellant suffered from bipolar disorder and disagreed with Dr. Niedorfthat appellant suffered from IED. (18RT 2475, 2477, 2481-2482.) With respect to sanity, Dr. Vicary opined, also contrary to Dr. Niedorf, that appellant knew and understood the nature and quality of his actions during the crimes, because appellant realized that he wasstriking Epperson with his fists and other objects and that this could cause grave bodily injury or death, given his large size and her smallsize. Indeed, Dr. Vicary went so far as to opine that it was "inconceivable that he did not have at somelevel some understandingthat this attack could be fatal." (18RT 2489.) Enough of what appellant remembered indicated to Dr. Vicary that appellant had "at least some basic understanding of what he was doing and the consequencesofhis acts." (18RT 2490.) Dr. Vicary did agree with Dr. Niedorf that appellant wasnot able to distinguish right from 266 wrongat the time of the crimes. (18RT 2488-2490.) Dr. Vicary testified that when appellant attacked Epperson, he had an explosive outburst and wasin an agitated, explosive, psychotic episode. (18RT 2491-2492.) These differing opinions from appellant's own experts undercut the defense's case; Dr. Vicary, in fact, testified reasonable doctors could arrive at different conclusions about whether appellant knew the nature and quality of his act. (18RT 2475, 2489-2490, 2524.) Dr. Vicaryalso testified the issue of legal insanity was a "close case." (18RT 2524.) Indeed, even assuming Drs. Niedorf and Vicary were the only two doctorstotestify about sanity and that the prosecution had not presented contrary sanity evidence, jurors are "not automatically required to render a verdict which conforms to unanimousexpert opinion as to a defendant's sanity." (Duckett, supra, 162 Cal.App.3dat p. 1119.) Moreover, the bases for and the reasoning of the doctors’ opinions could have been found to be insufficient to support a preponderance of the evidence finding. Dr. Niedorf relied on interviews with appellantin jail and numerousrecords for his opinion that appellant suffered from IED and was insaneat the time of the crimes. (See 16RT 2323-2325; 17RT 2333- 2345, 2346-2350, 2392.) However, Dr. Niedorf did not question appellant about the facts of the Epperson murder, because he did not want appellant to "reject" him. (17RT 2350.) Dr. Vicary interviewed appellantinjail, reviewed numerous medical records, looked at crime reports, read appellant's testimony in this case, and knew the jury had found appellant guilty of first degree murder with special circumstances ofrape, torture, and mayhem before he reachedhis opinionsthat appellant was bipolar and insane at the time of the crimes. (See 18RT 2472, 2484, 2487-2488.) However, Dr. Vicary acknowledged that he had not goneto the crime _ scene, was not given the grand jury testimony of the blood spatter expert or coroner, and did not review the interview tape of appellant or Vannoy. 267 (18RT 2544-2545.) Also, Dr. Vicary acknowledged his opinions had changed over time, after he had moredata; for example, Dr. Vicary testified at trial that appellant knew the nature and consequencesofhis acts and lied about not knowing, but he had stated in his September 4, 2003 report that appellant only appeared to have had some awarenessof the nature and consequencesofhis. acts. (18RT 2523-2524, 2564, 2566.) The jury could have deemedthat both doctors had an insufficient bases upon which to maketheir findings and that their reasoning, accordingly, was also flawed. (See Drew, supra, 22 Cal.3dat p. 351 [insufficient material and reasoning for insanity opinion].) Indeed,the defense experts’ opinions could have been discounted by the jury for other reasons as well. The jury's role was to determine whether insanity was shown by a preponderanceof the evidence, and they were not bound merely by two defense experts who opined appellant was insane. As Dr. Vicary acknowledged, whether appellant knewright from wrong was "properly in the handsofthe jury becauseit's not a scientific medical decision,it's a moral social policy question." (18RT 2496-2497, 2519.) Indeed, the jury was instructed accordingly that the phrase "right from wrong" was "used in both the legal and moral sense." (13CT 3119; 19RT 2757; CALJIC No. 4.00.) Also, the jury was instructedit could properly consider evidenceof appellant's mental condition before, during, and after the crime and could consider any guilt phase evidence whichit found to be relevant to the sanity issue. (13CT 3119; 19RT 2756; CALJIC No.4.00.) In addition, the jury could have discounted Dr. Vicary's sanity opinionitself becauseof his past behavior in one case in which he made 23 deletions and changes to benefit the defense and whichled him to being fined and placed on probation by the Medical Board. (18RT 2556-2557.) Further, the defense's two other experts, Drs. Boone and Bertoldi, did not opine on whether appellant was insane at the time he committed his 268 crimes, and thus,their testimony alone could not have supported an insanity verdict. Dr. Boone,a clinical neuropsychologist, testified that appellant's executive or problem-solving skills, reasoning, and logic were very impaired andthat tests suggested appellant had some kind of brain damage or dysfunction. (15RT 2137, 2144, 2148, 2159-2160.) She acknowledged the tests she administered to appellant did not measure brain function directly but only measured thinking skills. (ISRT 2172.) Dr. Bertoldi, a neurologist and clinical neuropsychologist, opined that appellant had brain dysfunction, which wasconsistent with episodic loss of control and temporal lobe epilepsy. (16RT 2219, 2233, 2265-2266, 2281.) Mental illness "alone does not necessarily establish legal insanity." (Kelly, supra, | Cal.4th at p. 540.) Both doctorsfailed to link their evaluations to an opinion on insanity, and thus, their testimony could not support an insanity finding. (/bid. [if mentally ill, a defendant must showthe illness made him insane under M'Naghten]; see Drew, supra, 22 Cal.3d at pp. 350-351 [failure to explain why diagnoses led them to conclude appellant was insane].) In contradiction of the defense evidence, the prosecution presented credible and weighty evidence that appellant was sane and malingered. Dr. Mohandie, a psychologist, opined that appellant was sane andthat appellant had an anti-social personality disorder with narcissistic and borderlinetraits and secondarily, malingering. (18RT 2591-2594, 2605, 2608, 2614, 2651.) Dr. Mohandie interviewed appellant three times, even though appellant twice refused to come out and appellant cut one interview short. (18 RT 2594, 2598-2599.) Dr. Mohandie also administered objective psychological testing to appellant, including the MMPIIf and SIRStests, reviewed medical records and psychiatric forensic