IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
JONATHAN DANIEL D?ARCY,
Defendant and Appellant.
Super. Ct. No. 93ZF0132
A jury found defendant Jonathan Daniel D?Arcy guilty of the first degree
murder (Pen. Code, ? 187) of Karen Laborde and found true special circumstance
allegations that the murder was intentional and involved the infliction of torture
(? 190.2, subd. (a)(18)) and was committed while defendant was engaged in the
commission of mayhem in violation of section 203 (? 190.2, former subd.
(a)(l7)(x), now subd. (a)(17)(J)).
The jury deadlocked at the penalty phase, and the trial court declared a
mistrial. After retrial of the penalty phase, a different jury returned a verdict of
death. The court denied defendant?s motion for new trial (? 1181) and automatic
application to modify the penalty verdict (? 190.4, subd. (e)) and sentenced him to
death. This appeal is automatic. (? 1239, subd. (b).)
We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise
I. FACTS AND PROCEEDINGS
A. Prosecution Guilt Phase Case
In 1992, Quintessence, a company located in Tustin, obtained contracts for
providing janitorial services to various businesses and then sold the contracts to
janitors who serviced the contracts as independent contractors. Quintessence
collected payment from the businesses and then paid its independent contractors
after withholding a management fee. The bookkeeper for Quintessence was
victim Karen Laborde.
Defendant purchased several accounts from Quintessence, some of which
he financed through the company under terms providing that Quintessence would
withhold a portion of future payments made by defendant?s customers. He
performed janitorial services for his accounts with Jeremy Willis (Jeremy).2 By
about January 1993, defendant had lost all but two of his accounts due to customer
dissatisfaction. Still, he owed Quintessence for the purchase fees he had financed
for the lost accounts. Matt Conrod, a sales representative with Quintessence,
arranged for Quintessence to forgive defendant?s debt and maintain his contracts
on the two accounts because they were difficult to reassign.
About two weeks before the murder, and after having lost some accounts,
defendant had a conversation with Conrod on a second-story balcony at
Quintessence. Visibly angry and using ?all kinds of foul language,? he told
Conrod he was ?pissed off? at the accounting department. Conrod thought
Jeremy was the son of defendant?s girlfriend, Joan Willis. After Laborde?s
murder, Joan remarried and changed her surname to Conners. For clarity, we will
refer to her as Joan Willis, or Joan.
defendant might throw him off the balcony. Defendant warned that ?if anything
like this happens again, something?s going to happen.? As he left, he again
threatened, ?If you don?t correct this you better believe me because I?ll do
something, I?m not kidding.?
2. The murder of Karen Laborde and defendant?s arrest
On February 1, 1993, the day before the murder, defendant, upset and
angry, telephoned Conrod at Quintessence to complain he had not been paid for
one account. Conrod checked with Laborde on the status of defendant?s payment;
she told him the check had been taken care of. Conrod then telephoned defendant
and told him what Laborde had said. Defendant seemed satisfied with the
response. Later that day, defendant telephoned Quintessence and spoke with
Eileen Anderson, Laborde?s assistant. He was angry and demanded his paycheck.
Defendant mistook Anderson for Laborde and threatened to hurt her if he was not
paid. Anderson told him, ?I?m not Kari [Laborde]. I?m not Kari.? She placed
defendant on hold, and after speaking with Laborde, informed him that there was
no check. Defendant became angry and asked to speak with Conrod.
Sometime during the same day, defendant spoke with Jeremy about
financial problems he faced. He was upset Quintessence had failed to pay him,
and told Jeremy that ?nobody screws [him].?
On the day of the crime, after defendant and Jeremy had finished the job at
defendant?s first account, located in Anaheim, defendant told Jeremy, ?I quit.?
With Jeremy in the passenger seat, defendant then drove to Santa Ana, the location
of his second account. Defendant, a smoker, had a disposable lighter in his
possession that morning.
As they waited for about 10 minutes to be let inside the business, defendant
told Jeremy, ?No one screws me like that,? and said he wanted to get even.
Defendant initially said, ?I?m not going to kill her. I just want to do it,? meaning
burn her. Later, he said, ?I?m going to kill her.? Without servicing the account,
defendant left and drove to a gasoline station. At 8:26 a.m., he purchased a
dollar?s worth of gasoline, filling it into a plastic sport bottle. Jeremy asked,
?What?s that for?? Defendant did not reply and drove to Quintessence. During
the drive, Jeremy asked him, ?Are you sure you want to do this?? Defendant
replied he was ?positive.? As defendant drove, he appeared calm and relaxed. By
the time defendant and Jeremy arrived at Quintessence, defendant had told Jeremy
four times that he was going to light her on fire.
When defendant arrived at Quintessence, he gave Jeremy the keys to his
truck and told him to ?get the hell out of [there].? After entering the building,
defendant walked up stairs to the reception area, approached Lisa Chaput, the
receptionist, and asked to see Laborde. When Chaput told him she was busy,
defendant became angry, saying, ?I want to see her and I want to see her now.?
Chaput walked to Laborde?s office and held the door open a few inches. In the
next moment, defendant burst through the door, shoving Chaput out of his way.
He headed for Laborde, who was sitting behind her desk, and yanked her seat
around so that she was facing him. Defendant splashed Laborde?s face, arms, and
dress with gasoline from the sport bottle and yelled, ?This is what you get when
you hold my fucking money.? Laborde stood up and, wiping her face, asked, ?Oh
God. Why are you doing this to me?? Defendant stepped closer to Laborde and
answered, ?This is what you get when you don?t give me my money.? He then
took the sport bottle, poured the remaining gasoline on Laborde?s head, and lit her
on fire. When Laborde began screaming and struggled to put out the flames that
engulfed her, defendant shoved her.
Chaput ran downstairs to warn the building occupants about the fire and
encountered defendant as he exited the building. He asked her, ?Do you want to
fuck with me next?? Defendant asked another woman to light the cigarette in his
hand. She refused.
Two brothers, who were detailing a car nearby, and another man learned of
the fire. They rushed upstairs and put out the fire with two extinguishers. They
discovered Laborde burned on the floor and tried to move her, but could not do so.
Tustin Police arrived around 8:39 a.m. and found Laborde on the floor of the
office, charred and crying. Most of her clothing had been burned off, and her face
and hair were charred. Her mouth and nose were excreting fluids, and skin was
hanging from her face.
Chaput saw defendant walk toward a streetlight near the office parking lot,
knock on a car, and reach in to light a cigarette. Defendant returned to the curb
outside the office building and sat smoking a cigarette until he was arrested
minutes later. In a calm voice, he told the arresting officer, ?I?m the one you are
here to arrest.? Defendant was arrested, handcuffed, and placed in a police car.
He asked Officer Nasario Solis, an investigator who observed defendant in the
police car, how much time he was looking at for attempted murder. When the
officer told defendant that he was under arrest for assault, defendant responded, ?I
don?t want assault, I want attempted murder.? The officer noticed defendant
smelled of gasoline, his hair was singed, and there was soot in his nose.
3. The victim?s dying declaration and death
Around 9:00 a.m., Laborde was flown to the University of California at
Irvine Medical Center. She had suffered third-degree burns on approximately 90
percent of her body. The heat and fumes from the flames had caused severe
swelling inside her mouth and the lining of her airways. Laborde?s doctor, Daniel
Ng, M.D., told her that her injuries were nearly 100 percent likely to be fatal.
Laborde declined medical treatment and indicated she wanted only comfort
measures including pain medication. She required administration of over 30
milligrams of morphine per hour for over one or two hours to reduce the intensity
of her pain and make her comfortable.3 Laborde died at 4:45 p.m. that day.
Laborde?s doctor opined that if she had survived, she would have been disfigured
and might have lost limbs.
While Laborde was in the hospital, Officer Douglas Finney of the Tustin
Police Department asked her how she was injured and recorded her answers.4 She
said that ?[Jon D?Arcy] threw this cup of . . . fluid . . . I guess it was gas . . . he
threw it all over me and then he lit me? with a ?[c]igarette lighter? that he held ?in
his hand.? Laborde stated that defendant ?deliberately went for me.? She said
that she was unable to escape because she had no room to move. She had a check
for defendant on a desk and would have given it to him had he asked for it. The
parties stipulated that, before Laborde was taken from the scene by paramedics, a
check made out to defendant for the sum of $159, and dated January 31, 1993, was
located on a desk in her office.
4. The fire investigation
Captain Dennis Shearn, a 10-year veteran with the Orange County Fire
Department (OCFD) Investigative Section,5 investigated the scene immediately
According to Laborde?s doctor, two to three milligrams of morphine an
hour is typically sufficient to cause a person to sleep ?a while.?
Officer Finney asked Laborde questions and recorded her answers while
she was being treated in the emergency room by the trauma team and later, while
she was receiving comfort measures in the burn unit.
Captain Shearn had over 25 years experience as a firefighter with the
after the crime and concluded that an open flame had ignited the fire. Remnants of
a plastic bottle that smelled of gasoline were found on the floor near Laborde?s
desk, and a cigarette lighter was found on another desk in her office. A cigarette
lighter has an open flame and could have ignited the fire. Under debris, in the
corner of Laborde?s office, Shearn discovered a portable space heater with its fan
running.6 He eliminated the space heater and all of the electrical circuit plugs,
cords, and appliances in the office as possible sources of the fire.
The autopsy conducted the day after the crime revealed that Laborde had
suffered burns on approximately 90 percent of her body. Her hair was singed, and
90 percent of her face, which looked very red, showed loss of skin surface. Her
nostrils were blocked by black soot. Her right breast was completely burned off.
Laborde?s upper respiratory passages, lungs, and stomach were filled with black
soot, meaning she had inhaled hot smoke, consistent with a person who was
engulfed in flames. The cause of death was asphyxia. The hot smoke Laborde
inhaled caused sudden spasms and swelling of her mucosa, causing her to choke to
B. Defendant?s Guilt Phase Case
Defendant conceded he committed first degree murder and presented
evidence that he suffered a mental illness sufficiently severe to create a reasonable
doubt regarding the torture and mayhem special circumstances allegations.
Laborde had placed the space heater between her desk and the desk of her
officemate, Anderson. The debris covering the space heater after the fire consisted
of pieces of ceiling tile that the firefighters had knocked down in the course of
extinguishing the fire.
(? 190.2, subds. (a)(17)(J), (18).) Supporting testimony came from two forensic
psychologists, Edward Fischer, Ph.D., and Veronica Thomas, Ph.D.
Around July 1993, at the request of former appointed counsel Jennifer
Keller, Dr. Fischer evaluated defendant?s mental health. He interviewed
defendant, administered several psychological tests, and reviewed historical
information contained in defendant?s mental health records and obtained by
interviews with family members.
Defendant was born in 1962 and raised in a dysfunctional home by his
mother. He was first referred for psychological evaluation in kindergarten and
second grade, at ages five and eight, respectively. In 1970, clinical psychologist
Joan Glad, Ph.D., interviewed and tested defendant and recommended
psychotherapy for him and his mother.7 He received three years of psychotherapy
in grammar school. In high school, defendant was placed in special education
classes and taught in a building separate from the main high school campus. He
received group therapy from a psychiatrist as part of the special education
curriculum. When defendant was imprisoned in 1981 for burglary convictions, he
was given psychological tests, the results of which were made available to Dr.
Fischer. Dr. Fischer also reviewed psychological evaluations of defendant that
were performed at Patton State Hospital in approximately September 1993.8
In 1996, Dr. Fischer, at counsel?s request, reevaluated defendant?s mental
health, conducted additional structured interviews of defendant, and consulted
with Dr. Thomas, who also had administered psychological tests to defendant and
Dr. Glad testified for the defense in the penalty phase.
For reasons that are unclear, Dr. Fischer did not provide a formal diagnosis
of defendant?s mental health in 1993.
formally interviewed him. Dr. Fischer diagnosed defendant with paranoid
schizophrenia and suspected he had organic brain damage, but defendant refused
to undergo neurological testing. Dr. Fischer opined that defendant experienced an
acute psychotic break on the day of the crime due to financial stressors, a loss of
self-esteem, feelings of being a failure, and emotional immaturity.
Around July 1996, Dr. Thomas assessed defendant?s mental state by
conducting an interview and administering various psychological tests. She
reviewed historical information from defendant?s early childhood and police
reports that included statements of Joan and her sons, Jeremy, and Corey.
