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People v. Taylor

April 15, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRANDON ARNAE TAYLOR, DEFENDANT AND APPELLANT.



San Diego County Super. Ct. No. SCF113815, Judge: Frederic L. Link.

The opinion of the court was delivered by: Chin, J.

In 1996, a San Diego County jury convicted defendant Brandon Arnae Taylor of the first degree murder of 80-year-old Rosa Mae Dixon, forcible rape of an elderly victim while engaged in a residential burglary, forcible oral copulation, residential burglary, and first degree robbery. (Pen. Code, §§ 187, subd. (a), 189, 261, subd. (a)(2), 667.61, subds. (a), (c), (d), 1203.09, subd. (f), 288a, subd. (c), 459, 460, 211, 212.5, subd. (a); unless otherwise specified, all further statutory references are to this code.) The jury also found true the special circumstance allegations that defendant murdered Dixon while committing rape, oral copulation, and burglary. (§ 190.2, subd. (a)(17)(C), (F), (G).) A second jury, impaneled after the first deadlocked on penalty, returned a verdict of death. The trial court denied defendant's automatic application for modification of the death verdict (§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

Around 9:30 p.m. on June 23, 1995, 80-year-old Rosa Mae Dixon sat in the living room of her San Diego home conversing with her sister Betty Hayes, who was visiting from Kansas. The women were startled and "scared to death" when they looked up and saw defendant calmly standing in the room staring at them. Defendant, who was 22 years old at the time and lived nearby, apparently had entered the house from the back after tearing a hole through a mesh screen.

After mumbling something that might have been his name, defendant closed the front door over the security screen and sat down on the couch between the two women. When Dixon rose and asked defendant what he wanted, he grabbed the front of her nightgown. At Dixon's direction, Hayes went into the front bedroom to call 911, but when she picked up the telephone, defendant chased after her, jerked the receiver out of her hand, and pulled the cord from the wall. Defendant then grabbed Hayes by her clothing, took hold of Dixon in the same manner, and pushed the two women down the hall to a bedroom in the back of the house.

At some point before defendant forced Dixon and Hayes to the back bedroom, one of the women came outside onto the front porch, yelled for help, and then ran back into the house. Dixon's next-door neighbor, Erik Kirkpatrick, heard the cry and came to investigate. Receiving no response to his knock on the front door, Kirkpatrick went to the side of the house, looked through a window, and saw defendant on his knees hunched over Dixon. After hearing a male voice mumble something like, "I don't want to have to hurt you," and a female voice respond, "Okay, just don't hurt me," Kirkpatrick quickly returned to his own house to call 911 and waited for police to arrive.

Kirkpatrick's momentary look through the side window occurred just as events in the back bedroom had started to unfold. Defendant first pushed Dixon to the floor at the foot of the bed, removed her panties and pulled down his shorts. His first attempt to penetrate her was unsuccessful. He then picked up Dixon and slammed her onto the floor near the side of the bed, banging her head and knocking Hayes to her knees in the process. With more room to maneuver in the new location, defendant managed repeatedly to penetrate Dixon's vagina with his penis. Meanwhile, Dixon started breathing hard and gasping for air. At one point, defendant withdrew his penis, raised Dixon's head and attempted to place his penis inside her mouth. She resisted, turning her head to the side and saying, "No," while still struggling to breathe. When defendant released Dixon's head and let it drop to the floor a short time later, she was ashen and no longer breathing or moving.

Defendant then turned his attention to Hayes, swinging around to face her with his penis in his hand and asking if she "wanted it." When he did so, Hayes noticed there was semen on the tip of his penis. Defendant pulled up his shorts and started out of the room, passing Hayes's purse, which was sitting open on a table. He dug through it, complaining about finding only a few dollar bills until he discovered and pocketed about $65. Defendant continued on through the kitchen and out the back door.

Defendant got only as far as the back fence before being apprehended by Officers Gassmann and Caropreso, who, along with several other officers, had responded within minutes to Kirkpatrick's 911 call reporting a burglary in progress. When the officers asked defendant why he was in the yard, he first replied he thought the house was vacant. Defendant then offered that a White male named John Hall, who had left before the officers' arrival, "just raped an old woman inside the house." A third officer retraced defendant's route back to the Dixon residence but found no evidence of a second assailant. Less than one hour later, the officers conducted a curbside lineup in the alley behind Dixon's house, and both Hayes and Kirkpatrick identified defendant.

Meanwhile, other officers had discovered Dixon lying on the floor of the back bedroom with her nightgown bunched up around her waist. There was blood on her leg and underneath her pelvic area, and she was unresponsive and not breathing. Rescue efforts, including cardiopulmonary resuscitation (CPR) and emergency heart medications, restored Dixon's pulse, and she was taken to the intensive care unit of a nearby hospital. But she soon suffered seizures and kidney failure and never regained consciousness. The following evening, after being declared brain dead, she was removed from life support.

At trial, Hayes and Kirkpatrick again identified defendant as the man who had entered Dixon's home and sexually assaulted her. The results of DNA testing of blood and sperm collected from Dixon and from defendant at the time of his arrest also identified defendant as the perpetrator. Sperm found inside and on Dixon's body and clothing and on defendant's shirt was consistent with defendant's sperm, and the probability of a random match to the DNA profile was about 1 in 1,300 African-Americans. Blood on vaginal swabs taken from Dixon and from defendant's penis, hands, and clothing was consistent with Dixon's blood and not consistent with defendant's blood. More precise testing of the blood established that the probability of a random match to that DNA profile in the general population was 1 in 400 billion among Caucasians.