reports of defense counsel's experts, lookedat police reports and photographs, looked at videotapes of appellant’s police interrogation interview and Vannoy’s 269 videotaped interview, reviewed someofthe transcripts from appellant's trial testimony, and wentto the crime scene. (18RT 2594-2595, 2598-2599.) Dr. Mohandie’s opinion that appellant was sane was based on: appellant having been off his medications for six weeks prior the murder without displaying any and objective evidence thathe fell within the insanity definitions; appellant’s interviews which showed he had a very specific recollection ofall the events leading up to the exact momentofthe homicide, including the number ofAA meetings he had attended,all the conversations he and Epperson had, and his various actions; appellant’s denial of any psychiatric symptoms suchas hallucinations, false sensations, or delusionalbeliefs; appellant having engaged in a variety of goal-oriented and goal-directed functional behaviors to avoid detection; appellant’s report of an unlikely state of amnesia for the exact moment when the homicide occurred until after he was taken into custody and had given damaging statements; and the objective psychological data obtained from the MMPI, which showed exaggerated symptomsreporting, and the SIRS results, which showedappellant was feigning different symptoms. (18RT 2605- 2607.) Dr. Mohandie diagnosed appellant as having an anti-social personality disorder with narcissistic and borderline traits and secondarily, malingering. (18RT 2608, 2651.) All seven diagnostic criteria for anti-social personality disorder fit appellant. (I8RT 2609-2611.) Further, the type of amnesia appellant claimed was malingering amnesia, or faked amnesia, according to the DSMIV. (18RT 2607.) In addition, Dr. Mohandie believed there was a sexual componentto the crime becauseappellant raped the victim after or during commission ofthe beating, was able to maintain an erection while doingthat, and reportedly was able to even do that in the past, which suggested "some element of a turn on for that for him.” (18RT 2649.) Even though some doctors diagnosed appellant with a major mental 270 disorder, Dr. Mohandie's opinion wasthat those diagnoses were not necessarily reliably done. (18RT 2626, 2635-2636.) He pointed out appellant had a tendency to exaggerate symptomsovertime and had been manipulating the system for a number of years. (18RT 2626, 2628, 2643.) The prosecution's other expert, Dr. Griesemer, a neurologist and neurophysiologist, refuted Dr. Bertoldi's testimony that appellant had epilepsy and frontal lobe slowing as an adult. (L6ORT 2296-2298, 2307.) Dr. Griesemerinterviewed appellant in jail, reviewed his medical neurological history, went over some cognitive skills with appellant, and conducted a simple neurologic examination of his head, neck, arms, and legs. (L6RT 2297-2298.) In all the records reviewed, there was no documentation of any epileptic seizure since childhood. (L6RT 2298- 2299.) Appellant's most recent EEG, which showed sometheta activity, simply showedepisodic or intermittent slowing but no epileptic discharges. (16RT 2302-2303, 2312.) Dr. Bertoldi did nottestify epileptic discharges were present on the most recent EEG. (16RT 2314.) Dr. Griesemer did not find anything that indicated a tendency to have epilepsy, found nothing that indicated a significant frontal lobe slowing, and found nothing to encourage him to look further diagnostically at appellant. (16RT 2307.) Given the defense evidence regarding insanity which was contradictory and based on an incomplete review ofthe relevant and necessary records and information and the strong evidence from the prosecution showing sanity, appellant failed to carry his burden of showing insanity by a preponderance of the evidence. (CALJIC No. 2.50.2; see 13CT 3119; 19RT 2758.) Moreover, appellant's claim that the prosecution did not dispute the defense evidenceis clearly belied by the extensive sanity phase record in this case. (See Statement of Facts, Sanity Phase, ante; AOB 173-175, 190-196, 200-212.) The jury's verdict finding 271 appellant sane should be upheld, as it was supported by expert testimony and pertinent evidence aboutthe circumstances of appellant’s crimes. Moreover, appellant's reliance on Duckett, supra, 162 Cal.App.3d 1115 to support his argumentis misplaced. (AOB 212-214.) After reviewing the evidence, the Duckett court foundthe jury failed to "give great weight to the unanimous expert opinion that [the defendant] was insane." (162 Cal.App.3d at p. 1123.) The Duckett court found "there were no circumstances present that would have permitted the jury to reject the expert opinion." (Zbid.) In contrast, here, as set forth above, there was prosecution evidence which contradicted the defense experts’ testimony that appellant was insaneat the time of the crimes and the prosecution evidence provided a strong foundationfor rejecting the defense evidence of insanity. Appellant's claim must be rejected. VI. THE TRUE FINDINGS ON THE FELONY-MURDER SPECIAL CIRCUMSTANCES SHOULD BE UPHELD Appellant contendsthe true findings on all of the felony-murder special circumstance allegations — murder during the commission of rape or mayhem and intentional murder involving the infliction of torture, in violation of section 190.2, subdivisions (a)(17)(C), (17)Q), and (18), respectively -- must be reversed because each predicate felony was merely incidental to the homicide and did not manifest an independent felonious purpose. (AOB 217-228.) Respondentdisagrees. A felony-murder special circumstance requires proofthat the murder occurred during “the commissionofthe felony, not when the felony occurs during the commission of a murder.” (People v. Mendoza (2000) 24 Cal.4th 130, 182.) The murder must be committed to advance the independentfelonious purposeofthe felony. (People v. Lewis (2008) 43 Cal.4th 415, 464-465; People v. Horning (2004) 34 Cal.4th 871, 907; Mendoza, supra, at p. 182; Green, supra, 27 Cal.3d at p. 61.) Further, even 272 if a defendant wastried upon a theory of deliberate and premeditated murder, a “concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance.” (Barnett, supra, 17 Cal.4th at p. 1158, citing Raley, supra, 2 Cal.4th at p. 903; Mendoza, supra, at p. 183.) To evaluate a claim of insufficient evidence, the evidence must be viewedin the light most favorable to the prosecution to determine whether any rationaltrier of fact could have concluded the defendant had a purpose for the felony independent from the murder. (Mendoza, supra, 24 Cal.4th at p. 183.) Respondentalso incorporates by reference its discussion ofthe standard of appellate review for sufficiency claims in ArgumentII, ante. In the instant case, the jury properly foundtrue the special | circumstance allegations of murder