Additionally, Dr. Thomas personally interviewed defendant?s mother and half-
sister. She opined that, on the day of the crime, defendant suffered from paranoid
disorder that made ?it virtually impossible for him to relate to the world around
him in a normal fashion.? She described defendant?s condition as a ?delusional
disorder of a psychotic nature,? meaning defendant had ?fixed false beliefs about
reality.? Dr. Thomas believed there was a possibility defendant had organic
brain damage, but her diagnosis was hampered by his refusal to undergo
neurological testing. In his paranoid delusion, defendant had strong fixed ideas
that the government and his attorney, George Peters, had wronged him. Dr.
Thomas did not believe defendant was schizophrenic, however. She
acknowledged that defendant?s tests showed that he was highly manipulative.
C. Prosecution Penalty Phase Case
During the penalty phase retrial, the prosecution presented evidence of the
crime substantially similar to that presented during the guilt phase. In addition,
the following aggravating evidence was presented.
1. Burglary conviction
The prosecution introduced evidence of defendant?s prior conviction for
burglary on January 9, 1981. (? 190.3, factor (c).)
2. Prior unadjudicated criminal activity involving force or violence
The prosecution introduced evidence of the following prior unadjudicated
criminal offenses involving force or violence under section 190.3, factor (b).
a. Assault on Nancy D?Arcy
On September 13, 1985, defendant punched his former wife, Nancy
D?Arcy, numerous times in the face, held a knife to her throat, and threatened to
cut off her hands and knock out her teeth in order to prevent identification of her
body. After the attack, police found Nancy hysterical in the street with a swollen
eye and a bloody nose that appeared to have been broken.
b. Assaults on Joan Willis
In early 1987, defendant moved in with his girlfriend Joan and her three
children, including 18-year-old Jeremy and 20-year-old Corey. He lived with Joan
?on and off? for several years. On February 4, 1988, Joan asked defendant to stop
yelling during his telephone conversation. He became angry and repeatedly
grabbed Joan by her hair and threw her to the floor, pulling out clumps of hair. He
punched and kicked holes in two walls in the house.
On August 25, 1988, when defendant told Joan he wanted to use her truck,
she was reluctant. He told her, ?Get out of my way you f?ing bitch,? and then
pushed her onto the concrete driveway with such force that she urinated on herself.
Joan suffered kidney pain and a scraped elbow.
On September 18, 1989, defendant asked Joan for her bank card in order to
purchase alcohol; she refused. He became violent, grabbed and twisted her neck,
and tried to choke her. He then pushed her, and she hit her head on a bedpost.
Shortly after the incident, she applied for a temporary restraining order, then
telephoned defendant from the courthouse to inform him she had filed for the
restraining order and to ask him to leave her house. Defendant reacted by spray-
painting walls in Joan?s house, slashing her furniture and clothing, and breaking
her furniture. She and her family thereafter lived in a hotel for three months while
the house was repaired. After this incident, defendant moved out of Joan?s house.
On October 10, 1990, defendant telephoned her several times and
threatened to kill her if she did not let him move back into her house. Joan
believed his threats and immediately called the police.
c. Assaults on Corey Willis and others
In early April 1991, defendant again was living with Joan and her three
children and was working with Thomas Thompson at a telemarketing firm.
Defendant was fired because he failed to show up for work on two consecutive
days. Defendant blamed Thompson and planned to beat him up. On May 21,
1991, Thompson and Thompson?s friend Leonard Godfrey returned with Corey to
Joan?s house after attending a baseball game. Defendant grabbed an aluminum
baseball bat and, standing behind Thompson, hit him on the back of his knees and
knocked him into a sofa. Thompson defended himself against defendant?s next
swing, which glanced off Thompson?s hand and forehead. Thompson fled when
Joan intervened. Wielding the bat over his head, defendant chased Thompson
outside the house and caught up with him when Thompson fell to the ground.
Godfrey stepped in front of defendant, who told him to move. Godfrey did not
move, and defendant hit him with the bat. After dropping down on one knee,
Godfrey stood up. Defendant then hit him with the bat twice in the head and at
least 10 times in his sides with sufficient force to knock him off his feet. Godfrey
sustained a bloody lip and numerous bruises. During this incident, defendant also
threatened to hit Corey with the bat. The victims reported the incident to police,
and the investigating officer discovered the bat in a riverbed behind Joan?s house.
In mid-1992, defendant choked Terrence Berg with one hand when Berg
refused to sell him marijuana.
On January 29, 1993, after an argument with Corey, defendant told Corey
to hit him. When Corey refused, he hit Corey across the side of his face. On one
occasion before 1990, defendant had put Corey in a headlock.
3. Victim Impact Testimony
Laborde?s mother, Lorene Leiter, testified Laborde was a loving daughter
and churchgoer and Lorene missed her. Laborde?s twin brother, Darrin Leiter,
described Laborde as an easygoing person and an important influence in the
family. He experienced a great deal of sadness on his birthday because he had
always celebrated the occasion with his sister. Laborde was his best friend, and he
Laborde?s daughter, Rene Granier, testified her mother was murdered
shortly before her 16th birthday. She was very close to her mother, shared all of
her life experiences with her, and missed her. Rene?s life was difficult without her
mother?s love and support. About eight months after the murder, she moved to
Ohio to live with her aunt and attend high school.
Laborde?s son, Christopher Granier, testified his mother was a sweet person
and he always felt loved and supported by her, even when he misbehaved. After
the murder, Christopher joined the Navy. When he served at sea, he often thought
about his mother and cried at night.
D. Defendant?s Penalty Phase Case
1. Testimony of Joan Willis
In October 1986, Joan met defendant, and a couple of months later,
defendant was hospitalized after a motorcycle accident. Around this time,
defendant contacted his estranged father, who wanted nothing to do with him.
Defendant took this very hard, and shortly thereafter, sought rehabilitation for
heroin abuse. In early 1987, he moved in with Joan and her family.
Defendant frequently had random, violent outbursts towards Joan and
others. He could be kind and loving, but also verbally abusive and violent. He
was paranoid and sometimes said he was going crazy. Defendant held several jobs
over the years but lost each one because he argued with fellow employees and did
not take direction very well. He had no friends.
During 1991 and 1992, the family experienced financial pressures. Joan
feared she would lose her home because the Social Security benefits two of her
children received were going to expire. Joan lent defendant several thousand
dollars to purchase the janitorial contracts at Quintessence with the expectation
that Jeremy would work with defendant. Defendant quit using alcohol and drugs
except marijuana. He attended counseling, read self-help books, attended church,
and used other techniques, including drinking chamomile tea, to address his
stresses and calm himself.
Defendant began losing his janitorial accounts and became frustrated and
depressed. He attempted suicide in front of Joan by superficially slitting his writs
and cutting the skin on his stomach. The day before the murder, defendant was
irate because the accounting department at Quintessence did not have a paycheck
ready for him. He told Joan he would quit his accounts the following day. Joan
called Quintessence but was unable to resolve the problem with defendant?s
2. Defense Attorney Jennifer Keller
Jennifer Keller had represented defendant from April 1993 until February
1994 under court appointment, and she testified regarding an episode in which
defendant expressed remorse for the murder.9 During a meeting with defendant in
March or April 1993, Keller showed him newspaper articles about the victim. He
became extremely emotional and upset and stated that the victim seemed to be a
good person who was loved by many, although he had thought she was horrible
and evil. Defendant seemed to have an overwhelming amount of guilt and
empathized with Laborde?s family. He repeated, ?I can?t believe I did this. I can?t
believe I did this.? Defendant became distraught and cried intermittently
throughout the one-hour meeting. He told Keller he was having nightmares of
seeing the victim in flames and wondered whether God would forgive him.
Defendant admitted the murder, and Keller explained to him he needed to consider
a mental defense. Keller testified defendant?s expression of remorse seemed
genuine. When she suggested to defendant that he permit mental health experts to
examine him and determine what was wrong with him, he appeared to be grateful
and willing to cooperate. Defendant admitted there were times when he could not
control himself and, although he did not understand this behavior, he wanted to
learn what caused it.
Two weeks after this discussion, defendant insisted that he had been framed
for the murder and that the space heater spontaneously ignited the fire. Defendant
believed Keller, the prosecutor, and the trial judge, among others, were involved in
a conspiracy to convict him for a crime he did not commit. He told Keller he was
Defendant waived his attorney-client privilege to permit Keller to testify in
the second penalty phase.
not mentally ill and refused testing. Keller was convinced defendant genuinely
believed the thoughts he expressed about the conspiracy. Defendant never again
3. Testimony of psychologists
Dr. Edward Fischer performed psychological evaluations of defendant in
1993 and 1996. In his evaluations, he considered the following information based
on his interview of defendant?s half sister, Elizabeth Bartel, and his review of
numerous documents obtained by defendant?s counsel, including defendant?s
academic records and mental health records. Defendant and Bartel, who was 11
years his senior, were raised in poverty by their mother, Barbara D?Arcy. During
defendant?s childhood, his mother suffered from ?black moods? that would last for
days or weeks. She was not approachable and would not speak to defendant or his
half-sister while she was in this condition. Defendant?s mother often beat him
during his childhood, causing bruising on his body. Because she worked the night
shift during defendant?s early childhood, she tied him in bed during the day so that
she could sleep. When defendant was eight years old, defendant?s mother forced
him to eat his feces because he defecated in his pants on a road trip to Northern
Dr. Fischer described defendant?s primary diagnosis as paranoid
schizophrenia with a learning disability, organic brain dysfunction, and drug and
cannabis dependence. His secondary diagnosis was mixed personality disorder
including paranoid personality disorder, antisocial personality disorder, and
borderline personality. According to Dr. Fischer, defendant?s schizophrenia was a
severe mental disability that he had had all his life.
Dr. Veronica Thomas evaluated defendant?s mental state in October 1996
based on her interview of defendant, psychological tests, review of historical
information, and interviews with his mother and half-sister. Her review of the
information showed that defendant?s mother did not deny she tied him down
during his early childhood; defendant wet his bed until he was 12 years old; and
defendant experienced hallucinations at age 22.
Dr. Thomas explained that bedwetting is a sign of serious emotional
problems and that hallucinations at age 22 ?would definitely be associated with a
future psychotic diagnosis and/or experience.? She diagnosed defendant with a
psychotic disorder, delusional disorder, personality impairment disorder, and
substance abuse, and attributed the cause of his psychotic disorders to brain
dysfunction, genetics, emotional and physical trauma, and child abuse. Dr.
Thomas believed that defendant was a sociopath and concluded that he was
experiencing a psychotic break when he murdered Laborde.
Dr. Joan Glad testified that in 1970, she was a clinical psychologist with the
Orange County Children?s Hospital and had interviewed defendant and his
mother. She learned then from reviewing historical records that defendant had set
a fire on the grounds of his grammar school. Defendant?s mother told Dr. Glad
that she kept defendant away from other children. Dr. Glad diagnosed defendant
with a learning disability and opined that defendant was unhappy, felt helpless,
and lacked feelings of power and control. Defendant?s childhood experiences with
bedwetting and fire setting were consistent with his development of severe
emotional disturbance later in life. She concluded his mental health was
E. Prosecution Rebuttal Evidence
Deputy Christian Dinco, of the Orange County Sheriff?s Department,
booked defendant into the Orange County jail after the murder. Defendant asked
the deputy whether he had seen his case on the news. Defendant remarked that the
crime would not have happened if he had been paid, and that he had bills to pay.
He admitted he threw gasoline on Laborde and lit her on fire. He said, ?Yeah, I
just threw a match and she went up like a Christmas tree.? Defendant did not
II. PRETRIAL ISSUES
A. Competency to Stand Trial and Right to Self-representation
As set forth more fully below, defendant contends he was denied a
meaningful competency hearing under section 1369 because the trial court failed
to appoint two experts to evaluate him and failed to obtain a personal waiver of his
right to a jury trial. In addition, defendant contends the trial court accepted an
invalid waiver of his right to self-representation under Faretta v. California (1975)
422 U.S. 806 (Faretta) and erroneously denied his request for continuance made
on the day of trial. The background and procedural history that follow are relevant
to our discussion of each of these contentions.
Between April 2, 1993, and February 14, 1994, defendant was represented
by appointed counsel Jennifer Keller. During one of their initial meetings at
Orange County jail, defendant admitted that he had committed the murder. After
hearing his admission, Keller had no doubt that defendant lit Laborde on fire, and
?it wasn?t a space heater that was responsible.? Two weeks after this discussion,
defendant changed his story, insisting the space heater spontaneously had ignited
the fire and there was a conspiracy to convict him.