The prosecution's medical experts testified that Dixon died from the extreme fear, pain, and stress the sexual assaults caused. Mark Super, M.D., the deputy medical examiner who performed the autopsy, explained that Dixon's natural hormonal responses to the physiological stress and psychological trauma of the struggle and the rape caused her to experience abnormal heart rhythms, which led to cardiac arrest, which in turn deprived her brain of oxygen and ultimately led to her death. He found Dixon's numerous abrasions and bruises to be consistent with a struggle, and he believed the two large tears on the vaginal walls and large accumulation of blood deep inside the vagina to be consistent with forcible rape. In Dr. Super's view, Dixon would not have died when she did but for the sexual assault, although he acknowledged on cross- examination that either vascular or heart disease was a contributing cause of her death, and that a younger woman would have survived the attack.

Cardiologist Thomas Diggs, M.D., who attended to Dixon at the hospital, similarly concluded that Dixon's death was due to cardiac arrest resulting from the stress, fear, and extreme pain the sexual assaults caused. Although Dr. Diggs found nothing in Dixon's medical records suggesting an illness that would have caused her death, he conceded that Dixon suffered from diabetes and high blood pressure, and had once undergone testing that disclosed an enlarged heart. He also acknowledged that it would be possible for fear alone to cause cardiac arrest in an 80-year-old woman.

Nurse Teresa Kinsey, a member of the Sexual Assault Response Team (SART) who examined Dixon while she was in critical condition in the hospital's intensive care unit, also testified regarding the extent of Dixon's injuries. She explained that the large amount of blood inside Dixon's vagina indicated she had suffered internal injuries from a "brutal amount of force," and that such injuries more typically occur in a rape involving use of a foreign object like a knife. Kinsey acknowledged, however, that an 80-year-old woman was more likely to be injured during a rape than a younger woman.

Officers and other police department personnel testified regarding defendant's calm and cool demeanor, cooperative manner, and stable mood from the time they placed him in the back of the patrol car shortly after the crimes until they processed and booked him into county jail nearly eight hours later, around 6:00 a.m. the next day. Officers Gassmann and Caropreso described defendant as calm and cooperative during the curbside lineup. Timothy Jones, the officer who collected a urine sample from defendant approximately two hours after his arrest, recalled that defendant exhibited "normal" mannerisms and "didn't seem upset about the situation at all." Nurse Meredith Jackson likewise found defendant cooperative and able to follow directions while she was collecting sexual assault crimes evidence such as blood, saliva, penile secretions, and pubic hair from defendant around 2:30 a.m. Officer Gaughen, who had custody of defendant at the central police facility from the early morning hours until he was transported to county jail, saw no change in defendant's mood and nothing unusual about his behavior that suggested he needed either medical attention or psychiatric evaluation.

Law enforcement personnel also testified that although defendant's breath smelled mildly of alcohol, his speech and movements appeared to be normal and he exhibited no other signs of intoxication. A breath sample taken from defendant around 5:00 a.m. indicated he had a nominal blood-alcohol level of .01 percent. In addition, a comprehensive drug screen of defendant's urine and blood collected near the time of his arrest showed no reportable amounts of methamphetamine, benzodiazepines, cocaine, opiates, antidepressants, barbiturates, or PCP. Separate testing for the presence of LSD in defendant's urine likewise returned no reportable results.

2. Defense Evidence

The defense posited that when defendant entered Dixon's home, he lacked the intent to steal or commit any other felony and, therefore, did not commit a burglary at that point, and that Dixon suffered cardiac arrest, not from the sexual assaults, but from the fright of encountering defendant unexpectedly in her living room. In support of that theory, the defense presented the testimony of pathologist Paul Wolf, M.D., who opined, based on Dixon's medical records, that she had pre-existing heart disease and had suffered a heart attack at least 10 days before her death, which made her more vulnerable to a cardiac arrest caused by trauma. Dr. Wolf explained that Dixon's fright on seeing defendant in her living room played a large part in the cardiac arrest, but that there was no way to determine as a medical certainty whether Dixon's initial fright or the subsequent pain from the rape caused her to suffer cardiac arrest.

The defense also attempted to show that defendant's long-standing, serious mental illness impaired his ability to form the mental state necessary for first degree murder. The defense retained psychiatrist Mark Cerbone, M.D., to evaluate defendant's mental health. In arriving at a diagnosis, Dr. Cerbone met with defendant for 20 minutes in county jail and reviewed records such as prior psychological assessments, police reports, and summaries of interviews with defendant's mother and others.

Dr. Cerbone's review of the various materials disclosed that defendant had a long history of abusing drugs, including methamphetamine, marijuana, cocaine, and LSD. For instance, defendant began using methamphetamine when he was between the ages of 12 and 14, and for three years ingested a half-gram of the substance daily. At age 16, defendant was twice admitted to an inpatient psychiatric rehabilitation program, where he was diagnosed with polysubstance dependence and given antipsychotic medications to control his behavior, which included threats of violence. During the program, defendant also exhibited paranoid and delusional thinking, such as accusing the facility's psychiatrist of conspiring with his mother to sell his martial arts ideas to the creators of the television series Teenage Mutant Ninja Turtles. After defendant's release from the rehabilitation facility the second time, he resumed abusing drugs and alcohol and continued to exhibit paranoid delusions.

Dr. Cerbone opined that defendant suffered from several mental illnesses, including methamphetamine dependence, cannabis dependence, substance-induced psychotic disorder, and psychotic disorders not otherwise specified. He also explained that chronic use of methamphetamine and LSD can cause overreaction to nonexistent threats. Dr. Cerbone acknowledged having testified at a pretrial competency hearing that defendant also suffers from a severe, long-standing antisocial personality disorder, but stated he changed his diagnosis after obtaining additional information, including records indicating that defendant's father suffered from schizophrenia.