during the commission of rape or mayhem andintentional murder involving theinfliction of torture. Since appellant does not contest the rape special circumstance here because he did so in his ArgumentITI (see AOB 217, fn. 55), respondent will focus on the other two contested special circumstance findings based on mayhem and torture. As set forth in respondent's Argument I relating to appellant’s “merger claim,” which is incorporated herein by reference, the evidence supports the conclusion appellant had the intent to commit the independent felonies of mayhem andtorture. Appellant committed the mayhem and torture with the intent to disable Epperson, permanently disfigure her, and cause cruel or extreme pain and suffering for revenge or any sadistic purpose. Here, the evidence clearly showed appellant had independent felonious purposes when he committed mayhem uponandtortured Epperson, contrary to appellant's claim. As set forth in ArgumentI, ante, appellant repeatedly bludgeoned Epperson in the bathroom andliving quarters with a glass candle holder, heavy vase, wooden footstool, lamp, 273 and broken pieces of the foregoing items. Healso cut her neck with glass and stuck a screwdriver through her face. (LORT 1294-1298, 1304, 1306, 1311-1315, 1318, 1320, 1324-1326, 1349-1354, 1373, 1375-1376, 1379, 1395-1396, 1409-1410.) Epperson suffered, by a conservative estimate, at least 10 severe blowsto her head. (9RT 1251, 1255.) Appellant's beating of Epperson was sosevere that blood wassplattered all over the apartment, in the bathroom andliving quarters, on the walls, furniture, floor, and personal items. (1ORT 1289, 1303-1305, 1313-1314, 1319-1320, 1328, 1355, 1368, 1400.) Appellant inflicted grievous injuries to Epperson's head, neck, and face, fracturing her skull in multiple places and disfiguring her face. QRT 1228-1230, 1238-1240, 1242.) He carefully cut the sides of Epperson's neck with glass, without severing her carotid arteries or jugular veins, whichinflicted cruel pain and suffering. (QRT 1230-1231, 1233-1234, 1245-1246.) Also, bruising on her neck and hemorrhagingin the eyes could have been the result of strangulation. (QRT 1224, 1235.) Appellant also caused a significant amountof traumain Epperson's vaginalarea, | including large bruises and abrasions. (ORT 1247-1248, 1259; 1ORT 1450- 1451.) These grievous injuries were inflicted by appellant while Epperson was alive. (QRT 1224-1227.) Appellant’s bludgeoningandattack of Epperson occurred over a span oftime andin the entire apartment, thus indicating he may have formedtheintentto kill after the mayhem and torture, so they werenot incidental to the murder. (See Raley, supra,2 Cal.4th at p. 903 [defendant may have been undecidedasto victims’ fate whenhe brought them but brought them to his homebut could have formed the intent to kill after the asportation].) Further, appellant's independent felonious purposes for mayhem and torture were also supported by evidence that he acted out ofjealousy and for revenge due to Epperson's alleged spurningofhis attentions. Before 274 appellant murdered Epperson, appellant told Todd he was jealous of other men being with Epperson and that if he could not have her, no one else would. (QRT 1155-1156, 1214.) After appellant murdered Epperson, appellant told Vannoy he beat Epperson out ofjealousy and revenge because Epperson would not love him and was going out with another person. (Peo. Exh. 88B, pp. 29, 38-39.) “Appellant also told Vannoy that Epperson asked if he was goingto kill her and appellant's affirmative response indicated that he would but not without further injury and pain. (Peo. Exh. 88B, pp. 39, 85.) Appellant disfigured Epperson and caused cruel pain and suffering because she did not love him and he could not have her. In other words, his intents to commit mayhem upon andtorture Epperson were not merely incidental to his intent to kill her; appellant could have killed Epperson without the prolonged and savage beating and cutting. Appellant wanted Eppersonto suffer before killing her. Thus, even if the intent to kill was concurrent with the intents to commit mayhem and torture, all those intents were independent of each other. (Barnett, supra, \7 Cal.4th at p. 1158.) The aforementioned evidence more than amply supported the mayhem andtorture felony special circumstances. In addition, there was evidence to support a finding that appellant murdered Eppersonto facilitate his commission of the mayhem andtorture. A jury could properly find appellant killed Epperson to escape and to prevent the crimes from coming to the attention of the authorities. The evidence showed appellant locked the door after he left Epperson’s apartment, thus preventing others from possibly finding her and givingaid. (8RT 1020-1023, 1030; 9RT 1126; 1ORT 1429.) He hadalso previously threatened Betsy M.that he would kill her if she wentto the police after he assaulted her. (LORT 1437.) Killing Epperson prevented her from reporting the brutal mayhem and torture inflicted upon her. (See Barnett, supra, 17 Cal.4th at pp. 1158-1159 [defendant “wanted to ensure there 275 would be no snitching this time, especially since the instant crimes were far more serious in nature.”].) Even assuming there wasinsufficient evidence of the mayhem and torture murder special circumstances, the rape-murder special circumstance is still valid. (See ArgumentIII, ante.) Thus, even if the jury considered one or possibly two invalid special-circumstance findings, whichit clearly did not, the penalty verdict need not be set aside because ofthe existence of at least one remainingvalid special circumstance. (See Zant v. Stephens (1983) 462 U.S. 862, 881 [103 S.Ct. 2733, 77 L.Ed.2d 235]; Peoplev. Sanders (1990) 51 Cal.3d 471, 520-521; People v. Silva (1988) 45 Cal.3d 604, 632-636; People v. Allen (1986) 42 Cal.3d 1222, 1281-1283.) Further assuming oneor possibly two of the special circumstances should not have been considered by the penalty jury, it can be said, on this record, that the error was absolutely harmless and that there was no likelihood the jury would have reached a different penalty verdict in the absenceof the alleged error. Although the prosecutor very briefly mentioned the special circumstance findings to the second penalty phase jury during her argument (see 37RT 5662-5663), the prosecutor focused on the circumstances surrounding the murder, his crimes against Colletta and Betsy M., his prior felony conviction for assault with a deadly weapon with force likely to cause great bodily injury on Colletta, his prior violent activity with his family, and his refusal to take responsibility for his actions. (37RT 5657-5662, 5663-5695.) Giventhe prosecutor’s argument, thereis simply no way the penalty jury would have been swayed or affected by the alleged invalid special-circumstance findings. (See Sanders, supra, 51 Cal.3d at pp. 520-521; Silva, supra, 45 Cal.3d at pp. 632-636.) 