On July 30, 1993, in denying defendant?s first motion under Faretta, the
court declared a doubt about defendant?s competence to stand trial under section
1368. The court articulated no specific reasons for doubting defendant?s
competence, but stated it had ?a strong feeling that this defendant cannot
cooperate with any counsel.? Presumably, the court was referring to Keller?s
representations at the hearing that defendant had organic brain damage that caused
him to, among other things, act impulsively and without reflection and that he was
refusing to cooperate with Keller in the preparation of a mental health defense
because he did not trust her and believed he was ?being framed.?
On September 2, 1993, after conducting a competency hearing, the trial
court found defendant incompetent to stand trial and committed him to Patton
State Hospital. On January 14, 1994, the court received and filed a certificate of
restoration under section 1372 and an accompanying report from the medical
director of the hospital that indicated defendant?s competence had been restored.
On February 14, 1994, defendant appeared in court with Keller, who declared a
conflict of interest and was relieved as counsel of record. The following day, Paul
Stark was appointed counsel of record.10 On February 22, 1994, the trial court
conducted a competency hearing, found defendant competent to stand trial, and
reinstated criminal proceedings. (? 1372.)
On August 12, 1994, the trial court held a hearing on motions that
defendant had filed under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and
Faretta. Defendant told the court that ?what happened that day was an accident?
and that he wanted to represent himself because his attorneys did not want to
pursue an accidental ignition defense.11 The court then explained to defendant:
?But don?t you understand that you, as the accused, ultimately does [sic] have the
right to direct the direction in which your defense goes. The lawyers can advise
you, they can tell you what is in your best interest, but when it gets right down to it
In late April, the court appointed Ed Hall as second counsel.
Under this theory of defense, defendant acknowledged he poured gasoline
on Laborde but denied lighting the gasoline on fire. He insisted the space heater in
Laborde?s office spontaneously ignited the gasoline fumes.
you make the decision on what kind of defense you offer, and the lawyer either
participates with it, or if he has an ethical conflict he can get off the case then.?
Defendant complained that his prior and present attorneys refused to pursue his
defense theory and wanted to take the case in a different ?direction.? The court
denied both of defendant?s motions. Defendant filed a petition for writ of mandate
in the Court of Appeal, Fourth Appellate District, Division Three, challenging the
trial court?s rulings.
While writ proceedings were pending, during a discovery hearing held on
October 21, 1994, defendant became frustrated when he learned counsel had
subpoenaed his jail records and the psychiatric records of two witnesses who
sought treatment after the murder. Defendant stated, ?It?s my wish[ ] that those
records were never subpoenaed. How can [counsel] do that? I thought you told
me last time that I was here that I had the final say, that they could only suggest, I
had the final say; evidently not.? After counsel explained to the court that he had
consulted with defendant, defendant added, ?I thought you [the court] stated last
time that I had the final say; apparently I don?t,? to which the court replied,
On January 10, 1995, the Court of Appeal granted defendant?s petition and
issued a writ of mandate directing the trial court to grant defendant?s Faretta
motion after obtaining a valid waiver of defendant?s Sixth Amendment right to
counsel. On January 23, 1995, the trial court advised defendant of the dangers and
disadvantages of self-representation, obtained a valid waiver of his right to
counsel, and granted his Faretta motion.
While representing himself, defendant took steps to develop an accidental
ignition defense. On May 8, 1995, Robert Lowe of Lowe Fire Investigations
agreed to work as a ?fire cause and origin consultant? for defendant on a pro bono
basis.12 On July 28, 1995, the prosecutor represented to the trial court that Lowe
had examined the space heater recovered from the crime scene. On September 25,
1995, the court granted defendant?s request that the prosecutor release crime scene
photographs to Lowe. On December 4, 1995, the court appointed Lowe to assist
On December 8, 1995, the trial court appointed George Peters as advisory
and standby counsel.
On April 15, 1996, during a closed proceeding, Peters represented to the
trial court that defendant wanted Peters to be his trial attorney and that they had
discussed the subject extensively during the preceding week. Defendant told the
court that he wanted Peters to present his defense because ?it might be a little
better than [coming] directly from the horse?s mouth.? Peters consented to the
arrangement but said nothing about presenting defendant?s accidental ignition
defense. He represented to the court that defendant wanted to retain his in propria
persona status in jail and question trial witnesses about his janitorial business
practices, if necessary. The court granted defendant?s requests and appointed
Peters as counsel. It informed defendant that it was ?leaving [him] pro per for all
purposes at the jail, so far as the jail is concerned you?re still pro per; however,
[the court] expect[ed] Mr. Peters [to] conduct the voir dire of the jury and  [to]
be lead counsel and  [to] conduct the trial.? The court further informed
defendant that it would continue to accept motions from him.
The source of information regarding Lowe and his fire cause and origin
investigation is Lowe?s letter dated February 13, 1997, and attached as exhibit I to
defendant?s in propria persona posttrial motion to dismiss the verdicts, filed March
The court then told defendant that he was appointing Peters as counsel of
record with some reluctance because it questioned whether one of defendant?s
prior court-appointed attorneys should be reappointed. Defendant acknowledged
he previously had disagreed with his former counsel, Paul Stark and Jennifer
Keller, over the theory of the case and explained that, because they believed he set
Laborde on fire, they wanted to present a mental defense. Defendant then
explained that Peters had interviewed Lowe and reviewed discovery. Defendant
told the court, ?[Peters] has come to the position, I believe, that he thinks that it?s
possible [the fire] could have been an accident . . . and it seems that if he?s willing
to argue that position, as well as some other issues that I brought forth to him, I
don?t see where there?s a conflict. [?] Again, with Mr. Stark and Ms. Keller, there
was a conflict.? The court did not respond to defendant?s remarks but confirmed
Peters?s appointment as counsel of record.
On October 25, 1996, at a hearing that had been scheduled to address
defendant?s Marsden and Faretta motions filed three days earlier, the trial court
addressed instead the issue of defendant?s competence based on two letters Peters
had received from defense forensic psychologists Drs. Edward Fischer and
Veronica Thomas. Dr. Fischer informed Peters that defendant was competent to
represent himself at trial but could not cooperate with counsel because counsel
was the central object of defendant?s paranoia. Dr. Thomas likewise reported to
Peters that he (counsel) was the focus of defendant?s paranoia, and advised that
defendant was incompetent to stand trial. Based on this information, the court
appointed Psychiatrist Kaushal Sharma, M.D., to examine defendant and report on
the issue of his competence. It suspended criminal proceedings and set the matter
for a hearing under section 1368.
The hearing took place on November 13, 1996. Peters called Drs. Fischer
and Thomas. Dr. Fischer testified that defendant suffered from a paranoid
personality disorder and that his mental state fluctuates. Defendant did not trust
his attorney and believed Peters was unwilling to present his accidental ignition
defense theory. Because of his paranoia, defendant also was convinced there was
a government conspiracy against him that included the court system, Peters, other
attorneys, and investigators. Defendant?s unwillingness to acknowledge his
mental problems hindered defense team members? work on his behalf. Dr. Fischer
opined that defendant would cooperate only with an attorney who would present
his accidental ignition defense theory.
Dr. Thomas testified that defendant suffered from a paranoid disorder and
possibly from organic brain damage. In Dr. Thomas?s opinion, because defendant
was mentally ill and had fixed false beliefs, he was unable to cooperate with
Dr. Sharma testified that defendant was competent to stand trial. In his
opinion, defendant understood the charges against him and knew he faced the
death penalty, but simply refused to cooperate with counsel. In other words,
defendant?s lack of cooperation with counsel was volitional and not the result of a
In ruling that counsel had not sustained his burden, the court found that
defendant ?is able to understand the nature and purpose in [sic] this proceeding,
understand his role in the nature of the proceedings and is able to rationally
cooperate with counsel in presenting a defense. He may choose not to cooperate
but he is able to cooperate.? After a brief recess and private conference with
Peters, defendant withdrew his Faretta motion, filed October 22, 1996. Defendant
agreed to allow Peters to present the defense he believed was appropriate and
indicated he would go on a hunger strike. The court accepted the withdrawal of
defendant?s motion and set trial for November 18, 1996.
On the first day of trial, before the jury selection process commenced, the
court conducted a closed proceeding to address defendant?s oral complaints about
his representation by Peters. Defendant had been on his hunger strike for five
days. He complained that Peters had told him he would not present an accidental
ignition defense at trial even though Peters had agreed to do so when he was
appointed counsel of record on April 15, 1996. Defendant said he needed access
to Peters?s investigators so he could interview 60 witnesses. He also wanted
Peters to provide Dr. Fischer with additional records and reports the psychologist
had requested that purportedly would show defendant was experiencing a
psychotic episode at the time of the murder and thus did not form the intent to
torture. Defendant accused counsel of acting in bad faith, but said he did not
believe counsel was incompetent. He felt he had been ?tricked? and told the court,
?I don?t really want to fire Mr. Peters. I think he?s competent and he?s come this
far. What I would like for him to do is finish the work. And if you won?t allow
more time, I want to . . . get new counsel. But I don?t want new counsel. I want to
go to trial.? The court construed defendant?s motion as one for a continuance,
denied it as untimely, and terminated his cocounsel status based on his hunger
strike, which it deemed ?a violation of any counsel?s responsibility to the court.?
B. Asserted Errors in the Competency Hearing
As noted above, on November 13, 1996, a hearing was held under section
1368 regarding defendant?s competence to stand trial. Defendant contends the
trial court erred under section 1369 by appointing only one mental health expert to
evaluate him for the competency hearing, and by failing to obtain his personal
waiver of the right to a jury trial at the hearing. He claims these errors deprived
him of due process of law under the Fourteenth Amendment to the federal
Constitution. As explained below, each contention lacks merit.
1. Failure to appoint second mental health expert
Section 1369, subdivision (a) provides in relevant part: ?In any case where
the defendant or the defendant?s counsel informs the court that the defendant is not
seeking a finding of mental incompetence, the court shall appoint two? mental
health experts to evaluate the defendant and render an opinion as to his
competence. Defendant asserts the court should have inferred he did not want to
be declared incompetent because that finding would have ?defeat[ed] his effort to
regain sole control of his case? in order to present his accidental ignition defense.
The trial court?s failure to appoint a second mental health expert to evaluate him,
he contends, violated section 1369 and his right to due process under the
Fourteenth Amendment to the federal Constitution. The contention lacks merit.
We rejected an almost identical claim in People v. Lawley (2002) 27
Cal.4th 102, 132-133. On appeal, the defendant in Lawley argued that, even
though neither he nor his counsel expressly informed the judge conducting the
competency hearing that he did not seek a finding of incompetence, the judge
should have inferred as much based on his insistence on a court trial, new counsel,
or, alternatively, the right to proceed in propria persona. (Id. at p. 133.) In
rejecting the argument, we held that ?[s]ection 1369, subdivision (a) plainly
requires ?defendant or the defendant?s counsel? to ?inform the court? that the
defense is not seeking a finding of incompetence in order to trigger the required
appointment of a second mental health expert.? (Ibid.) Here, as in Lawley,
because neither defendant nor counsel expressly informed the court during the
competency hearing that defendant was not seeking a finding of incompetence, the
trial court was not required to appoint a second mental health expert, and
defendant?s contention fails.
2. Failure to obtain defendant?s personal waiver of his right to a jury
A defendant enjoys a statutory right to a jury trial in a competency
proceeding. (People v. Masterson (1994) 8 Cal.4th 965, 969; ? 1369.) Defendant
contends the trial court was required to obtain his personal waiver of this right
because he and Peters were cocounsel under the terms of Peters?s appointment on
April 15, 1996. He claims the court?s failure to obtain his personal waiver
deprived him of his right to due process under the Fourteenth Amendment to the
federal Constitution. We disagree.
Before addressing defendant?s argument directly, it is necessary to
clarify the status of defendant?s representation. ?It is settled that a criminal
defendant does not have a right both to be represented by counsel and to
participate in the presentation of his own case. Indeed, such an arrangement is
generally undesirable.? (People v. Clark (1992) 3 Cal.4th 41, 97; see also People
v. Bradford (1997) 15 Cal.4th 1229, 1368.) ?If [a criminal defendant] chooses
professional representation, he waives tactical control; counsel is at all times in
charge of the case and bears the responsibility for providing constitutionally
effective assistance. Upon a ?substantial? showing [citation], and entirely subject
to counsel?s consent . . . , the court may nonetheless permit the accused a limited
role as cocounsel. Even so, professional counsel retains complete control over the
extent and nature of the defendant?s participation, and of all tactical and
procedural decisions.? (People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14,
original italics.) ?[N]one of the ?hybrid? forms of representation, whether labeled
?cocounsel,? ?advisory counsel,? or ?standby counsel,? is in any sense
constitutionally guaranteed.? (People v. Bloom (1989) 48 Cal.3d 1194, 1218.)