Psychopharmacologist Steven Stahl, M.D., testified that a chronic user of methamphetamine often develops paranoia, depression, disordered thinking, and impulsivity. But when a longtime methamphetamine user also ingests LSD, the likelihood he will experience paranoia and psychosis is even greater. And because these substances deplete the brain's stores of neurotransmitters, their behavior-altering effects can exist long after they are eliminated from the body. Moreover, when a chronic abuser of methamphetamine and LSD consumes alcohol, the likely result is paranoia, impulsiveness, and lack of inhibition.

The defense also called forensic and clinical toxicologist Randall Baselt, Ph.D., who analyzed the urine sample collected from defendant shortly after his arrest. According to Dr. Baselt, the sample showed the presence of LSD and amphetamine, but no reportable level of methamphetamine. Dr. Baselt also concluded by extrapolation that at the time of the crimes, defendant's blood-alcohol level was between .12 to .14 percent.

B. Penalty Phase

1. Prosecution Evidence

After the jury that convicted defendant deadlocked on penalty, the trial court declared a mistrial and impaneled a second jury. Because the prosecution based its case in aggravation largely on the circumstances of the crimes, the new jury heard much of the same testimony the prosecution had presented at the guilt phase. Thus, Hayes and Kirkpatrick again described the events inside Dixon's home that had caused her cardiac arrest and subsequent death. Medical experts testified, as they did at the guilt phase, about the extent of Dixon's injuries and the cause of her death. Likewise, police officers and other forensic professionals repeated their earlier testimony about defendant's arrest, his calm, cooperative demeanor, and the results of DNA and toxicology testing of defendant's semen, blood, and urine, which identified defendant as the perpetrator of the sexual assaults and showed no reportable amounts of methamphetamine, LSD, or any other controlled substance.

The prosecution also presented evidence of four instances of prior violent conduct or threats of violence. Twenty-year-old Jason L. testified that defendant had sexually assaulted him as a youth. Jason, his mother, defendant, and defendant's mother lived together as a family for about eight years. While at home alone one day after school when Jason was eight and defendant was 12 or 13, defendant asked Jason to masturbate and orally copulate him, and then threatened him with a steak knife when he refused. After Jason acquiesced and orally copulated defendant, defendant sodomized him, telling the sobbing child to scream into a pillow if it hurt and to calm down, "like nothing had happened." Defendant then dictated a note for Jason to write, describing the incident and promising never to talk about it, which defendant took from him and kept. Jason later told his mother what happened, and she told defendant's mother, but the matter went no further.

Testimony by police and sheriff's deputies described defendant's violent encounters with law enforcement on two occasions. Less than one year before committing the capital crimes, defendant confronted a plainclothes officer who made eye contact with him on a downtown San Diego sidewalk. Defendant angrily threatened, "I will fuck you up," when the officer denied defendant's accusation that he was staring at him. Defendant also violently resisted efforts to move him to a new cell while he was being held in San Diego County jail awaiting trial in the case. In that incident, six deputies removed defendant from his cell using pepper spray and an electrically charged shield after he disobeyed an order to relocate to a different cell module. Defendant ultimately walked out of his cell, but then lowered his head, raised his fists in the air, and charged at the officers, breaking free of their hold and running some 500 feet before finally being subdued. As a fourth incident of prior violent conduct, through a stipulation, the prosecution presented evidence that defendant, upon hearing his former counsel express doubt about his competence to proceed to trial, sprang out of his chair, lunged at her, and called her a vulgar name, but did not strike her.

The prosecution placed into evidence an American Red Cross adult CPR certification card issued to defendant that was found in his pocket at the time of his arrest. Captain Burson of the Placer County Fire Department, who was the instructor of a CPR and first aid class defendant attended six months before committing the capital crimes, testified that defendant received an "A" in the course, which had included instruction on how to recognize the signs and symptoms of shock and respiratory distress. The prosecutor also called numerous witnesses to testify about the impact of Dixon's death on her family, friends, and the community at large.

2. Defense Evidence

The defense presented an extensive case in mitigation that emphasized the unconventional, unconstrained, and disruptive upbringing that hindered defendant's normal development into adulthood, and the continual decline in defendant's mental health that was manifested by his drug addiction and significant changes in his behavior as a youth. Defendant's mother, Pauletta Taylor, testified that she moved from the East Coast to San Diego with defendant when he was six years old. When defendant was about eight years old, they began residing with Taylor's partner, Rosemary L., and L.'s young son Jason L. Rosemary L. considered herself a "second mother" to defendant, but disciplined him harshly and often used drugs in front of him, including LSD and methamphetamine. By the time defendant was 14 years old, he had gone from smoking marijuana with school friends to using heavier drugs such as PCP, methamphetamine, and cocaine with a tougher crowd, sometimes disappearing for days at a time.

Taylor told the jury she sought help for her son's drug problem by committing him to Harbor View Hospital, an inpatient rehabilitation facility. Defendant complained bitterly about how he was being treated there and eventually persuaded his mother to let him come home. But after defendant reverted to his former behavior, Taylor again committed him to Harbor View. Later, during a family therapy session at the facility, Taylor disclosed to defendant that he had been conceived as a result of his father raping her. Defendant, who was already upset about his mother's lesbian lifestyle and his father's absence, was devastated by the disclosure of the circumstances of his conception because it shattered his dream that his parents would someday reunite.