276 VY. EXECUTION OF A CAPITAL DEFENDANT WHO IS MENTALLY IMPAIRED, BUT NOT MENTALLY RETARDED, IS NOT CRUEL AND UNUSUAL PUNISHMENT Appellant contends imposing the death penalty on a mentallyill defendant violates the Fifth, Sixth, and Eighth Amendments. (AOB 229- 253.) He claimsthat under the reasoning of Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] and Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1] that the death penalty is "inappropriate for severe mentalillness." (AOB 245-253.) Respondent submits that execution of a capital defendant who is mentally impaired, but not mentally retarded, is not cruel and unusual punishment. Andin this case, appellant's disputed evidence that he suffers from mentalillness is far from sufficient to even show he should be excluded from imposition ofthe death penalty. Atkins and Roper do not support appellant's claim that the death penalty for a mentally ill defendant is an excessive punishment, as explained by this Court in People v. Castaneda (2011) 51 Cal.4th 1292, 1343-1345. In Atkins, the United States Supreme Court held that execution of the mentally retarded violates the Eighth and Fourteenth Amendments andleft to the states the task of developing appropriate ways to enforce that sentencing restriction. (Atkins, supra, 536 U.S. at pp. 317, 321; In re Hawthorne (2005) 35 Cal.4th 40, 44.) In Roper, the United States Supreme Court held that imposition of the death penalty on offenders who were under the age of 18 whentheir crimes were committed violates the Eighth and Fourteenth Amendments. (Roper, supra, 543 U.S.at p. 578.) In reaching its conclusions in Atkins and Roper, the United States Supreme Court lookedto objective evidence to determine whether evolving standards of decency dictated that death is an excessive punishment and then applied its own judgment, asking whether reason existed to disagree 277 with the judgment ofthe citizenry andlegislators. (Castaneda, supra, 51 Cal.4th at p. 1344.) With respect to the objective evidence, the high court in Atkins noted that "numerous states had acted to prohibit the execution of mentally retarded criminals" after the 1986 execution of a mentally retarded murderer and "nostates had acted to reinstate the execution of such individuals" during that period. (Castaneda, supra,at p. 1344.) The United States Supreme Court concluded that "it is fair to say that a national consensus has developed againstit.” (Zbid., quoting Atkins, supra,at pp. 313-316, fn omitted.) Likewise, the United States Supreme Court observed in Roper, that the "majority of states had rejected the propriety of executing individuals who were under 18 yearsof age at the time they committed their criminal acts." (Castaneda, supra, at p. 1344.) With respect to the application of its own judgment, asking whether reasonexisted to disagree with the judgmentofthe citizenry andlegislators, the United States Supreme Court in Atkins "noted that mentally retarded individuals have diminished capacities to process information, to communicate, to learn from experience, to reason,to control impulses, and to understand thereactions of others." (Castaneda, supra, 51 Cal.4th at p. 1344, citing Atkins, supra, 536 U.S. at p. 318, fn. omitted.) The high court also acknowledged evidencethat mentally retarded individuals “often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers.” (/bid., fn. omitted.) Thus, the Atkins Court concluded "these deficiencies diminish [the] personal culpability of such defendants." (Ibid.) Given these deficiencies, the Atkins Court stated two reasons for excluding mentally retarded defendants from imposition of the death penalty: "(1) the justifications for the death penalty--retribution and deterrence--are not served by executing the mentally retarded, and (2) the risk of wrongful execution is enhanced by various factors, including the possibility of false confessions and their lesser ability to present evidence in 278 mitigation and to assist counsel." (bid., citing Atkins, supra, at pp. 318- 321.) | In Roper, likewise, the United States Supreme Court identified differences between adults and juveniles that "'demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.” (Castaneda, supra, 51 Cal.4th at p. 1345, quoting Roper, supra, 543 U.S. at p. 569.) The Roper Court found that: the juvenile's "lack of maturity and their underdeveloped sense of responsibility lead to reckless behavior," which rendered conduct less morally reprehensible; juveniles are "more susceptible to negative influences and pressures, and haveless control over their environment,” allowing them a "greater claim to forgiveness"; and the juvenile's "personality traits are more transitory, which "meansit is less supportable to conclude that even a heinous crime committed by a juvenile is evidenceof irretrievably depraved character."" (Castaneda, supra, at p. 1345, citing and quoting Roper, supra, at pp. 569-570.) Thus, "[d]ue to juveniles’ diminished culpability, the case for retribution is weaker than for adult murderers." (Ibid., citing Roper, supra, at pp. 572-573.) Also, the deterrent effect of the death penalty upon juveniles is not clear. bid.) The Roper Court concluded the differences between adult andjuvenile offenders "are too marked and well understoodto risk allowing a youthful person to receive the death penalty despite insufficient culpability" and rejected the view that juvenile status should be considered as a mitigating factor. (/bid., citing Roper, supra, at pp. 572-573.) Here, appellant has failed to establish that his alleged mentalillness "is analogous to mental retardation or juvenile status for purposes of imposition of the death penalty." (Castaneda, supra, 51 Cal.4th at p. 1345.) Appellant hasnot presented sufficient objective evidence to demonstrate that "society views as inappropriate" the execution of mentally ill defendants. (/bid.) Appellant acknowledgesthat "there is no legislative 279 enactment which specifically prohibits the execution of the severely mentally ill." (AOB 248.) Instead, he cites an October 2003 Gallup poll, a 2006 American Bar Association resolution, and the opinions of certain mental health organizations. (AOB 248-249.) However, numerous other states have recognizedthat the protections afforded to those who are mentally retarded within the meaning ofAtkins do not extend to persons who are mentally ill or suffering from some other impairment. (See, €.g., Lewis v. State (Ga. 2005) 620 S.E.2d 778, 786 [declining to extend Atkins to the mentally ill]; Matheny v. State (Ind. 2005) 833 N.E.2d 454, 458 [same]; State v. Johnson (Mo. 2006) 207 S.W.3d 24, 51 [same]; State v. Hancock (Oh. 2006) 840 N.E.2d 1032, 1059-1060 [same]; Commonwealth