Here, during the April 15, 1996, closed proceeding, the court approved a
form of hybrid representation for defendant in which he was both represented by
counsel and permitted to act as cocounsel. Specifically, in granting defendant?s
request for cocounsel status, the trial court advised defendant that his role would
be limited to filing motions and examining witnesses at trial about his janitorial
business practices, and that he would retain in propria persona privileges in jail.
Peters consented to defendant?s cocounsel status and was appointed counsel of
record to conduct the trial proceedings.
Turning to the merits, there is nothing in the record that suggests
defendant?s hybrid representation extended to the November 13, 1996,
competency hearing. The reporter?s transcript of the competency hearing reflects
that only Peters appeared as counsel of record on behalf of defendant. In addition,
whereas the minute order for the proceedings held on November 13, 1996, does
not indicate defendant?s cocounsel status during the competency hearing, it does
reflect that defendant and Peters appeared as ?cocounsel? in the proceedings that
followed this hearing, when criminal proceedings were reinstated.
Further, defendant?s conduct during the competency hearing confirms
that he in fact did not participate as cocounsel. Peters made an opening statement,
examined the two defense experts, cross-examined the prosecution?s expert, and
provided closing remarks. Defendant, on the other hand, did not speak or
otherwise participate, with two exceptions. First, defendant acknowledged a
greeting by the court when the hearing was called to order. Second, during
counsel?s examination of Dr. Fischer, defendant attempted to ask the witness a
question. The court interrupted defendant, stating, ?We?re in a proceeding where
you ?.? Counsel interrupted the court and said, ?I?ll ask it.? Defendant remained
silent throughout the rest of the competency hearing. Importantly, defendant never
expressly asserted his cocounsel status or participated in the hearing in accordance
with the limited cocounsel responsibilities the court had conferred on him in the
criminal proceedings. In sum, the record fails to support the factual predicate to
defendant?s claim: that the hybrid representation extended to the competency
hearing. Accordingly, the trial court did not err by accepting Peters?s waiver of
defendant?s statutory right to a jury trial at the competency hearing. (People v.
Masterson, supra, 8 Cal.4th at p. 974 [counsel may waive a jury trial in a
competency proceeding, even over the defendant?s objection].)13
C. Right to Self-representation
Defendant contends that the trial court violated his rights under Faretta by
accepting an invalid waiver of his right to self-representation during the
proceeding on April 15, 1996. He additionally argues the court erroneously
denied his request, made on the day of trial, for a continuance in order to permit
Peters to prepare the accidental ignition defense. These errors, he asserts, violated
his rights to present a defense and to counsel under the Sixth Amendment and to a
reliable penalty determination under the Eighth Amendment. As we explain, each
of his contentions lacks merit.
In light of our conclusion, we need not address the broader question
whether a defendant may participate as cocounsel, or represent himself, at a
hearing to determine his competency to stand trial under section 1368. (See
People v. Masterson, supra, 8 Cal.4th at p. 971 [?How can a person whose
competence is in doubt make basic decisions regarding the conduct of a
proceeding to determine that very question??]; People v. Robinson (2007) 151
Cal.App.4th 606, 616 [the trial court erred in failing to appoint counsel to
represent the defendant once it declared a doubt about his competency to stand
trial under section 1368]; People v. Tracy (1970) 12 Cal.App.3d 94, 102-104 [the
trial court committed reversible error by permitting the defendant to discharge his
attorney and represent himself at a sanity hearing].)
1. Defendant?s waiver of his right to self-representation
Defendant contends his waiver of his previously asserted right to self-
representation was invalid on two grounds. First, he argues his waiver was
ineffective because it was conditioned on Peters?s presentation of the accidental
ignition defense and the defense was not presented. Second, defendant maintains
his waiver was not valid because it was induced by the trial court?s misadvisement
on August 12, 1994, that he could decide what defense to present even when
represented by counsel. Because he mistakenly believed that Peters would
present such a defense and that he, rather than counsel, could choose what defense
to present, defendant argues he was unaware of the consequences of his waiver of
his Faretta right and thus did not knowingly and voluntarily waive his right,
requiring reversal of his conviction.
a. Asserted conditional waiver
?Waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.? (Brady v. United States (1970) 397 U.S.
742, 748; People v. Mroczko (1983) 35 Cal.3d 86, 110.) Although we have found
no authority directly on point, this court has addressed the related issue of the
validity of a conditional waiver of the right to counsel and held that ?a waiver of
counsel which is made conditional by a defendant cannot be effective unless the
condition is accepted by the court.? (People v. Carter (1967) 66 Cal.2d 666, 670;
see also Adams v. Carroll (9th Cir. 1989) 875 F.2d 1441, 1445 [upholding the
defendant?s unequivocal request to represent himself if the trial court would not
order substitute counsel].)
In Carter, on which defendant relies in arguing his waiver of the right to
self-representation was invalid, the defendant moved to waive his right to counsel
and represent himself at trial. (People v. Carter, supra, 66 Cal.2d at p. 668.) With
the court?s permission, the deputy district attorney undertook the inquiry to
determine the defendant?s ability to defend himself. During this colloquy, the
defendant stated he was willing to represent himself if he were permitted the use
of the law library. Later, the defendant refused to defend himself because he had
not been provided access to the library; the trial ended in his conviction. (Id. at
pp. 668-669.) On appeal, this court reversed because there was no constitutionally
effective waiver of the defendant?s right to counsel. (Id. at p. 670.) The record
clearly established that the ?defendant?s willingness to proceed without counsel
was predicated upon his mistaken belief, reinforced by the failure of the trial judge
to promptly and unequivocally reject the condition imposed by [the] defendant,
that he would be permitted some sort of meaningful access to and use of library
facilities.? (Ibid.) This court further noted that the defendant?s conduct
throughout the trial was consistent with that belief, in that he made multiple
requests for access to library facilities in order to prepare his case. (Id. at pp. 668-
Here, we need not decide defendant?s claim that his waiver of his right to
self-representation was invalid because his willingness to waive this right was
predicated on his mistaken belief that Peters, by accepting appointment as counsel
of record, would present the accidental ignition defense, a belief the trial court
reinforced by failing to promptly and unequivocally reject this condition. Under
the unique circumstances presented in this case, even assuming that defendant?s
waiver was invalid, reversal of his conviction is not required.
As defendant acknowledges, a waiver or abandonment of the Faretta right
to self-representation may be inferred from a defendant?s conduct. (McKaskle v.
Wiggins (1984) 465 U.S. 168, 182-183; People v. Dunkle (2005) 36 Cal.4th 861,
909-910.) In McKaskle, the United States Supreme Court concluded that the self-
represented defendant?s acquiescence in standby counsel?s participation at various
points during trial barred his complaint on appeal that counsel?s participation
infringed on his right to represent himself. (McKaskle, supra, 465 U.S. at pp. 182-
183.) In Dunkle, this court held the trial court erred in denying the defendant?s
Faretta motion made over a year before the commencement of his trial. (Dunkle,
supra, 36 Cal.4th at p. 909.) Relying in part on McKaskle, we concluded that
defendant subsequently abandoned his Faretta right when he stated in a later
proceeding that he wanted to be represented by counsel, and thus cured any error
in the trial court?s denial of his Faretta request. (Dunkle, at pp. 909-910.)
Here, any error by the trial court in accepting a conditional waiver of
defendant?s right to self-representation during the April 15, 1996, closed
proceeding was cured by defendant?s conduct during the proceeding held on
November 13, 1996, after the court ruled that he was competent to stand trial and
reinstated criminal proceedings. There, the court considered the Faretta motion
defendant had filed on October 22, 1996. A brief recess was taken, and Peters and
defendant conferred privately. During this conference, defendant asserts, Peters
told him that he did not intend to present the accidental ignition defense.14 The
proceedings resumed, and Peters and defendant again appeared before the court.
Defendant withdrew his Faretta motion and stated that Peters could present
whatever defense he thought appropriate. The record contains no suggestion that
defendant did not understand what he was giving up by withdrawing his Faretta
motion, confirming that he wanted to be represented by Peters, and agreeing that
Peters could determine the defense. Hence, we may properly infer that defendant
Defendant repeated the substance of this conversation during the pretrial
proceedings held on November 18, 1996.
abandoned his Faretta right and, in so doing, cured any error by the trial court in
accepting his purported conditional waiver of his right to self-representation.
(People v. Dunkle, supra, 36 Cal.4th at pp. 909-910.)
Finally, without citation to the appellate record, defendant asserts that he
had no choice but to withdraw his Faretta motion after the conclusion of the
competency proceedings on November 13, 1996, because the accidental ignition
defense had not been prepared. Keeping Peters as appointed counsel, he reasons,
ensured that a defense would be presented, even if it were not his preferred
defense. But defendant never actually claimed lack of preparation when he
withdrew his Faretta motion. By as early as July 30, 1993, during the hearing on
his first Faretta motion, defendant had articulated his accidental ignition defense
theory, and he made statements alluding to the theory as late as July 26, 1996, at
the hearing on his nonstatutory motion to dismiss. Also, defendant indicated in
his posttrial Motion to Dismiss Verdicts, filed March 17, 1997, that he had begun
to utilize Lowe?s services around May 1995 and, by April 2, 1996, had learned of
Lowe?s findings and conclusions.15 On this record, there is no support for
defendant?s contention that lack of preparation of his favored defense compelled
him to accept appointed counsel.
b. Asserted reliance on the trial court?s misadvisement
Defendant claims that, on April 15, 1996, he waived his Faretta rights and
agreed to Peters?s appointment in reliance on the trial court?s misadvisement, at
As stated, information regarding Lowe?s involvement in defendant?s
preparation of his defense was contained in exhibit I to defendant?s posttrial
motion to dismiss the verdicts, filed March 17, 1997. (See ante, fn. 12.)
the August 12, 1994, hearing on defendant?s Marsden and Faretta motions (see
ante, p. 20), that he could decide what defense theory counsel would present.
That the court misadvised defendant is clear. ?A defendant does not have
the right to present a defense of his own choosing, but merely the right to an
adequate and competent defense.? (People v. Welch (1999) 20 Cal.4th 701, 729,
citing People v. Hamilton, supra, 48 Cal.3d 1142, 1162.) An exception to this
general rule is that defense counsel?s traditional authority to control the conduct of
the case does not include the authority to withhold the presentation of any defense
at the guilt phase if the defendant openly and unequivocally expresses his desire to
present a defense and if there exists some credible evidence to support it. (People
v. Burton (1989) 48 Cal.3d 843, 856, citing People v. Frierson (1985) 39 Cal.3d
803, 812, 817-818 (plur. opn. of Kaus, J.).) Counsel, however, is not obligated to
present a defense that lacks ?credible evidentiary support.? (Burton, supra, 48
Cal.3d at p. 857.)
Here, defendant fails to show that he actually relied on the court?s
misadvisement in relinquishing his right to self-representation on April 15, 1996.
As recounted above, two months after the court?s misadvisement, during a
discovery hearing held on October 21, 1994, the court effectively corrected itself
when it agreed with defendant that his appointed counsel could pursue a separate
defense strategy, even over defendant?s objections. Nothing in the later record
contradicts the substance of the October 21, 1994, exchange.
Moreover, even if defendant at some point actually relied on the court?s
earlier misstatement that he could insist counsel present a particular defense in
relinquishing his Faretta right, reversal would not be required because, as stated in
the preceding part, any error by the trial court in accepting his waiver of his right
to self-representation was cured when defendant withdrew his Faretta motion
during the proceedings that followed the November 13, 1996, competency hearing
and stated Peters could determine the defense.
2. Request for continuance
Defendant argues that, during the November 18, 1996, proceeding
immediately preceding commencement of trial, the trial court erroneously denied
his request for a continuance to permit Peters additional time to prepare the
accidental ignition defense. The claim lacks merit.
Preliminarily, we agree with respondent that defendant continued to enjoy
cocounsel status at the November 18, 1996, proceeding.16 In this capacity,
defendant ordinarily would have no authority to request a continuance because, in
hybrid types of representation, professional counsel controls the case, including all
tactical and procedural decisions. (People v. Hamilton, supra, 48 Cal.3d at
p. 1164, fn. 14.) Here, because the trial court permitted defendant to continue to
file motions after Peters?s appointment, defendant retained some measure of
control over procedural decisionmaking in the case. For this reason, we consider
his claim on the merits.
Although defendant acknowledges he was cocounsel during the November
18, 1996, proceeding, he insists he also was self-represented until the trial court
denied his continuance motion. Defendant is mistaken. When Peters was
appointed counsel of record on April 15, 1996, defendant was permitted to assume
limited responsibilities as cocounsel, but not to represent himself. Although
defendant was permitted to retain his in propria persona privileges at jail, these
privileges pertained to only his custody status and had no bearing on his legal
representation during the trial proceedings.