As Taylor further explained to the jury, following defendant's second release from Harbor View, they moved from San Diego's Ocean Beach area to the North Park area in the hope that the new environment would help defendant stay away from drugs. After the move, however, defendant's behavior changed significantly. He spent most of his time in his bedroom with the blinds drawn and the lights off, and complained that neighbors and strangers were watching and filming him. When defendant did interact with others, he would often stare at them or become confrontational. He was also delusional. For example, he continued to insist that Taylor and Dr. Sambs, the treating psychiatrist from Harbor View Hospital, had sold defendant's martial arts moves to the producers of Teenage Mutant Ninja Turtles. Finally, after an incident in which defendant wrestled with Taylor over a shotgun and locked himself in the bathroom, Taylor ordered him to move out, and he started living on the streets or in a shelter. Defendant later moved back in with his mother and her partner and was sometimes employed, but only for short periods of time.

Numerous witnesses who had known defendant at various points in his youth and young adulthood likewise testified about the substantial changes in his behavior over time. For instance, a former girlfriend testified that in seventh grade defendant was a nice and understanding person, dressed well, and was optimistic about life, but that when she saw him several years later, he was dirty, disheveled, and sad and hopeless about his life. Friend and neighbor Melville Goot, who had hired defendant to be the doorman at his short-lived downtown San Diego jazz club, testified that defendant sometimes said strange, childlike things, like suggesting the Power Rangers might be able to help them. Several witnesses related incidents in which defendant would get a "glassy look" and disappear mentally. Others observed that, while watching movies or television shows, defendant would often converse with himself or laugh inappropriately. Still other witnesses described incidents in which defendant lost control and became confrontational and violent over seemingly trivial matters, and then walked off as if nothing had happened.

The defense presented the testimony of three experts to explain the sources and nature of defendant's mental illness and developmental deficiencies. Psychiatrist Samuel Benson, M.D., had evaluated defendant at the defense's behest, first for purposes of competency and later for the penalty phase. Dr. Benson opined that defendant suffers from paranoid schizophrenia and substance abuse. According to Dr. Benson, defendant has exhibited all of the symptoms of schizophrenia, including hallucinations, delusions, psychotic denial and paranoia, emotional and social withdrawal, and severe difficulties with abstract thinking. Dr. Benson also explained that in the initial stages of schizophrenia, which typically occur during late adolescence or early adulthood, the symptoms wax and wane.

Dr. Benson disagreed with other mental health experts who had diagnosed defendant as having antisocial personality disorder, and he noted that several of the treating psychiatrists had prescribed strong antipsychotic medications for defendant. Furthermore, Dr. Benson explained, his own present diagnosis was based on information the other experts lacked, including the medical records of defendant's father, who likewise suffered from schizophrenia.

A specialist in addiction medicine, Alex Stalcup, M.D., concurred in Dr. Benson's diagnosis of schizophrenia and testified about the relationship between drug addiction and mental illness. Dr. Stalcup's review of defendant's family background and mental health history showed all of the risk factors that predispose an individual to both schizophrenia and drug addiction: a family history of addiction, mental illness, and trauma (in defendant's case, his early exposure to drugs and discomfort with his mother's homosexuality). According to Dr. Stalcup, schizophrenics often use methamphetamine because it gives them a feeling of pleasure that their mental illness prevents them from experiencing, and a schizophrenic who is under the influence of that substance might seem normal because the drug increases focus and energy.

Like Dr. Benson, Dr. Stalcup disagreed with the mental health experts who diagnosed defendant as having an antisocial personality disorder. As Dr. Stalcup explained, a paranoid schizophrenic may exhibit antisocial behavior, such as rudeness, speaking out of turn, and making threats. But whereas an individual with an antisocial personality is cold, calculating, and directed by self-gratification, a schizophrenic suffers from a psychosis and delusions that make him feel threatened, persecuted and anxious. In Dr. Stalcup's opinion, defendant's behavior was impulsive, not manipulative, and he consistently acted in a counterproductive way that did not benefit him.

Psychologist/sociologist Nathan Hare, Ph.D., testified regarding the impact of society on the development of African-American males. Based on a review of defendant's family and medical history, Dr. Hare concluded that defendant's developmental progress had been substantially hindered by a number of factors, including the instability of his early childhood, his father's absence, his shame over his mother's homosexuality, and his exposure to drugs and abuse at the hands of his mother's partner. Because of defendant's arrested development, he lacked social skills and the ability to deal with authority, and he had no sense of identity. According to Dr. Hare, these deficiencies set up defendant for failure in the other stages of development and led to his self-imposed isolation, during which time he experienced delusional thinking.

The defense again called its own experts to testify about the extent of Dixon's injuries and cause of her death. Dr. Wolf testified, as he had at the guilt phase, that Dixon may have suffered a series of small, undetected heart attacks related to her diabetes well before the sexual assaults. Emergency medicine physician Steven Gabaeff, M.D., testified that Dixon's long-standing history of atrophic vaginitis, which is characterized by thin and dry vaginal mucosa, made her vagina more susceptible to tearing from the sexual assaults.

Finally, the defense presented testimony on the appropriateness of imposing a sentence of life without the possibility of parole. Former correctional officer James Esten testified that an inmate convicted of special circumstance murder is automatically confined in a prison with the highest security level, under direct and constant observation by correctional staff. Based on information he received from the defense team and his own meeting with defendant, Esten believed defendant would pose no threat to other inmates or prison staff if confined in such a setting for life.

3. Prosecution's Rebuttal

In rebuttal, the prosecutor presented three mental health experts who challenged the defense evidence relating to defendant's mental illness. Forensic psychiatrist Steven Ornish, M.D., testified that he had reviewed all of the records in the case and found no evidence the crime was the result of a psychosis or a delusion; rather, it was committed purposefully by someone with predatory, antisocial traits. Although conceding there was some evidence defendant had exhibited symptoms of psychosis, Dr. Ornish attributed such behaviors to defendant's use of LSD and methamphetamine, which can mimic the symptoms of schizophrenia.