v. Baumhammers (Pa. 2008) 960 A.2d 59, 96-97 [same].) Likewise, some lower federal courts have observed that Atkins does not extend to mental illness. (See Baird v. Davis (7th Cir. 2004) 388 F.3d 1110, 1114-1115 [United States Supreme Court has not ruled out execution for persons with mentaldisorder ofkilling under anirresistible impulse]; see also Shisinday y. Quarterman (Sth Cir. 2007) 511 F.3d 514, 521 [no relief on claim that Atkins and Roper should be extended to mentally ill because claim procedurally barred in federal habeas context and because claim was contrary to legal precedent].) Mentalillness or impairmentis not the same as mentalretardation orintellectual disability, and it is not necessary to treat mental illness impairment as thoughit is the same. (See Tignerv. Texas (1940) 310 U.S. 141, 147 [60 S.Ct. 879, 84 L.Ed.2d 1124] [holding equal protection “does not require things whichare different in fact or opinion to be treated in law as though they were the same”].) Moreover, with respect to the application of the court's own judgment, it is clear that appellant's disputed evidencethat he suffers from mental illness is far from sufficient to even show he should be excluded from imposition of the death penalty. As set forth in Argument V-B., ante, the 280 Jury properly found appellant sane and rejected the defense evidence of insanity. Likewise, the jury rejected the penalty phase defense evidence from experts which was proffered as mitigating evidence. In the penalty phase, appellant presented evidence from the same doctors whotestified in the sanity phase, Drs. Vicary, Bertoldi, Niedorf, and Boone. Dr. Vicary again testified appellant suffered from bipolar disorder, a major mental disorder. (32RT 4948-4949.) Dr. Vicary testified that six categories of information explained appellant, including a traumatic family background, brain damage,his pleas for treatment, his show of remorse, and his positive adjustmentto institutionalization. (32RT 4934, 4942, 4962-4963, 4966.) With respect to brain damage, Dr. Vicary testified appellant had damageto the frontal and temporal parts of his brain, areas which control one's ability to control emotions. (32RT 4943-4944.) Dr. Boone again testified appellant had consistent weaknessesin the area of executive or problem- solving skills, which related to planning, organization, thinking through consequencesof behavior, logic, and inhibiting behavior. Theresults suggested appellant had some kind of organic frontal lobe brain dysfunction. (33RT 5091-5092, 5107, 5123, 5140-5141.) Dr. Bertoldi again testified appellant had brain damage and focalized epilepsy. (34RT 5173-5175.) He diagnosed appellant with seizure focus limbic or temporal limbic disorder which caused episodic discontrol, emotional mobility, and intermittent rage. 34RT 5194-5195, 5227-5228.) Dr. Niedorf again opined that appellant suffered from a major mental illness. Appellant had two major conditions, a seizure disorder and IED. (5RT 5437-5438.) Further, in rebuttal, the defense proffered the testimony of Dr. Romanoff, who opined that appellant had a complex set of mental disorders. (36RT 5593, 5598.) He believed appellant had an organic brain disorder, which caused appellant difficulty regulating affect and controlling his behavior. (36RT 5594, 5618-5619.) Appellant also had anti-social 281 personality disorder and a borderline personality disorder with histrionic and narcissistic features. (36RT 5595, 5609.) The jury had before it a full display of appellant's mental evidence defense and rejected it in the penalty phase, recommending a judgmentofdeath. To rebut the defense's expert mental testimony, the prosecution proffered the testimony of Drs. Mohandie and Griesemer. Dr. Mohandie opined that appellant malingered and had ananti-social personality disorder with prominent narcissistic and borderlinetraits. (36RT 5522-5526, 5534- 5535.) Also, Dr. Mohandie diagnosed appellant with sexual sadism. (36RT 5540.) Indeed, Dr. Mohandie couldnotreliably find appellant had a major mental disorder because appellant's anti-social personality disorder diagnosis included deceptiveness as a component and appellant had a tendency to malinger. (36RT 5541.) Dr. Mohandiedid notsee underlying organic impairment, like Dr. Romanoff. (36RT5545-5546.) Dr. Griesemertestified that appellant had childhood epilepsy that went away and there was no evidenceofseizure activity since childhood. (34RT 5292-5293.) Dr. Griesemeralso disagreed with many of Dr. Bertoldi's opinions. (34RT 5295-5301.) Thus,to the extent the evidence only showed appellant malingered and suffered from an anti-social personality disorder, this disorder did not "diminish [his] personal culpability." (Castaneda, supra, 51 Cal.4th at p. 1345 [defendant's condition was anti-social personality disorder].) Further, retribution and deterrence would notbe served by prohibiting the death penalty from being imposed. An individual with an anti-social personality has the “ability to charm and manipulate others, to deny responsibility, and to provide excuses for their conduct, [which] enhancesrather than diminishes their capacity to avoid wrongful conviction and execution." (Ibid.) The "implied legislative decision not to exclude individuals with an 282 antisocial personality disorder from eligibility for the death penalty" should be upheld. (/bid.) The claim mustfail. VU. APPELLANT'S CLAIMS REGARDING THE DEATH PENALTY STATUTE SHOULD BE REJECTED Appellant contends California's death penalty statute, as interpreted by this Court and applied to histrial, violates the United States Constitution. (AOB 254-291.) Although he acknowledges that challenges to most of the statute's features have been rejected (see AOB 254), he nevertheless claims: section 190.2 is impermissibly broad (AOB 256-258); section 190.3, subdivision (a), as applied allows arbitrary and capricious imposition of death (AOB 258-260); California's death penalty statute contains no safeguards to avoid arbitrary and capricious sentencing and deprives defendants ofthe right to a jury determination of each factual prerequisite to a sentence of death (AOB 260-285); the California sentencing scheme violates the equal protection clause of the federal Constitution by denying procedural safeguards to capital defendants which are afforded to non-capital defendants (AOB 285-288); and California's use of the death penalty as a regular form of punishmentfalls short of international norms of humanity and decency and violates the Eighth and Fourteenth Amendments (AOB 288-291). This Court has repeatedly rejected appellant's contentions and should do so again. A. Section 190.2 is Not Impermissibly Broad Appellant contends his death sentence is invalid because section 190.2 is impermissibly broad and does not perform the constitutionally