In addition, any suggestion by defendant that the trial court improperly
revoked his right to self-representation under Faretta because he was on a hunger
strike is belied by the record. The court revoked defendant?s cocounsel status
because he was involved in a hunger strike, conduct the court viewed as ?a
violation of any counsel?s responsibility to the court.?
?A continuance in a criminal trial may only be granted for good cause.
(? 1050, subd. (e).) ?The trial court?s denial of a motion for continuance is
reviewed for abuse of discretion.? (People v. Jenkins (2000) 22 Cal.4th 900,
1037.) ?There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.? (Ungar v. Sarafite (1964) 376 U.S.
575, 589; see also Jenkins, supra, 22 Cal.4th at p. 1039.)? (People v. Mungia
(2008) 44 Cal.4th 1101, 1118.)
Although defendant ostensibly sought a continuance, it is clear from the
record that defendant?s goal was to obtain a court order that required Peters to
complete those tasks that defendant assertedly believed Peters agreed to perform
when he was appointed counsel of record on April 15, 1996, but had not finished.
For example, defendant wanted his defense to provide the victim?s children with
an explanation for his conduct on the day of the murder. He also wanted Peters to
obtain medical records and reports that Dr. Fischer apparently had requested, and
to subpoena additional records, including telephone bills and checks. The court
asked defendant, ?You?re asking counsel to run it [his trial] the way you want it to
be run[?] And we are back to this circle[?]? Defendant responded, ?It?s what he
agreed to do and he asked your blessing of the arrangement. . . . It?s in the [April
15, 1996] transcript.? Thereafter, the court construed defendant?s request as one
for a continuance to permit Peters additional time to prepare the accidental ignition
defense and complete other tasks defendant believed necessary for trial. It told
Peters he need not respond to any specific issue and denied defendant?s request as
We conclude the trial court did not abuse its discretion. As stated,
immediately before defendant withdrew his Faretta motion on November 13,
1996, Peters told him during a private conference that he would not present an
accidental ignition defense theory. Defendant thereafter withdrew his Faretta
motion and agreed that Peters could present whatever defense he thought was
?appropriate.? Under these circumstances, granting additional time to prepare the
accidental ignition defense would have served no purpose. (See People v. Frye
(1998) 18 Cal.4th 894, 1013.) Further, because jury selection was scheduled to
commence the day of defendant?s request, it could not be granted without causing
a significant disruption in the trial proceedings, and thus was untimely.
III. GUILT PHASE ISSUES
A. The Victim?s Dying Declaration
Defendant argues that the admission of Laborde?s tape-recorded statements
to police violated his federal constitutional rights under the United States Supreme
Court?s decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
1. Factual and procedural history
As stated above in part I.A.3., while Laborde was in the hospital, Officer
Finney asked her what happened to her to cause her injuries, and he tape-recorded
her answers. Near the beginning of the tape, an unidentified emergency room
doctor informed Laborde that her chances of survival were ?very poor.? She
responded by asking, ?Am I going to die?? The doctor said, ?You?re going to
die.? 17 Laborde told the doctor, ?I want to die.? She then recounted the facts of
The doctor was not identified on the audiotape. Dr. Ng, who treated
Laborde after she was transferred to the hospital?s burn unit, worked with the
trauma team when Officer Finney began to record Laborde?s responses. Dr. Ng
confirmed that the voice on the tape recording informing Laborde that she was
(Footnote continued on next page.)
the crime and said that defendant threw gasoline on her and lit her on fire with a
Subsequently, during the pretrial period when defendant represented
himself, he filed a motion for discovery of a videotape of Laborde?s statements
that he believed the prosecution was withholding from him. In this motion, he
asserted that the audiotape of these statements, which the prosecution had
disclosed to him, had been altered and therefore was untrustworthy. At the
December 8, 1995, hearing on the motion, the prosecution informed the trial court
that no videotape of Laborde making her statements existed. Thereafter, the court
addressed the issue of the reliability of the audiotape and found as follows: ?On
the issue of reliability, the dying declaration is just that, the victim was apprised of
the potential that she was about to die and there appears to be appropriate
foundation . . . [for application of the] exception to the hearsay rule.?
Defendant acknowledges that he did not object to the admission of the
audiotape of Laborde?s statements during the guilt or penalty phase.
Defendant contends that, even if Laborde?s tape-recorded statements were
admissible under the dying declaration exception to the hearsay rule,18 the trial
court admitted these statements in violation of his Sixth Amendment right to
(Footnote continued from previous page.)
going to die was that of another doctor on the trauma team, but he did not identify
the doctor by name.
Under Evidence Code section 1242, ?[e]vidence of a statement made by a
dying person respecting the cause and circumstances of his death is not made
inadmissible by the hearsay rule if the statement was made upon his personal
knowledge and under a sense of immediately impending death.?
confrontation.19 As a preliminary matter, defendant forfeited this claim by failing
to object on this basis at trial. (See People v. Geier (2007) 41 Cal.4th 555, 609-
611 [the defendant?s failure to object forfeited constitutional claims; constitutional
claims were not of such magnitude that an exception to the forfeiture rule was
warranted].) In any event, defendant?s claim is without merit.
We begin our analysis with a discussion of the legal principles established
in Crawford. ?Crawford . . . held that testimonial out-of-court statements offered
against a criminal defendant are rendered inadmissible by the confrontation clause
unless the witness is unavailable at trial and the defendant has a prior opportunity
for cross-examination. (Crawford, supra, 541 U.S. at p. 59.) [?] Under
Crawford, the crucial determination about whether the admission of an out-of-
court statement violates the confrontation clause is whether the out-of-court
statement is testimonial or nontestimonial.? (People v. Geier, supra, 41 Cal.4th at
Although the court in Crawford did not explicitly define a ?testimonial
statement,? it provided various examples: ? ? ?ex parte in-court testimony or its
functional equivalent ? that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect to be used
prosecutorially? [citation]; ?extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
Citing People v. Brown (2003) 31 Cal.4th 518, 538, defendant also claims a
violation of section 15 of article I of the California Constitution, which
independently guarantees the right of confrontation in a criminal prosecution.
Defendant makes no credible argument the California constitutional provision
should be interpreted differently from the Sixth Amendment.
confessions? [citation]; ?statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial? [citation].? (Crawford, supra, 541 U.S. at pp. 51-
52.)? (People v. Geier, supra, 41 Cal.4th at pp. 597-598.) In addition, the court
said certain statements qualify as ?testimonial? ? ?under any definition ? for
example, ex parte testimony at a preliminary hearing? [Crawford, at p. 52], and ?at
a minimum, [. . .] prior testimony at a preliminary hearing, before a grand jury, or
at a former trial; and [. . .] police interrogations. These are the modern practices
with closest kinship to the abuses at which the Confrontation Clause was directed.?
(Id. at p. 68.)? (Geier, at p. 598.)
The Crawford court clarified that ? ?not all hearsay implicates the Sixth
Amendment?s core concerns,? (Crawford, supra, 541 U.S. at p. 51) and . . .
acknowledged that certain exceptions to the rule against hearsay in existence at the
time the confrontation clause was originally adopted fell outside the purview of
the clause because ?there is scant evidence that exceptions were invoked to admit
testimonial statements against the accused in a criminal case. Most of the hearsay
exceptions covered statements that by their nature were not testimonial ? for
example, business records or statements in furtherance of a conspiracy.? (Id. at
p. 56, italics & fn. omitted.)? (People v. Geier, supra, 41 Cal.4th at p. 597.) The
high court acknowledged, however, that dying declarations, even those testimonial
in nature, were recognized at common law, but left unanswered the question
whether the Sixth Amendment incorporates an exception for such declarations.
(Crawford, supra, 541 U.S. at p. 56, fn. 6.)
We answered this question in People v. Monterroso (2004) 34 Cal.4th 743,
764-765 (Monterroso), holding, in reliance on Crawford?s rationale, that
admission of dying declarations, whether or not testimonial in nature, does not
violate a defendant?s Sixth Amendment right to confrontation. ?Dying
declarations,? we reasoned, ?were admissible at common law in felony cases, even
when the defendant was not present at the time the statement was taken. (Peake,
Evidence (3d ed. 1808) p. 64.) In particular, the common law allowed ? ?the
declaration of the deceased, after the mortal blow, as to the fact itself, and the
party by whom it was committed,? ? provided that ? ?the deceased at the time of
making such declarations was conscious of his danger.? ? (King v. Reason (K.B.
1722) 16 How. St. Tr. 1, 24?25.) To exclude such evidence as violative of the
right to confrontation ?would not only be contrary to all the precedents in England
and here, acquiesced in long since the adoption of these constitutional provisions,
but it would be abhorrent to that sense of justice and regard for individual security
and public safety which its exclusion in some cases would inevitably set at naught.
But dying declarations, made under certain circumstances, were admissible at
common law, and that common law was not repudiated by our constitution in the
clause referred to, but adopted and cherished.? (State v. Houser (Mo. 1858) 26
Mo. 431, 438; accord, Mattox v. United States (1895) 156 U.S. 237, 243-244
[?from time immemorial they have been treated as competent testimony, and no
one would have the hardihood at this day to question their admissibility?].) Thus,
if, as Crawford teaches, the confrontation clause ?is most naturally read as a
reference to the right of confrontation at common law, admitting only those
exceptions established at the time of the founding? (Crawford, supra, [541 U.S. at
p. 54], citing Houser, supra, 26 Mo. at pp. 433-435), it follows that the common
law pedigree of the exception for dying declarations poses no conflict with the
Sixth Amendment.? (Monterroso, supra, 34 Cal.4th at pp. 764-765; see also
Giles v. California (2008) __ U.S. __, [128 S.Ct. 2678, 2682-2683] [testimonial
dying declarations were admitted at common law even though they were
unconfronted].) Therefore, without considering whether the statements at issue
were testimonial in nature, we concluded that admission of statements under the
dying declaration hearsay exception does not violate the Sixth Amendment?s
confrontation clause. (Monterroso, supra, 34 Cal.4th at pp. 763, 765, fn. 5.)
Monterroso?s holding thus disposes of defendant?s contention that admission of
Laborde?s dying declaration violated his Sixth Amendment right to
Defendant asserts that Monterroso was wrongly decided. The essence of
his complaint is that neither the language of the Sixth Amendment nor United
States Supreme Court jurisprudence permits an exception to the Sixth Amendment
confrontation requirement for dying declarations. That is, defendant disputes
Crawford?s suggestion that such an exception might exist based on historical
grounds (Crawford, supra, 541 U.S. at p. 56, fn. 6) because, in his view, dying
declarations are inherently unreliable. Defendant, however, does not address the
merits of our holding in Monterroso nor otherwise provide persuasive reason for
us to revisit that decision, and we decline to do so.
B. Torture Murder
The prosecution pursued a first degree murder conviction based on theories
of deliberate and premeditated murder, mayhem felony murder, and torture
murder. Torture murder is one of the statutorily enumerated types of first degree
murder. (? 189.) In the following discussion, we address in turn defendant?s
contentions that the standard instruction on torture murder (CALJIC No. 8.24) was
Our analysis is unaffected by the high court?s decision in Davis v.
Washington (2006) 547 U.S. 813, 821-822, which clarified what constitutes
testimonial hearsay within the meaning of Crawford.
unconstitutionally vague and led to arbitrary imposition of the death penalty, that
there was insufficient evidence to support his conviction of torture murder, and
that the instruction relieved the prosecutor of the requirement to prove the killing
of Laborde was deliberate and premeditated murder.
1. CALJIC No. 8.24
The trial court instructed the jury with CALJIC No. 8.24, which provides in
relevant part that first degree murder by torture is perpetrated ?with a willful,
deliberate, and premeditated intent to inflict extreme and prolonged pain upon a
living human being for the purpose of revenge, extortion, persuasion or for any
sadistic purpose.? (Italics added.)
Defendant asserts that the use of the phrases ?extreme and prolonged pain?
and ?any sadistic purpose? in CALJIC No. 8.24 fail to provide the jury with
meaningful guidance in determining penalty. As a result, he argues, the
instruction is unconstitutionally vague and permits imposition of the death penalty
in an arbitrary and capricious manner in violation of the Eighth Amendment. As
we explained in People v. Raley (1992) 2 Cal.4th 870, 898, footnote 2, however,
?[t]he definition of torture murder for the purpose of establishing a first degree
murder is irrelevant to the task of defining that narrow class of crimes for which
the death penalty is appropriate.? Accordingly, we reject out of hand defendant?s
Eighth Amendment challenge to the first degree murder by torture jury instruction.