Psychiatrist William Hocter, M.D., who treated defendant when he was in county jail during the prosecution of his case, testified about defendant's mental health during that period of time. Defendant exhibited no symptoms of schizophrenia and, until three months before the penalty retrial, denied he suffered from the illness or needed treatment. Then, in February 1997, defendant gave Dr. Hocter a "laundry list" of his symptoms and requested medication. Based on defendant's description of his symptoms, some of which Dr. Hocter found "unusual," Dr. Hocter ruled out malingering and diagnosed defendant as suffering from a psychotic disorder not otherwise specified.

The prosecution's rebuttal concluded with the testimony of clinical and forensic psychologist Gregg Michel, Ph.D., one of the court-appointed mental health experts who had evaluated defendant for purposes of a competency hearing. In his report for that proceeding, Dr. Michel had diagnosed defendant as malingering and having an antisocial personality disorder, and he saw nothing suggesting defendant suffered from schizophrenia.

II. Discussion

A. Pretrial Denial of Requests for Substitution of Trial Counsel

Six times before trial, defendant requested, or appeared to request, substitution of his appointed counsel. The trial court denied all but the final request. Defendant now challenges these rulings. We conclude, however, that the trial court did not err in failing to replace defendant's counsel earlier in the proceedings. The San Diego County Public Defender's Office first represented defendant in this case, but withdrew within weeks of the appointment based on a conflict of interest. The trial court then appointed Mary Ellen Attridge of the office of the San Diego County Alternate Public Defender to represent defendant.

Six months later, at a pretrial hearing on January 25, 1996, Attridge told the trial court that defendant might not be competent to stand trial and requested a competency hearing pursuant to section 1368.*fn1 Attridge indicated defendant was uncooperative, uncommunicative, delusional, and paranoid, and had told her he was experiencing auditory and visual hallucinations. When defendant responded that he believed counsel had "turned against [him]," Attridge asked that the district attorney be excused from the courtroom. The trial court dismissed the request, saying, "this is not a Marsden hearing."*fn2 Nonetheless, defendant continued to complain about counsel, calling her "insubordinate" and claiming he had "asked her constantly to do what I say as an attorney and [she had] not."

As defendant continued to complain, counsel attempted to talk over him so as to prevent his comments from appearing on the record. The trial court quickly interceded, declared a doubt as to defendant's mental competence, and ordered the proceedings suspended. In response to the trial court's ruling, defendant stated: "Excuse me, Judge. I have fired this attorney." The trial court brushed aside the comment, stating, "I know you have," and proceeded to schedule the mental competency evaluation. After the trial court set an evaluation date and ended the hearing, defendant rose from his chair, lunged at Attridge, and yelled, "You have no client, you fucking cunt."

At a subsequent hearing one month later on February 22, 1996, the trial court indicated it had reviewed and agreed with a report by the court- appointed psychologist, Dr. Gregg Michel, who concluded that defendant suffered no mental infirmities that rendered him incompetent to stand trial. When defense counsel requested jury trial on the issue and asked to make an offer of proof outside of the prosecutor's presence, the trial court granted the request.

Following defense counsel's offer of proof, the trial court asked defendant if he understood what was happening. Defendant replied, "So far my attorney believes that I am incompetent and for that reason I decide that I need another attorney." The trial court reminded defendant that another attorney, John Lee, had been added to the defense team to help resolve defendant's apparent dissatisfaction with lead counsel. But defendant was not appeased, noting, "Mr. Lee works with Mrs. Attridge and . . . [w]e don't get along at all." Defendant reiterated that he did not believe Attridge could represent him, and referred to her as "insubordinate" and "rude." The trial court responded, "Because of the mental competence problem, I do not feel a Marsden [hearing] would be proper at this point so we have to settle the 1368 problem and then we'll handle the Marsden problem." Later in the hearing, with the courtroom now reopened to the public and the prosecutor present, defendant renewed his request for another attorney, saying, "I no longer accept her legal advice." The trial court indicated that it would not change counsel at this point, but defendant persisted, blurting out, "They are all against me" and "She is not helping me." However, the trial court ignored defendant's remarks and conferred with the attorneys about various issues concerning the competency trial.

The parties were in court again the next day to select their experts and set competency trial dates. Once those arrangements had been made, the prosecutor brought to the trial court's attention legal precedent establishing that a defendant seeking substitution of counsel is entitled to a Marsden hearing even when proceedings have been suspended under section 1368. Confirming with defendant that he wanted a hearing to determine whether new counsel would be appointed, the trial court cleared the courtroom except for defendant and his counsel. At the Marsden hearing, defendant detailed his complaints about counsel. According to defendant, counsel was providing him with misleading legal advice and lashing out at him when he asked for something. He called her "brutal" and "insubordinate" and claimed she ignored his requests, including his request for a speedy trial.

Upon the trial court's request for a response, counsel first expressed the view that defendant's dissatisfaction was based on a mental defect. She had no idea what defendant meant by "lashing out" and believed he called her "insubordinate" because she expressed a doubt as to his competence. As for not acceding to his requests, counsel explained that she refused to give defendant a copy of the police report in his case because she feared it might fall into the hands of another inmate who would use it to testify falsely against defendant. Regarding defendant's demand for speedy trial, counsel indicated that the case was not ready to go to trial and she believed defendant was more lucid when he initially agreed to waive his speedy trial rights. Defendant declined the trial court's invitation to reply to counsel's explanation, stating, "She said it all."