required narrowing function. According to appellant, almost every murdereris eligible for the death penalty. He adds that almost all felony murders are now special circumstance cases and felony murder cases include too wide a spectrum of factual scenarios. Appellant criticizes this Court’s precedent and urges this Court to reevaluate the issue and strike down the death 283 penalty scheme"asso all-inclusive as to guarantee the arbitrary imposition of the death penalty." (AOB 256-258.) This Court has repeatedly rejected his contention and found section 190.2 is not impermissibly overbroad. This Court has stated, "the various special circumstancesare not so numerousasto fail to perform their constitutionally required narrowing function, and the special circumstances are not unduly expansive,either on their face or as interpreted by this court." (People v. Jones (2012) 54 Cal.4th 1, 85; People v. Bennett (2009) 45 Cal.4th 577, 630, quoting People v. San Nicolas (2004) 34 Cal.4th 614, 677 [section 190.2 "does not contain so many special circumstancesthatit fails to perform the constitutionally mandated narrowing function"]; accord, Pulley v. Harris (1984) 465 U.S. 37, 53 [104 S.Ct. 871, 79 L.Ed.2d 29] [California’s requirement of a special circumstance finding adequately “limits the death sentence to a small sub-classofcapital-eligible cases”}.) Appellant has not provided any valid reasonsfor this Court to reconsiderits previous holdings. Accordingly, this contention should be rejected again. (See Jones, supra, at p. 85; People v. Bacon (2010) 50 Cal.4th 1082, 1129.) B. Section 190.3, Subdivision (A) Does Not Allow Arbitrary and Capricious Imposition of Death Appellant contends section 190.3, subdivision (a), the circumstances of the crime factor, violates his federal constitutional rights because “it has been applied in such a wantonand freakish mannerthat almostall features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as ‘aggravating’ within the statute’s meaning.” (AOB 258; see AOB 258-260.) Appellant complainsthis Court has never applied a limiting construction to the circumstancesof the crime factor, which allegedly “licenses indiscriminate imposition of the death penalty upon no 284 basis other than”the particular set of facts surrounding the murder. (AOB 260.) This Court already rejected the very same contention in Jones, supra, 54 Cal.4th at pages 85 to 86. As found by this Court and the United States Supreme Court, "[s]ection 190.3, factor (a), does not, on its face or as interpreted and applied, permit the ‘arbitrary and capricious’ or 'wanton and freakish’ imposition" of a death sentence. (/d. at p. 85, citing Tuilaepa vy. California (1994) 512 U.S. 967, 976 [114 S.Ct. 2630, 129 L.Ed.2d 750] [“The circumstances of the crimeare a traditional subject for consideration by the sentencer, and an instruction to consider the circumstancesis neither vague nor otherwise improper under our Eighth Amendment jurisprudence”; see also People v. Lynch (2010) 50 Cal.4th 693, 766; People v. Jackson (2009) 45 Cal.4th 662, 699-700.) There is no valid basis for this Court to reconsiderits previous holding. Thus, the contention should be rejected once again. (See, e.g., People v. Russell (2010) 50 Cal.4th 1228, 1274; Jennings, supra, 50 Cal.4th at pp. 688-689.) C. California's Death Penalty Statute Satisfies the United States Constitution Appellant next contends our death penalty statute does not contain safeguards commonto other death penalty sentencing schemes to guard against the arbitrary imposition of death, such as unanimity as to aggravating circumstances including proof beyond a reasonable doubt, jury instructions requiring proof beyond a reasonable doubt, written findings regarding aggravating factors, intercase proportionality review, disallowing the prosecution from relying on unadjudicated criminal activity in the penalty phase, disallowing use of restrictive adjectives in the list of mitigating factors, and instructing that statutory mitigating factors were relevant solely as potential mitigators. (AOB 260-185.) As stated below, this Court has repeatedly rejected appellant’s laundry list of alleged 285 problems with our death penalty law, and appellant has not provided any new and valid reasons for this Court to revisit any of these claims. 1. Unanimous Jury Agreementas to Aggravating Factors Appellant claims California law violates the United States Constitution by failing to require unanimousjury agreement on aggravating factors. He cites Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556], and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] as requiring this Court to reexamine its precedent to the contrary. (AOB 262-270.) This contention has been repeatedly rejected by this Court, and appellant provides no new and valid reasonsfor this Court to revisit its prior holdings. Therefore, the contention must be rejected again. (Jones, supra, 54 Cal.4that p. 85; Bacon, supra, 50 Cal.4th at p. 1129; People v. Dykes (2009) 46 Cal.4th 731, 799-800 (Apprendi, Ring, and Cunningham do not require juries to enter unanimous findings concerning aggravating factors]; People v. Williams (2006) 40 Cal.4th 287, 338 [Ring does not mandate jury unanimity as to aggravating factors].) Appellant also asserts California prosecutors should be required to prove beyond a reasonable doubt: (1) the factors relied upon to impose a death sentence; and (2) aggravating factors outweigh mitigating factors. He criticizes this Court’s reasoning that penalty phase determinations are moral and not factual functions and, thus, are not susceptible to a burden-of-proof quantification. He furthercriticizes this Court’s ruling that Ring, supra, 536 U.S. 584 does not apply to our death penalty determination. According to appellant, California jurors are required to engage in fact-finding as to aggravating factors in the penalty phase, this fact-findingis part of the eligibility phase, and these factual determinations should be made 286 unanimously and beyond a reasonable doubt under Ring. (AOB 264-272.) Appellant’s contention has been repeatedly rejected by this Court, and he provides no valid reasonsfor this Court to reconsiderits prior holdings. Therefore, the contention must be rejected again. (Jones, supra, 54 Cal.4th at p. 86; Russell, supra, 50 Cal.4th at pp. 1271-1272; Jennings, supra, 50 Cal.4th at p. 689; Bennett, supra, 45 Cal.4th at p. 631; Williams, supra, 40 Cal.4th at pp. 337-338.) 