2. Sufficiency of evidence
Defendant argues there was insufficient evidence to support his first degree
torture-murder conviction because there was no evidence he formed the intent to
inflict extreme and prolonged pain. He contends his conviction on this charge
therefore violated his due process rights under the state and federal Constitutions.
?When considering a challenge to the sufficiency of the evidence to support
a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence ? that is, evidence
that is reasonable, credible, and of solid value ? from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez
(2004) 32 Cal.4th 73, 104.) . . . We presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer from the evidence.
(People v. Ramirez (2006) 39 Cal.4th 398, 463.) If the circumstances reasonably
justify the trier of fact?s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. (People v. Valdez, supra, 32 Cal.4th at p. 104.) A reviewing court neither
reweighs evidence nor reevaluates a witness?s credibility. (People v. Guerra
(2006) 37 Cal.4th 1067, 1129.)? (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
?The elements of torture murder are: (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 another sadistic purpose.? (People v. Cook (2006) 39
Cal.4th 566, 602.) ?[F]or purposes of proving murder by torture, the intent to
inflict extreme pain ?may be inferred from the circumstances of the crime, the
nature of the killing, and the condition of the victim?s body.? [Citation.] But we
also have ?cautioned against giving undue weight to the severity of the victim?s
wounds, as horrible wounds may be as consistent with a killing in the heat of
passion, in an ?explosion of violence,? as with the intent to inflict cruel
suffering.? ? (People v. Cole (2004) 33 Cal.4th 1158, 1213-1214.)
Defendant contends the evidence he lit Laborde on fire is inconsistent with
an intent to cause prolonged pain. Rather, he argues, Laborde?s injuries were
consistent with his acting either in rage or with an intent to inflict a quick death
and, in any event, resulted from an explosion of anger. Not so.
Our careful review of the record reveals substantial evidence from which a
rational jury could have found beyond a reasonable doubt that Laborde?s killing
constituted torture murder. The record shows that, for at least two weeks,
defendant was angry with Quintessence because he believed the company was
withholding his money. He directed his anger specifically at Laborde, the
bookkeeper, believing she was personally responsible for withholding his pay.
Defendant complained to Conrod and threatened to do ?something? if he was not
paid. He expressed a desire to get even. On the day of the crime and the
preceding day, defendant repeatedly and openly expressed an intent to hurt, burn,
and kill Laborde. After pouring gasoline on Laborde?s face, arms, dress, and head,
and immediately before lighting her on fire, defendant told her, ?This is what you
get when you don?t give me my money.? As Laborde tried to put out the flames
rapidly engulfing her, defendant shoved her. Such evidence, when considered
with the resulting condition of Laborde?s body and her death some eight hours
later as a result of asphyxia from inhalation of hot smoke, permitted an inference
that defendant set Laborde on fire with the intent to inflict extreme pain for the
purpose of revenge.21
Because we conclude substantial evidence supports a conviction of first
degree murder based on a theory of torture murder, we necessarily reject
Contrary to defendant?s assertion, it is of no legal significance that the two
individuals who intervened and extinguished the flames in Laborde?s office may
have prolonged her life, unwittingly extending her suffering. (See, e.g., People v.
Martinez (1952) 38 Cal.2d 556, 560-561 [the jury reasonably found that the
defendant, who set his wife on fire, was guilty of torture murder, even though the
victim?s life had been prolonged by two witnesses who extinguished the flames].)
defendant?s additional claim that instruction on this theory was not justified by the
3. Deliberate and premeditated killing and felony murder
Defendant contends perfunctorily that the instructions and the prosecutor?s
arguments were prejudicially erroneous because they relieved the jury of the
necessity of finding that the killing was a deliberate and premeditated murder. He
points to no specific language, however, in either the torture-murder instruction or
the prosecutor?s argument and does not otherwise develop his argument. We thus
conclude the issue is not properly raised. (People v. Lindberg, supra, 45 Cal.4th at
p. 51, fn. 14.) In any event, contrary to defendant?s contention, it is well settled
that ? ?the words ?wil[l]ful, deliberate, and premeditated intent to inflict extreme
and prolonged pain[ ]? refer only to the requirement that before the trier of fact
may convict a defendant of first degree murder by torture there must be found a
cold-blooded, calculated intent to inflict such pain for one of the specified
purposes. Inasmuch as the Legislature has equated this state of mind with the
wil[l]ful, deliberate, premeditated intent to kill that renders other murders
sufficiently culpable to be classified as first degree murder, it is unnecessary in
torture-murder to also find that the killing itself was ?wil[l]ful, deliberate, and
premeditated.? ? ? (People v. Cole, supra, 33 Cal.4th at p. 1227, quoting People v.
Wiley (1976) 18 Cal.3d 162, 173, fn. 4.)
Next, defendant argues that the instructions and the prosecutor?s arguments
were prejudicial because they relieved the jury of the necessity of finding that the
felony-murder rule applied. He is mistaken. As stated, torture murder is listed
under section 189 as a distinct type of first degree murder. Consequently, the
felony-murder rule has no application to a case tried on a theory of first degree
torture murder with a torture special circumstance allegation. (See People v.
Mincey (1992) 2 Cal.4th 408, 451 [trial court erred in instructing on felony murder
in torture murder case].)
C. Jury Instructions
1. CALJIC No. 2.01
Defendant argues that the trial court?s instruction on the sufficiency of
circumstantial evidence to prove a defendant?s guilt (CALJIC No. 2.01)22
impermissibly lessened the prosecution?s burden of proof and created an
impermissible mandatory presumption of guilt. This court has repeatedly rejected
these arguments (see, e.g., People v. Romero (2008) 44 Cal.4th 386, 415-416;
People v. Stewart (2004) 33 Ca1.4th 425, 521; People v. Crittenden (1994) 9
Ca1.4th 83, 144), and we do so again here.
2. CALJIC No. 8.81.17
Defendant argues the trial court erroneously gave the jury an abbreviated
version of the mayhem-murder special-circumstance instruction under CALJIC
No. 8.81.17, in violation of his rights to a jury trial on the special circumstance
and to a reliable penalty determination under the Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and corresponding state constitutional
CALJIC No. 2.01, as given to the jury, provides in relevant part: ?[I]f the
circumstantial evidence is susceptible of two reasonable interpretations, one of
which points to the defendant?s guilt and the other to his innocence, you must
adopt that interpretation which points to the defendant?s innocence, and reject that
interpretation which points to his guilt. If, on the other hand, one interpretation of
such evidence appears to you to be reasonable and the other interpretation to be
unreasonable, you must accept the reasonable interpretation and reject the
The trial court instructed the jury with CALJIC No. 8.81.17 as follows:
?To find that the special circumstance, referred to in these instructions as murder
in the commission of mayhem is true, it must be proved: [?] One, the murder was
committed while the defendant was engaged in the commission or attempted
commission of a mayhem; and [?] Two, the defendant had the specific intent to
commit mayhem.? The instruction omitted the following second paragraph from
the instruction: ?The murder was committed in order to carry out or advance the
commission of the [mayhem] or to facilitate the escape therefrom or to avoid
detection. In other words, the special circumstance referred to in these instructions
is not established if the [mayhem] was merely incidental to the commission of the
murder.? Defendant asserts that the lack of an instruction requiring the jury to
find the murder was committed to facilitate the commission of mayhem reduced
the prosecutor?s burden of proof and requires reversal.
The claim lacks merit. The second paragraph of CALJIC No. 8.81.17
derives from our decision in People v. Green (1980) 27 Cal.3d 1, 59-62, in which
we held that the evidence established the defendant committed not ? ?a murder in
the commission of a robbery but the exact opposite, a robbery in the commission
of a murder.? ? (People v. Valdez, supra, 32 Cal.4th at p. 113, quoting People v.
Green, supra, 27 Cal.3d 1, 60.) We have explained that ?[t]he second paragraph
of CALJIC No. 8.81.17 is appropriate where the evidence suggests the defendant
may have intended to murder his victim without having an independent intent to
commit the felony that forms the basis of the special circumstance allegation. In
other words, if the felony is merely incidental to achieving the murder ? the
murder being the defendant?s primary purpose ? then the special circumstance is
not present, but if the defendant has an ?independent felonious purpose? (such as
burglary or robbery) and commits the murder to advance that independent
purpose, the special circumstance is present.? (People v. Navarette (2003) 30
Cal.4th 458, 505; see also People v. Raley, supra, 2 Cal.4th at p. 903 [?Concurrent
intent to kill and to commit an independent felony will support a felony-murder
?[I]nasmuch as Green did not announce a new element of the special
circumstance allegation but had merely clarified the scope of an existing element,
a trial court had no sua sponte duty to provide a clarifying instruction in the
absence of evidence to support a finding that the felony was in fact merely
incidental to the murder.? (Monterroso, supra, 34 Cal.4th at p. 767, citing People
v. Kimble (1988) 44 Cal.3d 480, 501-503.) Thus, a trial court has no duty to
instruct on the second paragraph of CALJIC No. 8.81.17 unless the evidence
supports an inference that the defendant might have intended to murder the victim
without having had an independent intent to commit the specified felony.
(Monterroso, at p. 767.)
Here, the evidence showed that defendant had concurrent intents to maim
and murder Laborde. On the day before the murder, he spoke with Laborde?s
assistant on the phone and demanded his paycheck. Believing her to be Laborde,
defendant threatened to ?hurt? her if she did not pay him. On the morning of the
murder, he told Jeremy he wanted to get even and to light Laborde ?on fire.?
Defendant said, ?I want to burn her.? He also stated, ?I?m not going to kill her. I
just want to do it.? Later, he told Jeremy he was ?going to kill? Laborde.
Immediately before opening his container of gasoline and dousing Laborde with
the liquid, he yelled, ?So you?re holding my fucking money, huh? This is what
you get when you hold my fucking money.? Defendant?s statements reveal that,
based on a mistaken belief that Laborde had withheld his pay, he intended both to
kill her and to cause her extreme pain and disfigurement by burning her.
Moreover, even if there was sufficient evidence to require the trial court to
instruct pursuant to the second paragraph of CALJIC No. 8.81.17, any error in
failing to instruct would be harmless. During closing argument, defense counsel
conceded the crime was first degree murder and presented only a mental defense
to the special circumstance allegations. Counsel essentially argued that defendant
could not form the requisite mental state of the special circumstances due to his
mental illness.23 The defense made no effort to defend against the mayhem
special-circumstance allegation on the theory that the maiming of Laborde was
merely incidental to achieving the murder. Under these circumstances, the
omission of the second paragraph of CALJIC No. 8.81.17 was harmless under any
D. Pre-autopsy Photographs
During the guilt phase and outside the presence of the jury, the prosecutor
proffered five pre-autopsy photographs depicting Laborde?s charred body.
Defense counsel objected that the photographs were hideous, unduly prejudicial,
and cumulative in light of the emotional testimony that established the extent of
Laborde?s burns and the nature of her injuries. He asked the trial court to exclude
all of the photographs or, in the alternative, limit the number of photographs to
one. The prosecutor argued the photographs were relevant to prove defendant?s
intent to torture and to commit mayhem. The trial court concluded ?the probative
value [of the photographs] exceed[ed] prejudice to the defense? and ruled the
photographs admissible to ?show substantial charring in various parts of the body
Defendant had been diagnosed by two forensic psychologists with paranoid
schizophrenia and paranoid disorder. Other professionals had diagnosed him with
antisocial personality disorder.
and enormous swelling and disfigurement of the face and [to] demonstrate
graphically the ingestion of hot gasses caused by the alleged conduct of the
During the penalty retrial, the prosecutor moved to introduce the same
photographs into evidence as relevant to the issue of punishment. Defense counsel
objected, relying on the same grounds he asserted during the guilt phase. The trial
court ruled the photographs were admissible for the same reasons it concluded
they were admissible in the guilt phase.
On appeal, defendant argues the trial court?s ruling constituted an abuse of
discretion in that the pre-autopsy photographs were irrelevant to the determination
of guilt and highly prejudicial in their depiction of Laborde?s wounds. He
contends their admission in the guilt and penalty phases violated his rights to due
process, a fair trial, and a reliable determination of guilt beyond a reasonable
doubt under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Defendant?s
contentions lack merit.
?The rules governing the admissibility of photographic evidence are settled:
all relevant evidence is admissible, unless excluded under the federal or state
Constitution or by statute, and trial courts have broad discretion in determining the
relevance of evidence . . . .? (People v. Vieira (2005) 35 Cal.4th 264, 293.) The
court?s exercise of that discretion will not be disturbed on appeal unless the
prejudicial effect of the evidence clearly outweighs its probative value. (People v.