Finding no breakdown in the attorney-client relationship and no reason counsel could not adequately represent defendant in the future, the trial court denied defendant's motion for substitution of counsel. It remarked that counsel was highly competent and well respected, and expressed the view that any problems between attorney and client were the result of defendant's willful and defiant attitude or a mental problem, whether feigned or not.

On April 8, 1996, the section 1368 trial began. Initially, the parties prepared for a jury trial. However, after the noon recess, counsel announced she would waive defendant's right to a jury trial. Defendant objected, and again expressed his dissatisfaction with counsel. When the trial court explained to defendant that the law permitted counsel to waive a jury, even against his wishes, defendant responded: "I fired her. I have constantly repeated that she is not my attorney." The trial court reminded defendant, "You do have an attorney." But defendant took issue with the trial court, saying, "No I don't, [not] one that will defend or represent me in the manner that I need to be represented."

One week later, on April 15, 1996, the trial court determined that defendant was competent to stand trial and ordered reinstatement of criminal proceedings. The parties then discussed setting the guilt phase trial for a date in July. Noting that July was three months away, defendant asked how long it would be before he could see another attorney. He stated that the trial court's competency finding "means I can fire [trial counsel] now." After defendant confirmed he wanted another attorney, the trial court cleared the courtroom and conducted a second Marsden hearing.

At this hearing, defendant reiterated his earlier assertion that counsel was "not representing" him. He complained that the competency hearing was a proceeding he had not wanted. "Things that she said to you," defendant remarked, "my public defender would have not. . . . My public defender would not have questioned my sanity."

The trial court found insufficient grounds to relieve defense counsel of her appointment and denied defendant's motion for substitution of counsel. However, the next morning, April 16, it reconvened with defendant and his counsel and announced it had changed its mind regarding the Marsden motion. The trial court noted that it had conducted the competency hearing at defense counsel's request over defendant's objection, and that both members of the defense team had testified about their contacts with defendant. Given these developments, the trial court found more validity to defendant's asserted distrust of his attorney. In the trial court's view, although counsel had handled the case appropriately, the attorney-client relationship had deteriorated and the breakdown warranted appointment of new counsel.*fn3

Defendant claims the trial court abused its discretion by refusing to grant his request to substitute counsel until April 16, after the competency hearing, and that the error resulted in an unreliable competency hearing. He argues that despite his repeated and clear expressions of distrust of counsel and desire for a new attorney, the trial court first ignored, then never fully addressed, his concerns over an irreconcilable breakdown in the attorney-client relationship. When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. The defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Smith (2003) 30 Cal.4th 581, 604; see also People v. Hart (1999) 20 Cal.4th 546, 603.) We review the denial of a Marsden motion for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) Denial is not an abuse of discretion "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (People v. Smith, supra, 30 Cal.4th at p. 604.)

The trial court did not abuse its discretion in denying defendant's request for substitution of counsel on February 23, before the competency hearing. Immediately upon being apprised of its duty to conduct a Mardsen hearing even though it had suspended the proceedings pursuant to section 1368, the trial court provided defendant with an opportunity to air his complaints. After then considering counsel's responses to each of defendant's grievances, the trial court was entitled to credit counsel's explanations and to conclude that defendant's complaints were unfounded. (People v. Smith (1993) 6 Cal.4th 684, 696.) For instance, the trial court reasonably could find that counsel had properly refused to provide defendant with the police reports in his case because of concern the documents would fall into the hands of a would-be jailhouse informant who might use the police reports to fabricate evidence against defendant. The trial court reasonably could conclude, moreover, that replacement of counsel was not required because any deterioration in the attorney-client relationship that had occurred was due to defendant's willful, defiant attitude or to a mental problem that was either feigned or real. "[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict." (Ibid.)

Defendant posits that the trial court's decision to replace counsel after the competency hearing supports his argument that it should have ordered substitution before commencing the hearing. Indeed, he asserts, if his cursing and lunge at counsel did not irretrievably damage the attorney-client relationship, it is hard to imagine anything that would. Contrary to defendant's suggestion, however, heated words alone do not require substitution of counsel without a showing of an irreconcilable conflict. (People v. Smith, supra, 6 Cal.4th at p. 696.) And whereas defendant's earlier requests for new counsel were supported by generalized expressions of distrust and dissatisfaction, the competency hearing both crystallized and validated the reasons for his distrust. The trial court could reasonably conclude that allowing counsel to continue to represent defendant after testifying against him at a competency hearing held against his wishes would substantially impair defendant's right to the effective assistance of counsel. But the trial court's decision to replace counsel at that point does not call into question its earlier denial of defendant's Marsden motion. The mere " `lack of trust in, or inability to get along with,' " counsel is not sufficient grounds for substitution. (People v. Berryman (1993) 6 Cal.4th 1048, 1070.) Nothing in the record supports defendant's assertion that a desire to expedite trial drove the trial court's refusal to substitute counsel before the competency hearing.

We agree with defendant that the trial court erred when it brushed aside his initial requests for substitution of counsel in the belief that the question of defendant's competence to stand trial first had to be resolved.*fn4 "[W]hile the trial court may not `proceed with the case against the defendant' before it determines his competence in a section 1368 hearing [citation], it may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance `would be substantially impaired' if his request were ignored. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 88.) However, contrary to defendant's assertion, the trial court's error does not compel reversal. This is not a case like People v. Solorzano (2005) 126 Cal.App.4th 1063, in which the trial court refused to hold any Marsden hearing until after the results of a competency hearing. In Solorzano, the defendant's complaints about his counsel pertained to counsel's deficiencies in handling the competency hearing, at which, over defendant's objection, he was adjudged competent. On these facts, the Court of Appeal concluded it could not find beyond a reasonable doubt that the error had not affected the competency hearing's outcome. (Id. at pp. 1069-1071.) Here, by contrast, the trial court conducted a first Marsden hearing in which defendant communicated his complaints about counsel before the competency proceedings occurred, and as previously discussed, the trial court did not abuse its discretion in refusing substitution of counsel at that point. Defendant thus fails to show that the trial court's initial failure to hold a Marsden hearing prejudiced him.