2. Jury Instructions on Burden of Proof Appellant maintains that the jury should have been instructed that it may impose a death sentence only if persuaded beyond a reasonable doubt that the aggravating factors exist and outweigh the mitigating factors and that death is the appropriate penalty. (AOB 273-276.) This contention has been repeatedly rejected by this Court and must be rejected again, as appellant provides no valid reasons for this Court to revisit its prior holdings. (Russell, supra, 50 Cal.4th at p. 1272; Jennings, supra, 50 Cal.4th at p. 689 [Unlike the guilt determination, the sentencing function is inherently moral and normative, not factual... and hence, not susceptible to a burden-of-proof quantification”; internal quotation marks omitted]; Salcido, supra, 44 Cal4th at p. 167 [Apprendiandits progeny do not justify reconsideration of prior rulings]; People v. Smith (2005) 35 Cal.4th 334, 374 [“Because no burden of proofis required at the penalty phase... , the law is not invalid for failing to require an instruction on burden of proof.”]; accord, Tuilaepa, supra, 512 U.S. at p. 979 [“A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision”’].) 3. Written Findings Appellant further claims the failure to require written or other specific findings by the jury regarding aggravating factors deprived him ofhis 287 federal due process and Eighth Amendmentrights to meaningful appellate review. He asserts an equal protection violation on the ground that non- capital defendants are provided greater protections in this context. (AOB 276-279.) Appellant’s contention has been repeatedly rejected by this Court, and he provides no valid reasons for this Court to revisit its prior holdings. Thus, the contention must be rejected again. (Jones, supra, 54 Cal.4th at p. 86; Russell, supra, 50 Cal.4th at p. 1274; Bennett, supra, 45 Cal.4th at p. 632; People v. Loker (2008) 44 Cal.4th 691, 755.) 4. Intercase Proportionality Review According to appellant, intercase proportionality review is required due to the lack of other checks on arbitrariness and the “greatly expanded” list of special circumstances. (AOB 279-281.) Appellant’s contention has been repeatedly rejected by this Court, and he provides no new and valid reasons for this Court to revisit its prior holdings. The contention must be rejected again. (Jones, supra, 54 Cal.4th at p. 87; Russell, supra, 50 Cal.4th at p. 1274; Loker, supra, 44 Cal.4th at pp. 755-756; Williams, supra, 40 Cal.4th at p. 338; accord, Pulley, supra, 465 U.S. at pp. 50-51 [federal Constitution does not require intercase proportionality review].) 5. Unadjudicated Criminal Activity Appellant maintains that any use of unadjudicated criminalactivity by the jury during the penalty phase violates his constitutional rights, because the jury was not required to make unanimousfindings beyond a reasonable doubt as to aggravating factors. (AOB 281-282.) Appellant’s contention has been repeatedly rejected by this Court, and he provides no new and valid reasons for this Court to revisit its prior holdings. Therefore, the contention mustbe rejected again. (Jones, supra, 54 Cal.4th at p. 87; People v. Nelson (2011) 51 Cal4th 198, 226; Lynch, supra, 50 Cal.4th at p. 766; Loker, supra, 44 Cal.4th at p. 756; Smith, supra, 35 Cal.4th at p. 374.) 288 6. Mitigating Factors List In conclusory fashion, appellant claims the inclusion of the adjectives “extreme” and “substantial”in the list of potential mitigating factors acted as barriers to the consideration of mitigation, in violation of his federal constitutionalrights.°? (AOB 282.) Appellant’s contention has been repeatedly rejected by this Court, and he provides no new and persuasive reasons for this Court to revisit its prior holdings. Accordingly, the contention must be rejected again. (Jones, supra, 54 Cal.4th at p. 87; Russell, supra, 50 Cal.4th at p. 1274; Williams, supra, 40 Cal.4th at p. 338; Smith, supra, 35 Cal.4th at p. 374.) 7. Instruction on Mitigating Factors Appellant asserts the jury should have been instructed which of the listed sentencing factors were aggravating, which were mitigating, or which could be either mitigating or aggravating depending uponthe jury’s’ appraisal of the evidence. He speculates the jury could have aggravatedhis sentence based on non-aggravating factors. (AOB 282-285.) Appellant’s contention has been repeatedly rejected by this Court, and he provides no persuasive reasons for this Court to revisit its prior holdings. Accordingly, the contention must be rejected again. (Jones, supra, 54 Cal.4th at p. 87; People v. Booker (2011) 51 Cal.4th 141, 196-197; Russell, supra, 50 Cal.4th at p. 1274; Jennings, supra, 50 Cal.4th at p. 690; People v. Brady (2010) 50 Cal.4th 547, 590; accord, Tuilaepa, supra, 512 U.S.at p. 979.) © CALJIC No.8.85told the jury to consider, among other factors, whether the murder was committed while appellant was underthe influence of “extreme” mental or emotional disturbance and whether appellant committed the murder under “extreme” duress or under the “substantial” domination of another person. (23CT 5628; 37RT 5731-5783.) 289 D. California's Death Penalty Scheme Does Not Violate the Equal Protection of the Laws Appellant next contends the denial of the “safeguards” set forth in his preceding arguments (i.e., proof beyond a reasonable doubt) violated the constitutional guarantee of equalprotection of the laws. (AOB 285-288.) According to appellant, California provides “significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes.” (AOB 285.) This Court has consistently held our death penalty law does not violate the equal protection rights of capital defendants becauseit provides a different method of determining the sentence for capital defendants than used in noncapital cases. (Jones, supra, 54 Cal.4th at p. 87; Bennett, supra, 45 Cal.4th at p. 632; Smith, supra, 35 Cal.4th at pp. 374-375.) This Court has specifically found that capital and noncapital defendants are not similarly situated andtherefore "California does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants that are not provided to capital defendants." (Jones, supra, at p. 87; Manriquez, supra, 37 Cal.4th at p. 590; see also Lynch, supra, 50 Cal.4th at p. 767; Loker, supra, 44 Cal.4th at p. 756.) Asin his other challenges to California’s death penalty law, appellant asserts arguments that have been soundly and repeatedly rejected by this Court and does not provide any new orvalid reasons for this Court to revisit its prior holdings. Thus, the contention must be rejected once again. (See, ¢.g., Jennings, supra, 50 Cal.4th at p. 690; Brady, supra, 50 Cal.4th at p. 590.) E. California's Use of the Death Penalty Does Not Violate AnyInternational Norms of Humanity and Decency Appellant contends California’s use of the death penalty as a regular form of punishment falls short of international norms of humanity and decency and violates the Eighth and Fourteenth Amendments. Although 290 appellant acknowledges this Court is not bound bythe lawsof other countries, he asks this Court to consider the customs and practices of other countries with respect to the use of the death penalty and points out that most nations of the “Western world” no longer accept the death penalty as a regular punishment for a substantial numberof crimes. (AOB 288-291.) This Court has already rejected the contention that, because our death penalty allegedly violates international norms of humanity and decency,it also violates the Eighth and Fourteenth Amendments. (Jones, supra, 54 Cal.4th at pp. 87-88; Jennings, supra, 50 Cal.4th at pp. 690-691; Bennett, supra, 45 Cal.4th at p. 632; People v. Mungia (2008) 44 Cal.4th 1101, 1143 [(““California’s status as being in the minority ofjurisdictions worldwidethat impose capital punishment, especially in contrast with the nations of Western Europe, does not violate the Eighth Amendment."