Martinez (2003) 31 Cal.4th 673, 692; see Evid. Code, ? 352.) Further, we have
emphasized that ? ?the trial court?s discretion [at the penalty phase] to exclude
circumstances-of-the-crime evidence as unduly prejudicial is more circumscribed
than at the guilt phase. During the guilt phase, there is a legitimate concern that
crime scene photographs . . . can produce a visceral response that unfairly tempts
jurors to find the defendant guilty of the charged crimes. Such concerns are
greatly diminished at the penalty phase because the defendant has been found
guilty of the charged crimes, and the jury?s discretion is focused on the
circumstances of those crimes solely to determine the defendant?s sentence.
Indeed, the sentencer is expected to subjectively weigh the evidence, and the
prosecution is entitled to place the capital offense and the offender in a morally
bad light.? ? (People v. Moon (2005) 37 Cal.4th 1, 35, quoting People v. Box
(2000) 23 Cal.4th 1153, 1201, first italics added.)
We have viewed the photographs and conclude the trial court did not abuse
its discretion in admitting them. ?Photographs of a murder victim ?are always
relevant to prove how the charged crime occurred, and the prosecution is ?not
obliged to prove these details solely from the testimony of live witnesses,? ? even
in the absence of a defense challenge to particular aspects of the prosecution?s
case.? (People v. Vieira, supra, 35 Cal.4th at p. 293, quoting People v. Pollock
(2004) 32 Cal.4th 1153, 1170.) ?[W]e have often rejected the argument that
photographs of a murder victim should be excluded as cumulative to other
evidence in the case.? (People v. Cole, supra, 33 Cal.4th 1158, 1199.) The five
photographs depicted numerous burns on various parts of Laborde?s body and
extensive swelling and disfigurement of her face. Although unpleasant to view,
they were relevant to support the prosecution?s theories of felony murder in the
commission or attempted commission of mayhem, and torture murder. (Ibid.) At
the penalty phase, the photographs demonstrated graphically the circumstances of
the murder (? 190.3, factor (a)) and therefore were relevant to the penalty
determination. (People v. Moon, supra, 37 Cal.4th at p. 35; People v. Raley,
supra, 2 Cal.4th at p. 914.) Accordingly, we reject defendant?s claim of error.24
E. First degree Murder Liability and Special Circumstance Findings
Defendant argues that California?s death penalty scheme, as applied to his
case, violates the double jeopardy clause of the Fifth Amendment, the cruel and
unusual punishment clause of the Eighth Amendment, and the due process clause
of the Fourteenth Amendment because it permitted the jury to use the
circumstances that he committed the murder in the perpetration of mayhem and by
torture to support (1) his first degree murder conviction under a felony-murder
theory, (2) the mayhem and torture felony-murder special-circumstance findings,
and (3) the imposition of a death sentence. As he acknowledges, we have
repeatedly rejected this same argument. (See, e.g., People v. Seaton (2001) 26
Cal.4th 598, 690-691; People v. Marshall (1990) 50 Cal.3d 907, 945-946; see also
Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [?the fact that the aggravating
circumstance duplicated one of the elements of the crime does not make [the
death] sentence constitutionally infirm?].) Defendant offers no persuasive reason
to revisit our prior decisions, and we decline to do so.
F. The Three Strikes Law
Defendant argues that the torture and mayhem special circumstance
allegations should have been dismissed because the 1993 homicide with which he
was charged was subject to the provisions of the ?Three Strikes? law (?? 667,
1170.12), adopted in 1994. He contends the Three Strikes law precludes
Assuming without deciding that defendant preserved his claims of federal
constitutional error despite his failure to timely object on such grounds (People v.
Panah (2005) 35 Cal.4th 395, 438, fn. 13; People v. Yeoman (2003) 31 Cal.4th 93,
117-118, 133), we reject these claims for the reasons stated.
imposition of a death sentence for defendants, like him, who are convicted of first
degree murder with special circumstances and who have suffered one or more
prior violent or serious felony convictions. As defendant concedes, we previously
have rejected this claim. (See, e.g., People v. DePriest (2007) 42 Cal.4th 1, 61;
People v. Hughes (2002) 27 Cal.4th 287, 405-406; People v. Alvarez (1996) 14
Cal.4th 155, 246-247.) He offers no persuasive reason for this court to reconsider
its previous decisions.
IV. PENALTY PHASE ISSUES
A. Failure to Instruct Regarding Burden of Proof, Unanimity on
Aggravating Factors, and Presumption of Life
Defendant asserts various instructional errors that we have considered and
repeatedly rejected in previous decisions. Because he offers no persuasive reasons
why we should reconsider our precedents, we reject his challenges.
There is no constitutional requirement that the trial court instruct the jury
that it must find all aggravating factors beyond a reasonable doubt or, at a
minimum, by a preponderance of the evidence. (People v. Gutierrez (2009) 45
Cal.4th 789, 830; People v. Smith (2007) 40 Cal.4th 483, 526.) The trial court?s
failure to instruct the jury on a burden of proof does not violate a defendant?s
constitutional rights under the Sixth, Eighth, and Fourteenth Amendments.
(People v. Gutierrez, supra, 45 Cal.4th at pp. 830-831.) The trial court need not
instruct the jury that it must unanimously find true any particular aggravating
factor. (Id. at p. 829.) The United States Supreme Court decisions in Blakely v.
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), neither affect nor justify
reconsideration of the foregoing decisions.
The federal Constitution does not require that the jury be instructed on a
presumption in favor of a sentence of life imprisonment without possibility of
parole. (People v. Gutierrez, supra, 45 Cal.4th at p. 833; People v. Arias (1996)
13 Cal.4th 92, 190.)
B. CALJIC No. 8.85
Defendant contends that the trial court?s instruction under CALJIC No.
8.85, the standard instruction that describes the aggravating and mitigating factors
the jury may consider in determining penalty, violated his state and federal
constitutional rights in various respects.
Despite defendant?s failure to object to this instruction at trial, his claim is
cognizable on appeal to the extent it affects his substantial rights. (? 1259; People
v. Watson (2008) 43 Cal.4th 652, 701; see also People v. Gray (2005) 37 Cal.4th
As defendant acknowledges, this court repeatedly has rejected all of his
contentions. Because he offers no compelling reason to reexamine our decisions,
we decline to reconsider them here. We thus hold that CALJIC No. 8.85: (1) does
not violate a defendant?s ?state and federal constitutional rights to equal protection
and due process because it allows the consideration of unadjudicated criminal
conduct in capital sentencing, while such conduct may not be used in sentencing
noncapital offenders? (People v. Watson, supra, 43 Cal.4th at p. 701); (2) is not
constitutionally defective because it lacks instruction regarding the elements of
unadjudicated criminal conduct (see People v. Lewis (2001) 25 Cal.4th 610, 668);
and (3) ?do[es] not violate the Eighth and Fourteenth Amendments by failing to
delete inapplicable sentencing factors or delineate between aggravating and
mitigating circumstances? (People v. Ramirez, supra, 39 Cal.4th 398, 469).
C. CALJIC No. 8.87
The trial court instructed the jury under CALJIC No. 8.87, the standard
instruction for considering other criminal activity under factor (b) of section 190.3
(factor (b)), and listed seven assaults and two threatening phone calls that
defendant allegedly had committed.25 The instruction reminded the jurors that the
prosecution must prove the commission of each crime beyond a reasonable doubt
before they could consider any of the specified unadjudicated criminal activity as
factors in aggravation. Also, the jury was provided with the definition of each
alleged crime. Defendant argues this instruction?s reference to ?criminal acts?
involving ?the express or implied use of force or violence or the threat of force or
The trial court instructed the jury based on CALJIC No. 8.87 (1989 rev.) as
follows: ?Evidence has been introduced for the purpose of showing that the
defendant  has committed the following criminal acts which involve the express
or implied use of force or violence or the threat of force or violence:
?One, an assault and battery on Nancy D?Arcy in Minnesota in September
?Two, an assault and battery on Joan Willis on February 4, 1988.
?Three, an assault and battery on August 25, 1988.
?Four, an assault and battery on Joan Willis September 18, 1989.
?Five, two threatening phone calls to Joan Willis on October 10, 1990.
?Six, an assault with a deadly weapon on Thomas Thompson and Leonard
Godfrey on May 21, 1991.
?Seven, an assault and battery on Terry Berg in 1992.
?Eight, an assault and battery on Corey Willis on January 29, 1993.
?Before a juror may consider any of such criminal acts as an aggravating
circumstance in this case, a juror must first be satisfied beyond a reasonable doubt
that the defendant  did in fact commit such criminal acts. A juror may not
consider any evidence of any other criminal acts as an aggravating circumstance
other than the above crimes under Factor B and the crime of which the defendant
was convicted in the present proceeding under Factor A . . . .?
violence? unconstitutionally removed from the jury?s consideration the issue
whether the alleged acts amounted to criminal acts involving an express or implied
use of force or violence, or the threat thereof, within the meaning of factor (b), and
thereby directed a verdict on an essential element of the factor (b) finding the jury
was to determine.
Preliminarily, respondent asserts this issue is forfeited because defendant
failed to object at trial. As stated, however, to the extent a claim of instructional
error affected a defendant?s substantial rights, it is reviewable on appeal despite a
failure to object at trial. (People v. Gray, supra, 37 Cal.4th at p. 235; ? 1259.)
Nonetheless, as we previously have held, these contentions are without
merit. As we stated in Monterroso, supra, 34 Cal.4th at page 793, ?[t]hese
instructions ?properly told the jurors that they could consider any of the specified
unadjudicated criminal acts as factors in aggravation only if they found beyond a
reasonable doubt that defendant had committed the act or activity, and that it
involved the use or attempted use or express or implied threat to use force or
violence.? ? (Ibid., quoting People v. Sapp (2003) 31 Cal.4th 240, 314; see also
People v. Nakahara (2003) 30 Cal.4th 705, 719-720.) Further, ?Apprendi does not
extend to require a jury to find beyond a reasonable doubt the applicability of a
specific section 190.3 sentencing factor.? (People v. Ochoa (2001) 26 Cal.4th
D. CALJIC No. 8.88
Defendant contends the trial court violated his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution, and
corresponding provisions of the California Constitution, by instructing the jury
with CALJIC No. 8.88.26
Even though defendant failed to challenge this instruction at trial, his claim
is properly before us to the extent the asserted instructional errors affected his
substantial rights. (? 1259; People v. Watson, supra, 43 Cal.4th at p. 701; see
People v. Gray, supra, 37 Cal.4th at p. 235.) We therefore address defendant?s
claim on the merits.
As defendant concedes, in prior cases we consistently have considered and
rejected each of his arguments. Because he offers no persuasive reason why we
should reexamine our prior decisions, we reject his challenges. We thus hold that
The trial court instructed the jury with CALJIC No. 8.88, in relevant part,
as follows: ?It is now your duty to determine which of the two penalties, death or
confinement in the state prison for life without possibility of parole, shall be
imposed on the defendant. [?] After having heard all of the evidence, and after
having heard and considered the arguments of counsel, you shall consider, take
into account and be guided by the applicable factors of aggravating and mitigating
circumstances upon which you have been instructed. [?] An aggravating factor is
any fact, condition or event attending the commission of a crime which increases
its guilt or enormity, or adds to its injurious consequences which is above and
beyond the elements of the crime itself. A mitigating circumstance is any fact,
condition or event which as such, does not constitute a justification or excuse for
the crime in question, but may be considered as an extenuating circumstance in
determining the appropriateness of the death penalty. [?] The weighing of
aggravating and mitigating circumstances does not mean a mere mechanical
counting of factors on each side of an imaginary scale, or the arbitrary assignment
of weights to any of them. You are free to assign whatever moral or sympathetic
value you deem appropriate to each and all of the various factors you are permitted
to consider. In weighing the various circumstances you determine under the
relevant evidence which penalty is justified and appropriate by considering the
totality of the aggravating circumstances with the totality of the mitigating
circumstances. To return a judgment of death, each of you must be persuaded that
the aggravating circumstances are so substantial in comparison with the mitigating
circumstances, that it warrants death instead of life without parole.?