The facts here closely resemble those in People v. Govea (2009) 175 Cal.App.4th 57, in which the Court of Appeal concluded that the trial court's error in refusing the defendant's requests for a Marsden hearing while criminal proceedings were suspended under section 1368 was not prejudicial. There, as here, the defendant claimed he had a conflict with his attorney after counsel declared a doubt as to the defendant's competence, and he made numerous requests for substitution of counsel. (People v. Govea, supra, at pp. 59-61.) Although the trial court initially refused to consider the defendant's grounds for seeking new counsel, it conducted a Marsden hearing before the competency proceeding and did not abuse its discretion in denying the defendant's request for substitution of counsel at that time. (Govea, at p. 62.) Like the trial court in this case, the trial court in Govea ultimately found the defendant competent and appointed new counsel. Given that the "trial court gave defendant everything he sought," the Court of Appeal concluded, the trial court's delay in conducting a Marsden hearing did not prejudice the defendant. (Govea, at p. 62.) We reach the same conclusion here.

B. Jury Selection Issues

1. Constitutionality of Death Qualification Process

Defendant contends that California's procedure for selecting jurors in capital cases violates his rights under the federal and state Constitutions. As explained below, many of defendant's contentions are similar to those we have previously rejected, and we find no grounds for revisiting our prior holdings. As to those assertions we have not previously addressed, none casts doubt on the constitutionality of California's death qualification process.

Under the due process clause of both the federal and state Constitutions, a capital defendant is entitled to an impartial jury at the guilt and penalty phases of trial. (People v. Martinez (2009) 47 Cal.4th 399, 425; People v. Blair (2005) 36 Cal.4th 686, 741.) "To achieve the constitutional imperative of impartiality, the law permits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment `would " prevent or substantially impair the performance of his [or her] duties as a juror" ' in accordance with the court's instructions and the juror's oath. [Citations.]" (Blair, supra, at p. 741.) "Death qualification" in a capital case is thus an inquiry into whether the prospective juror's views and attitudes would interfere with his or her ability to " ` "faithfully and impartially apply the law in the case." ' " (People v. Abilez (2007) 41 Cal.4th 472, 498.)

As defendant acknowledges, both this court and the United States Supreme Court have concluded that death qualification and the removal of prospective jurors who would automatically vote for death or for life do not violate the constitutional right to an impartial jury. (See People v. Ashmus (1991) 54 Cal.3d 932, 956-957; Lockhart v. McCree (1986) 476 U.S. 162, 176-177.) Defendant contends, however, that current empirical studies conclusively establish that death qualification results in a jury that is more prone to convict and to vote for death, thus undermining the reasoning of those prior decisions. We have previously considered the studies defendant cites and found them inadequate to warrant disturbing our precedent. (People v. Lenart (2004) 32 Cal.4th 1107, 1120; People v. Jackson (1996) 13 Cal.4th 1164, 1198-1199; see also Lockhart v. McCree, supra, 476 U.S. at p. 173 [assuming for purposes of the opinion that empirical studies adequately establish death qualification produces more conviction-prone juries, but upholding the constitutionality of death qualification nonetheless].) We reach the same conclusion here.

We also follow our prior decisions in rejecting defendant's contention that death qualification violates his right to a jury selected from a representative cross-section of the community. (People v. Avena (1996) 13 Cal.4th 394, 412; see also Lockhart v. McCree, supra, 476 U.S. at pp. 173-177.) And we reject defendant's further assertion that death qualification violates his right to a representative jury because empirical studies show that the process results in a disproportionate number of ethnic minorities, women, and religious individuals being removed from capital juries. As the high court explained in rejecting a defendant's claim of an unrepresentative jury, unlike the impermissible removal of ethnic minorities or women from jury service, " `[d]eath qualification' . . . is carefully designed to serve the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial. There is very little danger . . . that `death qualification' was instituted as a means for the State to arbitrarily skew the composition of capital-case juries." (Lockhart v. McCree, supra, at pp. 175-176, fn. omitted.)

None of defendant's remaining challenges to the death qualification process requires extended discussion. Contrary to defendant's assertion, the prosecution did not violate his constitutional rights by using peremptory challenges against "death qualified" prospective jurors who had expressed skepticism about the death penalty. (People v. Avila (2006) 38 Cal.4th 491, 557-559; People v. Pride (1992) 3 Cal.4th 195, 230.) Nor does death qualification provide prosecutors an impermissible advantage by obtaining conviction-prone juries. (See Lockhart v. McCree, supra, 476 U.S. at pp. 175-176 [finding it unlikely that death qualification skews the composition of capital juries in the state's favor].) Defendant's Eighth Amendment challenge to death qualification is in essence a restatement of his claims under other constitutional provisions, which, as in People v. Johnson (1992) 3 Cal.4th 1183, 1212- 1213, we find lacking in merit. We likewise find flawed the premise underlying defendant's assertion that death qualification, by eliminating the segment of the community that opposes the death penalty, skews the data courts typically rely on to determine "evolving standards of decency" for Eighth Amendment purposes. Through the death qualification process, individuals may be excused not only for their unyielding opposition to capital punishment but also for their intractable support of it. (People v. Lewis (2008) 43 Cal.4th 415, 482; People v. Blair, supra, 36 Cal.4th at p. 741.) We reject defendant's contention that death qualification is irrational because it disqualifies individuals based on their moral beliefs when the penalty phase determination is " `inherently moral and normative.' " (People v. Prieto (2003) 30 Cal.4th 226, 263, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 779.) Disqualified jurors are properly excused for cause, not on the basis of their personal, moral beliefs regarding the death penalty, but because of their inability to "temporarily set aside their own beliefs in deference to the rule of law." (Lockhart v. McCree, supra, 476 U.S. at p. 176; see People v. Stewart (2004) 33 Cal.4th 425, 446 [a juror's personal opposition to the death penalty is not a permissible basis for excluding him from a capital case jury].)