|; Peoplev. Kelly (2007) 42 Cal.4th 763, 801 [“‘a sentence of death that complies with state and federal constitutional and statutory requirements does not violate international law”]; Cook, supra, 39 Cal.4th at pp. 619-620 [“international law does not bar imposing a death sentence that was rendered in accord with state and federal constitutional and statutory requirements”]; People v. Moon (2005) 37 Cal.4th 1, 48 [“Although defendant would have us considerthat the nations of Western Europe no longer havecapital punishment, those nations largely had already abolishedit officially or in: practice by the time the United States Supreme Court, in the mid-1970’s, upheld capital punishment against an Eighth Amendmentchallenge.”].) Appellant raises arguments that have been soundly rejected by this Court in the past and does not provide any valid reason for this Court to revisit its prior holdings. Thus, the contention must be rejected once again. (See, e.g., Russell, supra, 50 Cal.4th at p. 1275; Brady, supra, 50 Cal.4th at pp. 590-591; Loker, supra, 44 Cal.4th at p. 756.) 291 IX. THE PENALTY SHOULD NOT BE REVERSED, AND THE CASE SHOULD NOT BE REMANDED Appellant contends that if any count or special circumstanceis reduced or vacated, the death penalty must be reversed and the case remanded for a new penalty phase trial. (AOB 292-294.) Respondent disagrees. Asset forth in Arguments | through VI, ante, there is no cause to reverse or vacate any count or special circumstance. Further, even assuming appellantis correct that one or twoofthe mayhem,torture, or rape special circumstances should be vacated, there would still be a remaining valid special circumstance, as set forth in ArgumentsII, II and VI, ante. Thus, even if the jury considered one or possibly two invalid special-circumstance findings, whichit clearly did not, the penalty verdict need notbe set aside becauseof the existence of at least one remaining valid special circumstance. (See Zant, supra, 462 U.S. at p. 881; Sanders, supra, 51 Cal.3d at pp. 520-521; Silva, supra, 45 Cal.3d at pp. 632-636; Allen, supra, 42 Cal.3d at pp. 1281-1283.) Also, as demonstrated in ArgumentVI, ante, even further. assuming one or two of the special circumstances should not have been considered by the penalty jury, it can be said, on this record, that the error was absolutely harmless and that there was nolikelihood the jury would have reacheda different penalty verdict in the absence ofthe alleged error. (See Sanders, supra, 51 Cal.3d at pp. 520-521; Silva, supra, 45 Cal.3d at pp. 632-636.) Moreover, appellant's argumentthat a harmless error analysis with respectto the penalty phase is precluded under the United States Supreme Court decisions in Ring, supra, 536 U.S. 584 and Apprendi, supra, 530 U.S. 466 is meritless. (See AOB 293-294.) This Court has held that "|Apprendi and Ring] have no application to the penalty phase proceduresofthis state" (People v. Nakahara (2003) 30 Cal.4th 705, 721-722) and "Ring does not 292 apply to California penalty phase proceedings" (People v. Prieto (2003) 30 Cal.4th 226, 272). The claim must fail. X. APPELLANT IS NOT ENTITLED TO RELIEF AS A RESULT OF THE CUMULATIVE EFFECT OF THE ALLEGED ERRORS Appellant contends reversal is required based on the cumulative effect of errors. (AOB 295-297.) Respondent disagrees. As demonstrated above, the claims of error are without merit. (See Arguments I through IX, ante.) And, since there is no error to cumulate, appellant's claim of reversible cumulative error must fail. (People v. Avila (2009) 46 Cal.4th 680, 718 [error was only assumed and does not amount to reversible cumulative error].) Moreover, even assuming someerror, no single error or cumulation of nonprejudicial errors warrants reversal. (See, e.g., Russell, supra, 50 Cal.4th at p. 1274; Bacon, supra, 50 Cal.4th at p. 1129.) Even capital defendantis only entitled to a fair trial, not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) The record shows appellant received a fair guilt, sanity, and penalty phase, and his claims of cumulative. error must be rejected. 293 CONCLUSION Accordingly, respondentrespectfully requests the judgment of conviction and death be affirmed. Dated: June 10, 2013 LA2005503272 61020861.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JAIME L. FUSTER Deputy Attorney General PAMELA C, HAMANAKA Deputy Attorney General Attorneysfor Plaintiffand Respondent 294 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT'S BRIEF uses a 13 point Times New Roman font and contains 90,670 words. Dated: June 10, 2013 KAMALA D. HARRIS Attorney General of California PeteCottayprevalio PAMELA C, HAMANAKA Deputy Attorney General Attorneys for Plaintiff and Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: The People of the State of California v. Troy Lincoln Powell Case No.: $137730 { declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, 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 June 10, 2013, [ served the attached RESPONDENT'S BRIEFbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Vivian Moreno Governor's Office Deputy District Attorney Departmentof Justice L.A. County District Attorney's Office 1300 'l’ Street — D-8 210 West Temple Street Sacramento, CA 95814 Los Angeles, CA 90012 Maria Arvizo-Knight R. Clayton Seaman, Jr. Death Penalty Appeals Clerk Attorney at Law Los Angeles County Superior Court - P.O. Box 12008 210 West Temple Street, Room M-3 Prescott, AZ, 86304 Los Angeles, CA 90012 California Appellate Project (SF) The Honorable William R. Pounders CAP - SF Los Angeles County Superior Court 101 Second Street, Suite 600 210 West Temple Street, Department 101 San Francisco, CA 94105-3647 Los Angeles, CA 90012-3210 The one copy for the California Appellate Project was placed in the box for the daily messenger run. system established between this Office and California Appellate Project (CAP) in Los Angeles for same day, personal delivery. 1 declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on June 10, 2013, at Los Angeles, California. JR. Familo YA», Declarant (/ ~ Signature LA2005503272 61022742.doc