CALJIC No. 8.88: (1) is not unconstitutionally vague and does not impermissibly
reduce the burden of proof necessary to impose the death penalty by using the ?so
substantial? standard for comparing mitigating and aggravating circumstances
(People v. Gutierrez, supra, 45 Cal.4th at pp. 832-833; People v. Wilson (2008) 43
Cal.4th 1, 31); (2) properly explains the weighing process that a jury is required to
perform (People v. Gutierrez, supra, 45 Cal.4th at p. 833); (3) properly cautions
against a ? ?mere mechanical counting of factors? ? (People v. Vieira, supra, 35
Cal.4th at p. 300); (4) is not defectively ?death-oriented? because it fails to define
or describe the penalty of life without the possibility of parole (People v.
Gutierrez, supra, 45 Cal.4th at p. 833); (5) is not unconstitutional because it fails
to instruct the jury that a single mitigating factor could outweigh multiple
aggravating factors and by itself could justify a verdict of life imprisonment
without the possibility of parole (People v. Salcido (2008) 44 Cal.4th 93, 162-
163); and (6) adequately defines mitigation (People v. Welch, supra, 20 Cal.4th
E. Asserted Error in Failing to Define the Special Circumstances
Defendant argues that the trial court?s failure to define for the penalty phase
retrial jury the term ?special circumstance,? to instruct that the special
circumstances were ?torture? and ?mayhem,? and to define the terms ?torture? and
?mayhem? led the jury to believe it could ?double count? the special
circumstances under section 190.3, factor (a) (factor (a)) in violation of his rights
to due process of law, a nonarbitrary and reliable penalty determination, and equal
protection under the Fifth, Eighth, and Fourteenth Amendments to the federal
Constitution. As we conclude below, the trial court did not err in instructing the
penalty retrial jury regarding its consideration of evidence under factor (a).
The trial court instructed the penalty retrial jury under CALJIC No. 8.84
that defendant had been found guilty of first degree murder and the allegation that
the murder was committed under one or more special circumstances had been
found true. It then explained under this instruction that ?the penalty for a
defendant found guilty of murder of the first degree [is] [either] death or
confinement in the state prison for life imprisonment without the possibility of
parole in any case in which the special circumstances alleged in this case have
been specially found to be true.? Thereafter, the trial court instructed the jury with
CALJIC No. 8.85, tracking the language of section 190.3, that, in determining
penalty, it could consider under factor (a) ?the circumstances of the murder of
which the defendant was convicted and the existence of any special circumstances
found to be true.? The court neither identified nor defined the special
circumstances. During voir dire, however, the trial court had told the jury that
defendant ?has been convicted not only of first degree murder, that is,
premeditated, deliberate killing, but he?s also been convicted of murder by
torture and mayhem.? Also, the prosecutor had informed the jury during his
opening statement that defendant had been ?convicted of first degree murder and
special circumstances of torture and mayhem.?
Defendant contends that the language of CALJIC No. 8.85, instructing the
jury to consider ?the circumstances of the murder of which the defendant was
convicted and the existence of any special circumstances found to be true? under
factor (a), misled the second penalty jury to believe it could double count the
torture and mayhem special circumstances as ?the circumstances of the crime? and
?the special circumstances found to be true.? He further asserts that this
instructional error was compounded by the trial court?s failure to provide the jury
definitions of the torture and mayhem special circumstances.
Even though defendant failed to challenge this instruction at trial, his claim
is cognizable on appeal to the extent the asserted instructional errors affected his
substantial rights. (? 1259; People v. Watson, supra, 43 Cal.4th at p. 701.) We
therefore consider defendant?s claim on the merits.
This court ?already ha[s] determined that CALJIC No. 8.85 does not imply
that the jury may ?double count? evidence.? (People v. San Nicolas (2004) 34
Cal.4th 614, 671.) Moreover, we have repeatedly rejected claims that ?the court
was obliged, on its own motion, to instruct the jury not to ?double count? the same
facts as circumstances of the crime and as special circumstances? ?where the
defense did not request an instruction against double counting, and there was no
misleading argument by the prosecutor suggesting the same facts should be
weighed twice, once under each rubric.? (People v. Cain (1995) 10 Cal.4th 1, 68.)
Here, defendant?s claim, at bottom, is substantively no different than that
presented by the defendant in People v. Murtishaw (1989) 48 Cal.3d 1001, 1019,
in which we rejected a claim of instructional error during a penalty retrial
involving a nearly identical instruction regarding factor (a) and a multiple-murder
special-circumstance finding. On appeal, the defendant argued that, because the
trial court did not fully define the special circumstance, the jury could have
believed the special circumstance was a separate aggravating factor in addition to
the circumstances of the crime under factor (a). Alternatively, the defendant
contended the jury could have understood the instruction to permit double
counting the multiple-murder special circumstance as both a special circumstance
finding and a circumstance of the crime under factor (a). In rejecting these
arguments, we concluded the jury reasonably would have understood that the
multiple-murder special-circumstance finding made the defendant eligible for the
death penalty, and the facts supporting the special circumstance were relevant to
its determination of the appropriate penalty. (Murtishaw, at p. 1019; see also
People v. Keenan (1988) 46 Cal.3d 478, 520.)
We find no merit to defendant?s additional claim that, during penalty phase
argument, the prosecutor improperly described Laborde?s murder as a ?purposeful
and calculated killing? that was committed with ?brutality? and emphasized that
defendant had numerous opportunities to abandon his plan to kill Laborde (e.g.,
when he first poured gasoline on her, when he ignited the gasoline, and when he
poured the remaining gasoline on her), because these facts also arguably supported
the special circumstances. Our review of the record reveals that each of the
prosecutor?s references to factor (a) evidence during argument comported with the
law. The prosecutor properly explained to the jury that factor (a) concerned ?[t]he
circumstances of the crime . . . we are talking about the crime, the murder of
Kar[e]n Laborde, and the existence of any special circumstances. [?] . . . the
entire circumstances of the crime, including how horrible it was, how atrocious it
was, and the impact it had on the eyewitnesses.? Ultimately, he argued death was
warranted because ?[t]he circumstances of the death of Kar[e]n Laborde under
factor (a) are so cruel, so vicious, so intentional, that there is nothing in the world
that can possibly mitigate it. Not his mental disorder. . . . Not his upbringing.?
The prosecutor?s argument, therefore, did not mislead the jury into thinking that it
should double count the special circumstances.
F. Jury Instruction Regarding Defendant?s Oral Statements
During the penalty retrial, the trial court instructed the jury under CALJIC
No. 8.85 that, in deciding penalty, it could consider, among other factors, evidence
of the circumstances of the murder under factor (a) and unadjudicated criminal
activity alleged under factor (b). The jury also was instructed under CALJIC No.
2.71 that it should view with caution evidence of defendant?s admissions offered
under factor (b).27 He contends the trial court violated federal due process
principles in failing to give this cautionary instruction with respect to evidence of
defendant?s admissions offered under factor (a).
Preliminarily, defendant?s failure to request the desired cautionary
instruction forfeited this claim on appeal. (See People v. Marks (2003) 31 Cal.4th
197, 237; People v. Arias, supra, 13 Cal.4th 92, 170-171.) In any event, the claim
Defendant acknowledges that this court held in People v. Livaditis (1992) 2
Cal.4th 759, 782-784 that, absent a request, the trial court is not required to
instruct a penalty phase jury to view a defendant?s statements with caution under
CALJIC No. 2.71. In Livaditis, supra, 2 Cal.4th 759, we observed that, because a
defendant?s guilt is already established at the penalty phase, ?[t]he only relevance
of the defendant?s extrajudicial statements is as either aggravating or mitigating
evidence, not as evidence of guilt.? (Id. at p. 783.) Thus, whether a defendant
would desire the trial court to give the cautionary instruction is unclear because
statements offered during a penalty trial are subject to varying interpretations,
The trial court instructed the penalty retrial jury with CALJIC No. 2.71, as
modified: ?An admission is a statement made by the defendant other than at his
trial which does not by itself acknowledge his guilt of the crimes alleged under
Factor B, but which statement tends to prove his guilt when considered with the
rest of the evidence. [?] You are the exclusive judges as to whether the defendant
made an admission, and if so, whether such statement is true in whole or in part.
If you should find that the defendant did not make the statement, you must reject
it. If you find that it is true in whole or in part, you may consider that part which
you find to be true. [?] Evidence of an oral admission by the defendant should be
viewed with caution.?
some mitigating and some aggravating and that therefore a defendant may not
desire a cautionary instruction. (Id. at pp. 783-784.) Here, because defendant
failed to request such an instruction regarding the factor (a) evidence, there was no
error in not giving one.
In any event, our examination of the record reveals good reason why
defendant would not have requested a cautionary instruction under CALJIC No.
2.71. The penalty phase defense attempted to show that, although defendant was
remorseful for the murder, he was unable to express such remorse due to his
psychological disorder. The defense offered testimony from defendant?s former
defense lawyer, Jennifer Keller, describing how he admitted the murder and
sobbed with remorse. Clearly, defendant would not want the jury instructed to
view with caution evidence of his statements and expressions of remorse
concerning the murder that went to a crucial part of his penalty defense. Further,
any error in failing to instruct the jury to view defendant?s statements with caution
was harmless. ? ?The purpose of the cautionary instruction is to assist the jury in
determining if the statement was in fact made.? ? (People v. Livaditis, supra, 2
Cal.4th at p. 784.) In this case, the parties did not dispute that defendant made
statements about the crime. Hence, no harm could have resulted from the trial
court?s failure to provide the cautionary instruction.
G. California?s Death Penalty Statute
Defendant argues that various California death penalty provisions violate
the federal Constitution. As he acknowledges, we have previously rejected these
arguments. Defendant provides no persuasive reason to reconsider our prior
decisions. We therefore affirm our prior decisions, as follows.
California?s death penalty statute (? 190.2) adequately performs the
constitutionally mandated narrowing function. (People v. Bennett (2009) 45
Cal.4th 577, 630; People v. Crittenden, supra, 9 Cal.4th at pp. 154-156.)
The jury?s consideration of the circumstances of the crime under factor (a),
does not result in arbitrary or capricious imposition of the death penalty. (People
v. Watson, supra, 43 Cal.4th at p. 703.)
?[T]he Eighth and Fourteenth Amendments to the United States
Constitution [do not] require that the jury find unanimously beyond a reasonable
doubt the existence of at least one aggravating factor, or that the aggravating
factors outweigh the mitigating factors, or that death is the appropriate penalty.
(People v. Ward (2005) 36 Cal.4th 186, 221.) Neither proof beyond a reasonable
doubt nor jury unanimity as to the existence of particular sentencing facts is
required. (Ibid.) This conclusion is not altered by the United States Supreme
Court?s decision in Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny.
Nor . . . is a preponderance-of-the-evidence burden of proof required at the penalty
phase in the event we reject a beyond-a-reasonable-doubt burden of proof.?
(People v. Bunyard (2009) 45 Cal.4th 836, 860-861.)
California?s death penalty law is not unconstitutional in failing to require
written jury findings regarding the aggravating factors (People v. San Nicolas,
supra, 34 Cal.4th at p. 676) and failing to require intercase proportionality review.
(Id. at p. 677.)
The jury may properly consider unadjudicated criminal activity at the
penalty phase and need not make a unanimous finding on each instance of such
activity. (People v. Elliot (2005) 37 Cal.4th 453, 488.) Apprendi and its progeny
do not demand a different result. (People v. Bunyard, supra, 45 Cal.4th at p. 861.)
?The Fifth, Sixth, Eighth, and Fourteenth Amendments are not violated by
the use of the adjectives ?extreme? and ?substantial? in connection with section
190.3, factors (g) and (d).? (People v. Bunyard, supra, 45 Cal.4th at p. 861.)
The trial court need not label the statutory sentencing factors as either
aggravating or mitigating nor instruct the jury that the absence of mitigating
factors does not constitute aggravation. (People v. Watson, supra, 43 Cal.4th 652,
Capital defendants are not denied equal protection of the law because
California?s death penalty scheme does not provide intercase proportionality
review. (People v. Bunyard, supra, 45 Cal.4th at p. 861; People v. Bonilla (2007)
41 Cal.4th 313, 360.)
We have repeatedly rejected the claim that the death penalty is
unconstitutional on the ground that it violates international norms of humanity and
decency. (People v. Panah, supra, 35 Cal.4th at p. 500.) ?International law does
not prohibit a sentence of death rendered in accordance with state and federal
constitutional and statutory requirements.? (Id. at p. 500.)
The judgment is affirmed.
WE CONCUR: GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. D?Arcy
Original Appeal XXX
Opinion No. S060500
Date Filed: March 11, 2010
Judge: Robert R. Fitzgerald
Attorneys for Appellant:
Jerry D. Whatley, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jerry D. Whatley
PMB 283, 3463 State Street
Santa Barbara, CA 93105
Gary W. Brozio
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101