2. Constitutionality of Code of Civil Procedure section 223

In several pretrial motions pertaining to jury selection, defense counsel requested that the attorneys, in addition to the court, conduct sequestered voir dire. The trial court denied the motions, noting that "[v]oir dire is to be done by the judge unless the court does find good cause," and concluding that counsel had not shown good cause. The voters enacted Code of Civil Procedure section 223 (section 223) in 1990 by passing Proposition 115. (As added by Prop. 115, § 7, approved by electorate, eff. June 6, 1990.) When first enacted, the statute abrogated the former rule requiring individual, sequestered voir dire in capital cases (People v. Waidla (2000) 22 Cal.4th 690, 713), and allowed attorney-conducted voir dire only on a showing of good cause.*fn5 Defendant contends that the version of section 223 in effect at the time of his trial violated the equal protection clauses of the federal and state Constitutions because it placed voir dire in criminal cases in the trial courts' hands while Code of Civil Procedure section 222.5 authorized attorneys for civil litigants to question prospective jurors without having to make a good cause showing.*fn6

As defendant acknowledges, we have previously rejected the same equal protection challenge to section 223. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 613; People v. Ramos (2004) 34 Cal.4th 494, 511- 513.) We decline to revisit the issue here. (People v. Ramos, supra, at p. 512 [strict scrutiny is inapplicable because the right to voir dire is not based on the Constitution; differences in voir dire procedures are reasonably related to the former statute's legitimate purpose of curbing jury selection abuses in criminal cases].)*fn7

3. Manner of Conducting Voir Dire

As previously noted, the trial court impaneled two juries in this case. The first convicted defendant as charged and found true the three special circumstance allegations, but deadlocked on penalty. The second, which the trial court impaneled for retrial of the penalty phase, returned a verdict of death. Below, we address defendant's claims regarding the first jury's selection. In a later section (see post, pt. II.D.2.), we will consider defendant's challenge to selection of the jury that decided penalty.

a. Denial of Motion For Individual Sequestered Voir Dire

Defense counsel filed several pretrial motions concerning the voir dire of prospective jurors. In one, counsel asked that voir dire be done either individually and sequestered or in small groups of 15 to 20 prospective jurors. Counsel argued that individual voir dire was necessary to probe the strong biases the circumstances of the case - a young African-American man accused of committing sexual assaults that caused the death of an elderly White woman - were likely to evoke. After hearing, the trial court denied defendant's request, finding no need to deviate from its customary practice of questioning prospective jurors in open court. The trial court rejected the argument that jury selection done in a large group is tainted by an inherent herd instinct, in which potential jurors feel pressured to answer questions about their biases neutrally, rather than truthfully. In the trial court's view, "[a]ttitudes within the community are fairly fixed" on the subject of the death penalty and "if people are against it, they say so and if they aren't[,] they say so." The trial court also noted that potential jurors would have several days to complete a questionnaire in which they could privately express their feelings about the death penalty, and would be questioned based on their written responses. The trial court also indicated that although it planned to conduct the group voir dire itself, it would allow the attorneys to ask questions directly in the event a prospective juror wanted to be questioned in chambers, outside the presence of other jurors.

Defendant contends the trial court violated his constitutional rights by refusing to conduct individual, sequestered voir dire. Initially, we disagree with respondent's assertion that defendant has forfeited his claim because he did not challenge any juror for cause or exercise all of his peremptory challenges at trial. A defendant's failure to raise a for-cause challenge or to exhaust all peremptory challenges is relevant to the question whether he has preserved a claim on appeal that members of his jury were unacceptable to him. (People v. Hoyos (2007) 41 Cal.4th 872, 904; People v. Hart, supra, 20 Cal.4th at p. 589.) But a defendant who has made a timely objection to group voir dire and proposed that the trial court question prospective jurors individually has done all that is necessary. (People v. Ramos, supra, 34 Cal.4th at p. 513, fn. 6.) Thus, defendant's claim that the trial court erred in refusing his request is properly before us.

However, the claim fails on the merits. As we have repeatedly observed, there is no federal constitutional requirement that a trial court conduct individualized, sequestered voir dire in a capital case. (People v. Lewis, supra, 43 Cal.4th at p. 494; People v. Ramos, supra, 34 Cal.4th at pp. 511-513.) Nor did the trial court's denial of the motion for individual, sequestered voir dire violate any of defendant's rights under the state Constitution or state law. (People v. Lewis, supra, 43 Cal.4th at p. 494; People v. Waidla, supra, 22 Cal.4th at pp. 713-714 [denial of motion for individual, sequestered voir dire reviewed for abuse of discretion].) Section 223 provides in relevant part that "[v]oir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors." Group voir dire may be "impracticable" when it has resulted in "actual, rather than merely potential, bias." (People v. Vieira (2005) 35 Cal.4th 264, 288.) Here, however, defendant does not suggest that either the trial court's comments or the responses of other prospective jurors to the trial court's questioning influenced any prospective juror, and we find nothing in the record to indicate that group voir dire resulted in actual bias. (Cf. People v. Lewis, supra, at pp. ...


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